Iuteri v. Nardoza
| Decision Date | 04 April 1983 |
| Docket Number | Civ. No. N-81-297 (WWE). |
| Citation | 560 F. Supp. 745 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Mark IUTERI, Petitioner, v. Joseph A. NARDOZA, United States Parole Commission and Victor Liburdi, Respondents. |
Ira B. Grudberg, Jacobs, Grudberg & Belt, New Haven, Conn., for petitioner.
Barry K. Stevens, Asst. U.S. Atty., Bridgeport, Conn., for respondents.
RULING ON HABEAS CORPUS PETITION
On July 8, 1980, Petitioner Mark Iuteri was convicted in the United States District Court for the District of Hawaii of 1) conspiracy to commit wire fraud, 2) interstate travel in furtherance of a scheme to defraud, 3) aiding and abetting the use of interstate travel in furtherance of a scheme to defraud, and 4) interstate transportation of fraudulently obtained money. Judge Samuel P. King presided over a two-day sentencing hearing during which the government introduced testimony that petitioner had a history of serious criminal behavior including allegations of homicide, assault, fraud, kidnapping, narcotics and extortion. Petitioner's attorney cross-examined the government's witnesses but petitioner did not testify. Judge King sentenced petitioner to consecutive terms totaling fifteen years under 18 U.S.C. § 4205(b)(2), permitting parole to be entirely at the discretion of the United States Parole Commission ("the Commission"). In imposing the sentence, he observed that "if there were ever a case for using the maximum, this is the case for the particular charges here" and noted that in his experience the Commission usually imposed longer periods of incarceration when the inmate was sentenced under 18 U.S.C. § 4205(b)(2). Transcript of Sentencing Hearing, at 164 (July 8, 1980).
Based upon a severity rating of moderate as to the offense and a salient factor score of ten (10), the Commission Guidelines, 28 C.F.R. § 2.20 (1982), provide for service of ten to fourteen months on the sentence. At petitioner's initial parole hearing in April, 1981, he was granted a presumptive release date of July 2, 1981, requiring incarceration for 17 months, of which 14 had already been served.
During the Commission's examination of petitioner's case the Commissioners did not have before them either the transcript of the sentencing hearing or the report of the prosecuting attorney, Form 792, customarily completed and forwarded to the Commission by the United States Attorney who prosecuted the case. Although petitioner seems to allege some form of bad faith failure to provide information to the Commission, such a case has not been proved; nor is it at all clear that any factual finding to that effect would change the outcome of this habeas corpus petition. The presentence report, considered by the Commission, contains allegations concerning pending murder charges in New Haven, Connecticut, including the claim that the victim had been shot six times "in gangland style," general allegations that Iuteri was a "bad man," and claims that he had threatened to kill anyone who testified against him. The report of the Commission hearing indicates that the Commission did consider those allegations. In addition, the Commission considered a favorable report on his behavior while incarcerated.
After the parole hearing and before his release on parole, Iuteri was turned over to Connecticut authorities to stand trial on the state murder charges.1 Because Iuteri was able to meet bail on these charges, he was due to be released once his then imminent parole date arrived. A few days before petitioner was due to be released on parole, a strike force attorney and state prosecutors commenced an eleventh hour campaign to have petitioner's parole date reconsidered. They investigated the scope of the information considered at the initial Commission hearing and realized that it was incomplete. Strike Force Attorney Richard Gregorie wrote a letter to Case Analyst Jack Schneider and forwarded with it the completed Form 792, requesting that the Commission reopen the case to consider this new information. The exact sequence of events and reasons for delayed preparation are disputed and somewhat unclear, but are largely irrelevant to this action for habeas corpus relief. Of importance is whether new information was actually presented to the Commission as required by 28 C.F.R. § 2.28(f) (1982). As discussed below, this court finds that new information was presented to be considered by the Commission, namely, the transcript of the sentencing hearing before Judge King and the Form 792 completed by United States Attorney Bent who prosecuted the case. Although these documents provided some information that had been previously considered by the Commission, they added the sentencing remarks of Judge King and evidence indicating that Iuteri had engaged in shylocking and loan shark activities, had attempted to promote the distribution of narcotics by offering protection to those engaged in drug distribution, had beaten a man (Satmary) with a blackjack for an extended period of time, and had held a female (Foote) against her will for several weeks, forcing her to engage in sexual activities.
Pursuant to Commission procedures, Iuteri's case was recommended for reconsideration by Regional Commissioner Nardoza and, with the votes of three National Commissioners, Iuteri's parole date was retarded pending the outcome of the reconsideration hearing. The July 10, 1981 Notice of Action gave the reasons for reconsideration as, This hearing was scheduled for the next available Commission docket, August 17, 1981. Iuteri was duly notified of this rehearing and of the documents that would be at issue. He then filed his initial habeas corpus petition.2 The hearing was postponed at petitioner's request. The Hearing Examiners ultimately heard Iuteri's case on October 22, 1981, and in light of this new information they recommended that petitioner's parole date be delayed an additional four and one half years, thereby requiring service of six years on his fifteen year sentence. The Commission adopted the findings of the Examiners. The Notice of Action dated November 2, 1981 explained the continuation of his presumptive release date after service of 72 months as follows:
After an evidentiary hearing, followed by post-hearing briefs and oral argument on the subject of the amended habeas corpus petition requesting immediate release, this case is now ripe for decision. Petitioner challenges the actions of the Commission and his current incarceration on multiple grounds. First, petitioner claims that the retardation procedure under 28 C.F.R. § 2.28(f) imposed an unconstitutional denial of due process in that he was denied his freedom without appropriate procedural safeguards. Secondly, he claims that the Commission violated its own regulations set out in 28 C.F.R. § 2.28(f) by reopening his case without any "new" information required by that section. Petitioner advocates an interpretation of this section permitting reconsideration only when information not previously in existence comes to light. Because the transcript of the sentencing hearing and the information contained in the Form 792 were extant or obtainable at the time of the Commission's initial parole hearing, petitioner claims that the Commission should have been barred from reopening the parole hearing when this information came to its attention. Lastly, petitioner claims that the Commission's imposition of a period of incarceration far outside the guidelines promulgated by the Commission in 28 C.F.R. § 2.20 constitutes an abuse of discretion and therefore a denial of due process. This court will examine each claim in turn.
Petitioner challenges the constitutionality of the Commission regulation that allows the Commission, solely upon the presentation of new adverse information, to retard a parole grantee's release date until the Commission holds a final hearing and issues a decision in the matter. The relevant section of the regulations provides:
Upon receipt of new and significant adverse information that is not covered elsewhere in this section, the Regional Commissioner may refer a case to the National Commissioners with his recommendation and vote to schedule the case for a special reconsideration hearing. Such referral by the Regional Commissioner shall automatically retard the prisoner's scheduled release date until a final decision is reached in the case. The decision to...
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...Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 540, 42 L.Ed.2d 521 (1975) (length of deprivation a significant factor); Iuteri v. Nardoza, 560 F.Supp. 745, 751 (D.Conn.1983) Any pre-hearing deprivation which may occur is mitigated substantially by § 1399(c)(1)(C), which amortizes the withdrawn......
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...acted arbitrarily and capriciously in translating the information considered into a period of incarceration." Iuteri v. Nardoza, 560 F.Supp. 745, 754 (D.Conn.1983). In other words, in Iuteri, the court was of the opinion that the public interest in having the Parole Commission consider all ......
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