U.S. ex rel. Schiano v. Luther, 91-3263

• Decision Date: 23 January 1992
• Docket Number: No. 91-3263,91-3263
• Citation: 954 F.2d 910
• Parties: UNITED STATES of America ex rel. James SCHIANO # 12699-054, v. Dennis LUTHER, Warden FCI McKean. James Schiano, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 910

954 F.2d 910

UNITED STATES of America ex rel. James SCHIANO # 12699-054, v. Dennis LUTHER, Warden FCI McKean.

James Schiano, Appellant.

No. 91-3263.

United States Court of Appeals, Third Circuit.

Argued Oct. 7, 1991.

Decided Jan. 23, 1992.

Cheryl J. Sturm (argued) West Chester, Pa., for appellant.

Thomas W. Corbett, Constance M. Bowden (argued), Office of U.S. Atty., Pittsburgh, Pa., for appellees.

Before MANSMANN, NYGAARD and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

The appellant, James Schiano, was convicted in the United States District Court for the District of New Jersey for conspiracy with intent to distribute cocaine in violation of 21 U.S.C. § 846. He was sentenced to eight years in prison.

In this habeas corpus action, brought pursuant to 28 U.S.C. § 2241, Schiano raises two issues on appeal. First, that the Commission violated 18 U.S.C. § 4208(b)(2) and 28 C.F.R. § 2.55 by failing to disclose to Schiano the file of a coconspirator, Thomas Paskas, which the Commission had reviewed in making its decision. Second, that the Parole Commission did not follow its own regulations in failing to "carve out" Schiano's role in the conspiracy when making its parole determination. Schiano appeals from the District Court's denial of his petition. We hold that while the Commissioner had a rational basis for determining Schiano's role in the conspiracy, it nevertheless violated its own regulations in failing to disclose to Schiano material on which it relied in reaching its parole determination.

We have jurisdiction under 28 U.S.C. § 1291 and our review is plenary. Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.1976).

I.

Schiano's initial parole hearing was held on September 6, 1989, at which time the Examiners Panel assigned a Category Six Offense Severity Rating to Schiano. Referring to cocaine offenses, the parole regulations provide that "[w]here the Commission finds that the offender had only a peripheral role" the Commission should grade the offender's conduct as Category Six. 28 C.F.R. § 2.20, Subchapter c, Part 921(c). The term "peripheral role" refers to conduct as a courier, chauffeur, deck hand or the like. It does not include individuals with either decision making or supervising authority. 28 C.F.R. § 2.20, Chapter 13(b).

The panel unanimously recommended that Schiano be held accountable for six kilograms of cocaine, rather than holding him accountable for the distribution of over 150 kilograms of cocaine distributed by the conspirators. ¹ A Salient Factor Score of 9, when combined with this Offense Severity Rating of 6, resulted in Schiano being subject to 40-52 month's imprisonment. The panel recommended that Schiano be paroled after 48 months imprisonment. 28 C.F.R. § 2.20 (Guidelines for Decisionmaking).

The Regional Administrator disagreed with this recommendation. He rated Schiano's Offense Severity at 8, a level which involves possession with intent to distribute in excess of 18.75 kilograms of cocaine. The Administrator based this rating on the fact that Schiano should be considered a large scale distributor within the ring of conspirators who had distributed in excess of 150 kilograms of cocaine and who had direct contacts with a Columbian drug source. He further noted that, as Schiano's culpability was ranked equal to that of his coconspirator Thomas Paskas, he should receive the same Offense Severity Rating of Eight that was received by Paskas. The Administrator attached Paskas' file to Schiano's file when he referred the case to the Regional Commissioner.

Because both the Regional Commissioner and the Administrator disagreed with the unanimous recommendation of the Examiners Panel, Schiano's case was referred to the National Commissioners, pursuant to 28 C.F.R. § 2.24(a). The National Commissioners approved the Category Eight Offense Severity Rating in a Notice of Action dated October 23, 1989, and Schiano was thus denied parole.

Schiano appealed this decision to the National Appeals Board, which affirmed the National Commissioners' decision, stating that Schiano had been involved in a conspiracy to distribute over 18.75 kilograms of cocaine. Schiano then filed a Petition for Writ of Habeas Corpus, claiming that the Paskas report, which the Regional Administrator had included with Schiano's file, had not been disclosed to him and that the Parole Commission had not identified his role in the conspiracy.

The Parole Commission responded that 18 U.S.C. § 4208(b)(2), which requires that the prisoner be given "reasonable access to a report or other document to be used by the Parole Commission in making its determination," did not apply to the disclosure of Paskas' file because it was not a document or report within the meaning of that provision.

In response to Schiano's second claim that his role in the conspiracy had not been "carved out," the government contended that under Pinkerton v. United States, 328 U.S. 640, 648, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), an individual may be held responsible for the actions of codefendants that were "reasonably foresee[able] as a necessary or natural consequence of the unlawful agreement." See 28 C.F.R. § 2.20, Chapter 13, Subchapter A, Note 4.

The district court denied Schiano's petition for Writ of Habeas Corpus. This appeal followed.

II.

Schiano raises as his first issue on appeal: "Did the Parole Commission violate 18 U.S.C. § 4208(b)(2) or 28 C.F.R. § 2.55 by not disclosing documents used in making the parole determination?" We note that Schiano's parole hearing had been conducted on September 6, 1989, some five years after 18 U.S.C. § 4208(b)(2) had been repealed. ²

Schiano had pled guilty to an offense charging conspiracy from August 1985 to May 1986 (A 173a). Despite its repealer, Section 4208 remained applicable, for ten years to individuals who, like Schiano, committed an offense prior to the effective date of the repeal of this section on November 1, 1987. Section 4208, prior to its repeal, required among other things that "[a]t least thirty days prior to any parole determination proceeding, the prisoner shall be provided with ...(2) reasonable access to a report or other document to be used by the Commission in making its determination." Under the savings provision of this statute, see note 2, supra, this section remains applicable to this case. The repeal of § 4208(b)(2), however, does not affect Schiano's argument on appeal because, with the exception of minor differences, the regulations which were promulgated, have at all relevant times required that each "prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination." 28 C.F.R. § 2.55(a).

The regulations also provide that "[t]he scope of disclosure under 28 C.F.R. 2.55(a) is limited to reports and other documents to be used by the Commission in making its determination." As stated, these provisions are derived from the now-repealed statute 18 U.S.C. § 4208(c). To the extent that any such report or document may be deemed exempt because it contains (1) diagnostic opinions or (2) material which would reveal a source of information obtained under a promise of confidentiality, or (3) any other information which, if disclosed might result in harm to any person, the non-disclosable document may be summarized in accordance with § 2.55(d). ³

The government has argued that Schiano's rights were not violated when the Parole Commission did not disclose the contents of Paskas' file, claiming that the Commission "relied on the information in Paskas' file only to determine that Schiano was at least as culpable as Paskas was." (Appellee's Brief at 14-15). The record upon which the government and Schiano relied at the time of appeal apparently characterized and ranked Schiano and Paskas at the third level of a seven-level ranking in culpability.

We say "apparently" because at the time we heard oral argument on Schiano's appeal, neither Schiano, nor the U.S. attorney representing Warden Luther, nor the members of this panel, had been privy to the Paskas report which the Regional Administrator attached to Schiano's file. Schiano claimed in his brief that Paskas, who had originally been sentenced to 12 years, had had his sentence reduced to 9 years. The government responded that Paskas' sentence was still one year greater than Schiano's 8 year sentence.

Both Schiano and the government joined issue on what constituted a "report or other document" as set forth in the regulations. Schiano, claiming that he had no knowledge of Paskas' file before the parole hearing and that it was this file that resulted in the Regional Administrator and Commissioner increasing Schiano's Offense Severity Rating and denying parole, argued persuasively that the Paskas file could not be exempt from disclosure because it did not fall within any of the exempt categories of the regulation.

The government, on the other hand, following the reasoning of the Parole Commissioners and the district court, contended that reviewing Paskas' file did not constitute reviewing a "report or document" because the Commission was doing no more than reviewing its own decisions so that it could ensure uniformity of decisions for codefendants of similar culpability. (Appellee's Brief at 18). The government additionally claimed that Congress, in enacting 18 U.S.C. § 4208(b) from which the present regulations are derived, had no intent to intrude upon the strong privacy interests that a codefendant would have in not having the contents of his file revealed to another defendant. (Id.)

The plain language of the statute and of the accompanying regulations, however, do not support the government's argument. The regulation clearly requires disclosure of "reports and other documents to be used by the Commission in making its determination." 28 C.F.R. § 2.55(a). ⁴ From what appears in the record before ...