Appeal by criminal contemnor from a judgment of the United States District Court for the Southern District of New York, John M. Cannella, Judge, denying habeas petition seeking early release from prison on grounds that credit should have been given for time spent in custody for civil contempt in connection with the same contumacious acts, and that United States Parole Commission, in setting parole date, could not properly take into account hearsay information not relied on by court in imposing sentence.
Kaufman, Kearse, and Pratt, Circuit Judges.
Petitioner Eduardo Ochoa, a federal prisoner incarcerated upon a conviction of criminal contempt for refusing to testify before a grand jury, appeals from a judgment of the United States District Court for the Southern District of New York, John M. Cannella, Judge, denying his petition for a writ of habeas corpus. To the extent pertinent to this appeal, the petition challenged Ochoa's continued incarceration on the grounds that the United States Parole Commission ("Parole Commission" or "Commission") (1) improperly failed to grant him credit pursuant to 18 U.S.C. § 3568 (1982) (repealed effective Nov. 1, 1987, Pub. L. 98-473, tit. II, §§ 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended, and reenacted in part as 18 U.S.C. § 3585 effective Nov. 1, 1987, by the same legislation) for the time he had spent in jail in civil contempt in connection with the same refusal to testify, and (2) violated his rights under Fed. R. Crim. P. 32(c)(3)(D) and the Constitution by deciding his release date on the basis of hearsay statements in his presentence report that were not relied on by the district court in imposing sentence. Finding no merit in these contentions, we affirm.
The procedural events are not in dispute. On October 12, 1982, Ochoa was ordered, under a grant of immunity, to answer questions posed by a grand jury investigating a series of crimes attributed to "Omega 7," an alleged terrorist group of anti-Castro Cuban exiles. When he refused, he was held in civil contempt pursuant to 28 U.S.C. § 1826 (1982). After maintaining his refusal for 17 months and, as a result, remaining incarcerated for that period, Ochoa was indicted for criminal contempt under 18 U.S.C. § 401 (1982) for his October 12, 1982 refusal to testify. He was convicted in May 1984, following a bench trial.
The presentence report on Ochoa included statements attributed to one Eduardo Arocena (the "Arocena hearsay"), linking Ochoa to terrorist activities. Prior to sentencing, Ochoa disputed certain parts of the report, including the Arocena hearsay, and the sentencing court expressly declined to consider the disputed parts in imposing sentence. The district court sentenced Ochoa to six years' imprisonment.
On appeal from the judgment of conviction, Ochoa challenged the length of his sentence as excessive, and this Court, in light of our then-recent decision in United States v. Gracia, 755 F.2d 984 (2d Cir. 1985), reduced his sentence to four years' imprisonment. In addition, Ochoa argued, inter alia, that the disputed parts of the presentence report should be stricken or corrected. We rejected that contention, stating as follows:
The district judge specifically noted Ochoa's challenge to portions of the report, and stated on the record that he would not consider those portions in fixing Ochoa's sentence. Joint Appendix at 454-56. That is all he was required to do. United States v. Charmer Industries, 711 F.2d 1164, 1172 n.8 (2d Cir. 1983); Rosati v. Haran, 459 F. Supp. 1148, 1160 (E.D.N.Y. 1977). Ochoa has suffered no present harm resulting from the allegedly inaccurate information; as to the future, his rights are protected by the due process safeguards built into the Parole Commission and Reorganization Act of 1976, 18 U.S.C. §§ 4201-4218. These, inter alia, require written notice of and a particularized statement of reasons for adverse determinations; specify the information that the Commission must consider; and afford the applicant the opportunity to appear and testify on his own behalf at the hearing.
United States v. Ochoa, No. 84-1243 (Unpub. Feb. 20, 1985).
In March 1985, the Parole Commission held a hearing with respect to the calculation of Ochoa's presumptive date of release from prison. Following that hearing, the Commission elected to credit the Arocena hearsay in calculating Ochoa's offense severity rating. In light of the offense severity score thus awarded, the Commission ruled that Ochoa should remain incarcerated until the expiration of his four-year sentence, less statutory good time.
After this determination had been made, two provisions of law pertinent to this appeal had potential relevance to the calculation of Ochoa's precise release date. First, 18 U.S.C. § 3568 provided that a prisoner was to receive "credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." 18 U.S.C. § 3568. Second, a Commission regulation provided that "time spent serving only a civil contempt sentence is not considered jail time under 18 U.S.C. § 3568." 28 C.F.R. § 522.11(g) (1986). In calculating Ochoa's release date, however, the Commission did not apply the regulation, for it apparently was unaware that Ochoa's prior 17-month confinement was for civil contempt rather than pretrial detention on the criminal contempt charge. Thus, it credited Ochoa with those 17 months and set his release date for January 1986.
Accordingly, in January 1986, Ochoa was "mandatorily released" pursuant to statutes governing good time allowances. He was rearrested four months later, after it was discovered that he had inadvertently been granted credit for time spent in civil contempt.
Upon his rearrest, Ochoa commenced the present proceeding, contending that he was entitled to remain free on the grounds (1) that § 3568, as well as notions of estoppel and due process, required that he receive credit toward his criminal contempt sentence for the time he had spent in civil contempt; and (2) that the Parole Commission could not properly use the Arocena hearsay when the sentencing court had ...