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June 10, 1985


The opinion of the court was delivered by: SOFAER



Philip Rastelli, who is currently incarcerated in the Metropolitan Correctional Center ("MCC") pursuant to the revocation of his mandatory release on parole, petitions for a writ of habeas corpus. Rastelli's parole was revoked because the United States Parole Commission ("Commission") found that he had associated with persons who had a criminal record in violation of an express condition of his mandatory release. Petitioner challenges this decision on several grounds. He claims that he did not in fact "associate" with persons with criminal records; that the "association" condition is unconstitutionally vague; that the Commission's findings and decisions were not based on sufficient evidence; and that its findings and decisions were arbitrary, capricious, and an abuse of discretion.

 Respondents originally moved to dismiss the petition for failure to exhaust administrative remedies. At the time of that motion, petitioner had an appeal pending to the full Commission pursuant to 28 C.F.R. § 2.27 (1984), which applies to cases which have been designed as "original jurisdiction" cases under 28 C.F.R. § 2.17 (1984). Petitioner argued, however, that because the Commission would not be able to hear and decide his appeal within sixty days, as required by 18 U.S.C. § 4215(b) (1982), he was not required to follow the procedures set out in the Commission's regulations prior to seeking judicial relief. On April 3, 1985, this court ordered the parties to submit further briefing on "the question whether section 4215(b) requires that the Commission decide appeals in original jurisdiction cases within sixty days of its receipt of an appellant's papers or forfeit its right to insist on exhaustion." Order at 4. While that motion was pending, petitioner's counsel informed the court that the full Commission had affirmed the parole revocation. Accordingly, the court ordered the government to respond on the merits.

 I. Legality of 28 C.F.R. § 2.27 (1984).

 Respondents' motion to dismiss the petition for failure to exhaust administrative remedies became moot when the full Commission voted to affirm the National Commissioners' decision. See Notice of Action on Appeal at 1 (Apr. 23, 1985) (Affidavit of Henry J. Sadowski, Exh. L. (May 16, 1985)); 28 C.F.R. § 2.27(a) (1984). But whether the Commission can require the exhaustion of administrative processes in original jurisdiction cases, even when review will take more than sixty days, is a question paradigmatically "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911); cf. Gerstein v. Pugh, 420 U.S. 103, 110 n.11, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975) (pretrial detainees). The statutory scheme established by the Parole Commission and Reorganization Act of 1976, Pub. L. 94-233, 90 Stat. 219 ("PCRA") (codified as amended at 18 U.S.C. §§ 4201-18 (1982)), shows that the procedure established by the Commission under 28 C.F.R. § 2.27(a) (1984) for dealing with appeals of original jurisdiction cases is invalid to the extent that it permits the Commission to take up to 119 days to review an appeal.

 The PRCA authorizes the Commission to "revoke an order paroling any eligible prisoner." 18 U.S.C. § 4203(b)(3) (1982). Normally, a parole revocation hearing is conducted by two hearing examiners, who have the power to make a recommendation to the Regional Commissioner. A prisoner has the right to appeal the hearing examiners' recommendation to the Regional Commissioner, who must review the appeal and inform the applicant within thirty days of his decision. See 18 U.S.C. § 4215(a) (1982); 28 C.F.R. § 2.25(c) (1984). The prisoner then has the right to appeal the Regional Commissioner's decision to the National Appeals Board, which "must act . . . within sixty days to reaffirm, modify, or reverse the decision . . . ." 18 U.S.C. § 4215(b) 1982); see 28 C.F.R. § 2.26(b) (1984) ("National Appeals Board shall act within 60 days").

 Some cases, however, are designated "original jurisdiction," pursuant to 28 C.F.R. § 2.17 (1984). Section 2.17(b) provides the following criteria for designating a case one of original jurisdiction:

(1) Prisoners who have committed serious crimes against the security of the Nation, e.g., espionage or aggravated subversive activity.
(2) Prisoners whose offense behavior: (i) involved an unusual degree of sophistication or planning, or (ii) was part of a large scale criminal conspiracy or a continuing criminal enterprise.
(3) Prisoners who have received national or unusual attention because of the nature of the crime, arrest, trial, or prisoner status, or because of the community status of the offender or his victim.
(4) Long-term sentences. Prisoners sentenced to a maximum term of forty-five years (or more) or prisoners serving life sentences.

 Rastelli's case was designated one of original jurisdiction pursuant to 28 C.F.R. § 2.17(b)(2)(i) (1984), because of his "sophisticated offense behavior." Notice of Action (Dec. 4, 1984) (Rastelli Exh. 3).

 The Commission has established separate procedures for dealing with original jurisdiction cases. In these cases, the Regional Commissioner "forward[s] the case with his vote . . . to the National Commissioners for decision." 28 C.F.R. § 2.17(a) (1984). A special procedure also exists for appealing from the National Commissioners' decision:

Appeals [of cases "decided under the procedure specified in § 2.17"] will be reviewed at the next regularly scheduled meeting of the Commission [which is required to be held quarterly, 18 U.S.C. § 4203(a) (1982)] provided they are received thirty days in advance of such meeting. Appeals received in the officer of the Commission's National Appeals Board in Washington, D.C., less than thirty days in advance of a regularly scheduled meeting will be reviewed at the next regularly scheduled meeting will be reviewed at the next regularly scheduled meeting thereafter.

 28 C.F.R. § 2.27(a) (1984). As respondents acknowledge, this means that an appeal in an original jurisdiction case might first be reviewed as much as 119 days after it is received by the commission. Memorandum of Law in Support of Respondents' Position That the Sixty Day Rule of 18 U.S.C. § 4215(b) Does not Apply to the Appeal of an Original Jurisdiction Case Pursuant to 28 C.F.R. § 2.27(a) at 9 ("Sixty Day Rule Memorandum").

 Rastelli argues that the sixty-day rule of 18 U.S.C. § 4215(b) (1982) should apply to appeals to the full Commission in original jurisdiction cases. Respondents reply that Congress was aware of the Commission's practice of designating certain matters as cases of original jurisdiction, and that its references to the National Appeals Board in section 4215(b) therefore manifest its decision to exclude actions taken by the full Commission from the sixty-day limit. Sixty Day Rule Memorandum at 9. See H.R. Conf. Rep. 838, 94th Cong. 2d Sess. 22, reprinted in 1976 U.S. Code Cong. & Ad. News 335, 355 ("the statutory language is flexible enough to permit the Commission by regulation to reserve special categories of cases for . . . decision by the Commission as a whole"). In addition, respondents note that Congress required the full Commission to meet quarterly under 18 U.S.C. § 4203(a) (1982), and therefore could not have expected the Commission to process all original jurisdiction appeals in sixty days. See Sixty Day Rule Memorandum at 9.

 The legislative history of the PCRA makes clear that two of Congress' primary concerns in revamping the parole system were to ensure fair and uniform treatment of prisoners, and to ensure prompt decision and review. See Sen. Rep. No. 369, 94th Cong., 1st Sess. 19, reprinted in 1976 U.S. Code Cong. & Ad. News 335, 340 ("It is essential, then, that parole has both fact and appearance of fairness to all."); Parole Reorganization Act: Hearing on H.R. 1598 Before the Subcommon Courts, Civil Liberties, and the Administration of Justice of the House Common the Judiciary, 93d Cong., 1st Sess. 130 (statement of Maurice Sigler, Chairman of the United States Board of Parole) (goals of system should be efficient and legal review procedures) [hereinafted cited as Hearings ]; id. at 219 (statement of Norman Carlson, Director of the Bureau of Prisons) ("three key elements in a good parole system" are "promptness, the reasons for denial, and a systematic approach of assuring uniformity")" id. at 233 (statement of Howard Eglit, former counsel to subcommittee) (arguing reorganization was necessary because of Parole Board's intransigence in establishing efficient and uniform system).

 Courts which have considered the question have uniformly upheld the Commission's authority to designate cases as matters of original jurisdiction. But each opinion upholding the Commission's promulgation of 28 C.F.R. § 2.17(b) (1984) has explicitly rested its holding on a finding that "such a referral does not implicate any constitutional or statutory rights. 'The original jurisdiction referral . . . does not affect the prisoners' chances for parole but merely requires that the decision be made by the commission members rather than by hearing examiners."' Baker v. McCall, 543 F. Supp. 498, 501 (S.D.N.Y. 1981) (quoting Wilden v. Fields, 510 F. Supp. 1295, 1308 (W.D. Wis. 1981)), summarily aff'd, 697 F.2d 287 (2d Cir. 1982); see Christopher v. U.S. Board of Parole, 589 F.2d 924, 932 (7th Cir. 1978). As the Fifth Circuit noted," designation of a case as original jurisdiction does not reflect a judgment by the Board as to the merits of an inmate's application for parole . . . . The purpose of the increased voting quorum requirements is not to make parole more difficult to obtain but to protect confidence in the integrity of the Parole Board . . . ." King v. Warden, 551 F.2d 996, 999 (5th Cir. 1977); see Pope v. United States Parole Commission, 647 F.2d 125, 126 (10th Cir. 1981) (per curiam) (quoting King).

 Respondents' interpretation of their authority, however, does "implicate . . . [prisoners'] statutory rights." In effect, respondents argue that they are entitled to create a class of prisoners who are excluded form the protection section 4215(b) affords against delay in the administrative process. Respondents point to an unenacted section of the Senate bill, which would have applied to original jurisdiction cases. See S.Rep. No. 369, 94th Cong., 1st Sess. 11 ("§ 4214. Original jurisdiction cases."). That section provided in pertinent part that "[t]he Commission, by majority vote, shall decide the appeal at its next regularly scheduled meeting . . . ." Respondents conclude: "Congress' failure to enact this provision can only be interpreted as reflecting satisfaction with the Commission's existing practice." Sixty Day Rule Memorandum at 5-6. Instead of requiring a Commission decision at the next Commission meeting, the current regulation permits the Commission to postpone addressing an appeal if the appeal is received less than one month prior to the next scheduled meeting, and it requires only that a decision be "reviewed" at the meeting and not that a decision actually be made.

 Congress' purpose in failing to enact proposed section 4214 seems obscure. The fact is that Congress left standing a time limit applicable on its face to all appeals, and its action could readily be construed, in light of Congress' repeated expressions of concern with delay in the administrative processes of the Parole Board, as a refusal to create a general exception to that time limit.

 A more fundamental response exists to this line of reasoning, however, Section 4215(b), which explicitly refers only to appeals to the National Appeals Board, provides no specific time limit for appeals to the full Commission. The applicable time limit for considering appeals to the full Commission in original jurisdiction cases would seem more properly to be determined by examining 18 U.S.C. § 4203 (1982), which deals with the "[p]owers and duties of the Commission." Section 4203 is divided into four subsection. The first provides that "[t]he Commission shall meet at least quarterly, and by majority vote shall . . . promulgate rule and regulations establishing guidelines for the powers enumerated in subsection (b) . . . ." 18 U.S.C. § 4203(a). Respondents have relied on this subsection in arguing that, because the Commission is only required to meet every ninety days, it cannot be required to consider original jurisdiction appeals in less time. Section 4203(a), however, is concerned with the Commission's general rulemaking power, rather than its treatment of individual inmates. The Commission's powers to grant, deny, modify, or revoke parole for "any eligible prisoner" are set out in section 4203(b). Section 4203(c)(4) contains its own explicit time limit with regard to the full Commission's exercise of powers conferred by section 4203(b). It provides in pertinent part that the Commission "may review . . . any decision made pursuant to [its delegation of its power to revoke a prisoner's parole] . . . except that any such decision so reviewed must be reaffirmed, modified or reversed within thirty days of the date the decision is rendered . . ." (emphasis added). Thus, although the PCRA only requires the Commission to meet every ninety days, the same section that sets out that ninety-day requirement also requires that, when the Commission is dealing with the case of an individual prisoner, rather than with the promulgation of rules and regulations establishing general guidelines, it must act within thirty days.

 No reason exists why the Commission should not be able to render a decision in an original jurisdiction appeal within thirty days. All four National Commissioners and one of the five Regional Commissioners will already be familiar with the facts of an original jurisdiction case from having rendered the initial decision. See 28 C.F.R. § 2.17(a) (1984). Five of nine Commission members therefore will have reviewed the relevant information, when an appeal to the Commission is filed. No requirement exists that the Commission members therefore will have reviewed the relevant information, when an appeal to the Commission is filed. No requirement exists that the Commission physically meet to consider such appeals; Commission members could communicate by telephone concerning appeals in which the time limit will run before the next actual meeting. Compare 18 U.S.C. § 4203(a) (1982) (Commission "shall meet at least quarterly" to promulgate rules and regulations) with id. § 4203(c) (Commission "by majority vote" may review parole revocation decisions). The purpose of designating a case as original jurisdiction must be to expedite consideration of sensitive cases by the full Commission, see King, 551 F.2d at 999, not to delay consideration of possibly meritorious appeals.

 In light of the statutory context and legislative history of the applicable sections of possibly meritorious appeals.

 In light of the statutory context and legislative history of the applicable sections of the PCRA, 28 C.F.R. § 2.27(a) is invalid to the extent that it permits the full Commission to take more than thirty days to reaffirm, modify, or reverse a decision made pursuant to 28 C.F.R. § 2.17 (1984).

 II. Rastelli's Appeal form the Commission's Decision.

 Rastelli challenges both the Commission's decision to revoke his parole and its decision to incarcerate him for the remainder of his sentence, a period of approximately 22-23 months, see Sadowski aff. P12, rather than for the 0-9 months which the guidelines suggest, see 28 C.F.R. § 2.21(a) (1984). Rastelli's challenge to the Commission's decision to revoke his parole must be rejected. The Commission's decision to revoke his parole must be rejected. The Commission's decision to go above the guidelines on the present record was arbitrary and capricious, however, and must be vacated and the case remanded for further consideration or Rastelli's release.

 On April 23, 1976, Rastelli was convicted in the United States District Court for the Eastern District of New York of conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951, of two substantive violations of the Hobbs Act, and of criminal restraint of trade, 15 U.S.C. § 1. He was sentenced on August 27, 1976 to ten years imprisonment, to be served consecutively to a four-year state sentence for conspiracy, criminal contempt of court, and usury. On June 15, 1977, Rastelli was released from his state sentence and began serving his federal sentence. See Sadowski Aff. P3.

 Rastelli was afforded several parole hearings by the Commission, which decided to deny Rastelli parole and continue his incarceration until the expiration of his sentence, minus good time. On April 21, 1983, Rastelli was mandatorily released pursuant to 18 U.S.C. § 4163 (1982). A prisoner who is released pursuant to section 4163 is treated "as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days." Id. § 4164. Thus, Rastelli was required to remain under supervision as if on parole until December 16, 1986. See Sadowski aff. P5.

 Rastelli refused to sign the certificate of mandatory release which set out the conditions of his release. See Sadowski Aff., Exh. A. Nevertheless, under Commission regulations which Rastelli does not challenge here, a mandatory releasee is bound by the conditions set forth in 28 C.F.R. § 2.40(a)(1)-(12) (1984) "regardless of any refusal by the release to sign the parole certificate." Id. § 2.40(h).

 Two of the conditions by which Rastelli was bound prohibited him from "associat[ing] with persons engaged in criminal activity," id. § 2.40(a)(6) and "associat[ing] with persons who have a criminal record," id. § 2.40(a)(10). On July 6, 1984, Rastelli's Probation Officer, Victor P. Zaccheo, requested the issuance of a parole violator's warrant. See Sadowski Aff., Exh. b. Zaccheo stated:

Since his release . . ., Rastelli has been in contact with a number of individuals who are known to law enforcement as being involved in illegal activity. This consistent pattern of contact with these individuals has persisted throughout the parole period as confirmed by the periodic observations made by the undersigned and members of law enforcement.
Although warned repeatedly about association with individuals engaged in criminal activity and contact with those persons having a criminal record, Rastelli has elected to disregard this Condition of his release. With the exception of one occasion, Rastelli, when questioned if he had contact over the preceding month with any individual as cited above, denied any such meetings.

 Sadowski Aff., Exh. B at 1. Zaccheo's letter went on to list ten instances of Rastelli's alleged association with persons having criminal records and three instances of Rastelli's alleged association with persons engaged in criminal activity. These instances stretched over the period May 24, 1983 to June 12, 1984. Zaccheo included copies of federal and state records concerning the criminal records of James Napoli, Neil Lotierzo, Edward Casaceli, Carmine Peluso, and Anthony Cosenza. See id. at 5-20. In follow-up letters to the Regional Commissioner on August 17, 1984, and August 21, 1984, Zaccheo enclosed additional records concerning Carmine Dagnell and Gabriel Infanti. See Sadowski Aff., Exhs. E & f.

 Based on the information contained in the July 6 letter, the Regional Commissioner issued a warrant for Rastelli's arrest on August 13, 1984. See Sadowski Aff., Exh. C. The warrant contained two charges, "association with persons having a criminal record," id. at 1, and "association with persons involved in criminal activity," id. at 2. The first charge identified seven persons having criminal records with whom Rastelli allegedly associated: Casaceli (charges 1(a), 1(b), 1(c), and 1(d)), Cosenza (charges 1(b) and 1(e)), Napoli (charge 1(f)), Dagnell (charges 1(g) and 1(h)), Infanti (charge 1(i)), Salvatore Vital (1(i)), and Peluso (charge 1(j)). Id. at 1-2. The second charge stated that on February 16, 1984, an unknown individual was seen entering and leaving Rastelli's place of employment during of early morning and was seen the next day counting policy slips inside a candy store (charge 2(a)); that on February 17, 1984, Lotierzo was seen inside Rastelli's place of employment in the morning and was later observed counting policy slips with the unknown individual identified in 2(a) (charge 2(b)); and that later that day, the unidentified individual was seen entering Rastelli's place of employment several times and was ultimately seen engaged in conversation with Rastelli (charge 2(c)). Id. at 2.

 Rastelli was arrested on August 16, 1984. See Sadowski Aff., Exh. D. he requested that the preliminary interview to determine whether probable cause existed be postponed until he could obtain counsel. That request was granted, and on September 6, 1984, a United States Probation Officer unconnected with the supervision of Rastelli's release conducted a preliminary interview. Sadowski Aff. § 11. On September 11, 1984, the officer, Martin Morris, sent to the Regional Commissioner a summary report of the interview and recommended that the Commission find probable cause. Sadowski Aff., Exh. G. Morris noted that Rastelli requested the appearance of the law enforcement personnel who made the observations upon which the charges against him were based as adverse witnesses at his actual revocation hearing, and requested the appearance of the persons named in the warrant as voluntary witnesses. Id. at 1,5,16.

 A. The Preliminary Hearing.

 Rastelli called no witnesses during the preliminary interview. Id. at 5. The only witnesses who appeared, therefore, were Rastelli and Zaccheo. With respect to the first charge - "association" with persons having a ...

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