Lewis v. Beeler

• Decision Date: 13 November 1991
• Docket Number: No. 90-6299,90-6299
• Citation: 949 F.2d 325
• Parties: James W. LEWIS, Petitioner-Appellant, v. Art BEELER, Warden; and the United States Parole Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 325

949 F.2d 325

James W. LEWIS, Petitioner-Appellant, v. Art BEELER, Warden; and the United States Parole

Commission, Defendants-Appellees.

No. 90-6299.

United States Court of Appeals, Tenth Circuit.

Nov. 13, 1991.

Donald V. Morano, Chicago, Ill., for petitioner-appellant.

Michael A. Stover, Gen. Counsel, U.S. Parole Com'n (Kristie K. Stafford, Atty., U.S. Parole Com'n, Chevy Chase, Md., with him, on the brief, Timothy D. Leonard, U.S. Atty., and Ronny D. Pyle, Asst. U.S. Atty., Oklahoma City, Okl., of counsel), for defendants-appellees.

Before SEYMOUR and EBEL, Circuit Judges, and MATSCH, District Judge. ^*

EBEL, Circuit Judge.

This appeal raises the following four questions:

1. Can evidence that was known by investigative agencies but not by the United States Parole Commission ("the Commission") at the time of a prisoner's initial parole determination be considered "new information" sufficient for the Commission to reopen the prisoner's case under 28 C.F.R. § 2.28(f)?

2. Once a prisoner's case is reopened, can the Commission consider information in a sentencing transcript where

A. the transcript, though previously unseen by the Commission, was not the basis for reopening B. the information pertains to a crime for which the prisoner was not charged but which was related to the crime for which he was convicted; and

C. the district judge declined to consider the information at sentencing?

3. Was the district judge's statement during sentencing that there was not a "shred of evidence" that the Petitioner-Appellant (Lewis) committed the Tylenol murders merely a reiteration of his assurance that he was not going to consider any evidence of that crime since Lewis was not so charged, rather than a finding on the merits of such an allegation pursuant to Federal Rule of Criminal Procedure 32(c)(3)(D)(i)?

4. Did the Commission act within its discretion in determining that Lewis committed murder by lacing Tylenol capsules with cyanide?

We answer all of these questions in the affirmative. ¹

FACTS

Following the deaths of seven people from the ingestion of Tylenol capsules laced with cyanide, Lewis mailed a letter to Johnson & Johnson, Inc., the makers of Tylenol, threatening to continue lacing Tylenol with cyanide unless the company wired $1 million to a specified bank account. Although not charged with the killings, Lewis was charged with and convicted of extortion on the basis of that letter. ² He received a ten year sentence which was to run consecutively to two concurrent ten year sentences that he received for other federal crimes. At sentencing, the prosecutor suggested that Lewis was a suspect in the Tylenol murder case, to which the judge responded that he would not consider that suggestion because Lewis had not been charged for or convicted of the Tylenol murders and there was not "a shred of evidence" before him linking Lewis to the Tylenol murders. Record, Doc. 13, Ex. T at 16, 54 (hereinafter "Tr.").

The Parole Commission ultimately received Lewis's case. On January 6, 1988, after an initial hearing, the Commission informed Lewis that it would presumptively grant parole after he had served his minimum sentence of eighty months. Thus, Lewis was due to be released on August 27, 1989. This determination was affirmed by a "no change" notice of March 9, 1989 signed by Victor Reyes, the Regional Commissioner for the South Central Region in Texas.

On February 17, 1989, however, one of Lewis's prosecutors, Anton Valukas, sent a letter to the Commission Chairman, Benjamin Baer, in Maryland urging an extension of Lewis's parole date. Attached to Valukas's letter was a letter written by Lewis to President Reagan essentially threatening to kill more people with cyanide-laced Tylenol and to kill Reagan with a radio controlled airplane bomb if income taxes were increased or payroll taxes were not abated. ³ On March 9, 1989, a second of Lewis's prosecutors, Jeremy Margolis, sent a letter to Baer urging an extension of Lewis's parole date. Baer forwarded these letters to Reyes, the Regional Commissioner in Texas. Reyes apparently had no access to these letters prior to his issuance of the March 9, 1989 "no change" notice.

Based on these letters, on April 13, 1989, Reyes recommended that the National Commissioners reopen Lewis's case. The National Commissioners ordered the case reopened on the basis of new and adverse information on April 27, 1989, but failed to specify the information to which they referred.

On July 20, 1989, the Commission corrected its order to specify the letters from the prosecutors and the letter to Reagan as new and adverse information.

At a hearing on August 21, 1989 the Commission acknowledged the delay in correcting its order. The Commission also informed Lewis that it intended to rely on information in the transcript from his sentencing, which had been submitted to the Commission by Lewis, to determine whether he committed the Tylenol murders. For these reasons the Commission offered Lewis the option of asking for a continuance. Both Lewis and his attorney explicitly declined to request a continuance and elected to proceed with the hearing. ⁴

Following the hearing, the Commission determined that Lewis was indeed the Tylenol murderer and accordingly raised his Offense Severity Level from Category 6 (for extortion) to Category 8 (for murder). Placing Lewis in Category 8 permitted the Commission to deny him parole, forcing him to serve his full sentence.

Lewis appealed this decision to the Full Commission, which affirmed it. Subsequently he petitioned the district court for habeas corpus, which was denied. He now appeals the district court's denial of his petition based on four grounds.

First, Lewis argues that neither the letters from the prosecutors nor his letter to President Reagan constitute new evidence as required for the Commission to reopen his case. Second, he argues that the Commission, after reopening his case, improperly considered evidence in his sentencing transcript of an uncharged crime. Third, he argues that the Commission was precluded from finding that he was the Tylenol murderer by a statement by the sentencing judge that there was not "a shred of evidence that he is guilty of the Tylenol murders...." Tr. at 54. And Fourth, he argues that the evidence provided an insufficient basis for the Commission's conclusion that he was the Tylenol murderer. We disagree with all of these arguments.

DISCUSSION

I.

Lewis's threatening letter to President Reagan, which the Commission had not seen prior to its initial determination regarding Lewis, provided a sufficient basis for reopening his case. ⁵ The Commission can reopen a prisoner's case when it receives "new and significant adverse information." 28 C.F.R. § 2.28(f). Lewis's letter to President Reagan was both new and significant.

For purposes of § 2.28(f), information is new if it was not received by the Commissioner prior to the decision that is to be revisited. McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.1980) (per curiam); Fox v. United States Parole Comm'n, 517 F.Supp. 855, 859 (D.Kan.), aff'd, No. 81-1432, 1981 WL 37344 (10th Cir. Nov. 23, 1981). Lewis does not contradict the Commission's assertion that the Regional Commissioner had not received his letter to President Reagan prior to either the initial decision regarding his parole or the "no change" determination. ⁶ Thus the letter can be considered new for purposes of § 2.28(f).

Lewis cites Ready v. United States Parole Comm'n, 483 F.Supp. 1273, 1276-77 (M.D.Pa.1980), for the proposition that information cannot be considered new for purposes of reopening a parole decision where the Commission was aware of the allegations that the information is used to support but declined at the time of the initial parole decision to seek such information regarding those allegations. In Ready the Commission was aware during its initial hearing that the prisoner had allegedly engaged in prison misconduct but thought the evidence before it insufficient to support these allegations and did not seek additional information on the matter. The court held that the Commission could not subsequently reopen the case based on new evidence supporting the same allegations. Id.

Unlike the situation in Ready, there is no indication in Lewis's case that the Commission knew of allegations that he was the Tylenol murderer at the time it made its initial parole determination. He was convicted only of extortion and neither his presentence report nor the pre-hearing report for his first parole determination made any allegation that he was the Tylenol murderer.

Further, even if the Commission were aware of these allegations, we respectfully disagree with the reasoning of Ready. The Commission is not like a court. See Fox, 517 F.Supp. at 859. It does not get only one chance to review allegations against a prisoner. Rather, its function is to make the best possible determination of a prisoner's parole risk based on a continuing evaluation. Because the Commission is not primarily an investigative body and must depend largely on interested parties for relevant information, it will sometimes need to review previously considered allegations in light of newly received information. It is for this reason that the Commission is given the power to reopen cases. Ready, to the extent it gives the Commission only one chance to evaluate any particular allegation, would turn the Commission into both a court and an investigator. We cannot agree that these were its intended functions. Cf. McClanahan, 636 F.2d at 1191 (mistake in parole calculation new when brought to attention of Commissioner). ⁷

Thus, we hold that information is new for purposes of § 2.28(f) where it has not been considered by the Commissioner who made the decision which the Commission seeks to reopen. Accordingly, Lewis's letter to President Reagan was new. Additionally, it is clear that the extortionate letter was...