United States v. Fatico

OAKES, Circuit Judge: This is an unusual interlocutory appeal by the United States from a unique order excluding evidence sought to be introduced at a sentencing hearing. The evidence, which revealed that the convicted defendants were connected to organized crime, was to be presented principally by an FBI agent's testimony. The offer was made that he would testify that a reliable but confidential informant who is a member of the Carlo Gambino crime family told the agent that the defendants are members of that family. The testimony was excluded by the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, as hearsay involving Due Process and Confrontation Clause limitations. United States v. Fatico, 441 F. Supp. 1285 (E.D.N.Y. 1977). Our jurisdiction is invoked under 18 U.S.C. § 3731. We reverse, holding that the case is appealable and that neither the Confrontation nor the Due Process Clause is violated by use in sentencing of information supplied by an unidentified informant where there is good cause for not disclosing his identity, and the information he furnishes is subject to corroboration by other means.