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                                       FILED
                           United States Court of Appeals
                                   Tenth Circuit
         
                                     NOV 4 2003
         
                                   PATRICK FISHER
                                       Clerk                             PUBLISH
         
                           UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
         
         
         
         LEONARD PELTIER,                 No. 02-3384
                                          
              Petitioner-Appellant,            
                                          
         v.                               
                                          
         JOSEPH W. BOOKER, JR., Warden,   
          United States Penitentiary,      
          Leavenworth, Kansas,             
                                          
              Respondent-Appellee.             
                                          
         
         
                    Appeal from the United States District Court
                             for the District of Kansas
                             (D.C. No. 99-CV-3194-RDR)
         
         
         
         Carl S. Nadler, of Heller, Ehrman, White & McAuliffe, LLP, Washington, D.C. 
         and Barry A. Bachrach, of Bowditch & Dewey, LLP, Worcester, Massachusetts 
         (Ramsey Clark and Lawrence W. Schilling, New York, New York, and B. Kay 
         Huff, Lawrence, Kansas, with them on the briefs), appearing for Petitioner-
         Appellant.
         
         Eric F. Melgren, United States Attorney (Nancy Landis Caplinger, Assistant U.S. 
         Attorney, with him on the brief), Topeka, Kansas, appearing for Respondent-
         Appellee.
         
         
         
         Before SEYMOUR, Circuit Judge, ANDERSON and BRORBY, Senior Circuit 
         Judges.
         
         
         
         PER CURIAM.
         


 
              Leonard Peltier is housed at the United States Penitentiary in Leavenworth, 
         Kansas.  He is serving consecutive life sentences for the 1975 murders of two FBI 
         agents.  Pursuant to 28 U.S.C.  2241, he filed a petition for habeas corpus, 
         seeking immediate release on parole.  The district court denied relief and we 
         affirm.  
         
                                         I 
         A. The Pine Ridge Murders
              The record on appeal and the prior federal court decisions regarding Mr. 
         Peltier reflect the following facts.  In 1975, the Pine Ridge Indian Reservation in 
         South Dakota was embroiled in conflict between traditional elders, who sought 
         independence from Bureau of Indian Affairs (BIA) managers, and Native 
         Americans supportive of the BIA power structure.  The conflict became violent, 
         and the traditional elders sought protection from members of the American Indian 
         Movement (AIM).  Mr. Peltier and other AIM activists arrived at Pine Ridge to 
         defend reservation traditionalists.     
              On June 26, 1975, FBI agents Jack Coler and Ronald Williams entered the 
         Pine Ridge Reservation with an arrest warrant for four men charged with armed 
         robbery and assault with a deadly weapon.  The two officers began following a 
         van carrying several men.  The van came to a stop when it neared the Jumping
         


 
         Bull Compound, and the officers stopped at a distance behind it.  A firefight 
         erupted between the agents and the men in the van and expanded to include 
         others.  The group firing on the agents was comprised chiefly of AIM activists. 
         Agents Coler and Williams were wounded in the gun battle and then killed by 
         shots taken at point-blank range with a high-velocity, small-caliber firearm.  The 
         murder weapon was subsequently determined to be an AR-15 linked to Mr. 
         Peltier.
              The government originally indicted four men for the officers' murders. 
         Two were acquitted, charges were dropped against a third, and Mr. Peltier was 
         convicted on two counts of first degree murder in federal district court in North 
         Dakota.  In June 1977, that court sentenced Mr. Peltier to two consecutive life 
         terms for these crimes.
         B. Mr. Peltier's Escape from Prison
              Two years later, Mr. Peltier escaped from prison.  He and his fellow 
         escapees fired shots at prison staff in the course of their breakout.  While a 
         fugitive, Mr. Peltier reportedly committed armed robbery.  Authorities 
         apprehended Mr. Peltier in Oregon shortly after his escape.  He was in possession 
         of a semi-automatic rifle matching spent cartridges at the scene of the escape. 
         Mr. Peltier was convicted in federal district court in California of escape and 
         possession of a firearm and sentenced to a seven-year consecutive term.
         


 
         C. Mr. Peltier's Habeas Corpus Petitions
              Through the Freedom of Information Act (FOIA), 5 U.S.C.  552, Mr. 
         Peltier was able to obtain a great deal of information not presented at his trial for 
         the Pine Ridge murders, including a teletype which Mr. Peltier interpreted as 
         relating to a shell casing found in Agent Coler's trunk.  Arguing this new 
         evidence undermined the link between his AR-15 and the agents' murders, Mr. 
         Peltier filed motions to vacate the judgment against him for those murders, to 
         disqualify the district court, and for a new trial based on newly discovered 
         evidence pursuant to 28 U.S.C.  2255.  The district court denied these motions. 
         United States v. Peltier, 553 F. Supp. 886 (D.N.D. 1982).  The Eighth Circuit 
         affirmed in large part, but remanded for an evidentiary hearing to consider "any 
         testimony or documentary evidence relevant to the meaning of the October 2, 
         1975, teletype and its relation to the ballistics evidence introduced at Peltier's 
         trial."  United States v. Peltier, 731 F.2d 550, 555 (8th Cir. 1984).  The district 
         court was instructed to rule on whether the government withheld that evidence in 
         violation of the Brady doctrine.  See Brady v. Maryland, 373 U.S. 83 (1963).  
              At the evidentiary hearing, Mr. Peltier contended the October 2nd teletype 
         established that a shell casing found in Agent Coler's trunkÄwhich had been a 
         central part of the government's case at trialÄcould not have been fired from his 
         weapon.  United States v. Peltier, 609 F. Supp. 1143, 1145 (D.N.D. 1985).  FBI
         


 
         Special Agent Evan Hodge, author of the teletype at issue, was the only witness at 
         the hearing.  Agent Hodge controverted Mr. Peltier's position, insisting the 
         teletype concerned casings other than the one found in the agent's trunk.  Id. at 
         1150.  The district court found his testimony credible.  Id. at 1152.  The court 
         found the teletype not to be evidence of perjury and to be cumulative of other 
         evidence that was used to cross-examine Agent Hodge at trial.  Id. at 1153.  The 
         court denied relief because,
              in the context of the entire record, [the newly discovered teletype] 
              would not have affected the outcome of the trial, and [did] not create 
              a reasonable doubt that did not otherwise exist, [thus Mr.] Peltier . . . 
              failed to establish constitutional error.  The nondisclosure of the 
              teletype did not violate the Brady doctrine.  
         
         Id. at 1154. 
              Mr. Peltier appealed the district court's denial.  In reviewing his appeal, the 
         Eighth Circuit held that "the prosecution withheld evidence from the defense 
         favorable to [Mr.] Peltier, and that had this evidence been available to the 
         defendant, it would have allowed him to cross-examine certain government 
         witnesses more effectively."  United States v. Peltier, 800 F.2d 772, 775 (8th Cir. 
         1986).  In order to grant relief, however, the court would have had to determine 
         that the newly discovered evidence made an acquittal reasonably probable. 
         United States. v. Bagley, 473 U.S. 667, 682 (1985).  It could not reach that 
         conclusion.  Peltier, 800 F.2d at 777.  According to the Eighth Circuit, a "simple
         


 
         but very important fact[] remain[ed]:  The casing introduced into evidence had in 
         fact been extracted from the Wichita AR-15 [linked to Mr. Peltier]."  Id.  While 
         there were several AR-15s on the compound the day of the shootings, and while 
         the evidence linking Mr. Peltier to the AR-15 that killed the officers was 
         circumstantial, the evidence against Mr. Peltier remained strong enough to require 
         denial of relief under the Bagley standard.  Id. at 778-80.
              Mr. Peltier filed a second  2255 petition in 1991.  In denying relief, the 
         district court ruled that
              (1) the record does not support Peltier's contention that an alleged 
              concession by government counsel during oral argument before [the 
              Eighth Circuit] in the prior section 2255 appeal resulted in a change 
              in the theory of the government's case and, therefore, produced a 
              conviction that could not be supported by the evidence introduced at 
              trial and (2) Peltier's other contentionsÄprimarily that the 
              government engaged in various kinds of misconduct in connection 
              with the investigation and prosecution of the caseÄwere not 
              cognizable in [that] section 2255 proceeding because the contentions 
              either were litigated, or could and should have been litigated, in the 
              direct appeal of Peltier's conviction or the prior section 2255 
              proceeding. 
         
         Peltier v. Henman, 997 F.2d 461, 463 (8th Cir. 1993).  The Eighth Circuit 
         affirmed, agreeing that the government had never conceded it could not prove Mr. 
         Peltier murdered Agents Coler and Williams, that the government had always 
         advanced alternate theories of Mr. Peltier's guilt, either as the shooter or the 
         shooter's aider and abettor, and that Mr. Peltier's other claims were either 
         procedurally barred or meritless.  Id. at 465, 472, 473.


 
         D. Mr. Peltier's Applications for Parole
              Mr. Peltier applied for parole in 1986, but later waived consideration.  He 
         reapplied in August 1993.  He received a parole hearing on December 14, 1993, at 
         which he was represented by counsel and made a statement.  The Parole 
         Commission calculated his parole guidelines at a minimum of 188 months due to 
         his convictions for first degree murder, escape, and possession of a firearm; 
         eleven incidents of institutional misconduct; and a reported armed robbery while 
         he was a fugitive.  At the time of the hearing, Mr. Peltier had served 204 months. 
         The Commission refused parole and set a fifteen-year reconsideration period due 
         to the nature of the several crimes in which Mr. Peltier had been involved.  The 
         Commission recommended referral to the Regional Commissioner, who concurred 
         in its recommendation.  That commissioner then referred Mr. Peltier's case to the 
         National Commissioners, who also concurred.  Finally, Mr. Peltier appealed to the 
         full Parole Commission which, after correcting a miscalculation and raising his 
         parole guidelines to a minimum of 200 months, agreed with the original parole 
         decision.
              In 1995, Mr. Peltier received a statutory interim hearing.  The hearing 
         officer was persuaded there was insufficient evidence to support a finding that 
         Mr. Peltier personally shot Agents Coler and Williams at point-blank range. 
         Despite that finding, he recommended no change in Mr. Peltier's parole status
         


 
         because he believed evidence that Mr. Peltier was a co-conspirator or aider and 
         abettor in the agents' executions justified his above-the-guidelines prison time.
              A second hearing officer then reviewed Mr. Peltier's case.  Based on a 
         legal officer's recommendation, he determined that the first hearing officer had 
         exceeded the scope of a statutory interim review and recommended the initial 
         findings be reinstated.  Adopting the legal officer's view, the second hearing 
         officer recommended no change in Mr. Peltier's parole status.
              Mr. Peltier appealed this interim determination to the full Parole 
         Commission.  While that body recognized the lack of direct evidence indicating 
         Mr. Peltier personally executed Agents Coler and Williams, it pointed to adequate 
         circumstantial evidence of his personal involvement, which met the 
         preponderance of the evidence standard for the Commission's findings.  The 
         Commission reasserted its belief that Mr. Peltier was in fact the shooter, but noted 
         it would make the same determination regarding his parole if he were merely an 
         aider and abettor.  Release of Mr. Peltier, found the Commission, would be 
         contrary to the public respect for the law contemplated by 18 U.S.C.  4206(a).(1)  
         Mr. Peltier's request for parole was denied and his reconsideration period 
         remained at fifteen years.  
              In May 1998, Mr. Peltier had his second interim statutory hearing.  The 
         Commission found no new information to warrant a change in his status. 
         Specifically, the Commission found Mr. Peltier's medical condition did not 
         warrant release and the seriousness of his crimes and failure to accept 
         responsibility militated against granting parole.
         E. Mr. Peltier's Current Habeas Petition
              Mr. Peltier applied to the district court for habeas corpus review of the 
         Parole Commission's actions, arguing (1) its decisions were arbitrary and 
         capricious because it could not determine who shot the agents; (2) the decisions 
         were based on incorrect information and discriminatory factors and thus were 
         unlawful; (3) application of parole rules and regulations revised after his 
         conviction violated ex post facto principles; and (4) failure to grant parole in light 
         of his medical condition was arbitrary and capricious and amounted to cruel and
         (1)     If an eligible prisoner has substantially observed the 
         rules of the institution or institutions to which he has 
         been confined, and if the Commission, upon 
         consideration of the nature and circumstances of the 
         offense and the history of the characteristics of the 
         prisoner, determines: (1) that release would notdepreciate the seriousness of his offense or promote 
         disrespect for the law; and (2) that release would not 
         jeopardize the public welfare; subject to the provisions 
         of . . . this section, and pursuant to guidelines 
         promulgated by the Commission . . . , such prisoner shall 
         be released.  
         
         18 U.S.C.  4206(a).  
         


 
         unusual punishment.  The district court denied relief.  Mr. Peltier appeals to this 
         court, reasserting only argument (1) above.  He contends "[t]he district court 
         erroneously accepted the Commission's denial of parole where the record does not 
         support the Commission's sole basis for extending the date of Peltier's parole 
         well outside normal guidelinesÄnamely, that Peltier participated in an `ambush' 
         and `the cold-blooded execution' of two FBI agents."  Aplt. Br. at 10.
         
                                         II
              "Judicial review of Parole Board decisions is narrow."  Dye v. United 
         States Parole Comm'n, 558 F.2d 1376, 1378 (10th Cir. 1977).  The Commission's 
         decision will stand unless it is arbitrary and capricious.  Id.  "[I]t is not the 
         function of courts to review the Board's discretion in denying parole or to repass 
         on the credibility of reports received by the Board in making its determination." 
         Id.  A reviewing court must make some inquiry into the factual basis for the 
         Commission's decision.  Misasi v. United States Parole Comm'n, 835 F.2d 754, 
         758 (10th Cir. 1987).  But "[t]he inquiry 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."  Id. (quoting 
         Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir. 1982)).  We assess the Parole
         


 
         Commission's decision in light of these standards.
              The Parole Commission's July 12, 1996, Notice of Action thoroughly lays 
         out the facts relied upon by that body in denying Mr. Peltier's parole and delaying 
         its reconsideration until 2008:  
              After careful examination of the evidence in the record, the 
              Commission continues to be persuaded that you were, in fact, the 
              individual who executed the two wounded F.B.I. agents by firing 
              upon them at point-blank range with an AR-15 rifle.  Trial witness 
              [and AIM member] Norman Brown testified that he saw you firing an 
              AR-15 rifle after the shooting started at the Jumping Bull Compound. 
              Trial witness [and AIM member] Michael Anderson testified that he 
              saw you at the agents' vehicles with an AR-15 rifle.  No witness 
              testified that anyone other than you fired an AR-15 rifle at the 
              agents' cars, or that anyone other than you was seen at the agents' 
              cars with an AR-15.  (The evidence concerning other AR-15 rifles 
              fired that day indicates that these rifles were fired later, and at places 
              from which direct aim could not have been taken at the murdered 
              F.B.I. agents.)  The agents were killed with high-velocity bullets that 
              no other weapon used against them that day but an AR-15 could have 
              fired.  A .223 shell caliber casing found in the trunk of Agent Coler's 
              car had an ejection mark matching a damaged AR-15 rifle 
              subsequently recovered in Wichita, Kansas, from a vehicle driven by 
              your associates.  Furthermore, you had a personal motive to murder 
              the two F.B.I. agents, because you had previously failed to appear for 
              a murder trial in Wisconsin and you believed that the two F.B.I. 
              agents were coming to arrest you.  Moreover, [AIM member] William 
              Draper testified that he heard you discuss details of the murders the 
              evening after the shooting took place.  Further evidence against you 
              is that, after you avoided arrest in Oregon, Agent Coler's service 
              revolver was found in your vehicle inside a paper bag bearing your 
              thumb print . . . .  The Commission finds that the two F.B.I. agents, 
              armed only with their service revolvers and driving separate cars, 
              were performing a routine law enforcement function . . . when they 
              were suddenly ambushed and overwhelmed with superior firepower 
              by you and your associates.  (There were 125 bullet holes in the 
              agents' cars and their rifles were stored in the car trunks.)


 
         
         Aplt. App. at 301-02.  
              All of the facts relied upon by the Commission can be found in previous 
         Eighth Circuit decisions.  That court quoted Norman Brown's testimony.  Peltier, 
         800 F.2d at 779.  It also described the testimony of Michael Anderson and 
         William Draper.  Id.; United States v. Peltier, 585 F.2d 314, 319, 320 (8th Cir. 
         1978) (direct appeal).  The Eighth Circuit outlined facts and testimony suggesting 
         Mr. Peltier's motive to murder the agents.  Peltier, 585 F.2d at 319-20.  The 
         Commission's statement that "[n]o witness testified that anyone other than you 
         fired an AR-15 rifle at the agents' cars, or that anyone other than you was seen at 
         the agents' cars with an AR-15," Aplt. App. at 301, came directly from an Eighth 
         Circuit opinion.  See Peltier, 800 F.2d at 779.   Mr. Peltier previously alleged that 
         FBI intimidation of trial witnesses compromised their reliability.  Peltier, 585 
         F.2d at 328-29.  The Eighth Circuit recognized the intimidation of AIM activists, 
         but noted each witness's attestation that his trial testimony was truthful.  Id.  The 
         Commission clearly has a rational basis for relying on this testimony to dispose of 
         Mr. Peltier's parole appeal.
              The physical evidence cited by the Parole Commission was also catalogued 
         by the Eighth Circuit.  That court noted that only the AR-15 linked to Mr. Peltier 
         could have fired the fatal shots into the two agents, that the .223 casing found in 
         Agent Coler's trunk matched the AR-15 recovered in Wichita and linked to Mr.
         


 
         Peltier, that other AR-15's present on the Reservation were fired at locations far 
         from the murder scene, and that Mr. Peltier was apprehended in possession of 
         Agent Coler's service revolver.  Id. at 319-20; Peltier, 800 F.2d at 779.  After the 
         evidentiary hearing on Mr. Peltier's first habeas petition, the district court in 
         North Dakota held that the October 2nd teletype did not cast doubt on the 
         connection between the .223 casing found in Agent Coler's trunk and the AR-15 
         linked to Mr. Peltier.  Peltier, 609 F. Supp. at 1152.  On appeal, the Eighth 
         Circuit asserted the casing "had in fact been extracted from the . . . AR-15 [linked 
         to Mr. Peltier]."  Peltier, 800 F.2d at 777.  As with the testimony discussed 
         above, the Parole Commission could rationally rely on this evidence in denying 
         Mr. Peltier's request for parole and delaying reconsideration until 2008.
              Both in briefing and at oral argument, counsel for Mr. Peltier challenged 
         the accuracy of the Commission's description of events leading up to the agents' 
         deaths.  While the Commission's use of the word "ambush" may have been 
         imprecise, the Commission was clearly correct in stating the agents were 
         "overwhelmed."  Aplt. App. at 302.  As reported by the Eighth Circuit, Agents 
         Coler and Williams were on the Pine Ridge Reservation merely to execute an 
         arrest warrant.  Peltier, 585 F.2d at 318.  The results of the firefight in which they 
         became entangled suggest they were ill-prepared for such an event.  When the 
         smoke cleared, 125 bullet holes were found in the agents' cars.  Id.  Only five
         


 
         casings attributable to the agents' revolvers were ever found at the scene.  Id.  
              The Commission's description of the murders in various Notices of Action 
         as "executions" and "cold-blooded" was warranted.  Aplt. App. at 199, 281, 301. 
         Evidence from the scene indicated
              Williams attempted to shield his face from the blast with his right 
              hand, turning his head slightly to the right.  The murderer placed the 
              barrel of his gun against Williams' hand and fired.  The bullet ripped 
              through Williams' hand, into his face, and carried away the back of 
              his head.  He was killed instantly.  The murderer shot Coler, who was 
              unconscious, across the top of the head.  The bullet carried away a 
              part of his forehead at the hairline.  The shot was not fatal, however. 
              The murderer then lowered his rifle a few inches and shot Coler 
              through the jaw.  The shell exploded inside his head, killing him 
              instantly.
         
         Peltier, 585 F.2d at 318-19.  The Commission's characterization of these events 
         appears accurate to this court. 
              The facts relied upon, of course, must support the Commission's 
         conclusions.  The Commission's Notice of Action reasoned that:
              [a]lthough the above evidence is consistent with your having, while 
              at the scene of the murders, aided and abetted the use of the above-
              mentioned AR-15 rifle by another individual to execute the agents, 
              the Commission is persuaded that the greater probability is that you 
              yourself fired the fatal shots. . . .  It would be unjust to treat the 
              slaying of these F.B.I. agents, while they lay wounded and helpless, 
              as if your actions had been part of a gun battle.  Neither the state of 
              relations between Native American militants and law enforcement at 
              the Pine Ridge Indian Reservation prior to June 16, 1975, nor the 
              exchanges of gunfire between individuals at the Jumping Bull 
              Compound and the law enforcement agents who arrived there during 
              the hours after Agents Coler and Williams were murdered, explains 
              or mitigates the crimes you committed. . . . Your release on parole
         


 
              would promote disrespect for the law in contravention of 18 U.S.C. 
              4206(a).
         
         Aplt. App. at 301-02.  Previous federal court decisions provided the Commission 
         with ample facts to support its conviction that Mr. Peltier personally shot Agents 
         Coler and Williams.  We cannot hold that the Commission's reliance on these 
         decisions, nor its determination that the aggravating circumstances of this crime 
         outweigh mitigating evidence presented by Mr. Peltier, constitute arbitrary and 
         capricious action on the Commission's part.
              In attacking the rational basis for the Parole Commission's decision, Mr. 
         Peltier first posits "[n]either Peltier's convictions nor the Eighth Circuit post-
         conviction decisions [support] the Commission's finding that Peltier participated 
         in an `ambush' and executed the agents after they were incapacitated."  Aplt. Br. 
         at 11.  But a jury convicted Mr. Peltier of premeditated first degree murder. 
         Peltier, 997 F.2d at 463; Peltier, 800 F.2d at 772.  Contrary to Mr. Peltier's 
         assertion that evidence undergirding his conviction has begun to "evaporate," 
         Aplt. Br. at 15, the evidence supporting the jury's verdict appears in numerous 
         Eighth Circuit opinions.  Neither the conviction nor any of the subsequent court 
         decisions have been overturned.  The Commission may justifiably rely on the 
         conviction and the Eight Circuit's refusal to overturn it in making its parole 
         determinations.  See Fiumara v. O'Brien, 889 F.2d 254, 257-58 (10th Cir. 1990) 
         (in making parole determinations, Commission may consider formally adjudicated
         


 
         crimes, as well as information from prosecutors and other parties).  
              Mr. Peltier correctly asserts his "convictions do not necessarily rest on the 
         theory that he executed the FBI agents" and that the government has conceded as 
         much.  Aplt. Br. at 12, 13.  As the Eighth Circuit recognized, "[t]he government 
         tried the case on alternative theories: it asserted that Peltier personally killed the 
         agents at point blank range, but that if he had not done so, then he was equally 
         guilty of their murder as an aider and abettor."  Peltier, 997 F.2d at 465.  It is 
         possible the jury accepted only the aiding and abetting theory to convict Mr. 
         Peltier of premeditated first degree murder.  Were that the case, the Commission, 
         based on the evidence before it, could still reach the conclusion it did.  
              Thus, in Lewis v. Beeler, 949 F.2d 325, 328 (10th Cir. 1991), this court 
         upheld a denial of parole based on the Commission's conclusion that a man 
         serving time for extortion was actually the Tylenol murderer.  In condoning the 
         Commission's reliance on evidence that he committed murder, we stated "while 
         we might not have concluded that Lewis was the Tylenol murderer based on this 
         evidence, it provides a rational basis for the Commission's finding to that effect." 
         Id. at 332.  If the Commission may rely on uncharged crimes in denying parole, it 
         can certainly rely on the body of evidence here suggesting Mr. Peltier in fact 
         executed the agents.  That the government argued in the alternative and the jury 
         possibly accepted that Mr. Peltier only aided and abetted the murderer does not
         


 
         upset the rational basis for the Commission's decision.
              Mr. Peltier also calls our attention to the report of the interim hearing 
         officer stating "that a preponderance finding that Peltier actually executed the 
         agents cannot be made."  Aplt. App. at 233.  However, Mr. Peltier fails to point 
         out a significant feature of this officer's report.  Despite his finding insufficient 
         evidence that Mr. Peltier pulled the trigger, the officer recommended no change in 
         the Commission's denial of parole and fifteen-year reconsideration period.  It 
         would exceed our authority under the arbitrary and capricious review standard to 
         rely on this officer's opinion, which recommended no change in Mr. Peltier's 
         status and which was ultimately rejected by the full Commission, to reverse the 
         Commission's parole determination.
              In attacking the evidence relied on by the Commission in denying parole 
         and setting the lengthy reconsideration period, Mr. Peltier seems to suggest we 
         should reweigh this evidence in rendering our decision.  We cannot.  Fiumara, 
         889 F.2d at 257.  We can, however, inquire into whether the Commission was 
         rational in considering it.  Misasi, 835 F.2d at 758.  
              As noted above, the Commission's description of the firefight as an 
         "ambush" was imprecise: there is no indication any of the participants were lying 
         in wait for the agents.  But the officers were on a routine law enforcement 
         mission when they encountered overwhelming firepower from Native American
         


 
         activists.  And the Commission's choice of the word "execution" in describing the 
         murders was quite apt.  While Mr. Peltier asserts "[t]he Commission identified no 
         plausible evidence that [he] shot the agents after they were incapacitated," Aplt. 
         Br. at 17, this statement is simply not true.  The evidence linking Mr. Peltier to 
         these crimes is enumerated above.  The most damning evidenceÄthe .223 casing 
         found in Agent Coler's trunkÄmay be more equivocal after the surfacing of the 
         October 2nd teletype, but it has not been "ruled out," as Mr. Peltier contends.  
         Aplt. Br. at 20.  There is no direct evidence that Mr. Peltier shot the agents 
         because no one testified they saw him pull the trigger.  But as we stated above 
         and restate here, the body of circumstantial evidence underlying the 
         Commission's decision is sufficient for the purposes of rational basis review.
              Much of the government's behavior at the Pine Ridge Reservation and in its 
         prosecution of Mr. Peltier is to be condemned.  The government withheld 
         evidence.  It intimidated witnesses.  These facts are not disputed.  Mr. Peltier 
         asserts that "the blatant government misconduct is a mitigating factor which 
         should bear strongly on whether [he] should be immediately considered for parole 
         . . . ."  Aplt. Rep. Br. at 2.  He may be correct.  But whether the Parole 
         Commission gave proper weight to this mitigating evidence is not a question we 
         have authority to review.  Our only inquiry is whether the Commission was 
         rational in concluding Mr. Peltier participated in the execution of two federal
         


 
         agents.  On the record before us, we cannot say this determination was arbitrary 
         and capricious.
         
                                        III
              Because we hold the Commission's principal findingÄthat Mr. Peltier shot 
         and killed Agents Coler and WilliamsÄwas rational, we need not address the 
         Commission's implication that the same disposition is supportable if Mr. Peltier 
         only aided and abetted at the murder scene.  As such, we AFFIRM the district 
         court's denial of relief.