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September 10, 1971


The opinion of the court was delivered by: Will, District Judge.


Petitioners, Franklin Carioscia, Fred Coduto, and Louis Guido, all in the custody of the United States Marshal pursuant to revocation of their mandatory releases by the United States Board of Parole, have applied for writs of habeas corpus pursuant to Title 28 of the United States Code, Sec. 2241 et seq. The central question presented by each of the petitions is whether the petitioners were deprived of their liberty without due process of law because of the limited scope of the hearing provided to them by the United States Board of Parole prior to revocation of their mandatory releases.


The specific facts of each petition vary slightly, although the controlling facts are essentially the same for each petitioner. The following compendium has been gathered from the documents filed in this case as part of the record and from the hearing held by this Court on June 28, 1971.

Carioscia, Coduto, and Guido were convicted of violations of the federal narcotics laws in 1964, 1959, and 1963, respectively, and were sentenced to confinement for varying lengths of time under the statutory provision that they not be eligible for parole. They remained in federal custody until December 29, 1969, July 18, 1969, and February 28, 1969, respectively, when they were each released pursuant to the provisions of Section 4163, Title 18, United States Code, which release is commonly known as the mandatory release.

Under the applicable statutes, a mandatory releasee remains under the jurisdiction of the United States Board of Parole and is subject to all provisions of the law relating to parole, as if he were actually on parole. 18 U.S.C. § 4164. A mandatory releasee, thus, is in a status similar to a parolee in that he is released from incarceration prior to the actual expiration of his prison sentence, is subject to the same rules and regulations, and is subject to having his release status revoked under the same procedures for violation of the rules and regulations applicable to parolees. The only difference between a parolee and a mandatory releasee is that a parolee is released at the discretion of the Parole Board whereas a releasee is automatically released prior to the termination of his prison term according to the extent of the statutory good time that he has accrued, notwithstanding the Parole Board's denial of or his ineligibility for parole. There is no discretion in the Board to deny a mandatory release.

On February 22 and 23, 1971, while out of prison as mandatory releasees, the petitioners were arrested by federal agents and charged with violations of the federal narcotics laws. They were indicted by a federal grand jury and held in custody until they were able, in mid-March, to post bond. Later in March, separate warrant applications were made to the Parole Board requesting the arrest of petitioners on the ground that they had violated the terms of their mandatory releases in that they had (1) violated the federal narcotics laws (the same violations which formed the basis for their arrest and criminal indictment) and (2) associated with persons having criminal records (the acts of association constituting some of the acts alleged in their indictments). The warrant applications stated that the information upon which they were based had been furnished by specific United States Probation Officers. The warrants were recommended to the Board by James R. Pace, Parole Executive, United States Board of Parole, and were subsequently issued. On April 20, 21, and 23, 1971, Pace held mandatory release revocation hearings in Chicago for the petitioners Coduto, Guido, and Carioscia, respectively. The Board of Parole, on May 3, 1971, revoked the mandatory releases of all three petitioners.


The petitioners raise varying grounds in support of their petitions for writs of habeas corpus. These include the following: (1) government officials have acted arbitrarily and capriciously in that the mandatory release revocation warrants, and subsequent revocations, were obtained for the sole purpose of defeating the orders of the United States District Court setting bonds for them in their criminal cases; (2) no statutory authority existed for the retaking of the petitioners; (3) the holding of a hearing prior to trial of the charges contained in the criminal indictments violated their Fifth Amendment privilege against self-incrimination; (4) the warrants for petitioners' arrests were invalid under the Fourth and Fourteenth Amendments; (5) the holding of the hearings on the warrants by the same officer who recommended their issuance violated due process and the Administrative Procedure Act; (6) the charges in the warrant applications did not charge acts constituting a violation of the conditions of petitioners' mandatory releases; and (7) the revocations based upon the same acts as those which constituted the basis for the current criminal indictments constituted double jeopardy in violation of the Fifth Amendment.

The petitioners further allege that they were deprived of liberty without due process of law and that several of the procedures utilized in the revocation hearings violated the Fifth and Sixth Amendments. These alleged infirmities were that the Parole Executive, Mr. Pace, failed to produce the alleged sources of information contained in the arrest warrants, to allow petitioners to call these sources as witnesses for cross-examination, to allow petitioners to examine the reports of the federal agents upon which the warrant applications were allegedly based, and to allow petitioners to have a court reporter present, all allegedly in violation of the Fifth and Sixth Amendments' guarantees of due process, of compulsory process of witnesses, and of the right to confront adverse witnesses. The Government, not surprisingly, asserts that no constitutional deprivations occurred at any point in the mandatory release revocation proceedings.

From the inception of these proceedings, the petitioners have attempted to persuade the Court to review the substantive decisions of the Board of Parole in the revocation of their mandatory releases. This we have refused to do and, for this reason, carefully limited the scope of the hearing to the due process allegations contained in the petitions. One of the assertions of the petitioners, however, requires us, to a limited degree, to review the actions of the Parole Board. This assertion involves the allegations that the Board acted arbitrarily and capriciously in seeking and ordering these revocations. Before we review these allegations, it is necessary to set forth our view of the proper role of a district court in this area.

The extent of the court's inquiry into a parole revocation is very limited. Rose v. Haskins, 388 F.2d 91, 95 (6th Cir. 1968), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408; Richardson v. Markley, 339 F.2d 967, 970 (7th Cir. 1965), cert. denied 382 U.S. 851, 86 S.Ct. 100, 15 L.Ed.2d 90; Wright v. Settle, 293 F.2d 317, 319 (8th Cir. 1961); Davis v. United States, 288 F. Supp. 180, 181 (W.D.Mo. 1968); Young v. Parker, 256 F. Supp. 1002, 1004 (M.D.Pa. 1966). We believe that this rule applies equally to a mandatory release revocation.

Specifically, the courts have consistently followed one or two tests in reviewing the actions of the Parole Board in revoking the parole of an individual. The first may be labeled the "capriciousness" test. Under such a test, a court may overturn the Parole Board's determination only if it finds that the Board acted "arbitrarily" or "capriciously". Clark v. Stevens, 291 F.2d 388, 389 (6th Cir. 1961); Freedman v. Looney, 210 F.2d 56 (10th Cir. 1954); Davis v. United States, supra, 288 F. Supp. at 181; Young v. Parker, supra, 256 F. Supp. at 1004.

Other cases have followed the theory that the court may overturn the action of the Parole Board only on the basis that what was before the Board compelled the conclusion as a matter of law that there had been no violation of parole. United States ex rel. DeFillo v. Fitzpatrick, 378 F.2d 85, 87 (2d Cir. 1967); Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 240 (en banc 1963), cert. denied, sub nom., Thompson v. United States Board of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315; Wright v. Settle, supra, 293 F.2d at 319; see, also, Strauss v. Moos, 399 F.2d 1022, 1023 (7th Cir. 1968). It is obvious, of course, that the two tests are closely related since, if there had been no violation of parole, revocation would be arbitrary or capricious.

Regardless of which theory is followed, the cases have been fairly consistent in delineating the bounds of the court's inquiry during a habeas corpus proceeding challenging revocation of parole. It is clear that the court should not and may not substitute its judgment for that of the Board. Wright v. Settle, supra; Freedman v. Looney, supra; Young v. Parker, supra. Likewise, the court may not inquire into the reliability or sufficiency of the information presented to the Board. United States ex rel. DeLucia v. O'Donovan, 178 F.2d 876, 879 (7th Cir. 1950); Fox v. Sanford, 123 F.2d 334, 335 (5th Cir. 1941); Rogoway v. Warden, 122 F.2d 967 (9th Cir. 1941), cert. denied, 315 U.S. 808, 62 S.Ct. 797, 86 L.Ed. 528; Gibson v. Markley, 205 F. Supp. 742, 743 (S.D.Ind. 1962). Our function, therefore, as to the contention of arbitrariness, is limited to reviewing the record before the Board to ascertain whether there was any evidence before it upon which it could properly act.

A review of the record before the Parole Board demonstrates clearly that considerable information was before it upon which to base its decisions. As to petitioners Carioscia and Guido, the Board had before it the warrant applications which summarized the statements of federal narcotics agents who stated that they had observed the two in the presence of known narcotics violators and ex-felons. The Board had, in addition, copies of letters sent by United States Probation Officers notifying them of the petitioners' arrests and indictments on the drug violation charges. As to Coduto, the Board had this information plus a letter from a Probation Officer indicating the arrest of Coduto plus an affidavit of an agent from the Federal Bureau of Narcotics relating to an investigation of Coduto. As the petitioners' conditions of mandatory release included restrictions against being present where narcotics were in use and against associating with persons with criminal records, we believe that the record before the Board could clearly support its actions.

The petitioners contend that the motivation of the Probation Officers in forwarding information concerning them to Washington was the desire of such officers to prevent the petitioners from obtaining their liberty once it appeared that they would be able to make bond in their current criminal cases. Even assuming this to be true, we believe the motives of law enforcement officials who submit information to a Probation Officer or of Probation Officers who submit information to the Parole Board concerning the violation of parole or mandatory release by a parolee or releasee is irrelevant.

If the petitioners violated the conditions of their releases, it was within the discretion of the Board to make that determination, Wright v. Settle, supra; Freedman v. Looney, supra; Young v. Parker, supra, and to decide whether or not such violations warranted revocation. Hyser v. Reed, supra, 318 F.2d at 238. Because the submissions and recommendations of law enforcement officers, probation officers, and the hearing examiner are not binding or necessarily persuasive upon the Board, which makes the final determination in all revocation matters, the motives of those who submit the information, assuming it is accurate, is irrelevant. We conclude, therefore, that the action of the Parole Board was supported by the evidence presented to it and may not be classified as so arbitrary and capricious as to deny due process of law to any of these petitioners.

The remainder of the petitioners' arguments concern the issue of whether minimum constitutional safeguards were present in the procedures utilized in these revocation proceedings. In support of these contentions, the petitioners assert various alleged deficiencies as grounds for declaring their results invalid. We shall discuss these grounds one by one.


The petitioners allege that their retaking was not authorized by the statutes and that the Board of Parole, therefore, exceeded its powers. A simple reading of the relevant statutes, however, establishes that petitioners' claim is totally without merit. Section 4164 of Title 18 of the United States Code provides:

  "A prisoner having served his term or terms less
  good-time deductions shall, upon release, be deemed
  as if released on parole until the expiration of the
  maximum term or terms for which he was sentenced less
  one hundred and eighty days. * * *"

Section 4205 of Title 18 of the United States Code provides:

  "A warrant for the retaking of any United States
  prisoner who has violated parole, may be issued only
  by the Board of Parole or a member thereof. * * *"

Thus, the statutory authority for the taking of a prisoner on mandatory release is clearly and succinctly set forth in the statutes governing parole. It is obvious that the reason why petitioners have been unable to cite any cases in support of their contention that the Board was without authority to retake a mandatory releasee is because the Courts have consistently held the opposite. See, e.g., Shelton v. United States Board of Parole, 128 U.S.App.D.C. 311, 388 F.2d 567 (1967); United States ex rel. DeFillo v. Fitzpatrick, 378 F.2d 85 (2d Cir. 1967); Weber v. Willingham, 356 F.2d 933 (10th Cir. 1966); Richardson ...

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