Birzon v. King

• Decision Date: 06 December 1972
• Docket Number: No. 117,Docket 72-1276.,117
• Citation: 469 F.2d 1241
• Parties: Paul Ivan BIRZON, Appellant, In Behalf of Morris Satz v. Edward S. KING, United States Marshal and Hon. Michael A. Amico, Sheriff of Erie County, Appellees.
• Court: U.S. Court of Appeals — Second Circuit

469 F.2d 1241 (1972)

Paul Ivan BIRZON, Appellant, In Behalf of Morris Satz v. Edward S. KING, United States Marshal and Hon. Michael A. Amico, Sheriff of Erie County, Appellees.

No. 117, Docket 72-1276.

United States Court of Appeals, Second Circuit.

Argued November 1, 1972.

Decided December 6, 1972.

Paul Ivan Birzon, Buffalo, N. Y. (Runfola & Birzon, Buffalo, N. Y., on the brief), for appellant.

Philip B. Abramowitz, Asst. U. S. Atty. (John T. Elfvin, U. S. Atty. for Western District of New York, on the brief), for appellees.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Paul Birzon brought this habeas corpus petition in the Western District on behalf of his client, Morris Satz. In 1963 Satz was sentenced by Judge Henderson to five years imprisonment following his conviction for the crimes of theft from interstate shipment and conspiracy. Satz had earlier been convicted in a New York state court for arson in the third degree and burglary in the third degree and was sentenced to a term of imprisonment.

After Satz had served four and a half years of his state term, he was paroled by the state authorities and immediately began to serve his federal sentence. He was subsequently released on parole by the United States Board of Parole, and thus came under the concurrent jurisdiction of the federal and state parole authorities. After his release, Satz resumed his earlier duties at the Stratford Arms Hotel in Buffalo, New York, of which he was part owner.

On July 17, 1970, Satz was arrested by state authorities for alleged parole violations, including the prohibition against associating with persons having a criminal record. He was returned to state prison and later was granted a state parole revocation hearing. The parole violation charge was predicated on information contained in a parole violation report prepared by a state parole officer and based on information received from informants. Prior to the hearing, the state parole authorities were ordered by a state judge to furnish Satz with a copy of this report to assist him in defending against the charge. The state authorities refused to comply with this order. At the close of the parole revocation hearing, Satz's counsel moved to strike all charges based on information that the parole authorities refused to supply in accordance with the state court order. While this motion was being considered by the state parole authorities, Satz was conditionally released from state custody, at which time he was taken into custody on a federal parole violator warrant and committed to a federal correctional facility.

The federal warrant charged Satz with having violated his parole by associating with several named persons having criminal conviction records. This charge was based solely on the allegations in the state parole violation report. The warrant did not indicate the times and places where the alleged associations occurred. Satz's counsel was not permitted to see the state report; but the hearing officers did state that, for purposes of the parole violation charge, the alleged associations would be deemed to have occurred on July 17, 1970 in the City of Buffalo. Beyond this, the hearing officer did not particularize the charges against Satz.

At the hearing, the parole board introduced no evidence but relied exclusively on the state parole violation report. The parolee, Satz, was neither given an opportunity to cross-examine the informants who accused him of violating his parole nor informed of their identity. Satz took the stand to deny violating his parole and to account for his activities on the day that he was charged with associating with the named individuals. He also called two witnesses to corroborate his testimony.¹ After the hearing, the parole board revoked Satz's parole and informed him of its action; but it did not relay to him the findings that it made and upon which it relied in reaching its decision to revoke the parole.

After the revocation decision, Birzon, Satz's lawyer, petitioned the district court on his behalf for habeas corpus. The court denied the writ and Birzon brings this appeal on Satz's behalf.

Birzon makes two major arguments with which we must contend on this appeal. Initially, he asserts that the parole condition that Satz was alleged to have violated, condition no. 11,² is unconstitutional. Secondly he argues that the refusal to permit Satz to confront and cross-examine the informants who supplied information against him, the refusal to disclose to Satz the evidence that was being used against him, and the failure of the parole board to provide a statement of the evidence on the basis of which it determined to revoke Satz's parole resulted in a denial of the minimum requirements of due process.

We reject appellant's suggestion that condition no. 11 of Satz's parole, which forbids the parolee to associate with persons having criminal records, is unconstitutional. He argues that the condition is unconstitutionally vague in that a person of common understanding cannot know what actions are forbidden. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Appellant predicates his vagueness argument on the asserted uncertainty of the terms "associate" and "criminal record" in the condition. We cannot agree that the parole condition is so vague as to infringe due process.

With regard to the term "associate," we believe that the meaning that would more often occur to men of ordinary intelligence is something more than merely a fleeting or casual acquaintance.³ Therefore, we hold that the word "associate" in the parole condition is not unconstitutionally vague, for "the requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding." Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167 (1932). The term is not so uncertain that "men of common intelligence must necessarily guess at its meaning." Connally, supra, 269 U.S. at p. 391, 46 S. Ct. at p. 127. As to the meaning of "criminal record," we are certain that this term would in any event be construed to refer to conviction for crime, which is what was involved here.⁴ Therefore, we conclude that the condition was adequately phrased to give the parolee notice that the conduct with which he was charged was proscribed and, thus condition no. 11 is not unconstitutionally vague.⁵

Alternatively, appellant argues that condition no. 11 violates Satz's first amendment freedom of association. We regard this argument as frivolous. It has been properly held that the Government can infringe the first amendment rights of prisoners so long as the restrictions are reasonably and necessarily related to the advancement of some justifiable purpose of imprisonment. See Sobell v. Reed, 327 F.Supp. 1294, 1303 (S.D.N.Y., 1971), and cases there cited. On that basis, no one has questioned the Government's power totally to deprive a convicted person of his freedom of association. By the same token, when a convict is conditionally released on parole, the Government retains a substantial interest in insuring that its rehabilitative goal is not frustrated and that the public is protected from further criminal acts by the parolee. Although a parolee should enjoy greater freedom in many respects than a prisoner, we see no reason why the Government may not impose restrictions on the rights of the parolee that are reasonably and necessarily related to the interests that the Government retains after his conditional release. The restriction here involved is reasonably and necessarily related to the Government's legitimate interests in the parolee's activities and thus does not violate the first...