Appeal by the United States Board of Parole (now the United States Parole Commission) from an order of the United States District Court for the Western District of New York, John T. Curtin, Ch.J., directing the Parole Board forthwith to release on parole plaintiff-appellee, Albert M. Billiteri, a prisoner at the Federal Penitentiary at Lewisberg, Pennsylvania, because the Board had failed to comply with certain prior directions and instructions of the district court in holding a second parole hearing, which the court had ordered. Reversed and order vacated.
Anderson and Meskill, Circuit Judges, and Owen, District Judge.*fn*
Following his plea of guilty to one count of conspiring, in violation of 18 U.S.C. § 371, to make extortionate extensions of credit (proscribed by 18 U.S.C. § 892) and to use extortionate means to collect extensions of credit (proscribed by 18 U.S.C. § 894) Albert M. Billiteri was sentenced on July 5, 1972 to five years imprisonment and fined $10,000, which was the maximum penalty authorized by 18 U.S.C. § 371. In conjunction with Billiteri's guilty plea the four substantive counts under 18 U.S.C. §§ 892 and 894, for which he had also been indicted, were dismissed on the Government's motion.
Billiteri, who was serving his sentence at the United States Penitentiary at Lewisburg, Pennsylvania, became eligible for parole on March 3, 1974, when he had completed one-third of his sentence. 18 U.S.C. § 4202.*fn1 Following an initial parole hearing in February, 1974, the United States Board of Parole*fn2 issued an order on March 11, 1974, denying Billiteri parole and providing that his confinement be "continue[d] to expiration." The reason given by the Board for its decision was:
"Your release at this time would depreciate the seriousness of the offense committed and is thus incompatible with the welfare of society."
After unsuccessfully pursuing administrative appeals, Billiteri commenced an action in the United States District Court for the Western District of New York on July 29, 1974, alleging that the Parole Board had failed to give an adequate reason for denying him parole and that, on this and other grounds, its decision constituted a denial of due process and other constitutional rights. Billiteri asked the court to order the Board to release him on parole or to afford him a new hearing in accordance with due process safeguards. The Board submitted to the district court the affidavit of a senior analyst on the Board's staff, which set forth the reasons for the denial of parole as the "very high severity" of Billiteri's offense behavior and the "salient factor score" given to him under applicable Parole Board guidelines*fn3 that indicated "a range of 36-45 months to be served before release . . . ." The affidavit erroneously stated, however, that Billiteri had been convicted of "Conspiracy and Extortionate Extension of Credit" (emphasis supplied); when in fact, as the result of a plea bargain, he plead guilty to and was convicted only of conspiracy to make extortionate extensions of credit.
In view of this basic error the district court concluded that the Board's action constituted an abuse of discretion, because it was arbitrary and capricious and therefore violated Billiteri's right to due process. The court ordered that Billiteri be discharged from federal custody unless the Board reconsidered his application for parole within thirty days, and also gave him an explanation of the "essential facts upon which the Board's inferences are based," as required by this court's decision in United States ex rel. Johnson v. Chairman, N.Y. State Bd. of Parole, 500 F.2d 925 (2 Cir.), vacated as moot sub nom., Regan v. Johnson, 419 U.S. 1015, 42 L. Ed. 2d 289, 95 S. Ct. 488 (1974); Billiteri v. United States Board of Parole, 385 F. Supp. 1217, 1219-20 (W.D.N.Y. 1974) (Billiteri I).
In compliance with the district court's order of November 26, 1974, a second hearing was held on December 11, 1974 by an examiner panel of the Parole Board, and both Billiteri and his counsel were present. During the hearing they were informed that, because of Billiteri's involvement with organized crime, his case together with the panel's tentative decision (which would take effect in the event the Regional Director of the Board's Northeast Region declined to accept Billiteri's case) would again be referred to the Regional Director for possible further proceedings on an "original jurisdiction" "organized crime" basis (that is, "an oj/oc referral"), pursuant to 28 C.F.R. § 2.17. Billiteri's panel, therefore, transmitted to the Northeast Regional Director a summary of the second hearing and its tentative decision, not disclosed to Billiteri, to continue his incarceration until his mandatory release date on November 6, 1975.*fn4 The Director did, however, decide to take the case. At their quarterly meeting at Kansas City on January 13, 1975, all five Regional Directors considered and denied Billiteri's application for parole. Neither Billiteri nor his attorney was present at this meeting. The Regional Directors gave the following explanation for their decision:
"Your offense behavior has been rated as very high severity. You have a salient factor score of 8. You have been in custody a total of 30 months. Guidelines established by the Board for Adult cases which consider the above factors indicate a range of 36-45 months to be served before release for cases with good institutional program performance and adjustment. After careful consideration of all relevant factors and information presented, it is found that a decision below the guidelines at this consideration is not warranted. Your offense behavior is rated very high because it involved extortion which is in the very high severity category of the Board's guidelines."
The Directors also said that although Billiteri's file contained information alleging his involvement with organized crime, this information had not been considered in determining whether to grant parole, because the other facts of his case independently warranted denial.*fn5
Prior to the January 13 meeting of the Regional Directors, Billiteri obtained an order to show cause why he should not be discharged from federal custody on the ground that the Parole Board had failed to "reconsider" his application for parole within thirty days, as required by the district court's November 26, 1974, order. He also filed a new action alleging that the procedures used by the Parole Board in designating his case "original jurisdiction," without providing him an opportunity to contest that classification, violated due process and other constitutional protections. The district court consolidated the two actions and granted the Government a delay of ten days so that its response could be deferred until after the meeting of the Regional Directors.
On January 16, 1975 the Government filed its answer, together with additional materials including a somewhat fragmented transcript of the December 11, 1974 panel hearing and affidavits of the Northeast Regional Director and the Board's senior analyst. On April 4, 1975, the district court ruled that the action taken by the Regional Directors on January 13, 1975 did not satisfy the mandates of the court's order of November 26, 1974. Billiteri v. United States Bd. of Parole, 391 F. Supp. 260, 262 (W.D.N.Y. 1975). This opinion by the district court is referred to as Billiteri II. In it the court was primarily reviewing the holding of the Regional Board, and found that the Board's reconsideration and determination were faulty because: (1) Billiteri's counsel was not allowed to appear at its deliberations; (2) neither Billiteri nor his counsel was allowed to see either the 1972 presentence report on Billiteri or the examiner panel's report "concerning his placement in the offense behavior guidelines"; (3) the Board's decision rested in part upon the presentence report's indication that Billiteri was connected with organized crime; and (4) the examiner panel had alleged such connection by its action in forwarding Billiteri's case to the Regional Director and it appeared from the affidavit of the Regional Director that "a prisoner such as Albert Billiteri is appropriately designated for an original jurisdiction consideration by virtue of the mere allegation of organized crime involvement even though that allegation may never be proved or relied upon by the Board in its decision making." It further found on the basis of the Regional Director's affidavit that the recommended decision of the examiner panel of the Parole Board, following its hearing on December 11, 1974, at which Billiteri and his counsel appeared, was completely disregarded by the Regional Board.
The district court concluded that, even though in Billiteri I it had set aside the ruling of the Parole Board because it had proceeded on the assumption that Billiteri had been convicted of conspiracy and extortion, the Board had, in effect, continued to treat Billiteri as if he had been convicted of both offenses when it concluded that his crime "most nearly resembled the offense of extortion,"*fn6 and gave him a very high severity rating on the basis of information contained in his 1972 presentence report concerning his participation and general behavior in connection with the conspiracy to which he pleaded guilty.
The district court noted that the Board had already had a second opportunity to show adequate reasons for denying parole and had failed to do so, and it, therefore, ordered that a supplemental hearing be held on April 22, 1975 "for the purpose of taking testimony on the issues of the organized crime connections of the plaintiff Albert M. Billiteri and the appropriateness of the placement of ...