                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-1998

Gambino v. Morris
Precedential or Non-Precedential:

Docket 96-5299




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Filed January 15, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5299

ERASMO GAMBINO

       Appellant,

v.

E. W. MORRIS (WARDEN-FCI FAIRTON);
UNITED STATES PAROLE COMMISSIONER

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 95-cv-04559)

ARGUED NOVEMBER 12, 1996

BEFORE: ROTH, LEWIS and McKEE, Circuit Judges.

(Filed January 15, 1998)

       Alan D. Bowman (ARGUED)
       Gateway I, Suite 900
       Newark, NJ 07102

        Attorney for Appellant
       Neil R. Gallagher (ARGUED)
       Office of United States Attorney
       970 Broad Street, Room 502
       Newark, NJ 07102

        Attorney for Appellees

OPINION OF THE COURT

LEWIS, Circuit Judge.

Erasmo Gambino, a federal prisoner, alleges that the
United States Parole Commission improperly denied him
parole. In particular, he claims that the Commission's
conclusion that he was affiliated with an organized crime
family was not supported by any evidence, and that an
organized crime affiliation is not enough, in itself, to deny
parole. Gambino filed a writ of habeas corpus, which the
district court denied. Because we find that the United
States Parole Commission abused its discretion, we will
reverse the judgment and remand for further proceedings.

I.

Erasmo Gambino is currently incarcerated at the Federal
Correctional Institution at Fairton, New Jersey. In 1984, he
was convicted of conspiracy to distribute heroin; two counts
of possession of heroin with intent to distribute; and two
counts of distribution of heroin, all in violation of 21 U.S.C.
SS 841(a)(1) and (b)(1). Gambino was also convicted of use
of a telephone in a conspiracy to distribute and possess
heroin, a felony under 21 U.S.C. S 846, in violation of 21
U.S.C. SS 843(b) and (c). On December 6, 1984, he was
sentenced to a 34-year term of imprisonment and a
$95,000 fine.

Prior to the verdict, Gambino was cited for attempted
escape from the Metropolitan Correctional Center in New
York City. He was later found guilty and given a 30-day
disciplinary segregation as punishment.

All of these offenses occurred between December 1983
and March 1984, before the enactment of the Sentencing

                                 2
Reform Act of 1984 ("SRA"), Pub. L. No. 98-473, Title II,
Oct. 12, 1984, 98 Stat. 1987. The SRA abolished parole,
see SRA S 218(a)(5), 98 Stat. 2027, 2031, but only for
offenses committed after November 1, 1987. See Sentencing
Reform Amendment Act of 1985, Pub. L. No. 99-217, S 4,
Dec. 26, 1985, 99 Stat. 1728.1 Thus, Gambino was entitled
to a parole hearing.

On April 20, 1994, the United States Parole Commission
conducted a parole hearing and Gambino was denied
release.2 The Hearing Panel assigned Gambino a Category
Six Offense Severity Rating because he had been convicted
of conspiracy to distribute more than 50 but less than 999
grams of pure heroin. See U.S. Parole Commission Offense
Behavior Severity Index, Chapter Nine, Subchapter A,
P 901(d), 28 C.F.R. S 2.20 (1995).3 The Panel assessed his
salient factor score as 10 out of 10, with 10 representing
the lowest risk of parole violation. See id. (Salient Factor
Scoring Manual). The parole guidelines for a prisoner with
a salient score of 10 and a Category Six offense severity
rating indicate a term of incarceration of 40 to 52 months.
See 28 C.F.R. S 2.20(b). The Panel assessed an additional 8
to 16 months for Gambino's attempted escape from secure
custody.4 The resulting aggregate guideline range was 48 to
_________________________________________________________________

1. The parole enabling statutes, 18 U.S.C. SS 4201 to 4218 (1997), were
repealed pursuant to Pub. L. 98-473, Title II, S 218(a)(5), Oct. 12, 1984,
98 Stat. 2027. Nonetheless, these statutes remain in effect for ten years
after Nov. 1, 1987. Pub. L. 101-650, Title III,S 316, Dec. 1, 1990, 104
Stat. 5115. For the sake of brevity, the subsequent history of the parole
statutes will be hereafter omitted.

2. To avoid later confusion when citing early cases regarding parole, we
note that the Parole Commission is the successor to the Parole Board.
Campbell v. United States Parole Commission, 704 F.2d 106, 111 (3d Cir.
1983); Pub. L. No. 94-233, S 2, Mar. 15, 1996, 90 Stat. 219.

3. The Commission does not indicate which edition of its regulations it
relied upon, although it is clearly a recent one. The district court
relied
on the 1995 edition, as do we.

4. The Commission's Notices of Action do not indicate under which
provision this penalty was assessed. The district court stated that it was
assessed pursuant to 28 C.F.R. S 2.36(a)(23)(1)(A). There is no such
section, but it appears that the district court intended to indicate 28
C.F.R. S 2.36(a)(2)(i)(A). However, on its face, this section does not
apply

                               3
68 months.5 However, 18 U.S.C. S 4205(a) (1997) requires
that Gambino remain incarcerated for at least 10 years
prior to being eligible for parole.6 At the time of the April 20,
1994 hearing, Gambino had served approximately 119
months. Nevertheless, the Panel recommended that he
remain incarcerated until the expiration of his sentence,
solely because Gambino has been identified as a member of
an organized crime family.

The Panel also recommended that the case be referred for
"original jurisdiction."7 Government's Supplemental
_________________________________________________________________

to Gambino's attempted escape because it only applies "to the
sanctioning of disciplinary infractions or new criminal behavior
committed by a prisoner subsequent to the commencement of his
sentence." Id. S 2.36(a). Gambino attempted to escape prior to the verdict
and thus prior to the commencement of his sentence. Moreover, he was
given a 30-day disciplinary segregation for this offense after he was
found guilty.

Because Gambino has not raised this issue and because his
mandatory minimum sentence exceeds the guideline range with or
without the additional 8 to 16 months, we need not decide if this
increase in the guideline range was proper.

5. The district court stated that the guideline range was 48 to 78
months. This is incorrect and appears to be a typographical error.
Because both figures are below the applicable statutory mandatory
minimum sentence, the disparity has no effect on our analysis.

6. 18 U.S.C. S 4205(a) (1997) provides that "[w]henever confined and
serving a definite term or terms of more than one year, a prisoner shall
be eligible for release on parole after serving one-third of such term or
terms or after serving ten years of a life sentence or of a sentence of
over
thirty years, except to the extent otherwise provided by law."

7. The district court stated that this case was referred for "original
jurisdiction" consideration pursuant to 28 C.F.R.S 2.17. Gambino v.
Morris, slip op. at 4, No. 95-CV 4559 (D.N.J. Apr. 11, 1996). However,
the Regional Commissioner's May 13, 1994 Notice of Action indicates
that the case was referred for further review pursuant to 28 C.F.R.
S 2.24(a). S.A. at 17. Subsection 2.24(a), entitled "Review of Panel
Recommendations by the Regional Commissioner," provides that

       [a] Regional Commissioner may review the recommendation of any
       examiner panel and refer this recommendation, prior to written
       notification to the prisoner with his recommendation and vote to
the

                               4
Appendix ("S.A.") at 16. On June 27, 1994, the Commission
rendered an "original jurisdiction" decision by Notice of
Action, determining that Gambino would serve until the
expiration of his sentence. Id. at 18. The Commission
informed Gambino that a decision to go outside the
guidelines was warranted because Gambino was

       a more serious risk than indicated by [his] salient
       factor score in that [he has] been identified by the
       government as a member of an organized crime family
_________________________________________________________________

       National Commissioners for consideration and any action deemed
       appropriate . . . . The Regional Commissioner and each National
       Commissioner shall have one vote and decisions will be based upon
       the concurrence of two votes.

(Emphasis added.) The section entitled "Original Jurisdiction cases"
provides that

       [f]ollowing any hearing conducted pursuant to these rules, a
       Regional Commissioner may designate certain cases for decision by
       a quorum of Commissioners as described below, as original
       jurisdiction cases . . . . Decisions shall be based on the
concurrence
       of three votes with the appropriate Regional Commissioner and each
       National Commissioner having one vote.

28 C.F.R. S 2.17(a) (emphasis added).

The National Commission stated in its Dec. 7, 1994 Notice of Action
that it had "original jurisdiction" pursuant to 28 C.F.R. SS 2.17(b)(2)
and
(b)(4). S.A. at 19. Not only is this inconsistent with the Regional
Commissioner's Notice of Action, it is also facially incorrect. Subsection
(b)(4) only applies to "[p]risoners sentenced to a maximum term of forty
five years (or more) or prisoners serving life sentences." Because
Gambino is only serving a sentence of 34 years, this subsection does not
apply.

Subsection (b)(2)(ii) would apply, however, if the case had been referred
pursuant to section 2.17. See 28 C.F.R. S 2.17(b)(2)(ii) (Regional
Commissioner may designate a case as "original jurisdiction" when a
prisoner's offense "was part of a large-scale criminal conspiracy or a
continuing criminal enterprise.").

Notwithstanding these procedural irregularities, we need not decide
whether Gambino was prejudiced by them because of the result we
reach in this case. We note them only to ensure that they are not
repeated on remand.

                               5
       and as evidenced by the body of an execution murder
       victim found in the trunk of [his] automobile on
       November 15, 1982.

Id. The Notice of Action concluded that "[a] decision above
the guidelines is mandated in that [Gambino has] a
minimum sentence which exceeds the guideline range." Id.
The body referred to in the Notice of Action was that of
Pietro Inzerillo. Inzerillo was Gambino's cousin, and the two
men jointly owned a pizzeria. Gambino claims, and the
government does not dispute, that he was never a suspect
in this slaying.

Gambino appealed to the Commission's National Appeals
Board, which affirmed the Commission's decision on
December 7, 1994, by Notice of Action. Id. at 19. The
Appeals Board stated that

       [i]n response to [Gambino's] claim that the reasons
       provided to exceed the guidelines are not a part of the
       offense of conviction and therefore should not be relied
       upon is without merit. The Commission may consider
       available information to determine an appropriate
       sanction for the total offense behavior. [His] claim that
       the information used is flawed does not persuade the
       Commission to change the decision.

Id.

In summary, the parole guidelines indicated that
Gambino should serve a term of 48 to 68 months. However,
Gambino was not eligible for parole until he served a
minimum sentence of 120 months. He had a parole hearing
after serving approximately 120 months and was denied
parole. The Commission requires that he serve until the
expiration of his 34-year sentence.

If Gambino remains a model prisoner, he will be released
after completing two-thirds of his sentence, a period of
approximately 272 months. 18 U.S.C. S 4206(d) (1997).8
_________________________________________________________________

8. 18 U.S.C. S 4206(d) (1997) provides:

       Any prisoner serving a sentence of five years or longer, who is not
       earlier released under this section or any other applicable
provision

                               6
However, if he seriously or frequently violates prison rules,
he will serve out his full term of 408 months. See id. These
calculations exclude any possible reduction for good time,
pursuant to 18 U.S.C. S 4161 et seq. (1997) (repealed by
Pub. L. 98-473, Title II, S 218(a), Oct. 12, 1984, 98 Stat.
2027) (repeal effective Nov. 1, 1987, and applicable only to
offenses committed after it took effect).

Gambino petitioned the district court for a writ of habeas
corpus, pursuant to 28 U.S.C. S 2241. The district court
denied the writ.

The district court had jurisdiction pursuant to 28 U.S.C.
S 1331. We have jurisdiction pursuant to 28 U.S.C. S 1291.

II.

Our role in reviewing decisions by the Parole Commission
on application for a writ of habeas corpus is limited. The
appropriate standard of review of the Commission's findings
of fact "is not whether the [Commission's decision] 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 [Commission's]
conclusions embodied in its statement of reasons." Zannino
v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976). See also 28
C.F.R. S 2.18 ("The granting of parole to an eligible prisoner
rests in the discretion of the United States Parole
Commission."). Moreover, we must ensure that the
Commission "has followed criteria appropriate, rational and
consistent" with its enabling statutes and that its "decision
is not arbitrary and capricious, nor based on impermissible
considerations." Id. at 690.
_________________________________________________________________

       of law, shall be released on parole after having served two-thirds
of
       each consecutive term or terms, or after serving thirty years of
each
       consecutive term or terms of more than forty-five years including
       any life term, whichever is earlier. Provided, however, that the
       Commission shall not release such prisoner if it determines that he
       has seriously or frequently violated institution rules and
regulations
       or that there is a reasonable probability that he will commit any
       Federal, State or local crime.

(Emphasis in original.)

                                7
Although the Commission must, in the first instance, use
the parole guidelines in determining the release of a
prisoner, 18 U.S.C. S 4206(a) (1997), it is not limited by
those regulations. 18 U.S.C. S 4206(c)(1997).9 The
Commission is authorized to "deny release on parole
notwithstanding the guidelines . . . if it determines there is
good cause for so doing . . . ." Id. The legislative history of
that statute indicates the definition of good cause cannot be
precise " `because [good cause] must be broad enough to
cover many circumstances.' " Iuteri v. Nardoza, 732 F.2d
32, 36-37 (2d Cir. 1984) (quoting H.R. Rep. No. 838, 94th
Cong., 2d Sess. 27, reprinted in 1976 U.S. Code Cong. &
Admin. News 335, 351, 359). Nonetheless, it is not so broad
as to evade any definition. "Good cause" may include
consideration of such factors as whether " `the prisoner was
involved in an offense with an unusual degree of
sophistication or planning or has a lengthy prior record, or
was part of a large scale conspiracy or continuing criminal
enterprise.' " Romano v. Baer, 805 F.2d 268, 270 (7th Cir.
1986) (quoting H.R. Conf.Rep. No. 94-838, 94th Cong., 2d
Sess. 27, reprinted in 1976 U.S. Code Cong. & Admin.
News 335, 351, 359). Moreover, "good cause" means
"substantial reason and includes only those grounds put
forward by the Commission in good faith and which are not
arbitrary, irrational, unreasonable, irrelevant or capricious."
Harris v. Martin, 792 F.2d 52, 55 (3d Cir. 1986) (citing H.R.
Conf.Rep. No. 94-838, 94th Cong., 2d Sess. 27, reprinted in
1976 U.S. Code Cong. & Admin. News 335, 351, 359).

In reaching its decision to grant or deny parole, the
Commission may consider a broad range of sources,
including presentence investigation reports and "such
additional relevant information concerning the prisoner . . .
as may be reasonably available." 18 U.S.C. S 4207 (1997).
_________________________________________________________________

9. 18 U.S.C. S 4206(a) (1997) provides that a prisoner may be released
"pursuant to guidelines promulgated by the Commission . . . ."; see also
28 C.F.R. S 2.20(b), (c) ("These guidelines indicate the customary range
of time to be served before release for various combinations of offense
(severity) and offender (parole prognosis) characteristics . . . . These
time
ranges are merely guidelines. When the circumstances warrant,
decisions outside of the guidelines (either above or below) may be
rendered.").

                               8
The Commission must resolve disputes with respect to
information presented by "a preponderance of the evidence
standard." 28 C.F.R. S 2.19(c).

On appeal, Gambino argues that: (1) none of the
information relied upon by the Commission is rationally
connected to the Commission's finding that he was a
member of an organized crime family; and (2) there was not
"good cause" to place his sentence outside the sentencing
guidelines.10

A.

Gambino contends that the Commission had no evidence
before it which rationally connects him to the Gambino
family of La Cosa Nostra. We may inquire as to "whether
there is a rational basis in the record for the Board's
conclusions embodied in its statement of reasons." Zannino
v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976); see United
States ex rel. Farese v. Luther, 953 F.2d 49, 53 (3d Cir.
1992). While we may not weigh the evidence, we must be
certain that at least some of it is rationally connected to the
Commission's finding.

The government argues that the Commission relied on
four facts that support its finding that Gambino is a
member of a crime family: (1) a Pennsylvania Crime
Commission report indicating that Gambino is connected to
the Gambino family of La Cosa Nostra; (2) the discovery of
Inzerillo's body in the trunk of Gambino's car; (3) a New
_________________________________________________________________

10. At times, Gambino appears to be arguing that his due process rights
under the Fifth Amendment have been violated as well. Because of the
result that we reach here, we need not address this constitutional claim.
See Erie Telecommunications, Inc. v. City of Erie, Pa., 853 F.2d 1084,
1093 (3d Cir. 1988) ("a court faced with both constitutional and
nonconstitutional claims must address the nonconstitutional claims
first, if doing so will enable the court to avoid a constitutional
confrontation.").

Gambino raised a number of additional arguments in his "Pro Se Reply
Brief." We will "not consider arguments raised on appeal for the first
time in a reply brief." United States v. Boggi, 74 F.3d 470, 478 (3d Cir.
1996).

                                9
Jersey state police report identifying Gambino as a member
of the Gambino family of La Cosa Nostra; and (4) a reliable,
but unnamed, informant who identified Gambino as a
member of the Gambino family of La Cosa Nostra.11

The government asserts that the Commission properly
found that the Pennsylvania Crime Commission Report was
evidence that Erasmo Gambino was a member of the
Gambino family of La Cosa Nostra. But the Pennsylvania
Crime Commission Report does not say what either the
government or the Commission suggest. The sole reference
to Erasmo Gambino in the report states that he is married
to the sister of Rosario Gambino (his cousin), who, the
report alleges, is a member of La Cosa Nostra.12 This
attenuated familial tie does not, indeed cannot, in and of
itself, provide a rational basis for finding that Gambino
participated in organized crime. Thus, the Commission
erred in concluding that this report stated that Gambino
was affiliated with La Cosa Nostra, and accordingly, it is an
invalid basis for the Commission's decision to deny parole.
See Campbell v. United States Parole Comm'n, 704 F.2d
106, 109 (3d Cir. 1983) ("[t]he Commission may not base its
judgment as to parole on an inaccurate factual predicate.").

For the government to assert that this reference
constitutes evidence proving that Gambino is a member of
_________________________________________________________________

11. Gambino argues that the Panel only considered the Pennsylvania
Crime Commission Report and the fact that Inzerillo's body was found in
his car. The Initial Hearing Summary does, in fact, only rely on those
two items. Plaintiff 's Appendix ("P.A.") at 7. The Pre-Hearing Assessment
relies on those two items and one other for its conclusion. P.A. at 5. The
Assessment mentions that the New Jersey State Police had identified
Gambino as a member of the Gambino family of La Cosa Nostra.
However, nowhere does this Assessment explicitly mention that it relied
on information provided by an informant.

Because we find that the information provided by that informant is
unreliable, we need not decide whether Gambino was further prejudiced
by the failure to mention the reliance on the informant before and during
the parole hearing. See Misasi v. United States Parole Commission, 835
F.2d 754 (10th Cir. 1987) (only weighing evidence presented at initial
parole hearing).

12. The entire report is not part of the record before us, but the
government does not dispute this characterization of it.

                               10
the Gambino family of La Cosa Nostra is, to say the least,
a troubling exercise in conjecture. To rely upon the fact
that Gambino is married to the sister of someone who is
allegedly affiliated with the mafia as evidence that he, too,
is a member of the mafia, is to adopt a rule of guilt by
association. This would be impermissible even if Gambino
were the son, brother or father of a confirmed member of
an organized crime family. But Gambino's wife is not even
that. The record in this case does not suggest that she is a
mafiosa, only that she is related to mafiosos. We cannot
understand how the fact that Gambino is related to
someone who is related to a mafioso somehow makes him
one as well. Nor does the fact that he is a blood relative of
the Gambino family make him an ex officio member of the
Gambino "family" of La Cosa Nostra.

The discovery of Inzerillo's corpse in the trunk of
Gambino's car, also does not link Gambino to La Cosa
Nostra. At best, it suggests that Inzerillo, Gambino's cousin
and business partner, was involved with, or perhaps the
victim of, organized crime. But the record indicates-- and
the government does not dispute -- that Gambino was
never a suspect in the homicide investigation, and fully
cooperated with it. This is a very important point. The
discovery of a body in the trunk of a car -- particularly a
so-called "execution murder victim," as the Commission
described Inzerillo -- carries with it an undeniable graphic
impact. It is almost natural to assume initially that the
car's owner was not only involved in the murder, but in
other unsavory activity as well. While we in no way mean
to diminish the magnitude of this crime, we cannot see
how, after investigators had determined that Gambino was
not involved with that killing, the Commission can consider
his proximity to it as a basis for the denial of parole. Under
the particular circumstances of this case, we cannot hold
that this evidence provides a "rational basis . .. for the
Board's conclusion[ ] embodied in its statement of reasons."
Zannino, 531 F.2d at 690.

With regard to the New Jersey State Police Report, we
begin by noting that evidence of affiliation with a crime
family may be particularly amorphous in a case like this, in
which confusions caused by appellation and genealogy

                               11
might interfere with the accurate assessment of Erasmo
Gambino's criminal history.

The New Jersey State Police report's conclusion that
Gambino is linked to organized crime is, to say the least,
vague. Although the parties have not included a copy of the
New Jersey State Police report in the record, the
Commission apparently relied upon a reference to this
report in the Government's Sentencing Memorandum.
Appellee's Supplemental Appendix at 54. The Sentencing
Memorandum indicates only that Gambino "has been
identified by the New Jersey State Police . . . as a member
of the Gambino family of La Cosa Nostra." Id. at 76. But we
require evidence intended to establish a defendant's ties to
organized crime to be more reliable than a bald assertion
from an unverified source. See United States v. Cammisano,
917 F.2d 1057, 1061 (8th Cir. 1990) (reliable information
needed to justify upward departure for involvement with
organized crime under Sentencing Guidelines); see also
Cardarapoli v. Norton, 523 F.2d 990, 997 (2d Cir. 1975)
(noting that government often has no basis for its
conclusions that inmates "played a significant role in a
criminal organization"); Coralluzzo v. New York State Parole
Bd., 420 F. Supp. 592, 598 (W.D.N.Y. 1976), aff'd, 566
F.2d 375 (2d Cir. 1977) (noting that "serious errors are
often made by the Government in determining that an
inmate has links with organized crime"); Mascolo v. Norton,
405 F. Supp. 523, 524 (D. Conn. 1975) ("This is another in
a series of cases which disclose the arbitrary classification
of an inmate as a `member of organized crime' or`Special
Offender' by federal prison officials without a rational basis
in fact and without affording the inmate any procedural
due process protections."); Catalano v. United States, 383 F.
Supp. 346, 350 (D. Conn. 1974) (Bureau of Prisons'
imposition of `organized crime' status must be done "in a
rational and non-discriminatory manner."); Masiello v.
Norton, 364 F. Supp. 1133, 1136 (D. Conn. 1973) (finding
no basis in fact for parole board to conclude that defendant
should be given organized crime designation, as
confidential presentence report was "replete with hearsay,
inferences, and conclusions concerning alleged connections
between [the defendant's] family and organized crime").

                               12
The hearsay allegations of the "reliable, unnamed
informant" are similarly flawed. While it is true that the
Commission can consider hearsay, Campbell, 704 F.2d at
109-10, this allegation, in the context of this particular
case, is especially suspect. The appellant's name itself is
sufficiently evocative to question the government's
characterization of the informant's allegation that Erasmo
Gambino is a member of the Gambino family of La Cosa
Nostra.13 We have noted above that the government has
mischaracterized the contents of the Pennsylvania Crime
Commission Report, most likely as a result of the
appellant's surname and familial ties. We are similarly
concerned with the government's characterization of the
informant's allegation: we were not provided with the
underlying report from which the allegation is derived.
Moreover, Gambino has not had the opportunity to
challenge the veracity of the informant.

To protect against arbitrary action, the government
should have good cause for the non-disclosure of an
anonymous informant's identity, and sufficient
corroboration of the testimony. Cf. United States v. Fatico,
579 F.2d 707 (2d Cir. 1978) (subsequent history omitted)
(at sentencing, district court can consider hearsay
testimony of unidentified informant regarding defendants'
involvement in organized crime as long as there is good
cause for non-disclosure and sufficient corroboration). The
government's summary of the unnamed informant's
allegation is neither sufficiently reliable nor sufficiently
corroborated to support the Commission's finding. See id.
at 712-13 ("a significant possibility of misinformation" may
justify the sentencing court in requiring "the Government to
verify the information."); United States v. Borello, 766 F.2d
46, 60 n.23 (2d Cir. 1985); see also Misasi v. United States
Parole Comm'n, 835 F.2d 754, 757-58 (10th Cir. 1987)
(being described by unnamed local and federal authorities
_________________________________________________________________

13. The record suggests that the Commission relied upon one reference
in the Government's Sentencing Memorandum to the informant's
allegation. The Sentencing Memorandum states that a "reliable
informant . . . has been told by Erasmo Gambino that he is a member
of the Gambino family of La Cosa Nostra." Appellee's Supplemental
Appendix at 77.

                               13
as largest distributor of illegal prescription drugs in report
by the United States Attorney is not a "specific fact" for the
purposes of the Commission's own procedures); cf. Zannino,
531 F.2d at 691-92 (Parole Board may consider hearsay
regarding membership in crime organization that was
presented as sworn testimony during the course of a formal
Congressional hearing where defendant and counsel had
the opportunity to rebut it). Here, the corroboration of the
allegation consists of the New Jersey State Police Report we
discussed earlier, and no good cause has been shown for
the non-disclosure of the informant's identity. The
government's unilateral, untested assertion that the
informant is reliable is not sufficient to overcome these
shortcomings.14

The Commission relied upon the above evidence to
require that Gambino serve until the expiration of his
sentence, adding anything from 12 to 24 years to the
minimum period of incarceration required by statute. Yet,
some of the evidence relied upon by the Commission is
altogether speculative as to Erasmo Gambino's connection
to the Gambino family of La Cosa Nostra. Other evidence
only tenuously demonstrates the connection. The
remainder is hearsay from unnamed sources. It can hardly
be said that this evidence, in itself, provides a "rational
basis in the record for the Board's conclusions embodied in
its statement of reasons," Zannino v. Arnold, 531 F.2d at
691, and the denial of parole is arbitrary and capricious as
a result. See id. at 689; see also Misasi, 835 F.2d at 757-58
(reliance on one factually incorrect reason and one non-
specific reason does not constitute "rational basis" for
parole date outside of guidelines).

In the context of a sentencing hearing, we have warned
of situations where a substantial upward departure in a
sentence becomes " `a tail which wags the dog of the
substantive offense.' " United States v. Kikumura, 918
F.2d 1084, 1101 (3d Cir. 1990) (quoting McMillan v.
_________________________________________________________________

14. As Judge Roth observes in her concurring opinion, the evidentiary
problem raised by the informant testimony is exacerbated by the fact
that Gambino had no opportunity to present his own version of the facts,
or to rebut or challenge the informant's alleged statements.

                               14
Pennsylvania, 477 U.S. 79, 88 (1986)). In Kikumura we held
that a greater evidentiary burden was required when the
magnitude of a contemplated departure was extreme.
Kikumura, 918 F.2d at 1101. Although the Parole
Commission has greater discretion than a sentencing judge,
we are concerned that it was willing to add one or two
decades to Gambino's prison term based on the quality of
evidence discussed above. A rational penal system must
have some concern for the probable accuracy of the
evidence it uses to make its decisions. See United States v.
Perri, 513 F.2d 572, 575 (9th Cir. 1975).15

B.

We consider next Gambino's contention that the
Commission's failure to demonstrate "good cause" warrants
his immediate release. The government argues that a
remand to the Parole Commission is the appropriate
remedy if "good cause" is found lacking. We agree.

We have ordered a prisoner released on parole only under
unique circumstances, which are not present in this case.
Only "[w]hen a district court remands a case to the Parole
Board for failure to adequately explain its decision and, on
remand, the Commission again declines to articulate a
basis for the identical conclusion, [may] a district court . . .
permanently decide this issue on the record before it."
Bridge v. United States Parole Comm'n, 981 F.2d 97, 106
(3d Cir. 1992). See also Billiteri v. United States Bd. of
Parole, 541 F.2d 938, 944 (2d Cir. 1976) (in the case of
non-compliance by the Parole Board, a "court can grant the
writ of habeas corpus and order the prisoner discharged
from custody.").
_________________________________________________________________

15. Gambino also argues that affiliation with organized crime is an
inadequate basis for denying parole, at least where an inmate's crime of
conviction does not indicate organized criminal activity. We can envision
circumstances in which an inmate has participated in organized criminal
activity, yet that participation nonetheless does not indicate a
likelihood
of future criminal activity (for instance, where a member of a crime
family renounces his allegiance or becomes a government informant).
This argument, therefore, is not to be dismissed lightly. Because we have
determined that Gambino is entitled to relief on other grounds, however,
we need not decide this issue.

                               15
For instance, in Marshall v. Lansing, 839 F.2d 933 (3d
Cir. 1988), the district court remanded a habeas proceeding
to the Commission with instructions to clearly explain the
reasoning for its offense categorization. Notwithstanding the
court order, the Commission reassigned the same offense
severity level without providing an adequate explanation. In
light of the protracted history of the case and the district
court's impression that the Commission intentionally had
evaded its mandate, the district court ordered the
Commission to reassess the prisoner's parole status under
a specific offenses severity category. We affirmed this final
relief. We also have ordered the release of a prisoner who
was denied parole in part because of his race, where a
remand would have consumed several months, by which
time his sentence would have expired. See Block v. Potter,
631 F.2d 233 (3d Cir. 1980).

In the absence of such unusual circumstances, however,
it is clear that a remand is the appropriate remedy. See
e.g., Zannino v. Arnold, 531 F.2d 687, 692 (3d Cir. 1976);
Billiteri, 541 F.2d at 938. In this case, although we have
determined that the Commission's basis for exceeding the
guideline lacks "good cause," it is conceivable that "good
cause" may be demonstrated at a new hearing. Because we
find no unusual circumstances, like those presented in
Bridge, Marshall and Block, we will remand for further
proceedings.

III.

For the reasons discussed above, we reverse the
judgment and remand the case to the district court with
directions that it vacate its judgment and order.
Furthermore, the district court should remand the case to
the Parole Commission with directions that it conduct
another Panel hearing within 60 days, and in a manner
consistent with this opinion. Since Gambino has already
served many months more than prescribed by his guideline
range and his mandatory minimum sentence, additional
administrative proceedings should be conducted
expeditiously.

                                16
ROTH, Circuit Judge, concurring.

The Parole Commission denied parole to Erasmo
Gambino on the ground that he was identified as a member
of an organized crime family. The majority found that in so
holding, the Parole Commission abused its discretion. The
majority determined that the Commission's conclusion was
not supported by sufficient evidence, indeed that there was
no rational basis to support the Commission's conclusion.
I would, however, not reach the merits of the Parole
Commission's decision, as the majority did, because I find
that two procedural errors occurred prior to any
Commission decision which errors prejudiced Gambino's
right to a fair parole hearing. For this reason, I concur in
the judgment of the Court as I, too, would reverse the
judgment of the district court and remand for a new parole
hearing.

Congress has charged the Parole Commission with
conducting parole hearings and thereafter determining
whether a given prisoner is eligible for parole. 18 U.S.C.
S 4201 et seq. In order to ensure that a prisoner's due
process rights are respected throughout the parole
determination, Congress both (a) codified certain procedural
statutes to guide the Commission, e.g. 18 U.S.C. S 4206,
and (b) authorized the Commission to promulgate rules and
regulations to administer parole eligibility determinations in
a fair manner. 18 U.S.C. S 4203(a)(1). The Commission, in
response, established 28 C.F.R. S 2 et seq. The Parole
Commission's handling of the Gambino parole hearing
demonstrates a disregard of these rules and regulations,
the sum total of which is a denial of Gambino's due process
rights.

First, Gambino did not receive an opportunity at his
initial parole hearing to rebut allegations of organized crime
until after the hearing examiner had ruled on Gambino's
parole eligibility. This action on the part of the Parole
Commission constituted a violation of 28 C.F.R. S 2.531 by
_________________________________________________________________

1.     A prisoner . . . serving a term . . . of 5 years or longer shall be
       released on parole after completion of two-thirds of each
       consecutive term . . . unless pursuant to a hearing under this

                               17
failing to provide a hearing complying with 28 C.F.R.
S 2.19(c).2 Second, after the Hearing, the Commission may
deny parole but it must explain with particularity the
reason for the denial and include a summary of the
information relied on in making this determination.
Gambino was denied proper notice of the factual allegations
supporting the Parole Commission's determination that he
was a member of La Cosa Nostra. The Commission violated
18 U.S.C. S 4206(c)3 when it did not inform Gambino of an
essential piece of information upon which it relied when it
determined that Gambino was a member of La Cosa Nostra.

Either of the these two errors is serious enough to
warrant a reversal of the district court and a remand to the
Parole Commission for a new parole hearing. Patterson v.
Gunnell, 753 F.2d 253 (2d Cir. 1985) (remanding for a new
parole hearing upon finding of Commission's failure to
comply with S 2.19(c)'s notice provision); Marshall v.
Lansing 839 F.2d 933, 943 (recognizing that setting aside
the Commission's action and remanding for a new hearing
is appropriate where agency fails to comply with its own
regulations) (3d Cir. 1988). I address each of these errors in
turn.
_________________________________________________________________

        section, the Commission determines that there is a reasonable
        probability that the prisoner will commit any Federal, State or
local
        crime or that the prisoner has frequently or seriously violated the
        rules of the institution in which he is confined.

28 C.F.R. S 2.53(a).

2.      The Commission may take into account any substantial
        information available to it . . . and any aggravating or mitigating
        circumstances, provided the prisoner is apprised of the information
        and afforded an opportunity to respond.

28 C.F.R. S 2.19(c).

3. 18 U.S.C. S 4206 (c) provides in part:

        The Commission may grant or deny release on parole .. . if it
        determines there is good cause for so doing: Provided, That the
        prisoner is furnished written notice stating with particularity the
        reasons for its determination, including summary of the information
        relied upon.

                                18
I. The Parole Hearing

The Parole Commission held a parole hearing for Erasmo
Gambino on April 20, 1994. At this hearing the Hearing
Examiner took into account information regarding
Gambino's alleged affiliation with La Cosa Nostra.4
Specifically the Examiner relied on a Pennsylvania Crime
Commission Report and a Government Sentencing
Memorandum for Gambino's co-defendant Rosario
Gambino, Gambino Pro Se Reply Br. at 11-13; Parole
Hearing Uncertified Transcript ("Hearing Transcript") at 13;
Petitioner's Supplemental Appendix ("PSA") at 14.

There is no question that the Commission is entitled to
consider the contents of these documents, but the
Commission must provide a prisoner with notice that the
information will be used as evidence to deny him parole
and the prisoner must have an opportunity to respond to
the evidence in the documents. S 2.19(c) ("[t]he Commission
may take into account any substantial information
available to it . . . and any aggravating and mitigating
circumstances, provided the prisoner is apprised of the
information and afforded an opportunity to respond.");
Patterson v. Gunnell, 753 F.2d 253, 255 (2d Cir. 1985)
(holding that where the National Appeals Board had
information unknown to prisoner and on which it relied,
prisoner's case had to be returned for a new parole hearing
so that prisoner would not be "deprive[d] .. . of a
procedural protection guaranteed by the Commission's
regulations.").

Furthermore, the opportunity to respond to the evidence
in the documents must take place before the Examiner
proffers his recommendation. Section 2.19(c) explains that
_________________________________________________________________

4. Gambino with his pro se brief in this Court presented a copy of the
uncertified transcript of the parole hearing. This record was not before
the district court. Thus, it is not properly part of the record before us.
Nevertheless, pursuant to Fed. R. App. P. 10, I will consider it to
substantiate factual allegations made by Gambino as to the events that
took place at the Hearing. This is appropriate particularly where the
Parole Commission has never challenged the accuracy of the transcript
or of Gambino's version of what transpired at the parole hearing as
argued in his pro se brief.

                               19
after the prisoner has had an opportunity to respond to the
evidence, if there exists a factual dispute, the Commission
shall resolve it according to the preponderance of evidence.
It is inconceivable that Congress intended this fact-finding
to take place after a Hearing Examiner had made his
determination to grant or deny parole.

The Commission did not comply with S 2.19(c) here.5
After an extensive discussion about Gambino's role in the
offense of conviction and without mention of any of the
evidence connecting Gambino to La Cosa Nostra, the
ultimate basis for the denial of parole, the Examiner
adjourned the hearing. Gambino Pro Se Reply Br. at 12;
Hearing Transcript at 11; PSA at 12. When the Examiner
called Gambino back into the room, the Examiner read his
recommendation that Gambino be denied parole. Id. The
Examiner explained that the reason for the denial was that
Gambino had been "identified by the government as being
a member of organized crime." Id. The Examiner further
explained that the bases for his conclusion were the
Pennsylvania Crime Commission Report and the
Government's Sentencing Memorandum.

The explanation for the denial of parole (at the conclusion
of the hearing) was the first mention to Gambino of this
evidence. Gambino was not given notice that this evidence
would be used against him and he was not given an
opportunity to respond prior to the Examiner's
recommendation. The fact that the issue was discussed
_________________________________________________________________

5. Gambino described the procedure in the following manner:

       Gambino and his attorney were instructed by the parole examiner to
       leave the hearing room. After being called back by the parole
       examiner, Gambino was informed of the parole examiner's
       recommendation to serve to the expiration of his 34 year sentence.
       The parole examiner then mentioned for the first time the
       Pennsylvania Crime Commission report [linking him to La Cosa
       Nostra]. A single question was posed to Gambino, and only after
       counsel suggested to the parole examiner to ask Gambino if he was
       a member of organized crime. The superficial organized crime
       question came only after the parole examiner made his decision to
       continue Gambino to expiration of his sentence.

Gambino Pro Se Reply Br., at 12-13.

                                20
after the Examiner made his decision is not sufficient to
prevent a violation of 28 U.S.C. S 2.19(c). As the
Commissioner asserts, "the record reveal[s] that appellant's
counsel spoke to [the issue of Gambino's organized crime
ties] in the hearing" reiterating the district court holding.
Parole Comm'n Reply Br. at 5. The consideration of the
evidence must, however, take place before the Hearing
Examiner has decided what the outcome will be and has
made his recommendation. An opportunity to develop one's
position on the merits, i.e., deny one's involvement with
organized crime, after the Examiner has made up his mind
and stated his recommendation, is not sufficient
"opportunity to be heard."

Even more troubling was the Examiner's apparent
reliance on a New Jersey State Police Report conclusion
that Gambino was involved in organized crime. This report
was never mentioned at the hearing. There is passing
reference to it in the Examiner's Initial Hearing Summary
as evidence providing one of the bases for the conclusion
that Gambino was involved in organized crime. However,
the Examiner made no mention at all of the New Jersey
report during the hearing -- either before or after he had
made his decision.

Following the hearing, Gambino appealed the denial of
parole to the National Appeals Board. The fact that he may
have had an opportunity to challenge the evidence on
appeal is not sufficient.6 The procedural posture on appeal
_________________________________________________________________

6. I recognize that Kell v. United States Parole Commission, 26 F.3d
1016, 1022 (10th Cir. 1994), accepted the contrary proposition. There
the Tenth Circuit held that, in the context of a parole revocation
hearing,
a prisoner was sufficiently "apprised of the information and afforded an
opportunity to respond" within the meaning of 28 C.F.R. S 2.19(c), when
he, being denied information at the parole revocation hearing, was
afforded an opportunity to respond via pursuit of the administrative
review process. Kell relied on Patterson v. Gunnell, 753 F.2d 253, 255-56
(2d. Cir. 1985), where the Second Circuit held that S 2.19(c) was not
satisfied where petitioner had no opportunity to respond when the
National Appeals Board relied on aggravating circumstances of which
petitioner had not been informed. However, the Second Circuit never
passed on the issue before us. Furthermore, the Tenth Circuit in Kell
was ruling in the context of a parole revocation hearing, not an initial
parole hearing where the due process liberty interests at issue are
different.

                                21
of a denial of parole is completely different from that of the
initial hearing on the merits. First, at the hearing the
prisoner can submit live testimony (his own or a witness's);
on appeal, the prisoner can only make written
presentations. Compare 18 U.S.C. S 4208(e); 28 C.F.R.
S 2.19(b)(4)7 with S 2.27(b).8 For example, if a prisoner had
an alibi defense for prior uncharged criminal conduct that
was being used as the basis for denial of parole, the alibi
witness could testify before the Hearing Examiner; he could
not before the National Appeals Board. Second, the
standard of review of evidence submitted is different at the
hearing than it is on appeal. At the hearing, the Examiner
makes factual findings on a "preponderance of the
evidence" standard; on appeal, the National Appeals Board
owes some deference to the findings of the Hearing
Examiner. Compare S 2.19(c)9 with S 2.26(e).10Thus, a
prisoner, who has an opportunity to be heard only on
appeal, must prove not only that his version of the events
is true by a preponderance of the evidence, as at a hearing,
but also that the hearing examiner, whose decision is owed
some deference, was wrong in his preponderance of the
evidence determination. This is a higher standard of
persuasion. Third, a prisoner has a statutory right to be
_________________________________________________________________

7. "The Commission will normally consider only verbal and written
evidence at hearings." 28 C.F.R. S 2.19(b)(4).

8. "Attorneys, relatives, and other interested parties who wish to
submit written information concerning [a prisoner's appeal] should send
such information to [the following address] . . . thirty days in advance."
28 C.F.R. S 2.27(b).

9. "If the prisoner disputes the accuracy of the information presented,
the Commission shall resolve such dispute by the preponderance of the
evidence standard." 28 C.F.R. S 2.19(c).

10. Appeals . . . may be based on the following grounds:

       (3) That especially mitigating circumstances (for example, facts
       relating to the severity of the offense or the prisoner's
probability of
       success on parole) justify a different decision;
       (4) That a decision was based on erroneous information, and the
       actual facts justify a different decision.

28 C.F.R. S 2.26(e). It would appear that review of factual determinations
by the National Appeals Board is for clear error.

                               22
present at his parole hearing; he does not at his appeal.
See 18 U.S.C. S 4208(e); 28 C.F.R. S 2.13(a).

For all these reasons, the posture of a case on appeal is
not the same as a hearing on the merits. A prisoner's
opportunity at the hearing to rebut allegations of fact is a
right protected by statute and regulations. His opportunity
on appeal to challenge the veracity of facts, already
established, cannot make up for the loss of his earlier right
to be heard.

Inferential support for this proposition is drawn from the
fact that many circuits have held that the Commission may
not rely on information undisclosed to the prisoner in
determining eligibility for parole even if the information is
subsequently made available to prisoners on administrative
appeal. See United States ex rel. Schiano v. Luther, 954 F.2d
910, 915 (3d Cir. 1992); Pulver v. Luther, 912 F.2d 894,
896-97 (7th Cir. 1990); Anderson v. United States Parole
Comm'n, 793 F.2d 1136, 1137-38 (9th Cir. 1986). See also
Liberatore v. Story, 854 F.2d 830, 838 (6th Cir. 1988
(remanding to determine whether late received documents
had to be disclosed). These cases all deal with violations
of either 18 U.S.C. S 4208(b)(2) or 28 C.F.R.
S 2.55 (Commission's obligation to disclose inculpatory
information prior to a parole hearing), not of S 2.19(c), the
regulation at issue here. However, they recognize the notion
that post-hearing access to information does not remedy
prior violations.11
_________________________________________________________________

11. Gambino argues for the first time on appeal to this Court that he
was not provided the requisite disclosure of documents prior to his
parole hearing. Title 28 of the Code of Federal Regulations section
2.55(a) instructs that the Parole Commission, at least 60 days prior to
an initial parole hearing, must notify each prisoner of "his right to
request disclosure of the reports and other documents to be used by the
Commission in making its [parole] determination." Gambino argues that
he was not provided such notice. Gambino Pro Se Reply Br. at 8. As a
result, Gambino did not exercise his right to request disclosure under
S 2.55. He claims that as a consequence he was ill-prepared at his parole
hearing to refute the evidence of his involvement with La Cosa Nostra.
We cannot determine from the record before us whether the Parole
Commission violated S 2.55(a) as well.

                               23
In response to Gambino's argument that the Commission
has violated S 2.19(c), the Commission has raised a
procedural default issue of waiver. The Commission asserts
that Gambino waived his right to appeal the S 2.19(c) issue
because he neglected to assert this argument to this Court
until his pro se reply brief. Ordinarily, an appellant's failure
to raise an issue in a opening brief constitutes
abandonment or waiver of that issue. See Republic of the
Phillippines v. Westinghouse Electric Corp., 43 F.3d 65, 71
n.5 (3d Cir. 1994) (appellants required to set forth issues
and present arguments in favor of those issues in opening
brief); Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
See also Fed. R. App. P. 28(a). The rule serves two related
purposes. First, it protects the appellee from the prejudice
that results from the court's consideration of a late
argument to which the appellee ordinarily cannot issue a
written response. Second, it promotes the values of our
adversarial system by ensuring that the court has heard
adequate argument on a particular issue prior to rendering
its decision. See Headrick v. Rockwell Int'l Corp., 24 F.3d
1272, 1277-78 (10th Cir. 1994); Hebert v. National
Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir. 1992). 16
C. Wright, A. Miller, et. al., Federal Practice and Procedure
S 3974 n.4 (1996). Despite this rule, however, appellate
courts may in their discretion consider issues not properly
raised in an opening brief. The D.C. Circuit has stated that
it will consider issues raised only in the reply brief - or
issues not raised at all - when the error is so"plain" that
manifest injustice would otherwise result. See Herbert v.
National Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir.
1992). Similarly, the Ninth Circuit also has held that courts
may consider an issue improperly raised if failure to do so
would create manifest injustice. See United States v. Ullah,
976 F.2d 509, 514 (9th Cir. 1992) (because manifest
injustice would result in court's reversal only of
codefendant's conviction, court would entertain defendant's
argument for reversal despite fact that argument was not
raised until reply brief).12
_________________________________________________________________

12. The manifest injustice exception is somewhat similar to the "plain
error" rule, which is applied in the context of appeals from criminal
trials, and allows appellate courts to consider defects at the trial level
even when the defendant has failed to lodge an appropriate objection.
See Fed. R. Crim. P. 52(b).

                               24
In addition to preventing manifest injustice, some circuit
courts have expressed a willingness to consider an issue
not properly presented in an opening brief where the
equities favor the court's consideration of the issue or if the
appellee is not likely to be prejudiced. See Ullah, 976 F.2d
at 514 (Ninth Circuit willing to consider issue raised only in
reply brief when government had already addressed the
issue in consolidated brief and therefore suffered no
prejudice); Curry v. Beatrice Pocahontas Coal Co., 67 F.3d
517, 522 n.8 (4th Cir. 1995).

Under the circumstances of this case, I conclude that it
is appropriate to consider the notice issue raised by
Gambino in his pro se reply brief. First, the record clearly
demonstrates that the Parole Commission never gave
Gambino an opportunity to refute the evidence against him
at his parole hearing. Were this a trial, this defect might
very well rise to the level of "plain error." Manifest injustice
would result if we were to penalize Erasmo Gambino for the
strategic shortcomings of his attorney. Second, the
government was not prejudiced by Gambino's late
presentation of the issue in the reply brief because we
permitted the Commission to file a surreply brief in
response to Gambino's pro se reply. Consequently, the
issue was fully addressed by both sides and therefore was
subject to the intellectual rigors of the adversarial process.
As such, I find the Parole Commission's waiver argument
not to be persuasive.

As a remedy for the violation of S 2.19(c), it is clear that
"[a] court can set aside agency action that fails to comply
with the agency's own regulations at least where the
regulations are designed to protect the individual grievant."
Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988).13
Such is the case here. An appropriate disposition is to
remand to the Commission to conduct a parole hearing in
compliance with its regulations. Patterson v. Gunnell, 753
_________________________________________________________________

13. See also United States v. Nixon, 418 U.S.   683, 695-96, 94 S.Ct.
3090, 3101-02 (1974); Frisby v. United States   Department of Housing &
Urban Development, 755 F.2d 1052, 1055-56 (3d   Cir. 1985); D'Iorio v.
County of Delaware, 592 F.2d 681, 685 n.2 (3d   Cir. 1978); Bluth v.
Laird, 435 F.2d 1065, 1071(4th Cir. 1970).

                               25
F.2d 253 (2d Cir. 1985) (remanding for a new parole
hearing upon finding of Commission's failure to comply
with S 2.19(c)'s notice provision).

II. The Written Notice of Reasons for Denial of Parole

In addition to violating 28 C.F.R. S 2.19(c) by not
providing Gambino with notice and an opportunity to
respond to the evidence against him, the Commission
exacerbated matters by its subsequent failure to provide a
summary of the evidence used in determining to deny
parole, in violation of 18 U.S.C. S 4206(c) 14 and its
concomitant Parole Commission regulation, 28 C.F.R.
S 2.13(d).15 16 Gambino had a parole hearing on August 20,
_________________________________________________________________

14.    The Commission may grant or deny release on parole . . . if it
       determines there is good cause for so doing: Provided, That the
       prisoner is furnished written notice stating with particularity the
       reasons for its determination, including a summary of the
       information relied upon.

18 U.S.C. S 4206(c).

15.    In accordance with 18 U.S.C. 4206 the reasons for establishment
       of a release date shall include . . . the specific factors and
       information relied upon for any decision outside the range
       indicated by the guidelines.

28 C.F.R. S 2.13(d).

16. In addition, it is quite possible that the Commission's behavior
violated Gambino's constitutional due process rights. Several courts of
appeal have found that the federal parole statute creates a substantial
expectation of parole that is protected by the due process clause. See
Kindred v. Spears, 894 F.2d 1477, 1481 (5th Cir. 1990); Solomon v.
Elsea, 676 F.2d 282, 285 (7th Cir. 1982); Evans v. Dillahunty, 662 F.2d
522, 526 (8th Cir. 1981). While the amount of process owed a parolee by
the Constitution is not clear, see, e.g., Evans, 662 F.2d at 526, the
Parole Commission's statutes and regulations bind it to a higher level of
procedural protection. See Kindred, 894 F.2d at 1481-82. As a federal
agency, the Parole Commission has an obligation to abide by its own
regulations and laws. See Marshall v. Lansing, 839 F.2d 933, 941 (3d
Cir. 1988). Because I find a violation of federal statute and regulations,
the question of whether there was a violation of Gambino's
Constitutional due process rights need not be decided. Northwest
Airlines, Inc., v. Transport Workers Union Of America, 101 S.Ct. 1571,
1578 n.15 (1981).

                               26
1994, pursuant to which he was denied parole. Both federal
law and Commission regulations require that the
Commission explain the nature of the evidence relied on to
deny parole. Section 4206(c) requires that the prisoner be
"furnished [with] written notice stating with particularity
the reasons for its determination including a summary of
the information relied upon." Section 2.13(d) requires that
"the reasons . . . [shall include] the specific factors and
information relied upon." In an effort to comply with these
requirements, the Commission, throughout the
administrative appeals process prepared four separate
documents purporting to summarize the evidence linking
Gambino to La Cosa Nostra. All were inadequate. None of
the Pre-Hearing Assessment, Parole Commissioner's Initial
Hearing Summary, Regional Commissioner's decision, and
National Appeals Board Notice of Action refer to the reliable
informant, cited by the government in its sentencing
memorandum for co-defendant Rosario Gambino, who
linked Erasmo Gambino to La Cosa Nostra.17 Thus
Gambino was denied any notice of arguably the most
forceful evidence linking him to La Cosa Nostra and so was
ill-prepared to contest this evidence on appeal. See Nunez-
Guardado v. Hadden, 722 F.2d 618, 624 (10th Cir. 1983)
(explaining that the purpose of requiring a summary of the
evidence is so that prisoner can "fully exercise his right of
appeal"). Furthermore, the combination of the failure to
confront Gambino with such evidence at the hearing-- the
violation of S 2.19(c), coupled with the failure to summarize
the evidence post-hearing -- placed Gambino in a
particularly difficult position.

The Commission's claim in its response to Gambino's Pro
Se Reply Brief that we should reject Gambino's claim
because Gambino had access to the government's
sentencing memorandum, which was a part of his central
_________________________________________________________________

17. In addition, the Parole Commissioner's Initial Hearing Summary
fails to mention the discovery of Pietro Inzerillo's body in Gambino's
car.
See Petitioner's Appendix, at 6. However, the Parole Commission
arguably cured this deficiency after the case was referred for original
jurisdiction, since the Regional Commissioner's decision cites the
discovery of the body in Gambino's trunk as support for its
determination. See Petitioner's Appendix, at 9.

                               27
file, see Parole Comm'n Reply Br., at 2, is weak. The mere
fact that Gambino may have had access to the sentencing
memorandum (and the informant's statements contained
therein) is meaningless. Section 4206(c) requires the
Commission to provide a summary of the information on
which it has relied when it makes a "good cause"
determination and denies parole. To construe the
requirements of S 4206(c) as anything less than to require
the Commission to identify the essential pieces of
information that caused it to associate Gambino with
organized crime, would be improper. Only with such
identification, can Gambino be in a position to challenge
this determination on appeal.

In addition, the government argues that Gambino waived
the S 4206(c)/S 2.13(d) claim, despite Gambino having
raised the issue before the district court, see District Court
Op., at 9-10, by not asserting it in his opening appellate
brief, i.e., he did not raise it on appeal until he submitted
his pro se reply brief. Despite the procedural default, I have
considered this claim. I did so for the reasons stated in
Section I: a) so as not to create manifest injustice to the
defendant and b) since the Commission will not be
prejudiced because we permitted it to file a Surreply Brief.

The Commission's argument that Gambino failed to
exhaust his administrative remedies by not making this
argument before the Parole Commission stumbles at the
outset. Gambino could hardly have complained about
inadequate notice of inculpatory information before he
knew he was being deprived of pertinent information in the
first place.

Ordinarily, federal prisoners are required to exhaust their
administrative remedies prior to seeking a writ of habeas
corpus pursuant to 28 U.S.C. S 2241. See Moscato v.
Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996)
(prisoner must exhaust administrative remedy prior to
challenging disciplinary proceeding in habeas petition);
Tatum v. Christiansen, 786 F.2d 959, 964 (9th Cir. 1986).
Unlike the rule requiring prisoners to exhaust state
remedies, this rule is of judicial and not statutory creation.
In either case, exhaustion is not required when the
petitioner demonstrates that it is futile. See Rose v. Lundy,

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455 U.S. 509, 516 n.7, 102 S.Ct. 1198, 1202 (1982)
(exhaustion of state remedies not required where futile). Cf.
Lyons v. U.S. Marshalls, 840 F.2d 202, 205 (3d Cir. 1988)
(in Bivens action, federal prisoners need not exhaust
administrative remedies if futile or if actions of agency
"clearly and unambiguously violate statutory or
constitutional rights").

There is no question that Gambino appealed the Hearing
Examiner's denial of parole to the regional and national
levels of the Parole Commission. Throughout those appeals,
Gambino maintained that the Commission had incorrectly
identified him as a member of an organized crime family. At
no point did the Commission indicate that it had relied on
the "reliable government informant" for its determination
that Gambino was a member of La Cosa Nostra. Since the
administrative process failed to reveal to Gambino the
Commission's reliance on the government informant, that
process has proved itself to be futile. As such, the
Commission's exhaustion argument must fail.

It is clear that the Commission failed to comply with
S 4206(c) or S 2.13(d) by failing to adequately summarize
the information it relied on in denying Gambino parole. It
is also clear that the district court relied at least partially
on this information when it affirmed the Commission's
decision. See District Court Op. at 8-9. For these reasons, I
would reverse the district court's finding thatS 4206(c) was
satisfied and I would join with the majority in remanding
for another parole hearing, one which would comply with
all applicable law, including SS 4206(c), 2.13(d) and 2.19(c).
Patterson v. Gunnell, 753 F.2d 253 (2d Cir. 1985).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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