dated July 21, 1989, admitted that it had erroneously urged in its first brief that the special reconsideration hearing was held to consider the $ 150,000 check and not the $ 55,000 in stolen checks. In correcting its position, the Government stated that the $ 55,000 in stolen checks was the "new, adverse information" considered at the special reconsideration hearing. Thus, the Court must determine whether the $ 55,000 in stolen checks was indeed "new, adverse information."
This Court is only authorized to review a parole determination if that determination constitutes an abuse of discretion. Solomon v. Elsea, 676 F.2d at 290. This Court's inquiry on review "is not whether the Commission's decision is supported by a 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." Id. at 290; Schiselman, 858 F.2d at 1237.
The Schiselman court held that the Parole Commission abused its discretion by relying on information in a later hearing that it had expressly chosen to disregard previously. 858 F.2d at 1238-1239. It concluded that the Parole Commission explicitly accorded no weight to certain pieces of information by referring to the following statement in a hearing summary: "The Panel does not see these factors as being indicating factors. . . ." 858 F.2d at 1238. In the present case, unlike the situation in Schiselman, there is no evidence that the hearing panel chose to disregard information about the $ 55,000 in stolen checks.
To the contrary, there are many indications that the panel only considered the $ 150,000 check at Knight's initial hearing. First, the Prehearing Assessment for Knight's initial parole hearing refers to the $ 150,000 check alone. In addition, immediately under this reference, Knight's offense severity is rated as category four because it involves fraud between $ 40,000 and $ 200,000. Prehearing Assessment, Jan. 22, 1988. Second, the Initial Hearing Summary notes "that this instant offense behavior occurred between October 4 and October 24, 1985." Initial Hearing Summary, Mar. 1, 1988. These dates reflect Knight's involvement with the $ 150,000 check and the Oppenheimer scheme in October 1985. Finally, a memorandum dated October 5, 1988, which immediately preceded the October 18, 1988 Notice of Action on Appeal, reaffirms that only the $ 150,000 check had been previously considered. This memorandum brings the $ 55,000 in stolen checks to the attention of the Commission by stating that Knight was " also involved in an additional $ 55,000 [sic] stolen checks." See Exhibit A attached to Government's "Court Ordered Response to Minute Order Dated July 19, 1989 ", July 21, 1989 (emphasis added).
Despite Knight's contentions that he never admitted to involvement in fraud over the amount of $ 200,000, the Court finds that there is a rational basis in the record for the Commission's decision. The Commission based its decision on Assistant U.S. Attorney T. Mullen's "GOVERNMENT'S VERSION" and the Presentence Report. The Commission found that Knight conspired to commit fraud in the amount of $ 238,000. This total included the $ 150,000 check, a $ 33,448 check, a $ 40,100 series of withdrawals, and a total of $ 15,000 in checks (the $ 40,000 and $ 15,000 totalling the $ 55,000 in dispute). Special Reconsideration Hearing Review Summary, Dec. 12, 1988.
Therefore, there is a rational basis for the Commission's finding of Knight's offense severity as category five.
Accordingly, this Court gives deference to the Commission's finding and holds that the Commission did not abuse its discretion.
Knight also argues that the $ 150,000 amount is not correct. However, the Parole Commission may consider a wide variety of information in determining whether to release a prisoner on parole. Specifically, 18 U.S.C. § 4207 provides a laundry list of the sources of information the Commission may consider, including presentence reports and "such additional relevant information concerning the prisoner . . . as may be reasonably available." Because the information considered by the Commission has not always been proved in an adversary setting, there may be some dispute about the accuracy of portions of the information. Therefore, the prisoner is given notice of what information will be used and an opportunity at the hearing to respond to the information. See 18 U.S.C. § 4208(b)(2), § 4207, and § 4208(e). If a dispute remains about the accuracy of the information, the Commission is required to resolve the dispute based on the preponderance of the evidence standard. In other words, "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. § 2.19(c).
In the present case, Knight was present at the special reconsideration hearing. The Special Reconsideration Review Summary dated December 12, 1988 states: "The prisoner was questioned as to his understanding of the offense [sic] and he confirmed that he was involved with the $ 150,000 check . . ." In addition, the Panel reviewed the information in the Government's Version. This report, in part, states: "Knight was responsible for securing the [$ 150,000] check . . ." Govt. Ver., at 6. Therefore, the Panel found, based on a preponderance of the evidence, that Knight was involved in a total of $ 238,448 in fraudulent checks.
However, Knight specifically argues that the Commission construed 28 C.F.R. § 2.20 Chapter 3, Subchapter D incorrectly. Knight urges that the Commission should have calculated his total theft using the $ 124,000 value of the gold coins rather than the $ 150,000 value of the check. In construing an administrative regulation, the Court must give deference to the administrative interpretation. Unless this interpretation is plainly erroneous, it is controlling. McClanahan v. Mulcrome, supra, 636 F.2d at 1191. In this case, the Court finds that the administrative interpretation was not plainly erroneous.
For the reasons stated herein, the Court denies Knight's request for a writ of habeas corpus.
DATED: September 14, 1989