Zannino v. Arnold
| Decision Date | 19 February 1976 |
| Docket Number | No. 75--2101,75--2101 |
| Parties | ZANNINO, Ilario, v. ARNOLD, Floyd E., Warden, U.S. Penitentiary, and Sigler, Maurice H., Chairman, U.S. Board of Parole. Appeal of UNITED STATES of America. |
| Court | U.S. Court of Appeals — Third Circuit |
Richard L. Thornburgh, Asst. Atty. Gen., Robert L. Keuch & Patrick J. Glynn, Attys., Dept. of Justice, Washington, D.C., Sal Cognetti, Jr., Asst. U.S. Atty., Scranton, Pa., Robert F. Haley, II, Philadelphia Strike Force, Dept. of Justice, Philadelphia, Pa., for appellant.
Francis J. DiMento, DiMento & Sullivan, Boston, Mass., for appellee.
Before VAN DUSEN, ADAMS and WEIS, Circuit Judges.
As of April 7, 1975, when the petition for a writ of habeas corpus now before the court was filed, petitioner, Ilario Zannino, had been confined for approximately 34 months and was then incarcerated in the U.S. Penitentiary at Lewisburg, Pa., where he was serving a six-year sentence 1 for transporting goods in interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. §§ 2 and 2314. 2 The district court granted the petition for a writ of habeas corpus. We reverse.
After a parole hearing on August 12, 1974, an en banc Parole Board order of October 8, 1974, denied the application and ordered that Zannino's sentence be continued to expiration. The reasons given for this disposition included this language:
After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration appears warranted because of the magnitude of the offense and information received from the Justice Department regarding your involvement in organized crime.' 3
An appeal review hearing by the entire Board was held on January 14, 1975, at which petitioner appeared through his counsel. On January 20, 1975, the Board reaffirmed its previous disposition, stating its reasons as follows (5a):
4
Zannino filed the instant petition for a writ of habeas corpus 5 on April 7, 1975, alleging that:
'The United States Board of Parole has determined, arbitrarily and capriciously, without supporting evidence and in violation of petitioner's rights to due process of law and the equal protection of the laws, that petitioner is not entitled to be considered for parole within the published guidelines of the Board and is not entitled to parole at any time.' 6
The Parole Board reopened Zannino's case sua sponte on May 6, 1975. On June 19, 1975, a new order was entered, again continuing Zannino's case to the expiration of his sentence, as explained in the following affidavit filed by the Parole Board:
'On May 6, 1975, it was brought to the attention of the Regional Director that adequate reasons had not been stated in the January 20, 1975, Order, for the continuance outside of the guidelines. The case was therefore reopened on that date and referred to the National Appellate Board for a new decision pursuant to 28 C.F.R. Section 2.28. On June 19, 1975, an order was entered again continuing Mr. Zannino's case to the expiration of his sentence. The reasons given for the departure from the guideline range indicated were as follows:
7
This order also contained the following language: 8
'After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration appears warranted.' 9
On September 12, 1975, the district court found that the reasons given in the June 19, 1975, order were adequate for continuing confinement beyond the guidelines period, but that 'the reasons given lack a reasonable factual basis.' 10 The court held that because the Board's decision lacked a reasonable factual basis, it was arbitrary and capricious. The court went on to order that a writ of habeas corpus would issue, discharging Zannino from custody, unless the Board granted him release on parole. On October 2, 1975, the court issued the writ, directing that Zannino be released 'as on parole.' 11
An important threshold issue in this case is the question of whether a federal district court has jurisdiction to review the Parole Board's decision. In its brief, the Government contended that the broad statutory grant of discretion precluded 'judicial review of the ultimate determinations made by the Board . . ..' 12 The statute, 18 U.S.C. § 4203(a), does indeed invest the Board with broad discretion:
'If it appears to the Board of Parole . . . that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole. . . .'
The Board's own regulations require it to give a statement of reasons to a prisoner denied parole. 28 C.F.R. § 2.13. The Board complied with its regulation and did give reasons for the denial of parole. The precise question we must decide is whether a federal district court, under its habeas corpus jurisdiction, can review the adequacy of the evidence on which the conclusions embodied in such a statement of reasons are based.
Analogizing the instant case to one under the Administrative Procedure Act, the Government notes that 5 U.S.C. § 701(2) makes the judicial review sections of the APA inapplicable to the extent that 'agency action is committed to agency discretion by law.' 13 The analogy is not persuasive. The considerations relevant to the scope of review of agency action which could be challenged under the APA by anyone 'suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute' (5 U.S.C. § 702) are not necessarily involved in review of agency action which is challenged by a person eligible to seek habeas corpus relief.
Also, to interpret 18 U.S.C. § 4203(a) as precluding any judicial inquiry into the adequacy of the evidence on which the conclusions embodied in the Board's statement of reasons for denying parole were based would raise troublesome constitutional issues. 14 As the Supreme Court has stated, '(t) he touchstone of due process is protection of the individual against arbitrary action of government.' 15 In light of these considerations, we are unable to read 18 U.S.C. § 4203(a) as precluding any such inquiry. The role of judicial review of a Parole Board decision on application for a writ of habeas corpus is to insure that the Board has followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious, nor based on impermissible considerations. 16 In other words, the function of judicial review is to determine whether the Board abused its discretion. This function cannot be fulfilled without making some inquiry into the evidence relied on by the Board to support its expressed reasons for denying the parole. 17
Congress has invested the Parole Board with broad discretion. The district court may not substitute its judgment for that of the Board, and, therefore, the scope of its review is very limited. In this case, the district court must determine whether the information relied on by the Board 18 to support its admittedly adequate reasons 19 was sufficient to provide a factual basis for those reasons. The inquiry is not whether the Board is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Board's conclusions embodied in its statement of reasons.
An appellate court's examination of the district court's review of Parole Board action includes a determination of whether the district court correctly applied proper legal precepts in examining the record and whether such record contained adequate supporting material. On this record, we have concluded that there is adequate supporting information showing a rational basis for the Board's conclusion.
The Board gave two reasons: (1) '(t)he offense was part of a large-scale organized criminal conspiracy or ongoing criminal enterprise;' and (2) '(a)n unusually sophisticated or professional manner was evident in the planning or commission of the offense.' The only evidence in the record supporting these reasons was contained in the petition; an affidavit of John Sicoli, senior analyst for the Board in the northeast region; an FBI parole report dated January 22, 1971; and the opinion of the First Circuit affirming Zannino's conviction, United States v. Strauss, 443 F.2d 986 (1st Cir. 1971). Zannino countered this evidence with his sworn petition for habeas corpus relief, which cites the Strauss opinion, and with a sworn traverse by his counsel, Francis J. DiMento.
The FBI parole report (16a...
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