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November 23, 1985


The opinion of the court was delivered by: WEINFELD


Petitioner, Philip Rastelli, seeks a writ of habeas corpus, claiming that he was denied his constitutional right to due process of law in the revocation of his parole. This is petitioner's second request for a writ; the procedural posture of the case makes necessary a review of the background of the previous application, which was disposed of by Judge Sofaer, in an extensive opinion familiarity with which is assumed. *fn1"


 Petitioner was convicted in 1976 of conspiracy to violate and violations of the Hobbs Act, *fn2" and of criminal restraint of trade under the Sherman Act. *fn3" On August 27, 1976, petitioner was sentenced to ten years' imprisonment, to run consecutively to a state criminal sentence of four years. On June 15, 1977, he was released from state confinement, and began serving his federal sentence. On April 21, 1983, Rastelli was mandatorily released from confinement, having served his sentence less the statutory good time allowance. *fn4" Under the mandatory release, Rastelli was "deemed 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," *fn5" and thus was subject to parole supervision through December 16, 1986.

 After Rastelli's release he was the subject of surveillance by federal and state law enforcement authorities. On August 16, 1984, Rastelli was arrested pursuant to a warrant issued at the request of his parole officer, Victor Zaccheo.

 The First Revocation Proceeding

 The Parole Commission charged Rastelli with two violations at his first parole revocation proceeding: (1) that he associated with individuals with criminal records, and (2) that he associated with individuals engaged in criminal activity. The first alleged that Rastelli had knowingly associated with seven persons with criminal records on ten occasions. *fn6" The second alleged that Rastelli had associated with individuals, both named and unnamed, on February 16 and 17, 1984, who after leaving Rastelli's place of employment were seen counting policy slips in a candy store located in the same neighborhood. *fn7" After a formal hearing, at which Rastelli was represented by counsel, the hearing examiners found that Rastelli had violated his parole in that he had on ten occasions associated with persons having criminal records; they made no findings as to the second charge. The examiners recommended that Rastelli's mandatory release be revoked and that he be imprisoned until the expiration of his term, with credit for the time on mandatory release.

 The recommendations of the examiners were sustained by the Regional Commissioner and the National Commissioners, acting as an "original jurisdiction" review panel. *fn8" although the national Commissioners expressly found that "[r]eparole guidelines indicate a range of 0-9 months to be served before re-release," *fn9" the Commissioners decided to exceed the guidelines, *fn10" and upheld the recommendation that Rastelli be reimprisoned for the remainder of his term.

 During the pendency of his administrative appeal to the full Parole Commission, Rastelli filed a petition for writ of habeas corpus in this district. The petition was heard by Judge Sofaer who, on June 9, 1985, entered an order granting the writ. *fn11" Judge sofaer affirmed only one of the five charges on which Rastelli had been convicted. This charge alleged that on April 28, 1984, Rastelli met with James Napoli, Sr., at the Hi-Way Lounge, a Brooklyn restaurant. Rastelli, who had been incarcerated at the Lewisburg Correctional Institution at the same time as Napoli, admitted both the meeting the Napoli and his knowledge of Napoli's criminal record. On this ground, Judge Sofaer found that Rastelli had committed only a single administrative violation of his parole, to wit, the meeting with Napoli; however, he further held that the Parole Commission had acted arbitrarily and capriciously, and had abused its discretion in deciding to exceed its own guidelines of nine months upon recommitment and to incarcerate Rastelli for the remainder of his original sentence, a period in excess of two years. *fn12"

 With respect to the other charges upheld by the Parole Commission, Judge Sofaer found that the Commission had not sustained the burden of proving that Rastelli associated with individuals having criminal records. Judge Sofaer found as to three of the associations charged that Rastelli's alleged associates did not in fact have criminal records. In addition, with respect to one Gabriel Infanti, with whom Rastelli was alleged to have met briefly on one occasion, Judge Sofaer found that the contact was "incidental" or "fleeting," and therefore not an association within the meaning of the regulation establishing the violation. *fn13"

 Having held that Rastelli, who had been confined for nearly ten months at the time of the order, was not subject to incarceration for more than nine months, Judge Sofaer granted the writ, but stayed its issuance "for thirty days, during which time the Commission must commence a new parole revocation proceeding, or seek to justify his continued detention on some legally sufficient basis." *fn14"

 The Second Revocation Proceeding

 On June 28, 1985, within the thirty-day period specified in Judge Sofaer's order, the Commission, by a Notice of Action, commenced a new parole revocation proceeding. The Commission specified seven charges of violation against Rastelli. The first concerned the same April 28, 1984, meeting with James Napoli, Sr., which had been considered at the November, 1984 hearing and affirmed by Judge Sofaer. This time, the Parole Commission broadened the charge by alleging that Rastelli had violated his parole by associating with a person engaged in criminal activity, in violation of 28 C.F.R. § 2.40(a)(6). In all other respects, the factual foundation of the charge was identical to that previously sustained. The second and third charges concerned association with persons engaged in criminal activity, and recharged association with Salvatore Vitale and Gabriel Infanti. Rastelli had been charged at the earlier hearing with violating his parole by meeting with the two at a diner in Queens on June 5, 1984, and also by meeting again with Salvatore Vitale on June 12, 1984. These same meetings were alleged in the new charges as associations with persons engaged in criminal activity, rather than, as under the first petition, associations with persons having criminal records. *fn15"

 The Parole Commission also advanced four new charges at the second hearing. These alleged that "in or about May 1984, you sent a list of persons to be made members of a criminal organization to Anthony Salerno and Matthew Ianniello," and that "in or about May 1984, you had a conversation with Anthony Corallo." Each of these factual allegations charged two separate and distinct violations of parole: first, that Rastelli had associated with Salerno, Ianniello, and Corallo, who were engaged in criminal activity ; and second, that Rastelli had ...

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