Pugliese v. Nelson

• Decision Date: 04 March 1980
• Docket Number: D,Nos. 419-421,s. 419-421
• Citation: 617 F.2d 916
• Parties: Frank PUGLIESE, Appellee, v. W. Raymond NELSON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant. John BAZZANO, Appellee, v. W. Raymond NELSON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant. Leonard DURSO, Appellee, v. W. Raymond NELSON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant. ockets 79-2136, 79-2138 and 79-2140.
• Court: U.S. Court of Appeals — Second Circuit

Page 916

617 F.2d 916

Frank PUGLIESE, Appellee, v. W. Raymond NELSON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant.

John BAZZANO, Appellee, v. W. Raymond NELSON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant.

Leonard DURSO, Appellee, v. W. Raymond NELSON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant.

Nos. 419-421, Dockets 79-2136, 79-2138 and 79-2140.

United States Court of Appeals, Second Circuit.

Argued Dec. 6, 1979.

Decided March 4, 1980.

Andrew S. Gordon, Atty., Dept. of Justice, Washington, D. C. (Richard Blumenthal, U. S. Atty., D. Conn., Frank Santoro, Asst. U. S. Atty., New Haven, Conn., William C. Bryson, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellant.

Donald Squires, New Haven, Conn. (Dennis E. Curtis, Stephen Wizner, Judith Resnik, Alice Bussiere, Renee Chotiner, New Haven, Conn., of counsel), for appellees Pugliese and Bazzano.

Howard C. Eckenrode, Milford, Conn., for appellee Durso.

Before WATERMAN, MOORE and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

This appeal raises the question of whether the Due Process Clause mandates procedural safeguards before the United States Bureau of Prisons may designate an inmate as a "Central Monitoring Case" (CMC). W. Raymond Nelson, Warden of the Federal Correctional Institution at Danbury, Connecticut, appeals from judgments of the District Court for the District of Connecticut, entered by Judge Ellen B. Burns in May, 1979, granting the petitions of three inmates of that institution, Frank Pugliese, John Bazzano and Leonard Durso, for writs of habeas corpus seeking termination of their classifications by the U.S. Bureau of Prisons as Category B "Central Monitoring Cases". The classification as a CMC could hinder or preclude a prisoner in obtaining social furloughs, work releases, participation in community activities, release to halfway houses and transfers to other correctional institutions. These obstacles may not be encountered by prisoners who are not so classified. Judge Burns found that there were procedural deficiencies in making the CMC classifications, which violated appellees' rights under the Due Process Clause of the Fifth Amendment ¹ and ordered the writs to issue unless the designations were removed within 30 days. We reverse.

The United States Bureau of Prisons, Department of Justice, has adopted a central inmate monitoring system under which it controls the transfer and community activities of "certain inmates who present special needs for management" or who "pose special management considerations." See Bureau of Prisons Program Statement No. 5190.2 (June 1, 1979), formerly Policy Statement No. 7900.53A (April 7, 1976). Under this program the Bureau has established some 12 categories of inmates deemed to require such control, including those who require special protection, such as witnesses under the Witness Security Program, those who are disruptive or assaultive, and those who should for one reason or another (such as for their own protection) be separated from others or housed in particular facilities. ² Two of the 12 categories are involved in this case and are described as follows:

"03 SOPHISTICATED CRIMINAL ACTIVITY:

Those inmates who have been involved in large scale sophisticated criminal activity.

Criteria: Activities including large numbers of associates; offenses involving over $100,000; activities over an extended period of time; international or large scale national organization; or extremely sophisticated offenses.

"05 BROAD PUBLICITY: Those inmates who have received broad publicity.

Criteria : National media coverage by syndicated news association such as UPI or AP; continued coverage by local media." ³

Program Statement No. 5190.2 advises that the purpose of the 12 control classifications is not to preclude "inmates in the system from transfers or participation in community activities, when the inmate is otherwise eligible, but rather, to provide protection for all concerned, and to ensure the safe and orderly running of the facility." (Emphasis added). Although the necessity for special handling or control of certain categories of prisoners for safety purposes can reasonably be inferred (e. g., witnesses requiring protection or those likely to engage in assaults, escape attempts, or disruptive activities) neither Program Statement No.

5190.2 nor the appellant offer any rationale for categorizing as CMCs prisoners who have received "broad publicity" or were convicted for "sophisticated" criminal activity. We are left to speculate in the case of prisoners who have been the subject of broad publicity, whether the purpose of this CMC classification is simply to protect federal prison officials from criticism that might arise out of publicity given to the release of certain prisoners for furloughs or for community activities, or to prevent the undermining of public respect for administration of justice that the release of highly publicized prisoners might engender. ⁴

The procedure used to classify a prisoner as a CMC is as follows. When either the Bureau's Central or Regional Office or the facility housing the inmate receives information indicating that the inmate may be a potential CMC and when its initial review of the supporting material supports such a designation, it may tentatively so classify the inmate. The facility's CMC Coordinator, who is immediately notified of the tentative designation, then sends the inmate a formal notice of the designation, using the language of the CMC category as described in Program Statement No. 5190.2 and stating in general terms the behavior or offense forming the basis of the designation. The notice informs the inmate that he may object to the designation and have up to 30 days to obtain and submit information or documents supporting his objections.

The prisoner's complete file is then forwarded to the "Confirming Authority" (who, depending on the category of CMC, is either the Central Office, Regional Office, or the facility's CMC Coordinator or Chief Executive Officer). The confirming authority reviews the case and notifies the prisoner in writing of the action taken. An adverse ruling may be appealed by the prisoner to the Bureau's General Counsel. Once a prisoner is designated a CMC, the designation will be reviewed on a semi-annual basis by the housing facility for any new information or change in behavior that might warrant removal of the designation.

The effect of a CMC designation on a prisoner can be substantial. Although Program Statement No. 5190.2 states that CMC monitoring is not for the purpose of precluding inmates from obtaining transfers, furloughs or participation in community activities, such as work release, and although the Bureau's policy statements governing those matters make no express reference to CMC classification, a CMC cannot obtain those benefits unless approved by the Central or Regional Office (depending on the designated category). Thus, a CMC designation usually delays and often precludes the enjoyment of the benefits.

In August, 1976, appellee Pugliese, an inmate at the federal prison in Lewisburg, Pa., who since May, 1974, had been serving a 10-year sentence for his violation of federal narcotics laws, was notified in writing that he had tentatively been designated a CMC because information indicated that his sentence involved his "participation in large-scale sophisticated criminal activity in that (he was) part of a major narcotics conspiracy and functioned as a wholesaler who dealt in multi-kilo quantities of heroin." Despite Pugliese's objection, the designation was approved, and his appeal to John Bazzano in March, 1978, began serving a seven-year sentence at Danbury for the operation of an unlawful gambling business and the obstruction of law enforcement. Two months later he was tentatively designated a CMC because of his involvement in a "sophisticated criminal activity." After he refused to sign the notification or to indicate grounds for objection the designation was approved and a final notice of designation advised him that it was based on "involvement in criminal activities of a sophisticated nature as evidence by (his) conviction and current seven year sentence for Operating an Illegal Gambling Business which was a large scale operation covering several communities in the Pittsburgh, Pennsylvania area." His administrative appeal, also grounded on failure of the Bureau to follow the due process procedures prescribed in Catalano was denied. He then filed his habeas petition in the district court.

the Central Office denied on the ground that his involvement in a sophisticated offense was "reflected in (his) current offense for Narcotics Violation in a Major Drug Operation in New York." After his transfer in December, 1977, to the Federal Correctional Institution in Danbury, Conn., he was denied a Christmas furlough in 1978 despite his having been classified by his team unit as eligible for "community custody." Following denial of his administrative appeals, which were based on the failure of the Bureau to follow, prior to the CMC designation, the due process procedures prescribed in Catalano v. United States, 383 F.Supp. 346 (D.Conn.1974), and approved by this court in Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975), Pugliese filed the present petition for a writ of habeas corpus in the District of Connecticut.

Leonard Durso, a prisoner who began in September, 1975, a 10-year sentence at Lewisburg for the distribution of narcotics, was in May, 1976, tentatively designated a CMC because his offense had involved a "multi-count sophisticated criminal activity" and "the distribution of kilo quantities of drugs in the tens of thousands of dollars." Despite his objection that the Bureau's facts were "grossly inaccurate," since he had been convicted of a conspiracy involving only four ounces of cocaine, his...