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Zizzo v. United States

decided: August 14, 1972.


Fairchild and Sprecher, Circuit Judges, and Campbell, District Judge.*fn1

Author: Fairchild

FAIRCHILD, Circuit Judge.

This is an appeal from a denial of habeas corpus. Petitioner Zizzo, a federal prisoner, challenges revocation of his parole.

Zizzo began service of a five year sentence June 18, 1965 and was paroled December 19, 1966. On January 16, 1970, a warrant was issued by the board of parole. The warrant application charged Zizzo with Associating with Persons Having a Criminal Record and Engaged in Criminal Activity. It was specified in the application that Zizzo had met with Anthony P. Gruttadauro, Nick Guzzino, Ralph J. Tuccillio, Michael Salerno, and Abe Kushner.

On January 26, 1970, after Zizzo had been taken into custody, the probation officer supervising him on parole held a preliminary interview with Zizzo and his counsel. On February 25, a supplemental application was filed, adding the charge, Associating with Persons Having a Criminal Record, Bad Reputation and Engaged in Questionable Occupations, and specifying the same meetings with Gruttadauro. On March 20, a local parole revocation hearing was held before Hearing Examiner Doneghy. Zizzo was present with his counsel. On April 3, the parole board issued an order: "revoked and continued to expiration."

Zizzo's imprisonment was interrupted from July 14, 1970 until January 31, 1972 as a result of proceedings under 28 U.S.C. § 2255, challenging the underlying conviction, at first successfully but ultimately not so, for reasons which are irrelevant to the validity of parole revocation.*fn2

On January 31, 1972, Zizzo filed a petition for writ of habeas corpus, to review the parole revocation proceeding. In addition to various formal documents concerning the revocation, the government presented, for in camera inspection only, a copy of the hearing examiner's report, containing findings and recommendations,*fn3 and the Zizzo file of the local probation office. The government also presented facsimiles of several newspaper stories. As nearly as we can tell from the record, the latter were not presented at the revocation hearing, although there was general reference to newspaper stories, but were available to Zizzo's counsel at the habeas hearing.

The district court denied Zizzo's application for discovery of the examiner's report, and held that although part of the material submitted in camera would be admissible under the rules applicable to parole revocation hearings, the revocation was sustainable solely on the basis of the evidence at the revocation hearing and concerning Gruttadauro alone.

We have examined the report and file transmitted to this court under seal, and will refer to the report or the file where we refer to any information from either source.

Zizzo was originally convicted of fifteen counts of violation of 18 U.S.C. § 1952, "Interstate and foreign travel or transportation in and of racketeering enterprises," arising out of the operation of Zizzo's gambling business in Indiana.*fn4 The character of these offenses explains a special concern of the FBI with any of his activities indicating continued association with gamblers. The file indicates that several reports of suspicions of criminal activity were relayed to the probation officer supervising Zizzo on parole, but these were not supported by any proof. Later, reports of surveillance and meetings of Zizzo, usually at a pizza restaurant Zizzo operated in Gary, with Gruttadauro and others, led to the first application for warrant.

At the preliminary interview, Zizzo produced Guzzino, Kushner, and Salerno (three of the persons specified) as voluntary witnesses. Tuccillio was dead, leaving only Gruttadauro, who did not appear. The report indicates that the examiner found the evidence insufficient to sustain the charge of associating with persons having a criminal record and engaged in criminal activity. He noted the absence of satisfactory evidence that these persons were currently engaged in criminal activity and that the convictions of those who had any criminal record were remote in time. The examiner did, however, find as facts that Gruttadauro had a bad reputation and that Zizzo was associating with him.

Zizzo had admitted to the probation officer that he had seen Gruttadauro frequently, as many as two to four times a week and conversed 20 minutes to a half hour, and that they were close friends, but denied that their conversations were about gambling or other illegal activities. Although the record includes sporadic statements by Zizzo that Gruttadauro came to the restaurant to eat, and that Zizzo had no knowledge of Gruttadauro's violating any law, and it appears that one of Gruttadauro's daughters was employed by Zizzo, Zizzo offered no full description either of what he knew about Gruttadauro's reputation or of the subjects of their conversations. He did not say whether or not he had read newspaper articles about Gruttadauro.

An FBI agent testified that Zizzo and Gruttadauro were observed at the restaurant 13 times from February 24, 1969 to December 19, 1969, four times being in October. He also stated that on October 30, Zizzo and Gruttadauro were observed conversing at a different pizza establishment. This was a place where Zizzo bought pizza dough, but it did not open for business until just before the time the two men left, and their cars were parked in the rear for at least 45 minutes before opening.

With reference to Gruttadauro's reputation, the agent said he had a very bad reputation, has been characterized as a hoodlum from Chicago and identified as associating with known hoodlums for the past ten years, has operated high stake poker games, barbutte games, and has been in control of numerous horse books in Gary. The agent said Gruttadauro had been a subject of several exposes in the Gary ...

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