Fatico v. Kerr

• Decision Date: 29 November 1983
• Docket Number: No. 83-C-377-S.,83-C-377-S.
• Court: U.S. District Court — Western District of Wisconsin
• Parties: Daniel FATICO, Petitioner, v. Larry KERR, Superintendent, Oxford Federal Correctional Institution, Respondent.

569 F. Supp. 448

Daniel FATICO, Petitioner, v. Larry KERR, Superintendent, Oxford Federal Correctional Institution, Respondent.

No. 83-C-377-S.

United States District Court, W.D. Wisconsin.

July 21, 1983.

As Amended November 29, 1983.

Eisenberg, Giesen, Ewers & Hayes, Madison, Wis., for petitioner.

U.S. Atty. John R. Byrnes, Madison, Wis., for respondent.

SHABAZ, District Judge.

Daniel Fatico, an inmate at the Federal Correctional Institution at Oxford, Wisconsin, has petitioned for a writ of habeas corpus from this Court under 28 U.S.C. § 2241 (1976). The petition is denied.

I. Introduction

Mr. Fatico was indicted in 1976, along with three others, for conspiracy to receive, and for receiving, goods stolen from foreign commerce during three truck hijackings which took place in 1971. Apparently, the indictments were based largely on the testimony of unindicted co-conspirators in the hijackings, Salvatore Montello and Manuel Llauget, men with extensive criminal records participating in the Government's witness protection program. After prosecution of charges against Fatico relating to one of the hijackings ended in a mistrial, petitioner pleaded guilty¹ to one count in another indictment of conspiracy to possess furs stolen from foreign commerce having a value in excess of $100.² On the Government's motion, the Court dismissed the remaining charges.

Final disposition of the charges against Fatico was delayed pending resolution of certain sentencing issues by the trial court.³ On July 27, 1978, the United States District Court for the Eastern District of New York sentenced petitioner to a four-year term on the conspiracy count, to be served consecutively with a three-year term imposed a month earlier for an unrelated gambling conviction. Fatico II, 458 F.Supp. at 412-13. This sentence was based, in part, on the Court's finding that Fatico was an active member of an organized crime family. Id. Petitioner began serving these terms on December 15, 1980.

On October 29, 1981, Fatico had his initial parole eligibility hearing before the United States Parole Commission. At that hearing, he received a salient factor score of six.⁴ The Hearing Examiner Panel rated the severity of Fatico's offense behavior as Greatest I,⁵ over Fatico's protest that he had only pleaded guilty to a single count of conspiracy to possess stolen goods, because of its finding that the offense involved multiple separate conspiracies related to the truck hijackings,⁶ in addition to the unrelated gambling activity. Applying the Commission's parole guidelines,⁷ the Panel found petitioner should serve 52 to 64 months of his aggregated seven-year sentence before parole, with presumptive parole after 52 months if his good adjustment to the institution continued.

On November 19, 1981, the Commission issued a Notice of Action ordering the petitioner's continued incarceration with presumptive parole on April 15, 1985, after 52 months of service. As reasons for the continuance, the order stated, "You participated in a conspiracy to commit armed hijacking of four freight trucks and `fencing' of the stolen merchandise. You also participated in the operation of an illegal gambling operation which had approximately $2,000 per day profit."

Petitioner appealed the panel's order to the regional office of the Commission, contending that his offense severity rating was based on erroneous information and that the Commission did not follow proper procedure in deciding his case. The Regional Commissioner affirmed the panel's decision, citing the reasons the panel had previously stated. Petitioner then appealed to the National Appeals Board, which also affirmed the panel's original decision for an almost identical list of reasons.⁸

Having exhausted his administrative remedies, Fatico seeks relief in this Court. He claims that the Commission violated his right to due process in three ways:

(1) its consideration of ex parte information from his presentence report, information which the sentencing district court had found unreliable;

(2) its finding that he participated in a conspiracy to commit armed robbery of four freight trucks, a finding not supported by credible evidence in the record;

(3) its arbitrary and capricious categorization of his offense behavior severity as Greatest I.

In this Court's April 29, 1983 Order to Show Cause, the Court rejected Fatico's claim that the Commission's consideration of allegedly inaccurate information in his presentence report violated due process, finding that the Commission has the broadest latitude, and indeed responsibility, to consider information from all sources in making its decision, so long as the inmate may dispute the information. Solomon v. Elsea, 676 F.2d 282, 287-89 (7th Cir.1982); Bush v. Kerr, 554 F.Supp. 726, 730-31 (W.D. Wis.1982). See generally, 18 U.S.C. § 4207 (1976); 28 C.F.R. § 2.19(a) (1982). Consequently, this memorandum and order deals only with petitioner's contention that the record does not support the Commission's factual findings and that the Commission abused its discretion in classifying petitioner's offense severity as Greatest I based on those findings.

II. The Merits of Fatico's Petition

The crux of Fatico's request for relief is his contention that the factual findings of the Commission's Hearing Examiner Panel with regard to his offense behavior are incorrect and the product of unreliable information. Specifically, he urges that his plea of guilty to the charge of conspiracy to possess the stolen furs itself in no way implicates him in "armed hijacking of four freight trucks and `fencing' of the stolen merchandise," the offense behavior found by the panel. Rather, he argues, the panel improperly based its findings on independent indictments which had been dismissed by the Court and from his presentence report on the conspiracy conviction. Fatico infers that information from these sources is insufficient to support the Commission's factual findings because it is based on the uncorroborated testimony of government informants Montello and Llauget, testimony which the sentencing court allegedly found unreliable.

A prospective parolee's right to due process would be violated if the Commission made a parole decision based on information which was obviously false or of such an untrustworthy nature that no reasonable factfinder would rely on it. Majchszak v. Ralston, 454 F.Supp. 1137 (W.D.Wis.1978) (constitutionally defective, uncounseled juvenile convictions cannot be relied upon by the Commission in making parole decisions). Cf. Evans v. Dillahunty, 662 F.2d 522, 526 (8th Cir.1981) (parole officials' failure to allow parole candidate to rebut false statements by prosecutor violated due process). When a parole candidate's complaint falls short of clearly establishing that the information in question should not have been relied upon by the Commission, however, a reviewing court may only consider whether the parole candidate has been accorded, "the combination of the procedures sufficient to minimize risks that a decision will be based on incorrect information." Walker v. Prisoner Review Board, 694 F.2d 499, 505 (7th Cir.1982).

The Court of Appeals has held that a parole candidate's participation in the parole fact-finding process — the rights to reasonable access to adverse information, to present and respond to evidence presented at the parole hearing, and to representation⁹ — along with the Commission's obligation to resolve contested facts by a preponderance of the evidence,¹⁰ adequately guarantees that the parole decision will be based on accurate facts. Solomon v. Elsea, 676 F.2d 282, 288 (7th Cir.1982).

If the Commission has met these procedural requirements and the parole candidate still maintains that the Commission's decision was based on false information, a reviewing court, "need only determine whether the information relied on by the Commission is sufficient to provide a factual basis for its reasons for making the contested decision. The inquiry is not whether the Commission's decision is supported by a preponderance of the evidence or even by substantial evidence." Id. at 290. See e.g., Cox v. Benson, 548 F.2d 186 (7th Cir.1977) (remand required because record devoid of facts supporting Commission's factual findings about parole candidate's offense behavior). The Court of Appeals specifically rejected a "sufficiency of the evidence" standard, which would allow a court reviewing Commission findings to reweigh the evidence. Solomon, 676 F.2d at 290. Contra Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn.1980) (court issued writ of habeas corpus in part because of Commission's apparent failure to consider information favorable to the candidate).

Turning to the immediate case, petitioner Fatico has offered no conclusive proof that the information relied on by the Commission in making its factual findings is false. Nor does he allege the Commission denied him the opportunity to participate in the fact-finding process. Indeed, the hearing summary reveals that Fatico, assisted by his attorney, took an active role in contesting the information contained in his presentence report about the extent of his participation in both the truck hijackings and the gambling operation.¹¹ Fatico is merely reiterating the position he took before the Commission — that the information from the informants Montello and Llauget about his participation in the truck hijackings is false and unreliable — in a new forum.

Accordingly, the Court need only decide whether the information relied on by the Commission is so unreliable as to preclude it from being a sufficient factual basis for the Commission's findings. To frame the question more specifically, the Court must decide whether a reasonable factfinder, weighing all the information before it, could find by a preponderance of the evidence that Fatico participated in a conspiracy to commit armed hijackings of four freight trucks and "fencing"...