The opinion of the court was delivered by: CURTIN
Both of these actions, consolidated by an order dated December 24, 1974, concern the same subject matter -- the parole of Albert M. Billiteri. Billiteri was sentenced to a term of five years in 1972 by the late Chief Judge John O. Henderson after entering a guilty plea to a violation of the general conspiracy statute. 18 U.S.C. § 371. After completion of one-third of his term, Billiteri became eligible for parole and was afforded an initial parole hearing in February of 1974. Parole was denied and after administrative remedies were exhausted, Civ-74-365 was commenced.
In that case, it was clear that the parole release determination made by the United States Board of Parole (hereinafter Board) was based on erroneous information regarding Billiteri's conviction. Because the error went to the heart of the Board's stated reasons for denying parole, the proceeding was deemed arbitrary and capricious. In a decision and order dated November 26, 1974, I directed that Billiteri be afforded a reconsideration by the Board within thirty days or be released on parole. Billiteri v. United States Board of Parole, 385 F. Supp. 1217 (WDNY, 1974).
On December 11, 1974, Billiteri appeared with counsel before an examiner panel of the Board at Lewisburg Federal Correctional Institution. At that hearing numerous topics relevant to the subject of parole were discussed. Although the transcript of the examiner panel hearing is very poor in quality, an apparent effort to address the subjects alluded to in the order of November 26, 1974, is manifest.
The examiner panel, however, did not apprise Billiteri of its conclusions because an original jurisdiction/organized crime (hereinafter oj/oc) designation had had a part in the prior parole release determination. As a result, Billiteri was informed that the matter would have to be referred to the Regional Board of Parole as an original jurisdiction case (see Exhibit A annexed to the Government's answer of January 16, 1975). The panel did tell Billiteri and his lawyer that they would forward a tentative decision to the Regional Board which would become effective should the Regional Board decide to discontinue Billiteri's case as one of original jurisdiction.
As Christmas Day approached no further word was communicated to Billiteri or his lawyer regarding the actions of the Board. The court's order of November 26, 1974, however, mandated the release of Billiteri on parole if the Board failed to reconsider his application within thirty days. Counsel for Billiteri, having concluded that the Board's failure to reach and communicate a decision within the thirty days violated the court's decree, filed an order to show cause in Civ-74-365 praying for Billiteri's release. At the same time a new proceeding was commenced, Civ-74-580, challenging the oj/oc designation. The actions were consolidated and the return was scheduled for January 6, 1975.
On the date of the return the United States Attorney, representing the Board, requested an adjournment of ten days. The Government contended that the intervening Christmas and New Year's Day holidays had hindered the collection of information necessary to form a rational response. Furthermore, the Government informed the court that the Regional Board of Parole was scheduled to meet in Kansas City, Missouri, on January 13, 1975, to consider Billiteri's case. Therefore, in an order dated January 6th, a ten-day extension was granted, with instructions to the Government to begin compiling the information necessary to make a substantial return on January 16, 1975.
In light of the information regarding the prospective hearing, counsel for Billiteri requested leave to appear before the Regional Board of Parole at their meeting scheduled for January 13, 1975. In a letter dated January 8, 1975, leave to appear was denied by the Board. Billiteri was also not scheduled to be present.
On January 13th the Regional Board met as scheduled and denied Billiteri's application for release. The affidavit of Curtis Crawford, the Regional Director of the Northeast Region of the United States Board of Parole, together with the transmittal notice of decision dated January 15, 1975 (both making up Exhibit B of the Government's answer of January 16, 1975) outlined the basis of the decision to continue Billiteri to the expiration of his five year term.
At the Regional Board's meeting it was decided that Billiteri's application "would first be considered without reference to the allegations of organized crime association in records. It was further agreed that if the decision was to continue the case to expiration without consideration of the organized crime allegations, the Board members would not reach the issue of organized crime involvement . . . ." (Exhibit B, at page 2.) The Board assigned Billiteri a salient factor score. Salient factors include educational history, family history, criminal history, release plans, etc. Billiteri's score of 8 was on the high end of "good." Billiteri's offense behavior was classified as very high severity. Although the crime of conspiracy is itself not listed among the categories of offense behavior, the Board reasoned that "because the offense behavior as described in the presentence report most nearly resembled the offense of extortion, which is in the very high severity category . . ." that is where Billiteri belonged.
The Board's guidelines indicated a range of 36 to 45 months to be served for a person with a salient factor score of eight and an offense behavior in the very high severity category. With thirty months of incarceration behind him, Billiteri was below even the minimal guideline release date. Therefore, the Board's final decision was to continue Billiteri to the expiration of his term.
The question which this court must resolve is whether this reconsideration by the Regional Board satisfied the mandates of the order of November 26, 1974.
Clearly, the court's order of November 26, 1974, emphasized the need for reasoned approaches in parole release determinations. This court refused at that time to substitute its own judgment for that of the Board. It was desirable to allow further administrative consideration in light of a previous error. What emerges from the reconsideration, however, is in many respects worse than that which came before.
The precise manner in which the Board could reconsider the application was left to them. Commendably, they began at the beginning with an examiner panel hearing on December 11, 1974. But the transcript of that hearing is almost valueless (Exhibit A annexed to the Government's answer of January 16, 1975). The only bits of information discernable are scattered references to the subjects discussed at that hearing.
The examiner panel recommended a decision, but the basis of their determination is unknown because their report and decision was not submitted to the court. The panel's decision, however, was obviated when Billiteri's case remained one of oj/oc pursuant to the directive of the Regional Director dated December 18, 1974 (Exhibit C annexed to the Government's answer of January 16, 1975). In addition, there is no indication that the Regional Board placed any reliance on ...