U.S. ex rel. Goldberg v. Warden, Allenwood Federal Prison Camp, Montgomery, Pa., 79-2215

• Decision Date: 09 June 1980
• Docket Number: No. 79-2215,79-2215
• Citation: 622 F.2d 60
• Parties: UNITED STATES of America ex rel. David Frank GOLDBERG, Appellee, v. WARDEN, ALLENWOOD FEDERAL PRISON CAMP, MONTGOMERY, PENNSYLVANIA, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 60

622 F.2d 60

58 A.L.R.Fed. 900

UNITED STATES of America ex rel. David Frank GOLDBERG, Appellee, v. WARDEN, ALLENWOOD FEDERAL PRISON CAMP, MONTGOMERY, PENNSYLVANIA, Appellant.

No. 79-2215.

United States Court of Appeals, Third Circuit.

Argued March 20, 1980.

Decided June 9, 1980.

Elliott Schulder (argued), William G. Otis, Dept. of Justice, Washington, D.C., Carlton M. O'Malley, Jr., U. S. Atty., Middle District of Pennsylvania, Scranton, Pa., Harry A. Nagle, Asst. U. S. Atty., Middle District of Pennsylvania, Lewisburg, Pa., for appellant.

Daniel J. Kornstein (argued), Stewart L. Levy (argued), New York City, Richard S. Bishop, Gelb & Myers, Scranton, Pa., for appellee.

Renee D. Chotiner, Dennis E. Curtis, Stephen Wizner, Alice Bussiere, Legal Services Organization, New Haven, Conn., for amicus curiae Jerome N. Frank Legal Services Organization.

Before SEITZ, Chief Judge, and WEIS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

As a result of a plea bargain, the prosecution dismissed certain counts of an indictment "with prejudice." Petitioner contends that as a consequence of that phraseology, the Parole Commission could not consider the conduct underlying those counts in deciding whether to grant parole on a related charge to which petitioner pleaded guilty. The district court adopted the petitioner's position, but we reject it and, consequently, vacate the order directing the Commission to conduct a new parole hearing. Because the petitioner may be relying upon other commitments made as part of the plea bargain, however, we remand for clarification of that issue.

Petitioner sought a writ of habeas corpus under 28 U.S.C. § 2241 in the district court alleging that the United States Parole Commission had improperly denied him release. The district court dismissed several of the claims but found meritorious the contention that in reaching its decision the Commission had improperly considered counts of an indictment that had been dismissed "with prejudice." The court directed the Commission to hold a new hearing, at which time only the charge to which petitioner had pleaded was to be evaluated.

Petitioner was indicted along with several others and charged with participating in a scheme to defraud the United States by delivering meat that did not meet contract specifications. After negotiations between his trial counsel and the government, it was agreed that petitioner would plead guilty to one count of an information charging a violation of 18 U.S.C. § 1001 (1976), concealment of a material fact. In return the government agreed "not to allocute for any particular sentence" but specifically reserved "its right to comment on the evidence against this defendant." In addition, the government was to "forego seeking any additional charges against said defendant in connection with his conduct in supplying meat to the Department of Defense, and at the time of sentencing will dismiss the counts in the indictment . . . with prejudice." ¹ The agreement did not mention parole.

The petitioner pleaded guilty in the United States District Court for the District of Massachusetts to the one-count information. Before sentence was imposed, counsel acknowledged to the court that he had gone over the presentence report with petitioner, and said that there were no matters included that he wished to challenge. The presentence report, in the section captioned "Official Version," noted that petitioner had pleaded guilty to a one-count information and described the scheme to supply the Department of Defense with inferior meat. The names of the other six participants were listed, along with a description of their roles in the affair, which included bribery of government inspectors. According to auditors quoted in the report, the government had been defrauded of "at least $1,468,951." Finally, the report contained a notation by the probation officer:

"Offense Severity Moderate

Parole Prognosis

If defendant is committed, he will serve between 12 and 16 months according to the U.S. Parole Commission Guidelines."

Petitioner received a prison term of four years and a $10,000 fine. All counts in the indictment pertaining to the petitioner were dismissed.

On May 4, 1978, after four months of imprisonment, the petitioner was given his initial parole hearing. The hearing examiner panel believed that the offense should be classified as "Greatest I" severity under parole guidelines promulgated by the Commission, 28 C.F.R. § 2.20 (1979), as amended by 45 Fed.Reg. 6379 (1980), because the government had been defrauded of a sum in excess of $500,000. Such a rating under the guidelines, when combined with the other factors, "would indicate a range of 40-55 months." ²

Because the presentence report predicted a shorter incarceration period, the matter was referred to the Regional Commissioner for determination whether the sentencing court felt that "this case had guidelines of 12-16 months." In response to an inquiry from the Parole Commission, an Assistant United States Attorney in Massachusetts wrote that at the time of sentencing the court did not mention the time the petitioner would likely serve in prison. The letter went on to say that petitioner had requested a reduction in sentence in early May, but that on May 19, 1978, the court had declined to alter its judgment. Thereafter, the hearing examiners and the Regional Commissioner agreed to continue the petitioner to the expiration of his sentence.

In February 1979 the National Appeals Board of the Parole Commission advanced the parole date because of the consideration given to a codefendant and told petitioner he would be eligible for release on March 19, 1980. At the same time, petitioner sought a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, the area where he was then confined.

The habeas petition sought either an outright vacation or a reduction of the sentence, and, alternatively, a furlough so that petitioner could return to his family. Among the grounds for relief were that the Parole Commission, in considering information concerning the dismissed counts in the indictment, had breached the plea agreement, and that petitioner's health was in danger of irreparable harm because of the inadequate care available in prison.

The district court rejected the request for a reduction of sentence because of lack of jurisdiction and also refused the furlough request. The court found that despite the petitioner's allegation that he was simply a less culpable member of the scheme, the Parole Commission's denial of parole was not arbitrary or capricious; failure to exhaust administrative remedies precluded consideration of the claim of improper medical care.

The district court concluded, however, that it was "not proper for the parole commission to consider as an aggravating circumstance, see 28 C.F.R. § 2.20(d), counts of an indictment which have been dismissed with prejudice and for which there is no reliable evidence on the record." The Commission was directed to conduct a new hearing at which time petitioner's offense severity rating would be recalculated solely on the basis of the count to which he had pleaded guilty. Petitioner was later enlarged pending this appeal. ³

In this court, the Parole Commission argues that it has broad discretion to consider the nature and circumstances of the offense and that matters apart from the count to which a plea is entered may be relevant to a parole determination. The petitioner renews his contention that the Parole Commission's consideration of counts dismissed with prejudice violated the plea agreement.

The district court did not determine whether there had been a plea agreement on parole, but took the closely related position that since the counts in the indictment had been dismissed "with prejudice," the Commission should not have considered them. The court recognized that a sentencing court could properly consider evidence of crimes of which the defendant had been acquitted, e. g., United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), but distinguished that situation because there the sentencing judge had heard the testimony. ⁴

We must measure the district court's reasoning against the powers granted to the Commission by the Parole Commission and Reorganization Act of 1976 (PCRA), 18 U.S.C. §§ 4201-4218 (1976). Section 4203 gives the Commission the power to grant or deny parole and to promulgate rules and regulations establishing guidelines necessary to carry out the national parole policy. The general criteria for making parole determinations are found in § 4206, which provides that eligible prisoners may be released on parole if "the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines that . . . release would not depreciate the seriousness of his offense or promote disrespect for the law" and "would not jeopardize the public welfare." Id. § 4206(a)(1), (2). Section 4207 lists the material that the Commission may consider:

"(1) reports and recommendations which the staff of the facility in which such prisoner is confined may make;

(2) official reports of the prisoner's prior criminal record, including a report or record of earlier probation and parole experiences;

(3) presentence investigation reports;

(4) recommendations regarding the prisoner's parole made at the time of sentencing by the sentencing judge; and

(5) reports of physical, mental, or psychiatric examination of the offender."

The section concludes that "such additional relevant information . . . as may be reasonably available" may also be reviewed by the Commission.

It is clear that the Commission is granted wide discretion to review material that would be helpful in its determination whether to release a prisoner on parole, a decision the Supreme Court has acknowledged is difficult. It is...