LoFranco v. U.S. Parole Com'n
| Decision Date | 26 November 1997 |
| Docket Number | No. 95 CIV.9303 (JES)(AJP).,95 CIV.9303 (JES)(AJP). |
| Citation | 986 F.Supp. 796 |
| Parties | John B. LoFRANCO, Petitioner, v. UNITED STATES PAROLE COMMISSION; United States Probation Department for the Southern District of New York, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Ronald L. Kuby, Kunstler & Kuby, New York City, for Petitioner.
Martin Siegel, Asst. U.S. Atty., New York City, for Respondents.
The above-captioned action having come before this Court, and Petitioner having filed a petition for a writ of habeas corpus challenging as overly broad, ambiguous and violative of his constitutional rights a special condition of parole barring him from associating with the Hell's Angels or any other "outlaw motorcycle gang," and Magistrate Judge Peck having issued a Report and Recommendation to the Court dated October 9, 1996, recommending that the action be remanded to the Parole Commission to address ambiguities regarding this special parole condition, and Petitioner having filed objections to the Report and Recommendation on December 16, 1996, and Respondents having filed a response to Petitioner's objections on January 27, 1997, and the Court having considered all matters raised, it is
ORDERED that the aforementioned Report and Recommendation is hereby adopted, and it is further
ORDERED that, for the reasons set forth in the Report and Recommendation, the action is remanded to the United States Parole Commission for further consideration in accordance with the Report and Recommendation, and it is further
ORDERED that, in the event the special parole condition is not revised within ninety days to eliminate its vagueness, LoFranco's petition for a writ of habeas corpus shall be granted to the extent of deleting that part of the special parole condition concerning "outlaw motorcycle gangs."
This habeas corpus petition challenges a special condition of parole that prohibits petitioner John B. LoFranco from associating with the Hell's Angels or any other "outlaw motorcycle gang."1 LoFranco, represented by Ronald Kuby of Kunstler & Kuby, seeks a writ of habeas corpus to eliminate the special parole condition. LoFranco argues that the special condition (1) unconstitutionally abridges his freedom of association in violation of the First Amendment of the Constitution and (2) is unconstitutionally vague. (Petition, 11/1/95, ¶ 19; LoFranco Br. at 20-24.)
For the reasons set forth below, I recommend that the special condition of LoFranco's parole be remanded to the Parole Commission for further consideration in accordance with this Report and Recommendation. In the event that the special parole condition concerning "outlaw motorcycle gangs" is not revised within sixty days to eliminate its vagueness, I recommend that LoFranco's petition for a writ of habeas corpus be granted to the extent of deleting that part of the special parole condition.
On February 3, 1986, LoFranco pled guilty in the United States District Court for the Northern District of New York to three conspiracy counts, for racketeering, narcotics and extortion conspiracy. Count 2 of the indictment charged that under 18 U.S.C. § 1962(d), LoFranco and at least eleven co-defendants
conspired ... to participate in the affairs of an organization known as the Binghamton and Troy Chapters of the Hell's Angels Motorcycle Club ..., an enterprise engaged in activities which affected interstate commerce through a pattern of racketeering.
(Cert. R. Ex. 6: Presentence Report at 2.)2 "LoFranco fully admitted to entering into three separate conspiracies with another individual charged under the same indictment." (LoFranco Br. at 3.) Both LoFranco and his co-conspirator were members of the Hell's Angels Motorcycle Club at the time of their arrest. (Id.)3
During his guilty plea allocution, LoFranco and his attorney specifically denied that LoFranco's conspiratorial actions were related to his membership in the Hell's Angels, and the judge who accepted LoFranco's guilty plea confirmed that the prosecution did not allege that the Hell's Angels were part of the conspiracy:
THE COURT: Yes. All right, Mr. LoFranco, you heard what Mr. West [the Assistant U.S. Attorney] said with regard to what the Government's proof would be.
Did you do substantially what he said you did with regard to these three counts?
DEFENDANT LoFRANCO: Your Honor, I—
MR. HARRIS [LoFranco's lawyer]: Your Honor, if I might briefly make a statement. Mr. LoFranco is here today and he is admitting that he did enter into these three separate conspiracies with James Harwood; and that as a part of those conspiracies, the necessary acts were committed. And he would further admit and state that he committed those acts as an individual alone. They were not acts that were committed in any way, shape, or form as a part of a membership with the Hell's Angels Motorcycle Club of which he was also a member during this period, and the acts did not involve and were not a part of this membership; but he would admit that he did enter into these conspiracies and committed the necessary overt acts as a part of those conspiracies.
DEFENDANT LoFRANCO: Yes, sir.
THE COURT: However, Mr. LoFranco does admit that he was a part of a conspiratorial group made up of individuals.
DEFENDANT LoFRANCO: Yes, I do.
DEFENDANT LoFRANCO: Substantially, yes, sir.
LoFranco's association with the Hell's Angels is the focus of this habeas corpus petition.
LoFranco was given a twenty-three year sentence. (Petition ¶ 7; Cert. R. Ex. 6: Presentence Report at cover page; LoFranco Br. at 4.) LoFranco served nine years in prison (he was released on parole on May 1, 1994). (Petition ¶¶ 8-9; LoFranco Br. at 4.)
In October 1987, almost seven years before LoFranco ultimately obtained parole, the Parole Commission held an initial hearing to determine when LoFranco should be considered for parole. The Parole Commission considered that LoFranco "was a high ranking member of the Hell's Angels Motorcycle Club in the Albany/Troy, New York area and with his codefendants, most of whom were members of the motorcycle club, were responsible for the distribution of massive amounts of illicit soft drugs...." (O'Toole Dec. Ex. A at A-14.) In its November 12, 1987 Notice of Action relating to LoFranco's parole eligibility date, the Parole Commission concluded that:
[LoFranco] had a leadership position in a criminally oriented organization responsible for distribution of massive amounts of illicit drugs over an eight year period; [LoFranco was] the single largest narcotics trafficker in the organization; [LoFranco] used extortion to collect drug debts; and [LoFranco] threatened a person's life.
(Id. at A-15.)
LoFranco petitioned for a writ of habeas corpus in the United States District Court for the Northern District of New York. LoFranco argued, inter alia, that the Parole Commission improperly considered his membership and leadership position in the Hell's Angels in setting his parole date. (See id. at A-24 to A-40.) The district court denied the petition (see id. at A-56 to A-67, A-74 to A-75), stating that:
In the present case, the [Parole Commission] relied upon both the Presentence Report and the sentencing memorandum. In both of these documents there is sufficient information to indicate that [LoFranco] was engaged in illegal activity from the date he became a member of the Hell's Angels [in 1977]. In addition, the indictment charging [LoFranco] with participation in the RICO conspiracy traces the origins of the conspiracy as far back as 1976. The reliance on these two documents by the [Parole Commission], as well as the indictment, in arriving at [LoFranco's] severity rating, was not an abuse of discretion.
(Id. at A-61.)
LoFranco's appeal to the Second Circuit argued, inter alia, that the Parole Commission violated his First Amendment right to freedom of association by allowing LoFranco's membership in the Hell's Angels, rather than the date of the first overt conspiratorial act, to determine his salient factor score. (Id. at 2.)4
The Second Circuit affirmed in an unpublished order, finding the Parole Commission's decision "was neither an abuse of discretion nor arbitrary or capricious." (O'Toole Dec. Ex. C at 3.) The Second Circuit further stated that
[A]lthough membership in the Hell's Angels is, without more, not evidence of guilt at the trial level, a different standard applies when determining the appropriate sentence or parole.... [T]he Parole Commission was free to consider evidence of membership in an organization associated with drugs and violence and that advocates murder because these crimes are relevant to the issue involved.... Thus, the Parole Commission did not err in considering [LoFranco's] involvement as beginning upon his becoming a member of [the] Hell's Angels.
(Id. at 2-3.)
The Parole Commission set a number of special conditions for LoFranco's parole. (Cert. R. Ex. 1: Notice of Action, 10/29/91.) The Parole Commission imposed the "special" condition that...
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