The opinion of the court was delivered by: PECK
ANDREW J. PECK, United States Magistrate Judge:
This habeas corpus petition challenges a special condition of parole that prohibits petitioner John B. LoFranco from associating with the Hell's Angels or any other "outlaw motorcycle gang."
LoFranco, represented by Ronald Kuby of Kunstler & Kuby, seeks a writ of habeas corpus to eliminate the special parole condition. LoFranco argues that the special condition (1) unconstitutionally abridges his freedom of association in violation of the First Amendment of the Constitution and (2) is unconstitutionally vague. (Petition, 11/1/95, P 19; LoFranco Br. at 20-24.)
For the reasons set forth below, I recommend that the special condition of LoFranco's parole be remanded to the Parole Commission for further consideration in accordance with this Report and Recommendation. In the event that the special parole condition concerning "outlaw motorcycle gangs" is not revised within sixty days to eliminate its vagueness, I recommend that LoFranco's petition for a writ of habeas corpus be granted to the extent of deleting that part of the special parole condition.
The Conspiracy Charges and LoFranco's Guilty Plea
On February 3, 1986, LoFranco pled guilty in the United States District Court for the Northern District of New York to three conspiracy counts, for racketeering, narcotics and extortion conspiracy. (See Petition P 4; Certified Records [hereafter, "Cert. R."], Ex. 6, at cover page, 2, 8; LoFranco Br. at 3; Gov't Br. at 2.) Count 2 of the indictment charged that under 18 U.S.C. § 1962(d), LoFranco and at least eleven co-defendants
conspired . . . to participate in the affairs of an organization known as the Binghamton and Troy Chapters of the Hell's Angels Motorcycle Club . . . , an enterprise engaged in activities which affected interstate commerce through a pattern of racketeering.
(Cert. R. Ex. 6: Presentence Report at 2.)
"LoFranco fully admitted to entering into three separate conspiracies with another individual charged under the same indictment." (LoFranco Br. at 3.) Both LoFranco and his co-conspirator were members of the Hell's Angels Motorcycle Club at the time of their arrest. (Id.)
THE COURT: Yes. All right, Mr. LoFranco, you heard what Mr. West [the Assistant U.S. Attorney] said with regard to what the Government's proof would be.
Did you do substantially what he said you did with regard to these three counts?
DEFENDANT LoFRANCO: Your Honor, I --
MR. HARRIS [LoFranco's lawyer]: Your Honor, if I might briefly make a statement. Mr. LoFranco is here today and he is admitting that he did enter into these three separate conspiracies with James Harwood; and that as a part of those conspiracies, the necessary acts were committed. And he would further admit and state that he committed those acts as an individual alone. They were not acts that were committed in any way, shape, or form as a part of a membership with the Hell's Angels Motorcycle Club of which he was also a member during this period, and the acts did not involve and were not a part of this membership ; but he would admit that he did enter into these conspiracies and committed the necessary overt acts as a part of those conspiracies.
THE COURT: Yes. So what you are saying [is that it] was not the Hell's Angels Club that was the conspiratorial group.
DEFENDANT LoFRANCO: Yes, sir.
THE COURT: However, Mr. LoFranco does admit that he was a part of a conspiratorial group made up of individuals.
DEFENDANT LoFRANCO: Yes, I do.
THE COURT: All right. [Assistant U.S. Attorney] West didn't state that the Hell's Angels were a part of the conspiracy.
MR. HARRIS: No, he didn't, your honor.
THE COURT: Let me ask you, Mr. LoFranco, did you do substantially what Mr. West has said you did?
DEFENDANT LoFRANCO: Substantially, yes, sir.
(LoFranco Br. Ex. A: 2/3/86 Plea Tr. at 24-25, emphasis added.)
LoFranco's association with the Hell's Angels is the focus of this habeas corpus petition.
LoFranco was given a twenty-three year sentence. (Petition P 7; Cert. R. Ex. 6: Presentence Report at cover page; LoFranco Br. at 4.) LoFranco served nine years in prison (he was released on parole on May 1, 1994). (Petition PP 8-9; LoFranco Br. at 4.)
The Second Circuit Upheld the Parole Commission's Determination of LoFranco's Parole Release Date
In October 1987, almost seven years before LoFranco ultimately obtained parole, the Parole Commission held an initial hearing to determine when LoFranco should be considered for parole. The Parole Commission considered that LoFranco "was a high ranking member of the Hell's Angels Motorcycle Club in the Albany/Troy, New York area and with his codefendants, most of whom were members of the motorcycle club, were responsible for the distribution of massive amounts of illicit soft drugs. . . ." (O'Toole Dec. Ex. A at A-14.) In its November 12, 1987 Notice of Action relating to LoFranco's parole eligibility date, the Parole Commission concluded that:
[LoFranco] had a leadership position in a criminally oriented organization responsible for distribution of massive amounts of illicit drugs over an eight year period; [LoFranco was] the single largest narcotics trafficker in the organization; [LoFranco] used extortion to collect drug debts; and [LoFranco] threatened a person's life.
LoFranco petitioned for a writ of habeas corpus in the United States District Court for the Northern District of New York. LoFranco argued, inter alia, that the Parole Commission improperly considered his membership and leadership position in the Hell's Angels in setting his parole date. (See id. at A-24 to A-40.) The district court denied the petition (see id. at A-56 to A-67, A-74 to A-75), stating that:
In the present case, the [Parole Commission] relied upon both the Presentence Report and the sentencing memorandum. In both of these documents there is sufficient information to indicate that [LoFranco] was engaged in illegal activity from the date he became a member of the Hell's Angels [in 1977]. In addition, the indictment charging [LoFranco] with participation in the RICO conspiracy traces the origins of the conspiracy as far back as 1976. The reliance on these two documents by the [Parole Commission], as well as the indictment, in arriving at [LoFranco's] severity rating, was not an abuse of discretion.
LoFranco's appeal to the Second Circuit argued, inter alia, that the Parole Commission violated his First Amendment right to freedom of association by allowing LoFranco's membership in the Hell's Angels, rather than the date of the first overt conspiratorial act, to determine his salient factor score. (Id. at 2.)
The Second Circuit affirmed in an unpublished order, finding the Parole Commission's decision "was neither an abuse of discretion nor arbitrary or capricious." (O'Toole Dec. Ex. C at 3.) The Second Circuit further stated that
Although membership in the Hell's Angels is, without more, not evidence of guilt at the trial level, a different standard applies when determining the appropriate sentence or parole. . . . The Parole Commission was free to consider evidence of membership in an organization associated with drugs and violence and that advocates murder because these crimes are relevant to the issue involved. . . . Thus, the Parole Commission did ...