2000 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Furnari v. Warden" (2000). 2000 Decisions. Paper 142.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/142
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 

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Lucchese crime family, was convicted in 1986 of extortionbased 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. 

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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 tenyear 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 afifteenyear 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