                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2000

Furnari v. Warden
Precedential or Non-Precedential:

Docket 99-3701




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Filed July 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-3701

CHRISTOPHER FURNARI, Appellant

v.

WARDEN, Allenwood Federal Correctional
Institution; UNITED STATES PAROLE COMMISSION;
M.D. OF PA UNITED STATES ATTORNEY

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 98-cv-00222)
District Judge: Honorable Malcolm Muir

Argued: April 26, 2000

Before: BECKER, Chief Judge, BARRY and BRIGHT,*
Circuit Judges.

(Filed: July 10, 2000)



_________________________________________________________________
* Honorable Myron H. Bright, United States Circuit Judge for the Eighth
Circuit, sitting by designation.
       STEVEN R. KARTAGENER,
        ESQUIRE (ARGUED)
       222 Broadway - Suite 2700
       New York, NY 10007

       DAVID BREITBART, ESQUIRE
       52 Duane Street
       New York, NY 10007

       Counsel for Appellant

       DAVID BARASCH, ESQUIRE
        United States Attorney
       THEODORE B. SMITH, III, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       DULCE DONOVAN, ESQUIRE
       Assistant United States Attorney
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108

       SHARON GERVASONI, ESQUIRE
       United States Parole Commission
       One North Park Building
       5550 Friendship Boulevard
       Chevy Chase, MD 20815

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Christopher Furnari from an order
of the District Court for the Middle District of Pennsylvania
denying his petition for a writ of habeas corpus. The
petition challenged the United States Parole Commission's
initial determination, affirmed by its National Appeals
Board, consigning Furnari to offense Category Eight.
Category Eight is the severest category under the parole
regulations, and for Furnari the designation means a
fifteen-year postponement of parole consideration. Furnari,
who at various times was capo and consigliere in the

                                  2
Lucchese crime family, was convicted in 1986 of extortion-
based RICO violations and sentenced to a term of 100
years. See United States v. Salerno, 868 F.2d 524, 527-28
(2d Cir. 1989) (appeal from conviction). At issue in the
habeas petition is the Commission's determination that
there was sufficient evidence to tie Furnari to a number of
murders, which automatically led to the Category Eight
designation.

While Furnari's habeas petition was pending before the
District Court, he supplemented it by filing a copy of an
affidavit submitted by a government attorney to the United
States District Court in Brooklyn, New York. The affiant
declared that the individual on whom the government had
principally relied to tie Furnari to the murders had lied in
another case and was unreliable. During the same time
frame, Furnari had a statutory interim hearing before the
Commission, at which he presented the information in the
affidavit, but the Commission denied his request for a de
novo hearing.

We take judicial notice of the Parole Commission's
decision denying Furnari a de novo hearing. Our standard
of review of the Parole Commission's determination is
extremely deferential. Nevertheless, because the Appeals
Board did not make clear in its decision on the interim
hearing whether it continued to believe that the discredited
witness was credible or otherwise concluded that there was
sufficient information from other sources to tie Furnari to
murder, we conclude that the Parole Commission abused
its discretion by failing to follow its regulation requiring a
statement of reasons for denying parole. We conclude that,
under the governing statute and regulations, our case law
requiring a statement of reasons is properly extended to the
explanation of action at an interim hearing in
circumstances where significant new information has been
presented to the Commission. We will therefore vacate the
order of the District Court and remand with instructions to
grant Furnari's petition conditionally and order the Parole
Commission to provide a new statement of reasons
consistent with this decision.

                               3
I.

Pursuant to the Parole Commission's Guidelines, 28
C.F.R. S 2.20, Subchapter A, S 201, participation in a
murder places a potential parolee in Severity of Offense
Behavior Category Eight, which is the most serious offense
level and requires the service of the longest prison term
prior to parole consideration. At Furnari's initial Parole
Hearing, the Parole Commission concluded that Furnari
was a Category Eight, which means that he has to serve
fifteen more years before his next de novo parole hearing.1

The Parole Commission concluded that Furnari had
participated in a murder based on information provided by
Assistant United States Attorney for the Southern District
of New York David Kelley, who stated that three different
people had provided information to the government about
Furnari's involvement in several murders. They were
Anthony "Gaspipe" Casso (a Lucchese family hitman),
Thomas "Tommy Irish" Carew (a Lucchese family associate),
and Alfonse D'Arco (a former acting Lucchese family boss).

Before the hearing, Furnari wrote to the Parole
Commission, urging it to reject any information provided by
Casso because he had not been tested by cross
_________________________________________________________________

1. The Sentencing Reform Act of 1984 ("SRA"), Pub. L. No. 98-473, Title
II, 98 Stat. 1987 (1984), 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, 99
Stat. 1728. Furnari's offenses occurred prior to November 1, 1987.
Section 235 of the Sentencing Reform Act of 1984 preserves the Parole
Commission and the federal parole statutes for a period of time for
transition to the new system. Section 235(b)(1) provides that 18 U.S.C.
SS 4201-18, which created the Parole Commission and contain the parole
law, "remains in effect for five years after the effective date [of the
Act]."
98 Stat. at 2027, 2032-33. The original five-year transition period would
have expired on October 31, 1992. This section of the SRA has been
amended twice. In 1990, the five-year transition period was extended to
ten years, see Pub. L. No. 101-650, Title III, S 316, 104 Stat. 5115
(1990), to November 1, 1997, see Sentencing Reform Amendments Act of
1985, Pub. L. No. 99-217, S 4, 99 Stat. 1728 (1985). In 1996, the ten-
year period was extended to fifteen years. See Pub. L. No. 104-232, SS 1-
3, 110 Stat. 3055 (1996). Accordingly, the transition period does not now
expire until October 31, 2002.

                                4
examination in any criminal trial. In addition, Furnari
requested that the Parole Commission not consider Kelley's
letter unless certain FBI 302s (which concern the debriefing
of witnesses) for Carew and D'Arco were provided. Furnari
also wrote to Kelley asking for the 302 forms. Kelley
declined to release the forms on the basis that Furnari had
not cited any authority showing that he had a right to
them.

At the hearing, Furnari's counsel attacked Casso's
credibility. He also argued that D'Arco's statement
regarding Furnari's knowledge of murders carried out when
he was consigliere was not credible, because D'Arco was in
custody from 1983 through 1986 (when Furnari was
consigliere) and would have known about Furnari's
involvement only through hearsay. Furnari also claimed
that there were no murders committed by the family while
he was consigliere.

Kelley responded by acknowledging that "most of the
information does come from Casso" and by defending
Casso, stating that he was and would continue to be viewed
as a reliable government witness. Kelley also noted that
Furnari had conceded that D'Arco was an expert on the
hierarchy and structure of organized crime, and noted that
D'Arco had stated that murders committed by Furnari's
crew while Furnari was a capo would only have been done
with his knowledge and consent. Kelley stated that there
were a number of murders by the family both when Furnari
was capo and when he was consigliere.

The hearing examiner requested that Kelley submit
further information regarding murders by the family, and
afforded Furnari's counsel the opportunity to respond to
information provided by Kelley. Kelley detailed fourteen
murders committed by members of Furnari's crew during
the time he was capo and consigliere. At least five of these
occurred after he became consigliere. Kelley further
represented that D'Arco and two other sources had stated
that, immediately before he was convicted, Furnari met
with other members of the Lucchese family hierarchy to
select successors. According to these sources, the meeting
participants decided that Anthony Luongo would pose a
threat to the new administration and should be killed.

                                5
Casso and Vittorio Amuso were reportedly instructed to
murder Luongo, and they did.

Furnari argued that the Parole Commission could not
consider any of the information because of the
government's refusal to release the 302 forms and also
because the reported testimony of Carew and D'Arco from
other trials did not include statements implicating Furnari
in these murders. He contended that the allegation
regarding Luongo "had already been dealt with," seemingly
referencing Furnari's own statement in a prior submission
that Casso undertook to kill Luongo on his own.

The hearing examiner rated Furnari a Category Eight. He
recommended that Furnari be required to serve to afifteen-
year reconsideration hearing in December 2011, finding
that releasing Furnari on parole would depreciate the
seriousness of the offense and promote disrespect for the
criminal justice system. The National Appeals Board
affirmed this decision.

In 1998, Furnari, then an inmate of the Federal
Penitentiary at Lewisburg, Pennsylvania, filed a petition for
writ of habeas corpus in which he challenged the denial of
parole. He asserted that he was denied due process
because the Parole Commission, without a rational basis to
do so, relied on information that he was involved in
murders. The District Court found that, assuming that
there is a liberty interest in parole, Furnari was not denied
due process because there was a rational basis in the
record before the Parole Commission to support its
decision, and denied the petition.

On appeal, Furnari supports his argument that Casso
was unreliable by describing events that took place after
the initial parole decision. In 1997, in an unrelated trial in
the Eastern District of New York, the government, through
an affidavit filed by Assistant United States Attorney George
A. Stamboulidis, took the position that Casso was an
unreliable witness and informed opposing counsel and the
court that it did not intend to rely on him. The U.S.
Attorney's Office then canceled Casso's cooperation
agreement. Furnari argues that this information shows that
the government knew all along that Casso was unreliable,

                                6
and that, at all events, it is now incontrovertible both that
Casso is not credible and that there is no specific evidence
to tie Furnari to any murder.

While this habeas petition was pending before the
District Court, Furnari received a two-year, interim review
of the original action by the Parole Commission. This review
is required by statute. See 18 U.S.C. 4208(h); 28 C.F.R.
S 2.14. At that hearing, Furnari's counsel presented all of
the new information demonstrating the government's
doubts about Casso's reliability. The Parole Commission
upheld the original denial of parole, and the Appeals Board
affirmed that decision. The Appeals Board expressly denied
Furnari's application for a de novo parole hearing to
consider the newly discovered information, stating that "[i]n
response to your claim that the decision was based on
erroneous information, the evidence you have presented
does not persuade the Commission that the information it
has relied upon is inaccurate. Your request for a de novo
hearing is denied." Days later, the District Court denied
Furnari's petition.

II.

A.

In a federal habeas corpus proceeding, this Court
exercises plenary review of the district court's legal
conclusions. See Jones v. Lilly, 37 F.3d 964, 967 (3d Cir.
1994). However, a court's role in reviewing decisions by the
Parole Commission on an 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."). This Court should review,
however, whether the Commission "has followed criteria

                               7
appropriate, rational and consistent" with its enabling
statutes so that its "decision is not arbitrary and
capricious, nor based on impermissible considerations."
Zannino, 531 F.2d at 690. To this end, "the Commission
may not base its judgment as to parole on an inaccurate
factual predicate." Campbell v. United States Parole
Comm'n, 704 F.2d 106, 109 (3d Cir. 1983) (citations
omitted).

A parole hearing is not a trial-like adversarial proceeding.
The prisoner may be represented at the initial hearing by a
person of his choice, see 28 C.F.R. S 2.13(b), but parole
hearings are informal, and the rules of evidence do not
apply, see Campbell v. United States Parole Comm'n, 704
F.2d 106, 109-10 (3d Cir. 1983) (noting that hearsay
evidence is admissible in a parole hearing). The United
States Attorney does not bear any burden of proof in such
proceeding, see 28 C.F.R. S 2.19(a)(4), (b)(1), and (d), but
rather may provide relevant information to the Parole
Commission for its use in making the parole decision.

The Commission employs the preponderance of the
evidence standard: "If the prisoner disputes the accuracy of
the information presented, the Commission shall resolve
such dispute by the preponderance of the evidence
standard; that is, the Commission shall rely upon such
information only to the extent that it represents the
explanation of the facts that best accords with reason and
probability." 28 C.F.R. S 2.19(c). Under the parole
regulations, a parole applicant is vicariously liable for the
criminal activities of associates under the following
standard:

       The prisoner is to be held accountable for his own
       actions and actions done in concert with others;
       however, the prisoner is not to be held accountable for
       activities committed by associates over which the
       prisoner has no control and could not have been
       reasonably expected to foresee. However, if the prisoner
       has been convicted of a conspiracy, he must be held
       accountable for the criminal activities committed by his
       co-conspirators, provided such activities were
       committed in furtherance of the conspiracy and

                               8
       subsequent to the date the prisoner joined the
       conspiracy.

28 C.F.R. S 2.20, Chapt. 13, General Note 4.

Furnari argues that the Parole Commission violated its
own procedures and the Due Process Clause of the Fifth
Amendment when it relied on the information provided by
Kelley in making its initial determination that Furnari was
responsible for murder. We do not reach Furnari's
constitutional challenges to the initial parole determination,
because we take judicial notice of Furnari's submission of
Stamboulidis's affidavit to the Parole Commission at the
interim hearing and the Commission's failure to provide
Furnari a new statement of reasons despite the new
information, and we conclude that the Commission failed to
comport with 18 U.S.C. S 4206(b) and its regulations at the
interim hearing.

B.

Under the applicable Justice Department regulations, an
interim hearing is not a de novo determination of the
prisoner's presumptive release date but a review of
developments subsequent to the Commission's initial
determination. See 28 C.F.R. S 2.14(a) ("The purpose of an
interim hearing required by 18 U.S.C. S 4208(h) shall be to
consider any significant developments or changes in the
prisoner's status that may have occurred subsequent to the
initial hearing.").

The affidavit and the decision affirming the determination
at the interim hearing are proper subjects for judicial
notice. Federal Rule of Evidence 201 authorizes a court to
take judicial notice of an adjudicative fact if that fact is "not
subject to reasonable dispute." FED. R. EVID. 201(b); see
also In re Indian Palms Associates, Ltd., 61 F.3d 197, 205
(3d Cir. 1995) ("Judicial notice may be taken at any stage
of the proceeding, including on appeal, as long as it is not
unfair to a party to do so and does not undermine the trial
court's factfinding authority.") (citations omitted). The
government does not dispute that the affidavit was
submitted to the Commission at the interim parole hearing,
and we notice it not for the truth of the statements it

                               9
contains, but simply for the purpose of determining that
new information regarding Casso's credibility was presented
to the Parole Commission at the interim hearing. See Indian
Palms, 61 F.3d at 205 ("[I]t is not seriously questioned that
the filing of documents in the case record provides
competent evidence of certain facts--that a specific
document was filed, that a party took a certain position,
that certain judicial findings, allegations, or admissions
were made.") (citations omitted). Similarly, it is proper for
this Court to take judicial notice of decisions of an
administrative agency, and the decision of the Appeals
Board affirming the Parole Commission's decision at interim
hearing is such a decision. See Checkosky v. SEC , 139 F.3d
221, 227 (D.C. Cir. 1998) (taking judicial notice of
administrative agency decision issued after the decision
under review by the court); Opaka v. Immigration &
Naturalization Serv., 94 F.3d 392, 395 (7th Cir. 1996)
(taking judicial notice of immigration service's decision to
suspend deportation to appellant-alien's wife).

Stambouldis's affidavit undeniably represents significant
information that, if the Parole Commission were to accept
it, would be relevant to the question at the initial hearing
whether the Commission correctly determined that Furnari
was responsible for murder. The Appeals Board's decision
affirming the initial determination that Furnari was a
Category Eight credited Casso's information. The Board
stated that

       the Parole Commission finds the information from the
       U.S. Attorney's Office on your personal responsibility
       for several of the murders (victims Schliefer,
       Taglianetti, and DeCicco) and attempted murder (victim
       Abinanti) to be credible and reliable, even though much
       of the information may have come from Anthony Casso,
       one of the most violent members of your organization.

This portion of the Statement of Reasons makes clear that
the Commission relied in significant part on Casso's
information in its initial determination that Furnari was a
Category Eight.

The Commission's decision following the interim hearing,
however, does not mention the new information about

                               10
Casso's credibility presented at the interim hearing. The
Appeals Board's affirmance of the decision from the interim
hearing states that "the evidence you have presented does
not persuade the Commission that the information it has
relied upon is inaccurate." It is not possible to tell from this
decision whether the Parole Commission continues to rely
on Casso and find him credible, or has concluded that
there is sufficient additional information tying Furnari to
murder to conclude that he is a Category Eight even absent
the information provided by Casso.

The Commission is required, under 18 U.S.C. S 4206(b),
to "state with particularity the reasons" for a denial of
parole. See also 28 C.F.R. S 2.13(c) ("At the conclusion of
the hearing, the examiner shall discuss the decision to be
recommended by the examiner, and the reasons therefor,
except in the extraordinary circumstance of a complex
issue that requires further deliberation before a
recommendation can be made.") (emphasis added). As we
have stated,

       We do not find it either overly intrusive or contrary to
       the statute to require the Commission, which is under
       a statutory mandate to "state with particularity the
       reasons for [parole] denial," to truly provide reasons.
       We believe that a statement of reasons must reveal
       reasoning, and not simply present conclusions, at least
       where that reasoning is not apparent from the facts of
       the case.

Marshall v. Lansing, 839 F.2d 933, 942-43 (3d Cir. 1988).
In Marshall, it was not clear from the Commission's
statement of reasons how the Parole Commission
determined the amount of cocaine to attribute to the
prisoner. See id. at 942. We noted that

       Where reasoning beyond simple arithmetic or obvious
       inferences is required to draw the conclusions upon
       which the Commission relies, we see no reason why
       the formal statement of reasons should not provide the
       crucial missing logic. . . . In this case, a reasonably
       intelligent person who was familiar with the relevant
       facts of the case and who had read the Commission's
       perfunctory explanation would still not have

                               11
       understood how the Commission reached its
       conclusion.

Id.

This principle extends to the explanation of action at an
interim hearing where significant new information is
brought to the attention of the Parole Commission. 2 Section
2.14, which provides for an interim hearing, requires that
the interim hearing "shall be conducted by an examiner
pursuant to the procedures of S 2.13(b), (c), (e), and (f)
. . . ." See 28 C.F.R. S 2.14(a)(1). The provisions referenced
include the requirement in S 2.13(c) that the examiner
discuss "the decision" and "the reasons therefor." In a
situation such as this, where the petitioner has presented
significant new information to the Commission, the
Commission's failure to consider it (or to provide a new
statement of reasons for denying parole in light of the new
information) is thus a violation of the statute and the
regulations. The Commission is not an investigative agency.
It reviews information furnished by other government
agencies. Thus the Commission may reopen a parole
decision for consideration of new information at any time
prior to a prisoner's release, even if the new information
was in existence, but was not considered, when the initial
parole decision was made. See Bridge v. United States
Parole Comm'n, 981 F.2d 97, 104 (3d Cir. 1992) (citation
omitted). It is our view that, when new information is
significant enough to seriously undermine the basis for the
initial determination, the Parole Commission must provide
a proper statement of reasons when it denies parole
following an interim hearing. It cannot continue to rely on
the statement of reasons from the initial determination,
which no longer can suffice.

As in Marshall, it is not possible to tell how the Appeals
Board reached its conclusion following the interim hearing.
_________________________________________________________________

2. 28 C.F.R. S 2.28(a) provides for the reopening of cases in light of
"new
information of substantial significance favorable to the prisoner." The
government has not argued that S 2.28(a) is the exclusive method by
which a prisoner can submit new information to the Parole Commission.
Similarly, the government has not argued that the requirement of a
statement of reasons does not apply at the interim hearing.

                               12
The government's own determination that Casso had lied to
it about many matters calls into question whether the
Parole Commission had a rational basis for its decision to
the extent that decision was based on information from
Casso. Yet the Appeals Board's statement of reasons
affirming the decision at the interim hearing does not
explain why the Board continues to categorize Furnari in
Offense Category Eight.

The government tries to deal with the insufficiency of the
Parole Commission's statement of reasons by detailing all
the information that did not come from Casso that was in
front of the Parole Commission and tied Furnari to the
murders. This information might well meet the standard of
providing a rational basis on which to make the
classification. But "the statute does not authorize the
Commission to develop its reasoning in proceedings before
the district court, let alone the court of appeals." Marshall,
839 F.2d at 943. In reviewing an administrative agency's
decision, we do not seek out some hypothetical rational
support for the agency's action. "A court must review the
agency's actual on-the-record reasoning process. Only a
formal statement of reasons from the agency can provide
this explanation, not a post hoc rationalization, or agency
counsel's in-court reasoning." Id. at 943-44 (citing Motor
Vehicle Mfrs. Assoc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 50 (1983)). To the extent that we have, in prior
cases, searched the record to find support for the Parole
Commission's decision, we have done so only where"the
Commission's conclusions were [ ] readily apparent" or "the
challenged decisions were based on characterizations by
the Commission." Marshall, 839 F.2d at 944. Neither is the
case here.

C.

For the foregoing reasons, we conclude that the
statement given by the Appeals Board is an insufficient
statement of reasons for classifying Furnari as a Category
Eight. The Parole Commission thus abused its discretion at
the interim hearing by failing to comply with 18 U.S.C.
S 4206(b) and 28 C.F.R. SS 2.13 and 2.14, its own
regulations requiring a statement of reasons for denying

                                13
parole. See Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984)
("An agency abuses its discretion if it fails to follow its own
regulations and procedures."). Accordingly, the District
Court's order denying the petition for habeas corpus will be
vacated, and the case remanded to the District Court with
the direction that it enter a conditional order granting the
petition and directing the Parole Commission to provide a
new statement of reasons consistent with this opinion,
within a period of time that the District Court shall fix.
While it may be more efficient for the Commission to simply
afford Furnari a de novo hearing thereby obviating the
necessity for other proceedings down the road, we leave
that decision to the Commission.

A True Copy:
Teste:

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

                               14
