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July 31, 1985

STEVEN GUERRA, et al., Plaintiffs,
EDWIN MEESE, Attorney General of the United States, et al., Defendants

The opinion of the court was delivered by: PARKER


 Barrington D. Parker, District Judge:

 In this proceeding, seven prisoners presently incarcerated in various federal correctional institutions petition this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, or alternatively, a writ in the nature of mandamus, pursuant to 28 U.S.C. § 1361. Their incarceration followed convictions and sentences for criminal contempt before trials in the District Court, Eastern District of New York. The respondents are the Attorney General of the United States, the Director of the United States Bureau of Prisons, the Chairman of the United States Parole Commission, and the wardens of the several correctional institutions where the respondents are incarcerated.

 The petitioners challenge a newly promulgated Parole Commission directive applicable to parole guidelines for persons convicted of criminal contempt. They allege that the directive has the effect of denying their release on parole and extending the period of their incarceration. They charge that the actions of the Parole Commission violate the constitutional prohibition against ex post facto laws, their rights under the Fifth and Sixth Amendments to the Constitution and the Administrative Procedure Act, 5 U.S.C. § 551, et seq.

 The government initially raised the question of whether venue was proper in the District of Columbia. On June 13, 1985, a motion to transfer this proceeding to the various judicial districts where each petitioner was incarcerated was denied. The petitioners were granted limited discovery and an oral hearing on the merits was held on July 18, 1985. The parties agree that there are virtually no disputed material facts and thus the Court is called upon to determine issues of law.

 For the reasons set out below the Court concludes that the Parole Commission directive may not be applied to petitioners.



 The seven petitioners were convicted and sentenced for criminal contempt under 18 U.S.C. § 401. Their convictions resulted from a refusal to testify before a grand jury investigation of criminal terrorist activities of a Puerto Rican nationalist group, the Fuerzas Armadas de Liberacion Nacional Puertorriguena ("FALN"). *fn1" The grand jury was convened by the United States District Court, Eastern District of New York. The petitioners claim they are activists and they refused to cooperate with the investigation and to testify because of their political, religious and moral beliefs not because they were involved or associated with criminal or terrorist activities.

 Petitioners Guerra, J. Rosado, Cueto, A. Rosado, and Romero were tried together in the Eastern District of New York in February, 1983, and were convicted of criminal contempt and sentenced to three years imprisonment in June, 1983. They began serving their sentences in April, 1984. *fn2" Petitioner Fiallo was convicted in the Eastern District of New York in October, 1983, and was sentenced to two years imprisonment, which he began serving in June, 1984. Petitioner Miller was sentenced in April, 1984 to three years imprisonment following her conviction for criminal contempt. She began to serve her sentence in February 1985.

 Petitioners are at various stages of the parole hearing appeal process. *fn3" Guerra is the only petitioner who has exhausted the administrative process to the United States Parole Commission. The parties represented and agreed at the July 18 hearing that all of the petitioners have had an initial hearing, while only some have pursued the parole board's decision to the intermediate appeal level, the regional parole board.


 Petitioners challenge a Parole Commission directive applied to the parole guidelines for an individual convicted of criminal contempt. The guideline for criminal contempt is found in 28 C.F.R. § 2.20 (chapter six, subchapter B, 618(a)). *fn4" However, an additional directive formulated by the United States Parole Commission was appended to 28 C.F.R. § 220, 618(a). That directive, known as a "Notes and Procedures" (hereinafter "Notes and Procedures provision"), is found in the 1984 United States Parole Commission Rules and Procedures Manual, effective October 1, 1984. It provides:


[[ Notes and Procedures. 'Criminal Contempt ' refers to conduct under 18 U.S.C. 402 (punishable by up to six months). If a criminal sentence of more than one year is imposed under 18 U.S.C. 401 for refusal to testify concerning a criminal offense, such conduct normally should be graded as if 'accessory after the fact. '__

 The Notes and Procedures provision to 618(a) was formulated internally by the Parole Commission and became effective April 1, 1984, after at least five of the petitioners had been sentenced. It was not submitted for public comment nor was it published in the Federal Register. Petitioners contend that but for this additional provision five of the petitioners would have been paroled as of this date.

 Parole guidelines encompass two components: a salient factor score which determines the individual risk of parole violations and a severity offense score based on the seriousness of the offense committed. It is the latter factor, the severity offense scores for various offenses, which are set forth in 28 C.F.R. § 2.20. Petitioners contend that the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) unjustifiably and unconstitutionally increases the severity of the offense of criminal contempt such that their term of imprisonment is unconstitutionally prolonged.

  They argue that the severity of their offense, criminal contempt, should be rated in Category Three, the category for misprison of felony, 28 C.F.R. § 2.20, 614. With a high salient factor score, a prisoner whose severity offense score is graded in Category Three will ordinarily be paroled after serving from 10-14 months. *fn5" Instead, the severity of petitioners' offenses was construed as the crime of accessory after the fact of the most serious offense the grand jury was investigating and their offenses were graded as Category Six and Category Five. *fn6" Because accessory after the fact is graded as two categories below the underlying offense, 28 C.F.R. § 2.20, 104, most of the petitioners were graded in Category Six, two categories below the category for murder. 28 C.F.R. § 2.20, 201.

 Petitioners were graded as accessories after the fact to murder because the Parole Commission decisions in the underlying cases reflect that the hearing examiners ultimately determined that the Eastern District of New York grand jury was investigating murder. *fn7" The guidelines for a Category Six offense with a high salient factor score suggests that the petitioners should serve from 40-52 months. That determination effectively precludes release on parole for the petitioners, who will be required to complete the term of their sentences.



 A. Ex Post Facto

 The petitioners argue that the application of the Notes and Procedures provision to their parole eligibility status, the provision becoming effective after at least five of them were sentenced, *fn8" violates the constitutional prohibition against ex post facto laws. U.S. Const. Art. I, § 9, cl. 3. "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). Although Weaver dealt with a state "good-time" provision, the Supreme Court held that a law affecting parole eligibility may be an ex post facto violation. Id. at 31-32.

 The test for determining whether a statute violates ex post facto protections is that "it must be retrospective" and "it must disadvantage the offender affected by it." Weaver, 450 U.S. at 29. Accord Burnside v. White, 760 F.2d 217, 220 (8th Cir. 1985).

 The Notes and Procedures provision under consideration is not an unconstitutional ex post facto provision because petitioners cannot demonstrate that they meet the second prong of the Weaver test: proof of disadvantage. Prior to the promulgation of the Notes and Procedures provision, the existing parole guidelines, 28 C.F.R. § 2.20, 618(a), did not set a definite severity category for criminal contempt. The discretion afforded by that provision (as it indeed still exists in the Code of Federal Regulations) suggests that these petitioners were never guaranteed that their offense would be graded in any particular category. "A change merely in the manner in which the Board, now the Commission, exercises its discretion thus cannot offend the ex post facto clause." Warren, 659 F.2d at 195. See also Richardson v. United States Parole Commission, 729 F.2d 1154, 1155 (8th Cir. 1984) (per curiam); Hayward v. United States Parole Commission, 659 F.2d 857, 862 (8th Cir. 1981), cert. denied, 456 U.S. 935, 72 L. Ed. 2d 454, 102 S. Ct. 1991 (1982). Cf. Prater v. United States Parole Commission, 764 F.2d 1230, 1234 (7th Cir. 1985) ("a number of courts have held that such guidelines do not preclude or severely limit the exercise of discretion and therefore do not operate as ex post facto laws"). Based on these authorities, it cannot be said that the Notes and Procedures provision violates the ex post facto clause. *fn9"

 B. The Court's Standard of Review

 1. The Parole Commission's Decision

 The scope of judicial review of the Parole Commission's decisions with respect to each individual decision regarding the petitioners is extremely limited. See 18 U.S.C. § 4203(b) (granting Commission power to grant or deny parole for prisoners); § 4218(d) (holding that the actions of the Commission under § 4203(b) are committed to agency discretion for purposes of review).


The appropriate standard for review of the commission's decisions is whether there has been an abuse of discretion. * * * This means that a court may not substitute its own judgment for that of the commission, . . . but may consider only whether there is a rational basis for the commission's decisions.

 Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir. 1983) (citations omitted). See also Staege v. United States Parole Commission, 671 F.2d 266, 268 (8th Cir. 1982).

 Although this Court may question the validity of the Notes and Procedures provision per se, there does not appear to be a basis for overturning its application. In other words, if the Commission examiners had evidence before them that the Eastern District grand jury was investigating murder, the Notes and Procedures provision instructs the examiners normally to grade the severity of the offense as accessory after the fact. The petitioners' difficulty with the provision should lie in its prima facie arbitrary classification rather than its rationality as applied. The petitioners have failed to demonstrate that the grand jury, from which the criminal contempt charges stemmed, was not investigating murder or serious bodily injury. Cf. Rosado, 728 F.2d at 92 (the grand jury was investigating bombings). Thus, the Court does not find sufficient justification on which to overturn the Commission decisions on the basis of the application of the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a). *fn10"

 2. The Parole Guideline

 This Court, however, may review the Notes and Procedures provision to determine whether it is arbitrary or capricious.


This statutory restriction [over review of individual parole decisions] does not preclude either the district court or this court, however, from considering a claim that the guidelines for exercising discretion as promulgated and applied, violate the intent and directives of the Parole Act. Such an inquiry into the legality of agency action, as opposed to its appropriateness within legal bounds, is 'uniquely appropriate for judicial determination. '

 Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir. 1981), cert. denied, 454 U.S. 1153, 71 L. Ed. 2d 309, 102 S. Ct. 1023 (1982) (emphasis in original) (quoting Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859, 875 (D.C. Cir. 1970)). See also Farkas, 744 F.2d at 39.

 A careful review of the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a), leads the Court to conclude that it is arbitrary and capricious and not in keeping with the policy of the Parole Commission and Reorganization Act, 18 U.S.C. § 4201 et seq., and thus, must not be applied to these petitioners. The Parole Act sets as one criteria for consideration of parole, "the nature and circumstances of the offense. . . ." 18 U.S.C. § 4206(a). Moreover, the legislative history of the Act states that "the constitutional test to be applied to parole is not one of right, but whether or not parole is administered in a fashion that is neither arbitrary nor capricious to the individual, nor unfairly jeopardizes the legitimate aim of society to control deviant behavior." S. Rep. No. 369, 94th Cong., 1st Sess. 19, reprinted in 1976 U.S. Code Cong. & Ad. News, 335, 341. In the circumstances of this case, the Court concludes that the guideline is arbitrary and capricious because it does not relate to the offense for which petitioners were tried and sentenced.

 The guideline is arbitrary and capricious because it is predicated upon an unconstitutional irrebuttable presumption that the petitioners were involved in the substantive offenses that the grand jury was investigating. Regardless of the reason that the petitioners refused to cooperate with the grand jury, the government is unable to show or point to any evidence that they were associated or connected with any criminal activities such as murder, bombings, or other terrorist activities or were ever charged with or tried with respect to any such activities. See also, e.g., Petitioners' Exhibits D, F.

 "Statutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments." Vlandis v. Kline, 412 U.S. 441, 446, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973). See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 644, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). Although the unconstitutional presumption in this case does not directly implicate a criminal conviction, see, e.g., Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985), it does introduce an irrebuttable presumption into a procedure in which the petitioners have a great stake. Cf. Morrissey v. Brewer, 408 U.S. 471, 482, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972) (parolee has liberty interest in parole and is entitled to due process upon revocation). That element is contrary to the purpose of the Act, which is to provide rationality in parole decisions.


The vice of the regulation, therefore, is that it assumes to convert what in the view of the statute is a question of fact requiring proof into a conclusive presumption which dispenses with proof and precludes dispute. This is beyond administrative power. The only authority conferred, or which could be conferred, by the statute is to make regulations to carry out the purposes of the act -- not to amend it.

 Miller v. United States, 294 U.S. 435, 440, 79 L. Ed. 977, 55 S. Ct. 440 (1935).

 Moreover, a comparison of the two offenses, criminal contempt and accessory after the fact, demonstrates that it denies the petitioners their due process rights to be equated with the latter when they have only been convicted of the former, especially where no additional proceedings have been held. The power of the court to impose a sanction for criminal contempt for failure to comply with its orders is set forth in 18 U.S.C. § 401(3). Failure to obey a court order, in the case of petitioners' refusal to obey the order to testify before the grand jury, is sufficient for a conviction of criminal contempt. Green v. United States, 356 U.S. 165, 2 L. Ed. 2d 672, 78 S. Ct. 632 (1958). See also United States v. Leyva, 513 F.2d 774, 777 (5th Cir. 1975). *fn11" In contrast, the parole regulations define an "accessory after the fact" to "refer[] to the conduct of one who, knowing an offense has been committed, assists the offender to avoid apprehension, trial, or punishment (e.g., by assisting in disposal of the proceeds of an offense)." 28 C.F.R. § 2.20, Chapter Thirteen, Subchapter B, para. 1. See also United States v. Lumpkin, 145 U.S. App. D.C. 162, 448 F.2d 1085, 1090 (D.C. Cir. 1971) (what is required for aiding and abetting is a showing "that the accused knowingly associate himself in some way with the criminal venture, that he participate in it as in something that he wishes to bring about and that he seek by his action to make it succeed").

 The Court fails to see the rational connection between failure to comply with a court order to testify before a grand jury about particular crimes and the alleged crimes themselves. Cf. Lieberman v. Gunnell, 726 F.2d 75, 78 (2d Cir. 1984) (reversing categorization of an offense for purposes of parole because "selling drug dilutents has no similarity to offenses against property and is closer in behavior to opiate offenses"); Kohlman v. Norton, 380 F. Supp. 1073, 1074 (D. Conn. 1974) ("nothing in Lupo permits the Board to rate offense severity according to criminal conduct that is not alleged") (emphasis in original).

 Defendants contend that the Notes and Procedures only codify a previous policy of the parole board as applied in Cavalieri v. Gunnell, C.A. No. B-83-712 (D. Conn. Dec. 29, 1983). (Respondents' Exhibit M). See Respondents' Answer to Interrogatory 2. In that case, the parole commission employed a pass-through analysis to equate criminal contempt to obstruction of justice to the underlying offense. Id. Slip Op. at 4-5. The Court does not view an unpublished judicial opinion as a binding indication of the Parole Commission's firm policy. More importantly, petitioners have introduced evidence and convincingly shown that Cavalieri is inapposite because in that case there was an underlying judicial proceeding relative to the petitioner's criminal involvement. *fn12" Petitioners' Exhibit E at 10, 12-13. The government has failed to show that there was any such proceeding which even arguably related to petitioners' involvement in the underlying substantive crimes that were ever held relative to any of the petitioners. As such, the Court expresses no opinion as to the merits of applying the Notes and Procedures provision where such a proceeding has been held.

 C. The Administrative Procedure Act

 Petitioners contend that the Notes and Procedures provision was enacted in violation of the rulemaking requirement of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Although the Parole Commission has adopted the guidelines used in formulating parole decisions in accord with 5 U.S.C. § 553, the Notes and Procedures provision to be applied to 28 C.F.R. § 2.20, 618(a) was adopted only through internal mechanisms and not according to the procedures of § 553. See Respondents' Answers to Interrogatories.

 It is beyond doubt that the Notes and Procedures provision is designed to have a substantive effect on parole determinations. As such, the Court is unable to discern any difference between it and the formal guidelines in terms of the need to use formal rulemaking in its formulation and adoption. See 18 U.S.C. § 4218(b). The D.C. Circuit has clarified that parole guidelines "calculated to have a substantial effect on ultimate parole decisions" are not exempt from rulemaking under the APA. Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107, 1112-13 (D.C. Cir. 1974). Further, the legislative history of the Parole Act recognizes that parole guidelines are subject to the APA. "Guidelines promulgated by the full Commission for parole decision-making are rules and regulations within the meaning of this definition." S. Rep. No. 369, 94th Cong., 1st Sess. 20, reprinted in 1976 U.S. Code Cong. & Ad. News 335, 341 (citing Pickus, supra). See also H.R. Rep. No. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S. Code Cong. & Ad. News, 335, 359 ("The Parole Commission shall actively seek the counsel and comment of the corrections and criminal justice communications prior to promulgation of guidelines and shall be cognizant of past criticism of parole decision making").

 Thus, the Notes and Procedures provision applied to the petitioners' parole decisions was enacted in violation of the rulemaking provisions of the APA. However, the fact that the Parole Commission did not comply with the APA is not sufficient, in and of itself, to warrant petitioners' immediate release on habeas corpus. "A prisoner has no right to release on parole; he has only a statutory right to have the board comply with the APA and its own rules and guidelines. A departure by the board does not necessarily make his custody illegal." Brown v. Lundgren, 528 F.2d 1050, 1054-55 (5th Cir. 1976), cert. denied, 429 U.S. 917, 50 L. Ed. 2d 283, 97 S. Ct. 308 (1976).

 In accord with the above Memorandum Opinion, it is this 31st day of July, 1985,


 1. That the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) is declared invalid and shall not be applied by the Parole Commission where there has been no demonstration or showing in any underlying judicial proceeding that individuals convicted of criminal contempt have participated in the underlying substantive offenses; and

 2. That respondents shall hold a further parole hearing for each petitioner by August 20, 1985 and shall not utilize the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) in their determination of the release on parole decision. If by that date, no parole hearing is held, each petitioner who is denied such hearing shall be released forthwith; and

 3. That the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) was enacted in violation of the APA. Respondents are enjoined from applying that provision in any case unless and until the statutory rulemaking procedures are utilized.

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 614 F. Supp.]

 September 3, 1985


 Barrington D. Parker, District Judge:

 Because they refused to testify before a grand jury investigating terrorism and other criminal activities associated with and attributed to a Puerto Rican independence group, the seven petitioners in this proceeding were convicted and sentenced for criminal contempt. The grand jury was convened in the United States District Court for the Eastern District of New York. The petitioners are incarcerated in various federal correctional institutions throughout the country. One petitioner received a sentence of two years; the others received sentences of three years.

 After the petitioners had served a portion of their sentences, the United States Parole Commission made a determination of their parole eligibility date -- when they would be released from custody. Representatives of the Commission decided that each petitioner would remain incarcerated until the expiration date of the sentence imposed. That determination resulted from the application of certain guidelines and procedures promulgated and applied by the Commission.

 In this proceeding, the seven petitioners challenge the standards and guidelines employed by the Commission in reaching a determination of their parole eligibility date. The petitioners are Steven Guerra, Maria Cueto, Julio Rosado, Andres Rosado, Michelle Miller, Ricardo Romero, and Federico Cintron Fiallo. The respondents are the United States Attorney General, the Chairman of the United States Parole Commission, and other federal government officials.

 On May 10, 1985, the petitioners applied for a Writ of Habeas Corpus. At the outset, the respondents raised questions of whether venue was appropriate in addition to challenging the jurisdiction of this Court to consider the petitioners' application for relief. The merits of the matter were deferred until those questions were decided. On July 31, 1985, this Court ruled that the standards used by the Court in denying parole to the petitioners were invalid, enacted in violation of the Administrative Procedures Act, and improperly applied.

 In accordance with the Court's ruling of July 31, the respondents held a joint administrative record review hearing for petitioners. The results of that hearing were forwarded to the Regional Commissioners where the seven petitioners are incarcerated. The Regional Commissioners reviewed the matter and ruled in each case that the petitioner's incarceration should be continued until full expiration of sentence.

 On August 30, 1985, this Court heard testimony and argument on the petitioners' request for release pending final determination of the issues presented,1a including any appeal to the Circuit Court. On the basis of that hearing and the briefs submitted thereafter by the parties, the Court determines that it is appropriate to grant petitioners' request.



 Respondents assert that this Court lacks jurisdiction to grant the writ of habeas corpus and release the petitioners. They assert that petitioners have failed to exhaust the administrative appeals process provided by Parole Commission regulations. See 28 C.F.R. § 2.26 (1984). The Court agrees that an appeal to the National Parole Board should be pursued before final determination of the legality of the Commission's action. See Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850-51 (3d Cir. 1976).

 However, the Court does not agree that the exhaustion doctrine prohibits the release of the petitioners pendente lite. And since the Court now determines that a temporary release is appropriate in this case, it is not necessary at this time to fully explore petitioners' arguments as to the futility of an appeal to the National Appeals Board.2a

 The Court's authority to order release stems from its inherent power in all habeas corpus cases to provide the manner in which the petitioner will be held until disposition of the proceeding. Johnston v. Marsh, 227 F.2d 528, 532 (3d Cir. 1955) (Hastie, J., concurring) ("The court is under no ministerial duty to direct or permit the person who produces the petitioner to continue to hold him during this period.").

 The controlling case in this jurisdiction is Baker v. Sard: "[T]he court's jurisdiction to order release as a final disposition of the action includes an inherent power to grant relief pendente lite, to grant bail or release, pending determination of the merits." 137 U.S. App. D.C. 139, 420 F.2d 1342, 1343 (D.C. Cir. 1969); see also Luther v. Molina, 627 F.2d 71, 76 (7th Cir. 1980); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974). Baker involved an appeal from the dismissal of a habeas petition by the district court. On appeal, the court held that it was within the district court's power to order release of the petitioner pending his appeal of the district court's ruling. Baker, 420 F.2d at 1343; see also Fed. R. App. P. 23(b) (an unsuccessful petitioner may be released pending appeal). The language in Baker indicates that a final decision by the district court is not a prerequisite to granting release on bond. See Baker, 420 F.2d at 1343.


 Petitioners and respondents differ as to the standard that should apply in determining whether release on bond is appropriate. Petitioners argue that Federal Rule of Appellate Procedure 23(c) governs, while respondents rely on the Bail Reform Act of 1984, 18 U.S.C.A. § 3143 (West Supp. 1985). Neither standard is technically applicable. Petitioners have not received a final release in their habeas corpus proceeding as required by Rule 23(c). Neither are they awaiting sentence or appeal from their criminal conviction, the situation addressed in 18 U.S.C.A. § 3143.

 The presumption of entitlement to release that Rule 23(c) embodies, see United States ex rel. Barnwell v. Rundle, 461 F.2d 768, 770 (3d Cir. 1972), is not appropriate here, since a final determination of the merits of the petitions must await the decision of the National Appeals Board. The proper standard to be applied is nearer that suggested by Rule 23(b) for persons whose petitions have been denied. That standard is a strict one, as outlined in Baker v. Sard: "[T]he release request ordinarily must be measured against a heightened standard requiring a showing of special circumstances. A forceful special circumstance is the likelihood of success on appeal. . . . Other matters, including the threat of flight from the jurisdiction, must be considered." 420 F.2d at 1343-44. Contrary to respondents' repeated assertion, this language does not set out a two-pronged test. Rather, a single showing of special circumstances must be made, of which likelihood of success on the merits is an important factor to be considered.3a


 While it is possible that the National Appeals Board will offer a different justification than that of the Regional Commissioners, the identical wording of each regional decision strongly suggests the existence of a national policy decision with respect to these petitioners. Assuming the same policy and rationale are followed by the National Appeals Board, petitioners have a strong likelihood of prevailing in a review by this Court.

 The Regional Commissioners in all six cases determined that it was appropriate to make a decision above the guidelines generally followed by the Parole Commission for Category III offenses. Decisions above the guidelines are permissible only upon showing of good cause. 18 U.S.C. § 4206(c) (1982). Good cause was defined by the drafters of the Parole and Reorganization Act as "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." S. Rep. No. 369, 94th Cong. 2d Sess. 27 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 335, 359.

 A final determination of the reasonableness of the Parole Commission's decision must await the decision of the National Appeals Board. For the moment, the Court notes that the rationale followed by the Regional Commissioners very likely utilizes reasoning that has been termed "double-counting" and declared improper by some district courts. See Hearn v. Nelson, 496 F. Supp. 1111, 1115 (D. Conn. 1980); Lupo v. Norton, 371 F. Supp. 156, 163 (D. Conn. 1974); cf. Alessi v. Quinlan, 711 F.2d 497, 500 (2d Cir. 1983) (noting the existence of the double-counting doctrine, but not passing on its validity because the petitioner's parole determination did not, in the court's opinion, constitute double-counting). Congress clearly intended the Parole Commission to go outside of its guidelines in appropriate cases. See Alessi, 711 F.2d at 500. The legislative history of the Parole and Reorganization Act gives some examples of the factors that the Commission should consider in making such a decision: "[W]hether or not 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." S. Rep. No. 369, 94th Cong. 2d Sess. 27 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 335, 359. The Notices of Action issued by the Regional Commissioners, and the entire record presented thus far by respondents in this case, do not indicate the existence of any such aggravating factors. Cf. Alessi, 711 F.2d at 500 (Commission's decision not arbitrary because petitioner had a "managerial role" in a "large-scale drug operation").


 Baker v. Sard requires that the Court consider an array of factors before making a determination that release on bond is appropriate. 420 F.2d at 1344. Accordingly, this Court held the August 30 hearing to gain information that would allow it to properly consider other factors.

 At that hearing, an interested attorney and two Episcopal church officials offered general but nonetheless useful testimony on the question that the Court had to decide -- the release of the respondents. The witnesses were: Robert S. Potter, an attorney with the New York law firm of Patterson, Belknap, Webb & Tyler;4a Jose Antonio Ramos, former Bishop of Costa Rica and presently assigned to New York City; and Barbara Harris, an Episcopal priest, who has served as the Executive Director of the Episcopal Church Publishing Company for several years.

 Attorney Potter had filed amicus briefs on behalf of the Episcopal Church, the National Council of Churches, the Episcopal Bishops of New York, Puerto Rico and Michigan, and the Episcopal Church Publishing Company in the criminal contempt proceedings brought against the petitioners. Attorney Potter was of the opinion that they would not present a danger or threat to the community if released. The Episcopal Church witnesses were not close personal friends of the petitioners or their families. However, within the last seven years they had come to know them through their involvement in various church and related community activities. Within the seven-year period, the witnesses had varying degrees of contact and interaction with the respondents. On basis of such contacts, they vouched for the petitioners and opined that they would not pose a threat to the community nor a risk of flight. Their testimony showed that the respondents had close family and other substantial ties in the communities where they resided. The two church witnesses were in regular attendance at the criminal contempt proceedings in the Eastern District of New York. Their testimony was in complete accord, namely, that the petitioners were released on personal recognizance over the course of that trial, they appeared initially on their own upon return of the indictment, were similarly released through the course of the appellate proceedings and surrendered without incident on return of the mandate from the appeals court. They never presented a risk of non-appearance and danger of flight, or violated any of the conditions of their release in any manner.

 The Court finds that the testimony of the three witnesses was reliable, credible, straightforward, and was of assistance in making a determination that the petitioners should be released pending a final resolution of the issues under consideration.

 A fourth witness was Priscilla Falcon Romero -- wife of the petitioner Ricardo Romero. She presented relevant and credible testimony about her husband, their three children and the family. Her testimony showed that the petitioner and his family were close knit, that her husband maintained regular, full time employment prior to his incarceration and that he was released during the course of the contempt trial and the appeals of that conviction. Ricardo Romero also testified that he was born in the State of Colorado, that he is fifth generation Coloradian, that in 1966 he suffered removal of a herniated disc and he faces the possibility of a recurrence of that problem. For some time he has had a continuing back problem and faces the prospect of surgery. He is under prescribed medication for back problems at the Springfield Missouri FCI where he is incarcerated.

 Beyond those witnesses, the petitioners Maria Cueto, Julio Rosado, Andres Rosado and Steven Guerra5a gave relevant testimony which showed and established their close family ties, their close identification with the communities where they resided prior to incarceration, the nature and consistency of their prior employment, the absence of any prior criminal record within 10 years, and the absence of any problems during their release on personal recognizance over the course of the criminal contempt proceedings.

 On basis of the above testimony, the Court finds that there has been a substantial showing, through clear and convincing testimony, that petitioners do not present a threat of flight; nor do they present a danger to their communities. The Court also determines that they should be released on their personal recognizance during the pendency of this proceeding. An appropriate order will be entered.

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