June 8, 1989
THE UNITED STATES, APPELLEE
JOSEPH F. ROSA, WILLIAM A. KOSTRICK, MARTIN R. ANTONELLI, DANIEL J. CAMPBELL, PAUL F. CONNELLY, JR., WILLIAM ANTHONY DADAMO "MACHINE GUN TONY", VIVIAN DAVIS, JORGE DIAZ, WILLIAM EDGAR GATES "BUTCH", DONNA MARIE GEORGE, SUSAN FRANCIS GEORGE, RAYMOND G. ILY, GARY FRANCIS JONES "SPANKY", LARRY H. LINN, JAMES LUKETIC "LUKEY", VICTOR E. MARCHITELLO, RICHARD WAYNE NAUGLE, MARK D. NICKLOW, ROBERT WILLIAM NOBLE, TIMOTHY O'CONNER, PERRY C. PERRINO, RONALD R. PLISCO "SAM CATALANO", "FAT SAM", CHARLES H. READEL, RICHARD RESHENBERG, DINO ROMANO, WILLIAM DUANE SMITH, RICHARD A. STEFANIK "WRINKLE", DIANIA LYNN GEORGE WERTZ "DEE DEE WERTZ", MARK NICKLOW, APPELLANT
On Appeal from the United States District Court for the Western District of Pennsylvania D.C. Crim. No. 88-66.
Becker, Stapleton and Garth, Circuit Judges.
Two issues are presented in this appeal, and each can be disposed of with relatively little discussion. The first is whether the district court for purposes of sentencing was required to resolve factual differences between Nicklow's and the government's versions of the offense. The second is whether Nicklow is entitled to Jencks Act (18 U.S.C. § 3500) material at the time of sentencing even where no witnesses were called by the government to testify.
Appellant Mark Nicklow, a former police officer for the Borough of North Versailles was one of 28 people indicted in a 113 count indictment relating to narcotics, firearms and tax fraud. Nicklow eventually pled guilty to one count of violating 21 U.S.C. 841(a)(1) (distribution of cocaine) and one count of 26 U.S.C. § 7206(1) (filing a false federal income tax return). On October 19, 1988, Nicklow was sentenced to a term of ten years of imprisonment followed by a special parole term of five years.
At his sentencing hearing two different versions of the underlying events were presented. The government claimed that Nicklow had frequently engaged in conduct which endangered the safety of his fellow officers in that he had provided his co-conspirators with law enforcement information. The pre-sentence report alleged that Nicklow had disclosed information that led, or could have led, to the disclosure of the identity of undercover members of other law enforcement organizations and suggested that Nicklow's conduct was life threatening to other narcotics officers.
On the other hand, Nicklow filed a statement denying that he had ever endangered any of his fellow officers through his involvement with the conspiracy. He maintained that he had only obtained information as to motor vehicle ownership for his co-conspirators and that he had bought cocaine, not for profit, but as a favor for his close friends. The statement that he filed denied each of the following:
1. That the defendant herein gave information entrusted to him in his capacity as a police officer to individuals involved in a conspiracy alleged in the captioned action;
2. That the defendant was a serious gambler and/or associated with numbers writers in the Pittsburgh area;
3. That the defendant spent a significant amount of time at the Wall Hotel in the company of Robert George or other persons involved in the conspiracy;
4. That the defendant ever knowingly gave any information obtained by using the NCIC computer located at the North Versailles Township Police Department to any individual involved in the conspiracy which reflected in any way that the information contained therein pertained to any law enforcement officer of any state or federal agency, or in fact ever supplied information to any person which actually disclosed the fact that any information obtained through use of the NCIC computer reflected that any vehicle was registered or being used by any law enforcement officer who was a member of any state or federal law enforcement agency; or,
5. That the defendant at any time disclosed the identity, existence, or participation of any law enforcement officer employed by any state or federal agency to any member of the ...
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