Appeal from an order of the United States District Court, Southern District of New York, Marvin E. Frankel, Judge, dated November 14, 1975, granting a federal prisoner's petition for a writ of habeas corpus on the ground that the mandatory release revocation hearing deprived appellee of due process. See 403 F. Supp. 747. Held: the revocation hearing failed to comply with minimum due process requirements in that (1) proper notice was not afforded the parolee, and (2) disclosure of the evidence employed against him was improperly denied.
Smith, Mansfield and Van Graafeiland, Circuit Judges.
MANSFIELD, Circuit Judge:
On May 18, 1972, appellee Birchel Leonard Carson was convicted in the United States District Court for the Southern District of New York of interstate transportation of forged securities in violation of 18 U.S.C. §§ 371 & 2314. On June 16, 1972, he was sentenced to a prison term of five years. On January 30, 1975, he was released pursuant to a Certificate of Mandatory Release, 18 U.S.C. § 4164, which obligated him to remain under supervision as if under parole until the expiration of his term less 180 days.
On July 2, 1975, the United States Board of Parole sought a parole violation warrant for Carson on two grounds: (1) that he had failed to submit his supervision report for May, 1975, and (2) that he had failed to report a change of address. The next day he was arrested in Biloxi, Mississippi, and on July 15 he was afforded a preliminary hearing before Chief Probation Officer Gerald W. Brown at Gulfport, Mississippi. Carson then was moved to the New York Metropolitan Correctional Center, where he arrived on August 15. His parole revocation hearing was held on September 24, 1975.
The two charges against Carson of which he had notice prior to the hearing were detailed in a letter from his parole officer, Roger H. Berger, who originally had applied for the violator warrant and who appeared to testify at the proceedings. Carson, who was represented by counsel, denied both charges contained in the warrant. He claimed to have sent Berger a letter dated May 29, 1975, which amounted to a supervision report and a report of his address change. The usual supervision report form apparently had not reached Carson because it had been mailed to him under a different name. At the hearing Carson produced a photocopy of the letter which he testified that he had sent as his supervision report to Berger at the end of May. He also testified that he had attempted to telephone Berger and to leave messages concerning his whereabouts. Berger denied having received either the letter or the telephone messages. Moreover, responding to questions, Carson admitted that, in visiting Biloxi and Canada on an earlier trip, he had traveled outside his parole district without receiving specific permission from his parole officer. He acknowledged, however, that on other occasions when he left the Southern District of New York he had always obtained specific permission, either written or oral, before departing. Berger testified, on the other hand, that he had not given Carson blanket permission to travel outside the district but that, on the contrary, he had advised Carson that he must stay within a 75-mile radius of New York City unless he received written permission from the Parole Board to go beyond this radius. Carson, in turn, conceded that he had received specific written permission for all trips outside the district except those to Canada and Mississippi.
The hearing then passed to consideration of Carson's activities apart from the specific violations charged in the warrant and his admitted travels outside the parole district. Information favorable to Carson concerning his attempt to earn a living by booking bands and operating a discotheque was elicited and corroborated. However, Berger also testified concerning various allegations contained in documents in Carson's parole file suggesting that he may have committed other offenses or engaged in undesirable conduct while on parole. The documents were never shown to Carson who had to rely upon Berger's summaries in fashioning his responses.
After a short conference following the hearing, the examiners orally announced that Carson's mandatory release had been revoked. They specified three specific violations as grounds for their decision: (1) Carson had failed to submit the proper supervisory report; (2) he had failed to report a change of his address; and (3) he admitted having departed the jurisdiction without permission. The examiners, furthermore, decided to confine Carson for the expiration of his term because
"we feel your release at this time would depreciate the seriousness of your mandatory release and promote disrespect for the mandatory release process and we do not think that there is a reasonable probability at this time that you would [conform to the] conditions of your mandatory release."
After the hearing, Carson renewed his petition for a writ of habeas corpus.*fn1 On November 14, 1975, the United States District Court, Southern District of New York, Marvin E. Frankel, Judge, granted the writ. See 403 F. Supp. 747. Holding that Carson had been denied due process, Judge Frankel based his decision on (1) the three-month delay between the date of Carson's arrest in Biloxi and his hearing date, which was deemed excessive; (2) the hearing examiner's reliance upon undisclosed information; (3) the rambling disorderliness of the hearing; and (4) the inadequacy of the statement of reasons supporting revocation. We affirm the grant of the writ of habeas corpus. However, in doing so we find it unnecessary to pass on grounds (1) and (3) asserted by Judge Frankel. Nor does our holding imply that we necessarily share his characterizations of the Parole Board's conduct in this case.
As with most procedural due process question, a tension permeates parole revocation procedure. On the one hand, there is the disinclination to convert the revocation hearing into a full-blown adversarial process, equipped with the totality of formal rights and procedures associated with a criminal trial. On the other, there is the necessity of channelling the Parole Board's discretion in a responsible fashion, so that the decision, which is of prime importance to the parolee's life and liberty, is not tainted by unfairness or carelessness.
In Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), the Supreme Court attempted to strike a balance between these divergent interests, the one institutional and the other individual. Beginning "with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations," id. at 480, the Court nonetheless proceeded to recognize that revocation of parole inflicts a "'grievous loss' on the parolee" and therefore the proceeding "calls for some orderly process . . .," id. at 482. This principle has since been applied in a variety of similar contexts. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973); Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975).
In enunciating minimum requirements of due process for parole revocation proceedings, the Morrissey Court did not embrace the full trappings of ...