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Frascarelli v. United States Parole Commission

United States Court of Appeals, Fifth Circuit

May 23, 2017

ROBERT FRASCARELLI, Petitioner
v.
UNITED STATES PAROLE COMMISSION, Respondent

         Appeal from a Determination of the United States Parole Commission

          Before SMITH, ELROD, and HAYNES, Circuit Judges.

          HAYNES, Circuit Judge.

         Robert Frascarelli is a federal prisoner who was transferred to the United States from Mexico to continue serving a Mexican sentence for "qualified homicide committed with advantage." Pursuant to 18 U.S.C. § 4106A(b)(1)(A), the United States Parole Commission (the "Commission") determined that the federal offense most analogous to Frascarelli's crime was second-degree murder and analyzed his release date accordingly. Frascarelli now appeals that determination. We affirm.

         I.

         Robert Frascarelli is an American citizen who killed his live-in girlfriend, Kajia Helena Kauppinen-Conway ("Conway"), in Tijuana, Mexico on November 22, 2009. Their brief relationship appears to have been rocky from the start, involving allegations of drug use, theft, and incessant fighting.

         After Frascarelli killed Conway, he contacted Mexican authorities. Upon arrival, they found Conway's body with adhesive tape on her head and her ankles tied together. Frascarelli explained the scene by lying to law enforcement, telling them that armed and masked intruders arrived at Conway's house, threatened both of them, tied her up and killed her. The police inspected the crime scene and noted that there were no signs of forced entry. When the police questioned Frascarelli about how the masked men had entered, he became visibly nervous and admitted that the doors were locked at the time of the alleged break-in. The police also questioned him about how he was capable of speaking to the masked men because he had earlier reported that his mouth had been taped shut.

         Frascarelli eventually confessed to killing Conway. Specifically, Frascarelli confessed that he was fed up with Conway because she had treated him badly. He described that before he killed her, they had argued over forty dollars. The argument angered Frascarelli, causing him to descend the stairs from her room on the second floor, take a hammer from a toolbox, climb back up the stairs, and hit her in the face with the hammer "three or four times." When she then "fell unconscious[, ] . . . [he] strangled her with [his] hands until she could not breathe." The autopsy report concluded that the cause of death was strangulation.

         Mexican authorities convicted Frascarelli of having committed qualified homicide with advantage, as proscribed by Articles 123, 126, and 148 of the Baja California State Penal Code ("Baja Penal Code"). The elements of the offense under the Baja Penal Code are (a) the pre-existence of a life, (b) the deprivation of that life (c) caused by delinquent conduct carried out by a party, and (d) committed with advantage. See Baja Penal Code Arts. 123, 126, 147, 148. The Mexican appellate court found that Frascarelli's statement that he killed Conway was reliable and voluntary, as it was given in the public prosecutor's office in the presence of the official public defender. The court also decided that the confession was corroborated and supported by witness testimony. The court therefore concluded that Frascarelli committed the act with advantage over Conway because she was unarmed and had fallen before he strangled her.

         Pursuant to a treaty between the United States and Mexico, Frascarelli requested a transfer to serve his term of imprisonment in the United States. See Molano-Garza v. U.S. Parole Comm'n, 965 F.2d 20, 22 (5th Cir. 1992) (citing Treaty on Executions of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 28 U.S.T. 7399, T.I.A.S. No. 8718). In accordance with the transfer proceedings, a probation officer prepared a postsentence investigation report ("PSR"). The PSR recommended to the Parole Commission that the most analogous offense to Frascarelli's Mexican conviction of qualified homicide committed with advantage was second-degree murder, under 18 U.S.C. § 1111(b). In preparation for the transfer-treaty hearing, a Parole Commission Examiner reviewed the PSR and prepared a prehearing assessment.

         The Parole Commission subsequently held a hearing before an examiner to determine Frascarelli's release date. At the hearing, Frascarelli recounted a third version of events leading to Conway's death. He testified that, on the day of the killing, he and Conway had been arguing, and she demanded that he purchase more vodka for her. When he refused, the argument escalated from a verbal dispute to a physical altercation with Conway exploding in fury and lunging toward him with a pair of rusty scissors. Frascarelli also stated that he tried to disarm Conway and hit her in the ribs, causing her to fall down a spiral staircase and die. Just as the police recognized Frascarelli's initial fabrication, the examiner noticed inconsistencies in Frascarelli's new version of events. For example, contrary to the field crime report, Frascarelli asserted that Conway's body was at the bottom of the stairs when the police arrived.

         The examiner determined that the description of the crime in the Mexican field crime report was more consistent with the official version in the PSR than the version Frascarelli provided at the hearing. She also found that the official Mexican documents were more credible than Frascarelli's new story about Conway falling down the stairs. Based on these conclusions, the examiner recommended that the most analogous federal offense to the Mexican conviction was second-degree murder. She found that Frascarelli acted with malice by both stepping away from the argument to obtain a hammer he then used to hit Conway and by proceeding to strangle her and tie her up in order to support a fabricated story that he told the police. The Commission adopted the examiner's recommendation. Frascarelli appeals that determination.

         II.

         The Commission had jurisdiction to determine Frascarelli's release date under 18 U.S.C. § 4106A(b)(1)(A), which states, "[t]he United States Parole Commission shall . . . determine a release date and a period and conditions of supervised release for an offender transferred to the United States to serve a sentence of imprisonment, as though ...


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