Kimberlin v. Dewalt, Civ.A. AW-97-3829.
| Decision Date | 30 June 1998 |
| Docket Number | No. Civ.A. AW-97-3829.,Civ.A. AW-97-3829. |
| Citation | 12 F.Supp.2d 487 |
| Court | U.S. District Court — District of Maryland |
| Parties | Brett C. KIMBERLIN v. Stephen DEWALT, Warden FCI-Petersburg.<SMALL><SUP>1</SUP></SMALL> |
Brett C. Kimberlin, pro se.
Lynn A. Battaglia, United States Attorney, Tamera L. Fine, Assistant United States Attorney, of Baltimore, MD, for Defendant.
AMENDED MEMORANDUM
On June 27, 1997 the United States Parole Commission revoked Brett C. Kimberlin's parole.2 On November 10, 1997 Kimberlin filed a petition for writ of habeas corpus challenging the revocation. After giving petitioner time to supplement his petition (see Paper Nos. 2 and 3), the Court on December 18, 1997 required the United States Parole Commission to respond to the petition. (See Paper No. 7). The Commission has filed its response. (See Paper No. 12). Petitioner has filed objections to the response (see Paper No. 19), and the Commissioner has filed a reply to those objections. (See Paper No. 25). A hearing is not necessary for the resolution of this case. See Local Rule 105.6.
On judicial review, a parole violator may not retry the evidence against him. Garcia v. Neagle, 660 F.2d at 988; 18 U.S.C. Section 4218(d). Judicial review is satisfied as long as "some evidence" exists to support the agency's revocation.3 For reasons set forth herein, petitioner has failed to meet this burden here.4
In order to prevail, petitioner must show that the Commission "exceeded its legal authority, acted unconstitutionally or failed to follow its own regulations" in revoking his parole. See Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309; see also Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) ().
On June 11, 1980 petitioner was sentenced to four years following his conviction in the United States District Court for the Southern District of Texas for conspiracy to possess with intent to distribute marijuana.5
On November 3, 1980 petitioner received a consecutive 12 year sentence following his conviction in the United States District Court for the Southern District of Indiana for possession and illegal use of Department of Defense insignia, illegal use of the Seal of the President of the United States, and impersonation of a federal officer. See Paper No. 12, Exhibit C.
On June 4, 1981 petitioner received a consecutive five year sentence following his conviction in the United States District Court for the Southern District of Indiana for receipt of explosives by a convicted felon.6
On December 30, 1981 petitioner received a 50-year concurrent sentence from the United States District Court for the Southern District of Indiana for possession of an unregistered destructive device, unlawful manufacturing of a destructive device, malicious damage by means of explosives, and malicious damage by means of explosives involving personal injury. As set forth in his presentence report, during a six day period in September, 1978 eight bombs made of Tovex 200 dynamite were detonated in the Speedway, Indiana area.7 One bomb, placed in a gym bag in the Speedway High School parking lot, detonated on September 6, 1978, when it was picked up by Carl and Sandra DeLong after a high school football game. Sandra DeLong received permanent nerve damage caused by bomb fragments in her leg. Her husband Carl lost his right leg and two fingers.8 Carl DeLong received additional injuries to his inner ear, stomach, chest, neck and arm due to bomb fragments, and endured a series of operations. Id., Exhibit B at 4. On February 23, 1983 Carl DeLong committed suicide at the age of 44.
On October 23, 1983 a Marion County, Indiana jury awarded $360,000 to Sandra DeLong for her injuries, and $1,250,000 for the wrongful death of Carl DeLong. The Indiana Court of Appeals reversed the wrongful death judgment, holding that Carl DeLong's suicide was, as a matter of law, an intervening cause.9 The Supreme Court of Indiana reinstated the wrongful death judgment on June 13, 1994, finding that Carl DeLong's death "was within the scope of harm intended by Kimberlin's intentional criminal conduct."10
Sandra DeLong attempted to collect on her judgment by obtaining a writ of attachment against petitioner's prison commissary account after a United States Probation Officer informed her that petitioner regularly transferred money to someone outside the prison. Petitioner promptly sued Mrs. DeLong, her lawyer, the probation officer, and various Bureau of Prisons and Department of Justice officials for money damages. Petitioner's action was not successful. See Kimberlin v. U.S. Department of Justice, 788 F.2d 434 (7th Cir.1986).
In 1992 Sandra DeLong obtained a ruling from the United States Court of Appeals for the Seventh Circuit upholding the disbursement of money previously seized from petitioner by the FBI toward payment of her judgment.11
On February 13, 1994 petitioner was released on supervised parole in this district.12 Petitioner inherited $155,147 from his father's estate. Additionally he developed business deals (including an oil project, a prefabricated housing project, a power plant project, a flower mill project, a tire contract and others) in Ukraine through a partnership known as LADA; entered into a recording contract; and entered into a book contract in favor of BKE, Inc., a corporation petitioner established and controlled.13 The book contract, an agreement between BKE, Inc., writer Mark Singer, and Knopf Incorporated (a subsidiary of Random House), centered around allegations petitioner had made in the 1988 federal election campaign concerning his sale of marijuana to Dan Quayle, and petitioner's subsequent treatment by the Bureau of Prisons.14 As of February 10, 1997 BKE, Inc. had received $339,000 in proceeds from that book, with another $225,000 in "guaranteed income" from the contract expected later that year. (See Paper No. 12, Exhibit H).
Despite a healthy income, petitioner continued to resist paying the DeLong judgment, which had been reinstated on June 13, 1994. In a July 12, 1994 letter to Probation Officer Koehler, he threatened to go into bankruptcy if enforcement of the judgment was to occur, and claimed that he was personally judgment-proof, with his assets and income protected under "corporate veil." (See Paper No. 12, Exhibit E and Exhibits I and J). Petitioner then proceeded with further unsuccessful appellate litigation attempting to set aside the judgment.15 Following the Supreme Court's denial of certiorari, petitioner continued to ignore the outstanding judgment. On May 16, 1996 he submitted a mortgage loan application denying that he had any "outstanding judgments" against him.16 A $308,000 mortgage loan was approved for the purchase of a house in Bethesda, Maryland.17
During this time, publicity connected to the release of petitioner's book, Citizen K, generated the attention of staff of the United States Senate Judiciary Committee. On October 11, 1996 the Committee's chief investigator informed the Commission's general counsel that certiorari in the DeLong matter had been denied by Supreme Court the previous year. The Commission in turn requested the United States Probation Office in Baltimore to review petitioner's financial circumstances and to provide the Commission with an opinion as to the probable enforceability of a special condition of parole requiring petitioner to satisfy the judgment.18 In a January 8, 1997 interim report, Probation reported petitioner's statements that the bulk of his income had been derived from the book proceeds, and that a $100,000 payment from Knopf was imminent. Petitioner's January 28, 1997 letter detailing his financial position also was forwarded to the Commission.19
On February 10, 1997 the Commission imposed a special condition of parole ordering petitioner to "immediately undertake, in good faith and with all diligent effort, to pay the final civil judgment ..." in Kimberlin v. DeLong. Petitioner was further ordered to submit a payment plan for Commission approval and to take no measures to transfer or otherwise dispose of any assets owned or controlled by him without the permission of his probation officer. Because the Knopf payment was the only immediately available source of income or wealth, it was specifically identified, and petitioner was told to direct all future payments from Knopf, Inc. to Sandra DeLong. Petitioner additionally was prohibited from taking any action "that has the effect of delaying or otherwise frustrating the prompt satisfaction by you of any part of this special condition."20
Petitioner submitted objections and appealed the decision. On April 28, 1997 the Commission's National Appeal Board affirmed the decision to impose a special condition that petitioner pay the Indiana civil judgment.21
Rather than comply with the special condition, petitioner submitted a directive permitting Knopf to "deposit any monies which would otherwise be due me personally from Knopf (Random House) with Sandra DeLong."22 On February 17, 1997 petitioner, who previously had claimed 100% ownership of BKE, Inc. on previous tax returns and appeared to control the corporation's accounts which he used for personal expenses, first claimed that BKE, Inc. was wholly owned by his sister.23 Notwithstanding petitioner's January 25, 1997 claim that $225,000 in "guaranteed income" was due from Knopf, once the special condition was in place, nearly-concluded settlement agreements between Knopf and nine of petitioner's associates fell apart.24
Despite these maneuvers, Mrs. DeLong on April 18, 1997 obtained an order from the Marion County, Indiana Superior Court garnishing the Knopf book money in order to...
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