United States v. Michael Dale

1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable James
C. England, Chief Magistrate Judge, United States District Court for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3024
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Gennaro Langella, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Marty C. Anderson, Warden, *
*
Appellee. *
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Submitted: April 14, 2010
Filed: July 15, 2010
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Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Gennaro Langella appeals the district court’s 1 dismissal of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. Between 1985 and 1987, Langella
was convicted of three separate offenses related to participation in organized crime.
In his habeas petition, Langella argues that the United States Parole Commission
(Parole Commission) violated his constitutional rights by relying on erroneous facts

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2Both Langella and the district court were under the impression that Langella
was required to obtain a certificate of appealability in order to appeal the court’s
dismissal of his petition. We note, however, that Langella is a federal prisoner
effectively filing his petition under § 2241, and that the Antiterrorism and Effective
Death Penalty Act’s certificate of appealability requirement therefore does not apply
to him. See Murphy v. United States, 199 F.3d 599, 601 n.2 (2d Cir. 1999).
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and overlooking favorable information in denying him parole.2 Because we do not
have jurisdiction to review the Parole Commission’s substantive decisions and
because Langella’s claims are based on his disagreement with the Parole
Commission’s subjective appraisal of disputed facts, we affirm the district court’s
dismissal of the petition.
I.
Langella’s convictions stemmed from his involvement in the Colombo
Organized Crime Family of La Cosa Nostra, a criminal enterprise that for many years
engaged in racketeering, extortion, loan-sharking, embezzlement, bribery, and various
other illegal schemes in New York City. In 1985, Langella received a ten-year prison
sentence for making false statements to a grand jury. In 1986 and 1987, Langella was
convicted of racketeering offenses related to the construction industry. Specifically,
Langella and his co-conspirators managed to control concrete-pouring jobs in
Manhattan and extort payoffs from contractors as a price for allowing them to submit
successful bids on construction jobs. See United States v. Langella, 804 F.2d 185 (2d
Cir. 1986) (discussing the indictments for the racketeering offenses). The aggregate
prison term for all three convictions exceeded 101 years, and when Langella was last
sentenced in 1987, the sentencing judge recommended that he never be released on
parole. The Department of Justice produced a report in connection with Langella’s
sentence that identified Langella as one of the most dangerous criminals in the country
and recommended that he serve the maximum term of incarceration permitted by law.

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At Langella’s initial parole hearing in 1996, the hearing examiner received
statements from Langella’s attorney and from David N. Kelley, then-Chief of the
Organized Crime and Terrorism Unit of the United States Attorney’s Office for the
Southern District of New York. Kelley presented information that Langella was an
underboss in the Colombo Family—meaning that he was near the top of the
organizational hierarchy and frequently in charge of the Colombo Family’s day-to-day
activities. Kelley also explained that the hierarchical structure of the crime family
made it unlikely that low-level operatives would commit criminal acts without
approval from their leaders. Accordingly, Kelley maintained that the Parole
Commission could hold Langella responsible for a wide variety of criminal activities
as the supervisor of a criminal organization. Kelley further explained that several
cooperating witnesses and informants had identified Langella as being responsible for
ordering murders carried out by the Colombo Family.
Langella argued that the government’s primary source, Gregory Scarpa, Sr.,
was unreliable because he was a criminal who had lied to the FBI about his own
involvement in several murders and had possibly developed an improper relationship
with his FBI handler. See United States v. Orena, 145 F.3d 551, 556 (2d Cir. 1998)
(discussing Scarpa’s credibility and noting an internal FBI investigation). According
to Langella, both Scarpa and his FBI handler were corrupt and could not be trusted.
Langella also assailed the lack of direct evidence that he had committed the murders,
as well as the government’s characterization of the Colombo Family as an
organization in which orders invariably flowed from the top down.
The hearing examiner concluded that Langella’s Offense Severity Rating
should be a Category Eight—the highest severity—because it involved murder, and
he recommended that Langella be required to continue serving his sentence until a
fifteen year reconsideration hearing in May 2011, at which time Langella will be
seventy-two years old. The Parole Commission adopted this recommendation,
observing that the Category Eight severity was appropriate because Langella

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“occupied a high level position within an organized crime family over an extended
period of time in the 1970’s and 1980’s [and] [a]s such [he] played a principal role in
directing and controlling the illegal racketeering activities of the organization which
included contract murders.” Although Langella reiterated his arguments and
presented some additional information at statutory interim hearings in 2000 and 2005,
the Parole Commission reaffirmed its original conclusion.
II.
We have limited jurisdiction to review the decisions of the Parole Commission.
Edmundson v. Turner, 954 F.2d 510, 512 (8th Cir. 1992). The decision whether to
grant or deny parole is one that Congress has committed to agency discretion, and we
are thus barred from reviewing the Parole Commission’s substantive determinations.
Id. We have jurisdiction to review a prisoner’s claim only insofar as it properly
alleges that the Parole Commission “exceeded the scope of its discretion, violated the
Constitution, or reached decisions so arbitrary and capricious as to amount to a
violation of due process.” Jones v. U.S. Bureau of Prisons, 903 F.2d 1178, 1184 (8th
Cir. 1990). The agency’s fact-finding process and the relative weight that it places on
the facts is a discretionary matter that is not subject to our review. Id. at 1185.
The gravamen of Langella’s complaint is that the Parole Commission
incorrectly held him responsible for murders because the facts did not establish his
guilt by a preponderance of the evidence. He argues that the government’s primary
source of information, Scarpa, is not credible and that the favorable evidence
presented at his parole hearings demonstrates that he did not commit the crimes at
issue. Resolution of this matter, however, involves credibility determinations and
factual findings that we are not at liberty to second-guess. The record reflects that the
Parole Commission considered Langella’s arguments and found them
unpersuasive—noting, for example, that although Scarpa’s credibility was
questionable, Langella’s statements were also problematic because he had been

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convicted of lying to a grand jury and had a motive to lie to the Parole Commission
about his previous crimes. The nature of the allegations makes them inherently
difficult to prove or disprove, because Langella was primarily charged with passing
along orders as a key figure in a complicated, highly secretive criminal enterprise.
Nevertheless, it was within the Parole Commission’s discretion to make a
preponderance finding about Langella’s involvement in the murders, and we do not
have jurisdiction to review its factual determination.
Langella maintains that the Parole Commission violated his due process rights
by failing to consider his evidence and by relinquishing its discretion to Kelley, whose
opinions Langella argues the Parole Commission blindly followed. He also contends
that the agency relied on inaccurate information in making its decision. The record
does not support these contentions. The Parole Commission considered Langella’s
evidence, producing a number of written decisions that analyzed his arguments. What
Langella characterizes as inaccurate information is in reality simply disputed
evidence. The Parole Commission had a rational basis for finding that Langella was
responsible for murders, and the materials submitted by Langella did not compel a
contrary conclusion. The Parole Commission’s actions were therefore not so arbitrary
and capricious as to amount to a violation of due process. The fact that the Parole
Commission “refused to alter [its] decision in favor of parole does not mean [it] did
not consider [the evidence].” Id. at 1184. The weight to be given to that evidence was
a matter within the agency’s discretion. Id.
Langella has not demonstrated a constitutional violation, and we likewise
conclude that his remaining claims of improprieties do not establish an entitlement to
relief. Accordingly, the district court did not err in dismissing Langella’s petition.
The judgment is affirmed.
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