Christopher Furnari v. Warden, Allenwood Federal Correctional Institution United States Parole Commission M.D. Of Pa United States Attorney

218 F.3d 250, 2000 U.S. App. LEXIS 17265
CourtCourt of Appeals for the Third Circuit
DecidedJuly 12, 2000
Docket99-3701
StatusPublished
Cited by42 cases

This text of 218 F.3d 250 (Christopher Furnari v. Warden, Allenwood Federal Correctional Institution United States Parole Commission M.D. Of Pa United States Attorney) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christopher Furnari v. Warden, Allenwood Federal Correctional Institution United States Parole Commission M.D. Of Pa United States Attorney, 218 F.3d 250, 2000 U.S. App. LEXIS 17265 (3d Cir. 2000).

Opinions

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Christopher Fur-nari 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 Lucchese crime family, was convicted in [252]*2521986 of extortion-based 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 Fur-nari 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.

I.

Pursuant to the Parole Commission’s Guidelines, 28 C.F.R. § 2.20, Subchapter A, § 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 [253]*253provided 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 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 Fur-nari’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 consigli-ere) and would have known about Fur-nari’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 tu the new administration and should be killed. 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 a fifteen-year 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 [254]*254in murders.

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Bluebook (online)
218 F.3d 250, 2000 U.S. App. LEXIS 17265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-furnari-v-warden-allenwood-federal-correctional-institution-ca3-2000.