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BILLITERI v. UNITED STATES BD. OF PAROLE

September 17, 1975

Albert M. BILLITERI, Plaintiff,
v.
UNITED STATES BOARD OF PAROLE et al., Defendants. Albert M. BILLITERI, Plaintiff, v. UNITED STATES BOARD OF PAROLE, Defendant



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 These actions were consolidated. They concern the parole of Albert M. Billiteri, who was fined and 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.

 In March of 1974 the United States Board of Parole issued an order which denied parole and provided that Billiteri remain incarcerated until the expiration of his five-year term. The reason cited for the Board's decision was:

 
Your release at this time would depreciate the seriousness of the offense committed and is thus incompatible with the welfare of society.

 Following administrative appeals, Billiteri sought relief from this court. In Billiteri v. United States Board of Parole, 385 F. Supp. 1217 (W.D.N.Y.1974) [hereinafter "Billiteri I"], this court remanded the question of Billiteri's parole release to the Board for reconsideration. The record in Billiteri I revealed that the Board had proceeded on the assumption that Billiteri had been convicted of both conspiracy and extortion. Billiteri's conviction, in fact, was for conspiracy only. The placement of the wrong offense in the Board's parole guidelines, however, determined the outcome. Therefore, the Board's stated reason for denying parole, to wit, the seriousness of the offense committed, was deemed clearly erroneous. The court also criticized the boilerplate language the Board used to deny the plaintiff parole which failed to state the facts upon which the conclusion was based. In Billiteri I, the court acknowledged the commendable effort of the Board in establishing parole determination guidelines (28 C.F.R. § 2.1 et seq.). Billiteri's offense severity was not specified, however, so the Board was directed to also reconsider the placement of Billiteri's "offense behavior" in the guidelines and was directed to complete the reconsideration within thirty days.

 At the expiration of the thirty-day period, an order issued directing the Board to show cause why Billiteri should not be released because the Board failed to comply with the requirements of the order in Billiteri I. In addition, a new action was simultaneously commenced which alleged that Billiteri's organized crime connections had played a substantial part in denial of his parole. *fn1" The two cases were considered together and an initial return date was scheduled. On the date of the return, the government submitted affidavits and other documents indicating that the Board was attempting to substantially comply with the court's order. The court thereafter directed that the government make a full and complete return within ten days, the additional period designed to permit the Board to complete its reconsideration. On January 16, 1975 the government submitted affidavits and records regarding the Board's January 13, 1975 determination to continue Billiteri to the expiration of his term, to wit, sustaining the prior determination.

 From the government's return, it became apparent that the question of Billiteri's organized crime connections had in fact played a significant role in the procedures followed by the Board in conducting the redetermination. *fn2" Furthermore, the placement of Billiteri's offense behavior in the Parole Board's guidelines (28 C.F.R. § 2.20) had not received attention consistent with the remand decision in Billiteri I. [For a complete discussion of the reconsideration afforded Billiteri by the Board, see this court's decision in Billiteri v. United States Board of Parole, 391 F. Supp. 260 (W.D.N.Y.1975), hereinafter "Billiteri II".]

 As a consequence, the court declined to remand Billiteri's parole problem to the Board for yet another reconsideration. Instead, a hearing was scheduled before the court for the specific purpose of taking testimony on the question of Billiteri's offense behavior, and on the question of Billiteri's organized crime connections. That hearing was held on April 30, 1975 and the parties have submitted numerous memoranda relative thereto.

 Before discussing the hearing conducted before this court, it is necessary to discuss a question raised by the government for the first time in a supplemental post-hearing memorandum filed June 9, 1975. The government alleges that Billiteri failed to exhaust the available administrative remedies following the Board's determination of January 13, 1975. This argument must be rejected.

 The Board's decision of January 13, 1975 was occasioned by the order of this court in Billiteri I, after the government had asked for and received additional time to report to this court on the reconsideration ordered in Billiteri I. On January 16, 1975, when the government first submitted the results of the reconsideration to the court, the issue of exhaustion of administrative remedies was neither argued nor raised. On April 4, 1975, when the decision in Billiteri II to hold a hearing in federal court was filed, the government did not appeal. The exhaustion of remedies question was not raised on April 28, 1975, in the government's pre-hearing memorandum, in the government's closing arguments on the day of the hearing, or in the government's initial memorandum following the hearing submitted May 19, 1975.

 It is clear that the decision in Billiteri II manifested a finding that further reference of Billiteri's case to the Board would be inequitable. Initially the Board had overstepped the time frame within which this court had ordered a reconsideration to take place. Secondly, the court specifically found that the question of the placement of Billiteri's offense behavior was not dealt with in a manner consistent with the court's direction. Thirdly, the element of the organized crime designation and the original jurisdiction treatment had been abruptly injected into the case, surprising the plaintiff. Furthermore, there is no procedure which an inmate can institute within the administrative process for review of an organized crime/original jurisdiction designation. This is particularly true for Billiteri because the Board persistently maintained that the organized crime/original jurisdiction designation played no part in the proceedings, although Billiteri II found to the contrary.

 It is, therefore, apparent that Billiteri has exhausted the available administrative procedural processes at least once on the question of offense behavior. In addition, resort to administrative processes for the purposes of the organized crime designation appears to be futile.

 A separate and distinct basis, however, for rejecting the government's argument lies in the inherent power of a federal court to see its orders enforced. Once having found in Billiteri II that the Board's reconsideration failed to comport with the directions contained in Billiteri I, this court could have directed the immediate parole of Billiteri. Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975). It was the court's judgment, however, that a hearing in open court would further the interests of the ...


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