*1 V. adjusted is better loss policy of economic principles. This tort rules than contract reasons, we will affirm foregoing For the liability and for strict is as true conclusion court. judgment of the district warn for failure to as it is negligence cases culpa- may be Thus, a manufacturer cases. warn, damage if the but failure to
ble of a solely eco- itself and
solely product recovery.
nomic, See East no tort there is 866-68, at 2300.
River, 106 S.Ct. 476 U.S. holding in McCon- reject the
Accordingly, we however, will, reasons stat- for the We
nell. granting court’s affirm the district ed above GAMBINO, Appellant, duty on the summary judgment GE warn claim. (Warden-FCI Fairton);
E.W. MORRIS Repair Negligent TV. United States Commissioner. address, finally, Sea-Land’s third and We No. 96-5299. repair damaged negligent claim for connecting Following failure of the engine. Appeals, United States Court rod, damaged engine. repaired the GE Third Circuit. again. engine failed November to be at the location of failure was found Argued Nov. repair. as- engine block Sea-Land the 1991 Decided Jan. performed the re- negligently serts that GE duty of care. The pair thus breached suffered in 1994 was once
damage Sea-Land solely
again economic. distinguish its attempts to
Sea-Land River, by East
negligent repair case from acting was not as a “manu
arguing that GE supply “product” did not
facturer” and persuaded. We are not injured
which itself. charge in repaired engine free of
GE replacement in the
1991because of defect court dismissed
connecting rod. The district claim because the sole negligent repair economic. It held
damages alleged were River,
that, products- pursuant “no East admiralty only
liability when the claim lies April
injury is economic loss.” claimed River, 13, citing opinion at East 874-76, 106 at 2304. The dis
U.S. at S.Ct. remedy lay in plaintiffs
trict court found
contract, ex not tort. For the reasons we above, II III we
pressed in Sections culpability Despite any negligence or
agree. manufacturer, damage of a where product and where the only itself economic, there is no basis for loss is their recovery. parties must seek
tort warranty law.
remedy contract and under *2 Newark, NJ, (argued),
Alan D. Bowman Appellant. Gallagher (argued), Neil R. Office of Unit- Newark, NJ, Attorney, Appel- ed States lees. ROTH, MeKEE,
Before: LEWIS Judges. Circuit 30-day disci- guilty given later found THE OF COURT OPINION punishment. plinary segregation as LEWIS, Judge. Circuit De- occurred between All of offenses these Gambino, alleg- prisoner, a federal March before cember 1983 and States Parole the United es that Act of Sentencing Reform enactment *3 particular, In parole. him improperly denied II, 98-473, (“SRA”), Title No. Pub.L. 1984 conclusion that the Commission’s he claims 1984, 12, The SRA abol- 98 Stat. 1987. Oct. organized with an was affiliated that he 218(a)(5), § 98 Stat. parole, see SRA ished by any supported evi- family was crime 2031, 2027, committed but for offenses affiliation dence, organized crime that an and 1,1987. Sentencing Re- See after November itself, Gam- parole. to enough, in is not 1985, No. Pub.L. Act of form Amendment corpus, which the of habeas filed a writ bino 26, 1985, 99-217, 4, 1728.1 § 99 Stat. Dec. find that Because we denied. district court Thus, to a hear- was entitled Gambino abused Parole Commission the United ing. discretion, judgment reverse the we will its 20, 1994, Pa- April the United States On proceedings. further for and remand conducted a role Commission Hear- was denied release.2 The and Gambino I. Category Six assigned Gambino a ing Panel currently incarcerated Gambino Severity Rating he been because had Offense Federal Correctional Institution at the conspiracy to more distribute convicted of 1984, Fairton, con- Jersey. he was New pure of grams than 999 than 50 but less heroin; two conspiracy to distribute victed See U.S. Parole Commission Offense heroin. intent to of heroin possession with counts Nine, Index, Chapter Severity Sub- Behavior distribute; two counts distribution and ¶ (1995).3 A, 901(d), § 2.20 chapter 28 C.F.R. heroin, 21 in violation of U.S.C. all salient factor score The Panel assessed his (b)(1). 841(a)(1) was also §§ and Gambino 10, representing the lowest of with 10 10 out conspira- telephone in a use of a convicted of (Salient parole violation. See id. risk of heroin, felony a possess cy and to distribute Manual). parole guide- Scoring The Factor 846, 21 § in violation of 21 U.S.C. under of 10 prisoner with a salient score lines for a (c). 843(b) 6, December §§ On U.S.C. rating severity Category offense Six 34-year 1984, to a term of he was sentenced to 52 a term of incarceration 40 indicate $95,000 imprisonment and fine. 2.20(b). § Panel The months. See to 16 verdict, assessed an additional 8 months was cited for Prior attempted escape from secure escape Metropolitan Cor- Gambino’s attempted from guideline custody.4 resulting aggregate City. The in New York He was rectional Center statutes, Notices of Action do not §§ 4.The parole enabling Commission's 1. The provision penalty was (1997), repealed pursuant indicate which to Pub.L. under to 4218 were 12, 1984, 98-473, II, 218(a)(5), it was district court stated that § assessed. The Title Oct. Nonetheless, pursuant C.F.R. remain assessed these Stat. statutes section, 2.36(a)(23)(l)(A). but years 1987. Pub.L. There is no such for ten after Nov. in effect III, 1, 1990, 101-650, appears 104 Stat. the district court Title Dec. it intended However, 2.36(a)(2)(i)(A). subsequent brevity, 5115. For the sake indicate C.F.R. face, apply history be hereafter to Gambi- of the statutes will this section does not only applies attempted escape “to omitted. because it no’s disciplinary sanctioning or new infractions citing early avoid later confusion when 2. To by prisoner committed sub- criminal behavior regarding parole, we note that the Parole cases sequent of his commencement sentence.” Parole Board. is the successor 2.36(a). attempted escape pri- Id. Commission, Campbell v. United States Parole prior to the and thus commence- or to verdict (3d Cir.1983); Pub.L. No. 94- Moreover, given was ment of sentence. his 15, 1996, 2,§ Mar. 90 Stat. 219. 30-day disciplinary segregation for this offense guilty. after he found which edi- Commission does not indicate raised this upon, although Because Gambino has not issue regulations it relied of its tion mandatory ex- sentence minimum clearly court relied because his a recent one. The district edition, guideline range without ceeds as do we. on the 1995 range was 48 to 68 months.5 a more risk serious than indicated [his] 4205(a) (1997) requires U.S.C. that Gambi- salient factor score in that [he has] been years no remain incarcerated for at least 10 identified as a member prior parole.6 being eligible At the time organized of an family crime as evidenced April hearing, body of an execution murder victim approximately served 119 months. Never- found the trunk of [his] automobile on theless, 15,1982. the Panel recommended that he re- November main expiration incarcerated until the of his Id. The Notice of Action concluded “[a] sentence, solely because Gambino has been decision guidelines above the mandated identified as a member of an [Gambino has] minimum sentence family. guideline which exceeds Id. range.” *4 body to in referred the Notice of Action was The Panel also recommended that the ease that of Pietro Inzerillo. Inzerillo was Gambi- jurisdiction.”7 “original be referred for Gov- cousin, no’s and the two jointly men owned (“S.A.”) Supplemental Appendix ernment’s pizzeria. claims, Gambino govern- and the 27, 1994, 16. On June the Commission ren- ment dispute, does not that he was never a “original jurisdiction” dered an by decision suspect in slaying. this Action, Notice of determining that Gambino expiration would serve until the of his sen- appealed to the Commission’s Id. at 18. The tence. Appeals Board, Commission informed National which affirmed the go Gambino that a decision to 7, 1994, outside the Commission’s decision on December guidelines by was warranted because Gambino Id. Notice of Action. Appeals at 19. The was Board stated that months, additional 8 to 16 we need not decide if missioner and each National Commissioner guideline range proper. this increase in the was shall have one vote and decisions will be based upon the concurrence of two votes. guideline 5. The district court stated that added.) (Emphasis “Origi- The section entitled range was 48 to 78 months. This is incorrect provides nal Jurisdiction cases" that appears typographical and to be a error. Be- any [Hollowing hearing pursuant conducted figures applicable cause both are below the statu- rules, Regional these may Commissioner des- sentence, tory mandatory disparity minimum ignate by quorum certain cases for decision analysis. has no effect on our below, origi- of Commissioners as described jurisdiction nal cases.... Decisions shall be 4205(a) (1997) provides 6. 18 U.S.C. based on the concurrence three votes with serving "[w]henever confined and a definite term appropriate Regional Commissioner and year, prisoner or terms of more than one shall having each National Commissioner one vote. eligible serving for release on after 2.17(a) added). (emphasis 28 C.F.R. serving one-third of such term or terms or after The National Commission stated in its Dec. years ten of a life sentence or of a sentence of "original juris- 1994 Notice of Action that it had thirty years, except over to the extent otherwise 2.17(b)(2) pursuant §§ diction” 28 C.F.R. and provided by law.” (b)(4). only S.A. at 19. Not is this inconsistent Regional with the tion, Commissioner’s Notice of Ac- 7. The district court stated that this case was facially it is also incorrect. Subsection "original jurisdiction” referred for consideration (b)(4) only applies "[pjrisoners sentenced to a Morris, pursuant to 28 C.F.R. 2.17. Gambino v. (or more) forty-five years maximum term of (D.N.J. slip op. Apr. at No. 95-CV 4559 prisoners serving life sentences.” Because Gam- 1996). However, Regional Commissioner’s only serving years, bino is a sentence of 34 this May 1994 Notice of Action indicates that the apply. subsection does not pursuant case was referred for further review (b)(2)(ii) however, apply, Subsection would if 2.24(a). 28 C.F.R. S.A. at 17. Subsection pursuant case had been referred to section 2.24(a), entitled "Review of Panel Recommenda 2.17(b)(2)(ii) (Regional 2.17. See 28 C.F.R. Commissioner,” Regional provides tions may designate "original Commissioner a case as jurisdiction” prisoner’s when a offense "was Regional [a] large-scale conspiracy Commissioner review the aof criminal or a continu- any panel ing enterprise.”). recommendation of examiner criminal recommendation, prior refer Notwithstanding irregulari- to written these ties, notification to the with his we recom- need not decide whether was mendation prejudiced by and vote to the National Commis- them because of the we result any only sioners for consideration and action reach in this We case. note them to ensure appropriate.... Regional they repeated deemed The Com- are not on remand. II. that the claim response [Gambino’s] [i]n guidelines to exceed provided reasons reviewing decisions Our role of conviction offense part of the are not a application for Parole Commission should, upon is not be relied therefore appro corpus limited. habeas writ of may con- without merit. of the Commis of review priate standard to determine available information sider “is not whether findings of fact sion’s offense for the total appropriate sanction by the supported decision] [Commission’s that the information claim [His] behavior. evidence, or even of the preponderance persuade the Com- is flawed does used evidence; inquiry is substantial the decision. change mission rec basis a rational there is whether Id. em conclusions the [Commission’s] ord for guidelines indicat- summary, the of reasons.” Zanni in its statement bodied 48 to a term of serve that Gambino should ed Cir.1976). Arnold, no eligi- was not 68 months. (“The granting of § 2.18 See also a minimum he served parole until ble for rests eligible prisoner parole to an He had a of 120 months. sentence Parole Com discretion United serving approximately mission.”). Moreover, we must ensure The Com- parole. denied months appro followed criteria “has *5 expi- until the requires he serve mission with its en consistent” priate, rational and 34-year sentence. of his ration is not its “decision abling and that statutes prisoner, he a model remains If Gambino imper capricious, nor based on arbitrary and completing after two-thirds will be released Id. at 690. considerations.” missible sentence, approximately period of his (1997).8 4206(d) § 18 U.S.C. months. 272 must, in Although the Commission vio- seriously frequently or if he instance, in parole guidelines use the the first rules, his full will serve out prison he lates prisoner, 18 determining the release calcula- See id. These of 408 months. term 4206(a) (1997), § it is not limited U.S.C. good any possible reduction exclude tions 18 U.S.C. regulations. those seq. § time, 4161 et to 18 U.S.C. pursuant 4206(e)(1997).9 is autho § The Commission II, 98-473, (1997) Title Pub.L. (repealed by “deny on notwith rized to release 2027) 12, 1984, (repeal 218(a), 98 Stat. § Oct. if it determines standing guidelines 1, 1987, only to applicable Nov. effective ” doing.... Id. for so good there is cause effect). after it took committed offenses history of that statute indi legislative for a the district court petitioned cause cannot good the definition cates “ pursuant to 28 U.S.C. corpus, writ of habeas must be [good cause] precise ‘because writ. court denied the 2241. The district many circum enough to cover broad ” Nardoza, 32, 732 F.2d Iuteri v. jurisdiction pursuant stances.’ The district court Cir.1984) (2d H.R.Rep. No. jurisdiction (quoting 36-37 We have 27, 838, reprinted Cong., 2d Sess. 94th § 1291. to 28 pursuant U.S.C. (1997) original.) 4206(d) (Emphasis in provides: U.S.C. 18 years serving five or Any prisoner a sentence of (1997) 4206(a) provides pris- 9. 18 U.S.C. longer, earlier released under who is not "pursuant guidelines provision may any applicable be released oner or section law, other having .... see also promulgated shall be released 2.20(b), (c) ("These term or guidelines of each consecutive served two-thirds terms, indi- thirty years serving of each or after customary be served range of time to cate forty- terms of more than term or consecutive of- combinations release for various before term, any years including whichever life five prognosis) (parole (severity) and offender fense Provided, however, the Commis- earlier. ranges are time mere- These characteristics.... prisoner deter- if it shall not such sion release warrant, ly guidelines. When the circumstances seriously frequently vio- or mines that (either guidelines above outside decisions regulations or that lated institution rules rendered.”). below) maybe or probability he will there is a reasonable Federal, any or local State crime. commit 335, Cong. & Admin. U.S.Code News mission’s finding that he was a member of an 359). 351, Nonetheless, it is not so (2) broad as family, there was any may to evade definition. “Good cause” “good place cause” to his sentence out- consideration of such include factors as side sentencing guidelines.10 whether ‘“the involved with an degree sophistica offense unusual A. planning tion lengthy prior or or has a rec Gambino contends that the Commis ord, large or was of a conspiracy scale sion had no evidence before it which rational or continuing enterprise.’” criminal Roma ly connects him to family the Gambino of La Baer, 268, Cir.1986)
no v.
805 F.2d
Cosa
may
Nostra. We
inquire as to “wheth
94-838,
(quoting
Rep.
H.R. Conf.
No.
94th
er there is a rational basis in the record for
27,
Cong.,
reprinted
2d Sess.
in 1976
the Board’s conclusions embodied in its state
Cong.
335, 351,
U.S.Code
& Admin. News
Arnold,
ment of reasons.” Zannino v.
359). Moreover, “good cause” means “sub
687,
Cir.1976);
see United
stantial
reason and includes
those
Luther,
States ex rel. Farese v.
49,
grounds put
forward
the Commission in
(3d Cir.1992).
may
While we
not weigh
good
and which
not arbitrary,
faith
are
irra
evidence,
we must be certain that at least
tional, unreasonable,
capri
irrelevant or
some of
rationally
connected to the
Martin,
cious.” Harris v.
finding.
Commission’s
(3d Cir.1986) (citing
Rep.
H.R. Conf.
No. 94-
Cong.,
94th
2d
reprinted
argues
Sess.
that the Commis-
Cong.
sion
U.S.Code
& Admin. News
relied on four
support
facts that
359).
finding that
a member of a crime
(1)
family:
Pennsylvania
Crime Commis-
reaching
grant
its decision to
report
sion
indicating that Gambino is con-
parole,
consider a broad
*6
nected to
family
the Gambino
of La Cosa
sources,
range of
including presentence in-
Nostra;
(2)
discovery
the
of
body
Inzerillo’s
vestigation reports and “such additional rele-
car; (3)
in the trunk of Gambino’s
a New
vant information concerning
the
...
Jersey
police report
state
identifying Gambi-
may
reasonably
as
be
available.” 18 U.S.C.
no as a member of the
family
Gambino
of La
(1997).
§ 4207
The Commission must re-
Nostra;
(4)
reliable,
Cosa
and
but un-
disputes
respect
solve
with
to information
named,
who
informant
identified Gambino as
presented by
preponderance
“a
the evi-
of
a member
family
of the Gambino
of La Cosa
2.19(c).
dence standard.” 28 C.F.R.
Nostra.11
(1)
appeal,
argues
On
Gambino
that:
none
upon
of the information
relied
government
the Com-
asserts
that
rationally
is
mission
connected to the Com-
properly
Commission
found that the Pennsyl-
times,
appears
10. At
arguing
Gambino
to be
body
that
and the fact that Inzerillo’s
was found in
process rights
does,
his due
under the
Hearing Summary
Fifth Amend-
his car. The Initial
in
fact,
ment
only
have been violated well.
rely
Because of the
on those two items. Plaintiff's
here,
("P.A.”)
result that we
Appendix
reach
we need
Pre-Hearing
not address
at 7. The
Assess-
this constitutional claim. See Erie Telecommuni-
ment relies on those two items and one other for
cations,
Erie, Pa.,
City
Inc. v.
its conclusion. P.A. at 5. The Assessment men-
of
(3d Cir.1988) ("a
court faced
Jersey
with both
tions that the
State Police had
New
identi-
and
constitutional
nonconstitutional claims must
fied
Gambino as member of the Gambino fami-
first,
address the
ly
nonconstitutional claims
if do-
of La Cosa Nostra.
nowhere does
ing will enable
so
the court to avoid a
explicitly
constitu-
this Assessment
mention that it relied
confrontation.”).
tional
provided by
on information
an informant.
argu-
raised a
Gambino
number of
provided
additional
Because we find that the information
Reply
unreliable,
in
ments
his "Pro Se
Brief.”
will “not
We
that
is
we
informant
need not
arguments
appeal
consider
raised on
prejudiced
for the first
decide
Gambino was
whether
further
reply
Boggi,
time
ain
brief.” United States
the failure to mention the reliance on the
(3d Cir.1996).
F.3d
during
parole hearing.
informant
and
before
Commission,
See Misasi v. United States Parole
argues
Cir.1987)
Gambino
that the
(only
Panel
consid-
weighing
163 more than a bald assertion from an reliable ized the Pennsylvania contents of the Crime source. unverified See United States v. Report, likely most as a result of (8th Cammisano, 1057, 917 F.2d 1061 Cir. appellant’s surname and familial ties. 1990) (rehable justify information needed similarly We are govern- concerned with the upward departure for involvement orga with ment’s characterization of the informant’s al- Guidelines); Sentencing nized crime under legation: provided we were not with the Norton, Cardaropoli 990, see also v. F.2d 523 underlying report from which the allegation (2d Cir.1975) (noting government 997 Moreover, is derived. Gambino has not had often no basis for its conclusions that the opportunity to challenge veracity “played significant inmates role in a crimi the informant. organization”); nal Coralluzzo v. New York Bd., protect 592, against To F.Supp. arbitrary action, State Parole 420 598 (2d (W.D.N.Y.1976), aff'd, Cir. good should have cause for the 1977) (noting that “serious errors are often anonymous non-disclosure of an informant’s made determining Government in identity, and sufficient corroboration of the crime”); organized inmate has links with testimony. Fatico, United States v. Cf. Norton, F.Supp. Mascolo v. (2d Cir.1978) F.2d 707 (subsequent history (D.Conn.1975) (“This is another in a omitted) series of (at sentencing, district can court arbitrary cases disclose the which classifica hearsay consider testimony of unidentified tion of organized an inmate as a ‘member of informant regarding defendant’s involvement ‘Special crime’ prison Offender’ federal in organized crime as long as there good officials without a rational basis in fact and cause for non-disclosure and sufficient cor affording without any the inmate roboration). government’s summary of process protections.”); due v. Catalano Unit the unnamed informant’s allegation is neither States, (D.Conn. F.Supp. ed sufficiently sufficiently rehable nor corrobo 1974) (Bureau imposition of Prisons’ ‘orga rated to support finding. Commission’s nized crime’ status must be done “in ration (“[A] See id. at significant 712-13 possibility non-discriminatory manner.”); al and Ma may justify misinformation” the sentenc Norton, siello v. F.Supp. 1136 ing court in requiring “the Government to (D.Conn.1973) (finding no basis in fact for verify information.”); United v. States parole board to conclude that defendant Borello, Cir.1985); 60 n.23 given organized designation, should see also Misasi United States Parole presentence as report confidential was “re Comm’n, 757-58 Cir. plete inferences, hearsay, and conclu 1987) (being described unnamed local and concerning sions alleged connections between federal largest authorities distributor of family [the defendant’s] illegal prescription drugs report by crime”). Attorney United “specific is not a purposes fact” for the of the Commission’s hearsay allegations of the “reli able, procedures); Zannino, own 531 F.2d at similarly unnamed informant” are cf. *8 (Parole 691-92 hearsay Board consider flawed. While it is true that the Commission regarding membership in organization can hearsay, Campbell, consider F.2d at 704 109-10, presented that allegation, testimony this in as sworn the context of dur this case, particular ing the especially Congressional is course a formal suspect. The appellant’s name itself defendant sufficiently is evoca where and counsel had the it). Here, government’s opportunity tive to question the to rebut character corrobo ization of allegation allegation the informant’s that Er ration of the consists of the New Jersey asmo is a Report Gambino member of State the Gambino Police we ear discussed family lier, of La Cosa Nostra.13 We noted and no cause good have has been shown for government above that the has mischaracter- identity. of the informant’s non-disclosure suggests 13. The record that re- that a ... "reliable informant has been told upon lied one reference in the Government's that he is a member of the Sentencing family Memorandum to the Appellee's informant’s alle- Laof Cosa Nostra.” gation. Sentencing Supplemental The Appendix Memorandum states at 77. 164 system penal A rational unilateral, above. asser- discussed untested government’s
The
probable
concern for
have some
is
must
informant
is rehable
tion that
it uses to make
shortcomings.14 accuracy
the evidence
these
to overcome
sufficient
Perri, 513
v.
See United States
decisions.
upon the above
relied
The Commission
Cir.1975).15
F.2d
until
Gambino serve
require
evidence
sentence, adding any
expiration of his
minimum
years to the
12 to 24
thing from
B.
by statute.
required
period of incarceration
conten
consider next Gambino’s
We
upon by
Yet,
the evidence relied
some of
to demon
failure
the Commission’s
tion that
speculative as
altogether
his immediate
“good cause” warrants
strate
connection
Erasmo Gambino’s
argues that a re
release.
Other
of La Cosa Nostra.
family
appro
is the
the Parole Commission
mand to
tenuously demonstrates
evidence
lack
“good
if
is found
remedy
cause”
priate
hearsay from
remainder
connection.
agree.
ing. We
be said
hardly
It can
unnamed sources.
evidence,
itself,
“ra
provides a
prisoner released
ordered a
haveWe
for the Board’s
in the record
tional basis
circumstances,
unique
only under
on
in its statement
embodied
conclusions
Only
ease.
present
in this
which are
Arnold,
reasons,”
F.2d at
v.
Zannino
court
a case
a district
remands
“[w]hen
arbitrary
denial
adequately
Board for failure
the Parole
689;
at
See
capricious as a result.
id.
and,
remand, the Com
explain its decision
(reb
Misasi,
835 F.2d
757-58
also
see
a basis
again
to articulate
mission
declines
factually incorrect reason and
anee on one
conclusion, [may] a district
identical
for the
does not constitute
nonspecific reason
one
this issue on
permanently
court
decide
parole date outside
“rational basis”
Bridge v.
before it.”
United
the record
guidelines).
(3d
Comm’n,
States
sentencing hearing, we
of a
In the context
Cir.1992).
v.
States
also Billiteri United
See
where a substan
have warned of situations
Cir.1976)
Parole,
Bd.
541 F.2d
in a
be
upward departure
sentence
tial
(in
non-compliance by the Parole
case of
wags
dog
“‘a tail which
comes
Board,
grant the writ of habeas
a “court can
”
v. Ki
offense.’ United
substantive
discharged
corpus and order the
(3d Cir.1990)
kumura,
1084, 1101
custody.”).
from
Pennsylvania,
(quoting
v.
McMillan
instance,
Lansing, 839
2411, 2417,
79, 88,
For
Marshall
91 L.Ed.2d
S.Ct.
U.S.
(3d Cir.1988), the district court
(1986)).
that a F.2d 933
Kikumura we held
proceeding to the Com-
a habeas
evidentiary
required
remanded
burden was
greater
clearly explain
instructions to
de mission with
magnitude
contemplated
of a
when
Kikumura,
categorization.
reasoning for its offense
parture was extreme.
order, the Com-
Notwithstanding the court
Although the Parole Commission
at 1101.
severity
offense
reassigned the same
sentencing
mission
greater
than
has
discretion
adequate explana-
providing an
willing
level
concerned that was
without
judge, we are
protracted history of the
light of the
tion. In
two decades
to add one or
impression
court’s
the district
quality of evidence
case and
prison term
on the
based
participated
organized criminal
concurring
Judge
in her
an inmate
14. As
observes
Roth
evidentiary problem
opinion,
activity, yet
participation
raised
nonetheless does
*9
by
testimony
fact
exacerbated
the
is
informant
that
criminal activi-
a likelihood of
not
future
indicate
present
opportunity his
no
had
instance,
(for
of a crime
ty
where a member
facts,
challenge
the
or to rebut or
own version of
allegiance or becomes
family renounces his
alleged statements.
the informant’s
informant).
argument, there-
This
fore,
lightly.
we
Because
to be
is not
dismissed
argues
with or-
that affiliation
15. Gambino also
entitled to re-
determined
have
denying
inadequate
ganized
basis for
crime
anis
however, we
not
grounds,
need
other
lief on
of con-
parole,
an inmate’s crime
at least where
issue.
decide this
organized
ac-
criminal
viction does
tivity.
indicate
in which
We
envision circumstances
can
intentionally
family.
the Commission
majority
evaded
found that in so hold-
mandate,
ing,
the district court
ordered
Com-
Parole Commission abused its discre-
majority
tion. The
prisoner’s parole
mission to reassess the
sta-
determined that
Commission’s
specific
severity catego-
tus under a
conclusion was not supported
offenses
by
evidence,
sufficient
ry.
indeed
We affirmed this
that there
final relief. We also
was
no rational
support
basis to
prisoner
have ordered the release of a
Commission’s
who
would, however,
conclusion. I
parole
part
race,
in
reach the
denied
because of his
merits
decision,
of the Parole Commission’s
a remand would have
where
consumed sever-
did,
as the majority
I
because
find that
months,
two
al
which time his sentence would
procedural
prior
errors occurred
any
Com-
Potter,
expired.
have
See Block v.
mission decision
prejudiced
which errors
(3d Cir.1980).
right
parole
to a fair
hearing.
In the absence of such unusual circum-
reason,
For this
I
in
judgment
concur
stances, however, it is clear that a remand is
I, too,
the Court as
would
judg-
reverse the
appropriate remedy.
e.g.,
See
Zannino
ment of the district court and remand for a
Arnold,
Cir.1976);
parole hearing.
new
Billiteri,
case,
541 F.2d at
In
al-
Congress
charged
has
the Parole Commis-
though we have determined that
the Com-
with conducting
sion
parole hearings and
exceeding
mission’s basis
guideline
for
thereafter determining
given
whether a
pris-
cause,”
“good
lacks
conceivable that
eligible
oner is
parole.
§
18 U.S.C.
“good
may
cause”
be demonstrated at a new
seq.
et
order to
prisoner’s
ensure that a
hearing. Because we
no
find
unusual cir-
process rights
respected
due
are
throughout
cumstances,
presented
Bridge,
like those
parole determination,
(a)
Congress both
Block,
Marshall and
we will remand
fur-
codified certain
guide
statutes to
proceedings.
ther
Commission,
e.g.
§
(b) authorized the
promulgate
Commission to
III.
rules
regulations
parole
to administer
above,
For the reasons discussed
we re-
eligibility
determinations
a fair manner.
judgment
verse the
and remand the case to
4203(a)(1).
Commission,
U.S.C.
the district court with
that it va-
directions
response,
§2
established
seq.
28 C.F.R.
et
judgment
cate its
Furthermore,
and order.
The Parole
handling
Commission’s
the district court should remand the case to
parole
hearing demonstrates a dis-
the Parole Commission with directions that it
regard of
regulations,
these rules and
conduct
hearing
another Panel
within 60
total
sum
of which is a denial of Gambino’s
days, and in a manner consistent with this
process rights.
due
opinion.
already
Since Gambino has
served
First, Gambino did
opportu-
not receive an
many
prescribed
months
more than
his
nity
at his initial
hearing to rebut
range
guideline
mandatory
and his
minimum allegations
crime until
after
sentence, additional
proceed-
administrative
hearing examiner had ruled on Gambino’s
ings should be
expeditiously.
conducted
parole eligibility.
This action on the
Commission constituted a viola-
ROTH,
Judge, concurring.
Circuit
tion
28 C.F.R.
failing
provide
2.531
The Parole
Commission denied
hearing
complying
with 28 C.F.R.
2.19(c).2
ground
Gambino on the
Second,
he was
Hearing,
after the
as a member
an organized
identified
may deny parole
but it must
prisoner
serving
A
years
2.53(a).
...
term ...
5of
or
28 C.F.R.
longer
shall
comple-
be released on
tion of two-thirds of
consecutive
each
term
any
2. The Commission
take into account
section,
pursuant
unless
to a
under this
substantial information
to it ...
available
that there is a rea-
determines
circumstances,
any aggravating
mitigating
or
probability
prisoner
sonable
that the
will commit
provided
prisoner
apprised
of the informa-
Federal,
any
State or local crime or that the
respond.
opportunity
tion and afforded an
frequently
seriously
violated the
2.19(c).
rules of the institution in which he is confined.
*10
(“Hearing
Transcript
Hearing Uncertified
for the
reason
the
particularity
explain with
13;
Supplemental
Transcript”) at
Petitioner’s
informa-
summary
the
of
a
include
and
denial
(“PSA”)
Appendix
making this determination.
inon
tion relied
of the
notice
proper
was denied
Gambino
that the Commission
question
no
There
the Parole
supporting
allegations
factual
of these
the contents
to consider
is entitled
a
was
provide
determination
documents,
Commission’s
the Commission must
but
The Commis-
Nostra.
La Cosa
information
member
that the
with notice
prisoner
a
4206(c)3
it
when
did
deny
parole
violated
him
sion
to
as evidence
be used
will
piece of
an essential
to
opportunity
inform Gambino of
not
must have
prisoner
the
and
it de-
it relied when
upon which
in the documents.
information
to the evidence
respond
Laof
(“[t]he
was a member
2.19(c)
may take into
that Gambino
termined
Commission
available
information
any substantial
Cosa Nostra.
account
mitigating
any aggravating and
and
to
...
it
errors is serious
two
the these
Either of
ap
circumstances,
prisoner is
provided the
the district
a reversal
enough to warrant
afforded an
and
of the information
prised
the Parole
to
Commis-
a remand
court and
v.
respond.”); Patterson Gun
to
opportunity
v.
hearing. Patterson
parole
new
for a
sion
(2d Cir.1985)
(holding
nell,
Cir.1985) (remand-
(2d
Gunnell,
F.2d 253
Appeals Board had
the National
that where
upon finding of
hearing
parole
ing for a new
on
prisoner
and
unknown
information
comply with
failure
Commission’s
relied,
to be
prisoner’s case had
it
which
2.19(c)’s
provision); Marshall
notice
hearing
parole
so
a
new
returned
(recognizing
Lansing 839 F.2d
a
“deprive[d]
prisoner would not
and
action
the Commission’s
setting aside
by
guaranteed
the
protection
appropriate
hearing is
a new
remanding for
regulations.”).
Commission’s
its own
comply with
fails
agency
where
Furthermore,
respond
opportunity
Cir.1988).
I
each
address
regulations)
must take
in the documents
to the evidence
in turn.
these errors
proffers his rec-
Examiner
place
before
2.19(c) explains that
Hearing
Section
I. The Parole
ommendation.
opportunity to
had an
after
hear-
parole
held
Parole Commission
The
evidence,
if there exists
respond to
April
Erasmo Gambino
ing for
resolve
dispute, the Commission shall
factual
took
Hearing Examiner
hearing the
At this
evi-
preponderance of
according to the
it
regarding Gambi-
information
into account
in-
Congress
It is inconceivable
dence.
Nostra.4
with La Cosa
affiliation
alleged
no’s
fact-finding
place
take
tended
on a Penn-
relied
the Examiner
Specifically
had made his determina-
Hearing Examiner
Report sylvania Crime Commission
deny parole.
grant or
tion to
Sentencing Memorandum
Government
comply with
Gambino,
not
did
The Commission
Rosario
co-defendant
2.19(c)
discus-
11-13;
an extensive
here.5 After
Parole
Reply Br. at
Pro Se
Gambino
what tran-
transcript
version of
4206(c)
or of
part:
Gambino's
provides
3. 18 U.S.C.
pro
argued
parole
in his
spired at the
may grant
release on
se brief.
good cause
there is
parole ...
if determines
Provided,
prisoner is
doing:
That
for so
procedure
the fol-
particu-
described
stating
5.Gambino
written
notice
furnished
larity
determination,
lowing
includ-
manner:
the reasons for
upon.
summary
ing
of the information relied
attorney were
instructed
his
Gambino
hearing room.
parole
to leave the
examiner
pro
Court
se brief in this
with his
4. Gambino
examiner,
parole
being
called'back
After
transcript of
copy
uncertified
presented of the
examin-
was
informed
hearing.
before
record
This
expiration
to serve to the
er’s recommendation
Thus,
properly
court.
it is
the district
parole examiner
year
his 34
sentence.
Nevertheless, pursuant to
before us.
the record
Pennsyl-
time
the first
mentioned for
then
it to
R.App. P.
Xwill consider
substanti-
Fed.
report [linking him
Crime Commission
vania
as to
allegations made
ate factual
single question was
A
Nostra].
Cosa
La
place
Hearing. This is
at the
that took
events
Gambino,
sug-
after counsel
posed to
particularly
Com-
appropriate
where
examiner to ask
gested to the
accuracy
challenged
has never
mission
*11
sion about Gambino’s role in the offense of his recommendation. An opportunity to de-
conviction
without
any
mention of
of
velop
the
position
merits, i.e.,
one’s
on the
connecting
evidence
La
Gambino to
Cosa
crime,
one’s involvement with organized
after
Nostra, the ultimate basis for the denial of
the Examiner has
up
made
his mind and
parole,
adjourned
the Examiner
hearing.
the
recommendation,
stated his
is not sufficient
12;
Reply
Hearing
Gambino Pro Se
Br. at
“opportunity to be heard.”
11;
Transcript at
PSA at 12. When the
Even
troubling
more
was the Examiner’s
Examiner called Gambino
into
back
apparent
reliance on a
Jersey
New
State
room, the Examiner read his recommenda-
Report
Police
conclusion that Gambino was
tion that
parole.
Gambino be denied
Id. The
organized
involved in
report
crime. This
was
explained
Examiner
that the reason for the
never mentioned at the hearing. There is
denial was that Gambino had been “identified
passing reference to it in the Examiner’s
being
a member of
Hearing
Initial
Summary
provid-
as evidence
organized crime.” Id. The Examiner further
ing one of the bases for the conclusion that
explained that
the bases for his conclusion
Gambino was
organized
involved in
crime.
were
Pennsylvania
Crime Commission
However, the Examiner made no mention at
Report and the
Sentencing
Government’s
Jersey
all
the New
report during the
Memorandum.
hearing
before or after he had made
—either
(at
explanation
The
parole
for the denial of
his decision.
hearing)
conclusion of the
was the first
Following
hearing,
appealed
mention to Gambino of this evidence. Gam-
parole
the denial of
to the
Appeals
National
given
bino was not
notice that this evidence
Board. The fact
that he
have
against
would be used
him
had an
and he was not
opportunity
challenge
to
given
ap-
an
the evidence on
opportunity
respond prior
peal is not
sufficient.6
pos-
Examiner’s
The fact
recommendation.
on appeal
ture
of a
parole
the issue
was
after the
denial
is com-
discussed
Examiner
pletely different
made his decision is not
from
prevent
sufficient to
that of the initial
2.19(c).
hearing
First,
a violation
on the
§
of 28 U.S.C.
merits.
at
hearing
As the
asserts,
prisoner
(his
Commissioner
can
“the record
submit live testimony
reveal[s]
witness’s);
appellant’s
or a
spoke
counsel
own
on appeal,
prisoner
issue of
[the
organized
only
presentations.
crime
the hear-
can
make written
ties]
Com-
ing” reiterating
pare
4208(e);
§
the district court
holding.
U.S.C.
28 C.F.R.
2.19(b)(4)7
2.27(b).8
Reply
Comm’n
§
Br. at 5. The
consider-
example,
For
must, however,
ation of the evidence
prisoner
take
if a
had an
prior
alibi defense for
place before
Hearing
uncharged
Examiner has de-
criminal conduct that
being
was
cided what the outcome will be and has made
parole,
used as the basis for denial of
2.19(c)
if was a member
crime.
petitioner
was not satisfied where
superficial organized
question
only
opportunity
respond
came
no
when the National
parole
Appeals
aggravating
examiner made his decision to
Board relied on
circum-
expiration
petitioner
continue Gambino
stances of which
had not
his sen-
been in-
formed.
tence.
the Second Circuit never
Furthermore,
Br.,
passed
Reply
on the issue
Gambino Pro
before us.
Se
at 12-13.
ruling
Tenth Circuit in Kell was
in the context of
parole
hearing,
revocation
recognize
not an initial
6.I
that Kell v. United States Parole
process
Commission,
liberty
where the due
interests at
Cir.1994),
issue are different.
accepted
contrary
proposition. There the
that,
Tenth Circuit held
the context
hearing,
sufficiently
normally
revocation
was
7. "The Commission will
consider
"apprised
verbal and
hearings.”
written
at
information and afforded
evidence
2.19(b)(4).
opportunity
respond”
C.F.R.
meaning
within the
he,
2.19(c),
being
when
denied infor-
hearing,
mation
revocation
relatives,
"Attorneys,
par-
other
interested
opportunity
respond
pursuit
afforded an
via
ties who wish to submit written information con-
process.
the administrative review
Kell relied on
cerning
prisoner’s appeal]
[a
should send such
Gunnell,
(2d.
Patterson v.
255-56
following
thirty
information to [the
address] ...
Cir.1985),
2.27(b).
days
where the
Second Circuit held that
in advance.” 28 C.F.R.
*12
available
subsequently made
Hear-
information
testify before the
could
alibi witness
appeal. See
on administrative
prisoners
to
the Na-
Examiner;
could not before
he
ing
Luther, 954
v.
ex rel. Schiano
Second,
States
the standard United
Board.
Appeals
tional
(3d Cir.1992);
v. Bren-
Pulver
F.2d
is different
submitted
evidence
of
of review
(7th Cir.1990);
nan,
the
896-97
appeal. At
it is on
hearing than
at the
Comm’n,
Parole
find-
v.
makes factual
Anderson
United
the Examiner
hearing,
Cir.1986).
(9th
See
the evidence”
1137-38
of
“preponderance
F.2d
ings on a
830, 838
Story, 854 F.2d
Appeals
standard;
the National
Liberatore
also
appeal,
on
Cir.1988)
findings
(remanding to determine
to
deference
the
owes some
Board
Compare
be
Examiner.
documents
to
Hearing
late received
whether
of
the
2.26(e).10 Thus,
disclosed).
2.19(c)9
prisoner,
a
with viola-
§
all deal
These eases
§
with
4208(b)(2)
only on
§
heard
or 28
to be
opportunity
tions of either
who
(Commission’s
obligation
that his version
to
prove not
§
must
appeal,
2.55
C.F.R.
of
preponderance
a
prior
a
is true
information
to
inculpatory
of the events
disclose
that
evidence,
hearing,
2.19(c),
but also
at a
regula-
§
the
hearing),
the
not of
parole
examiner,
whose
hearing
they recognize
decision
the
tion
issue here.
at
deference,
pre-
his
wrong in
was
some
access to infor-
post-hearing
owed
that
the notion
evidence determination.
of the
ponderance
prior
remedy
violations.11
not
mation does
persuasion.
higher standard
is a
This
argument
response
to
statutory right to be
Third,
a
prisoner has
a
2.19(c),
§
the
has violated
hearing; he does
parole
at his
present
default
has raised
Commission
4208(e);
§
appeal. See
U.S.C.
his
at
The Commission asserts
of waiver.
issue
2.13(a).
§
C.F.R.
appeal the
right to
his
that Gambino waived
reasons,
a case
posture
the
For all these
2.19(c)
neglected to
he
assert
issue because
hearing
on the
same as
appeal is not the
on
pro
his
se
until
argument to this Court
the
opportunity
prisoner’s
A
merits.
appellant’s
Ordinarily, an
failure
reply brief.
right
allegations of fact is
hearing to rebut
opening
in a
brief consti
an issue
to raise
His
regulations.
by statute and
protected
or waiver of
issue.
abandonment
tutes
challenge
verac-
appeal to
the
opportunity on
Westing
Philippines v.
Republic
the
See
established,
facts,
make
already
cannot
ity
(3d
65, 71 n. 5
Corp.,
Electric
house
right
his earlier
up for the loss of
Cir.1994)
required to set forth
(appellants
heard.
arguments in favor
present
issues
brief);
v. Kozak
opening
Kost
those issues
proposition
for this
support
Inferential
Cir.1993).
iewicz,
See
have
many
the
circuits
from
fact
drawn
28(a). The rule serves
R.App. P.
also Fed.
may
rely on
that the Commission
held
First,
protects
it
purposes.
two
related
prisoner
information undisclosed
prejudice that results from
appellee
if
from
parole
eligibility for
even
determining
prior to his
hear-
accuracy
of documents
disputes
of the
disclosure
9. "If the
Regulations
ing.
re-
of Federal
presented, the
shall
Title 28 of the Code
Commission
information
preponderance
2.55(a)
dispute by
the Parole Commis-
solve such
instructs that
section
sion,
2.19(c).
28 C.F.R.
evidence standard.”
days prior
an initial
at least
right
notify
prisoner of "his
hearing, must
each
following
on
Appeals ...
be based
reports and
request
other
disclosure
grounds:
Commission in
used
to be
documents
(3)
mitigating
especially
circumstances
That
[parole]
making
its
determination.”
severity
(for
relating
example,
facts
provided
argues
such notice.
that he was not
probability
prisoner’s
of suc-
the offense or the
result,
Reply
Br. at 8. As
Pro Se
decision;
parole)
a different
justify
on
cess
(4)
right
request
his
did not exercise
Gambino.
erroneous
was based on
That
decision
as a
He claims that
under
2.55.
disclosure
information,
justify a
actual facts
dif-
ill-prepared at his
consequence
decision.
ferent
of his involvement
to refute the evidence
2.26(e).
appear
review
It would
We cannot determine
Cosa Nostra.
La
Appeals
by the National
of factual determinations
whether the
us
the record before
from
error.
is for clear
Board
2.55(a)
as well.
violated
appeal to
argues
the first time
requisite
provided
was not
this Court that he
argument
the court’s consideration of a late
Under the
case,
circumstances of this
I
appellee
to which
ordinarily
cannot
appropriate
issue
conclude that it is
to consider the
Second,
notice
response.
promotes
a written
issue raised
Gambino in
pro
his
se
First,
reply brief.
system by
clearly
of our adversarial
record
ensuring
values
demon-
strates that
the Parole Commission
that the
never
adequate argument
court has heard
gave Gambino an opportunity to refute the
particular
prior
on a
rendering
issue
*13
against
evidence
him
parole
at his
hearing'.
decision. See
v.
Headrick
Rockwell Int’l
trial,
Were this a
might
this
very
defect
well
(10th
Corp.,
1272,
Cir.1994);
24 F.3d
1277-78
rise to
“plain
the level of
error.” Manifest
Sciences,
v.
Academy
Herbert
National
injustice would result if
penalize
we were to
(D.C.Cir.1992).
192,
974 F.2d
16A C.
Erasmo Gambino for
strategic
shortcom-
Miller,
Wright, A.
E. Cooper, Federal Prac
ings
attorney. Second,
of his
govern-
(1996).
§
tice
Procedure
3974 n. 4
De
prejudiced
ment was not
by Gambino’s late
rule, however,
spite
appellate
this
may
courts
presentation of the issue in
reply
brief
in their discretion
not proper
consider issues
permitted
because we
the Commission to file
ly raised in an opening brief. The D.C.
surreply
in response
brief
to
pro
Circuit has stated that it will consider issues
reply.
se
Consequently, the issue
fully
only
reply
raised
in the
brief —or issues not
addressed
both sides and therefore was
at
raised
all—when the
“plain”
error is so
subject to the
rigors
intellectual
of the adver-
injustice
that manifest
would otherwise re
process.
such,
sarial
As
I find the Parole
sult. See
Academy
Herbert v. National
of Commission’s waiver argument
per-
not to be
Sciences,
192,
(D.C.Cir.1992).
974 F.2d
suasive.
Similarly, the Ninth Circuit also has held
As
remedy
for
2.19(c),
§
the violation of
that courts
improperly
consider an issue
it is clear that “[a] court can set
agency
aside
if
raised
failure to do so would create mani
action that fails to comply with
agency’s
injustice.
Ullah,
fest
See United States v.
regulations
own
at least where
regula
(9th Cir.1992)
509,
(because
976 F.2d
tions are designed to protect the individual
injustice
manifest
would result
court’s re
grievant.” Marshall
Lansing,
v.
839 F.2d
conviction,
versal
of codefendant’s
court
933,
(3d Cir.1988).13
Such is the case
entertain
argument
would
defendant’s
for re
here. An appropriate disposition is to re
despite
argument
versal
fact that
was not
mand to the
Commission to conduct a
brief).12
reply
raised until
hearing
compliance
regulations.
its
Gunnell,
Patterson v.
ant to 28 U.S.C. 2241. See Moscato v. Prisons, 757,
Federal Bureau (3d Cir.1996) (prisoner must admin exhaust remedy prior
istrative to challenging disci
plinary proceeding petition); in habeas Ta Christensen, 959,
tum v.
Cir.1986).
America,
requiring prison
Unlike the rule
UNITED STATES of
remedies,
ers to exhaust state
rule is of
judicial
statutory
and not
creation.
In either
RUSSELL,
James
aka Gaith Junior
ease,
required
exhaustion is not
when the
Douglas, aka Steven Shawn
petitioner demonstrates that it is futile. See
Jones,
Lundy,
Rose v.
455 U.S.
n.
1198, 1202,
(1982) (ex
S.Ct.
ed Hearing Examiner’s denial of regional and national levels Throughout Commission. ap- those peals, Gambino maintained that the Commis-