318 F.2d 225 (D.C. Cir. 1963), 16716, Hyser v. Reed

Docket Nº:16716, 16806, 16811, 16873, 17041-17043, 17059.
Citation:318 F.2d 225
Party Name:Robert E. HYSER, Appellant, v. George J. REED, Chairman, United States Board of Parole, Appellee. John Thomas JATOFT, Appellant, v. R. A. CHAPPELL, Chairman, United States Board of Parole, et al., Appellees. James Charles WHITLING, Appellant, v. George J. REED, Chairman, United States Board of Parole, et al., Appellees. Robert THOMPSON, Appellant,
Case Date:April 11, 1963
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 225

318 F.2d 225 (D.C. Cir. 1963)

Robert E. HYSER, Appellant,

v.

George J. REED, Chairman, United States Board of Parole, Appellee.

John Thomas JATOFT, Appellant,

v.

R. A. CHAPPELL, Chairman, United States Board of Parole, et al., Appellees.

James Charles WHITLING, Appellant,

v.

George J. REED, Chairman, United States Board of Parole, et al., Appellees.

Robert THOMPSON, Appellant,

v.

UNITED STATES BOARD OF PAROLE et al., Appellees.

John T. NEISWENTER, Jr., Appellant,

v.

Richard A. CHAPPELL, Chairman, United States Board of Parole, et al., Appellees.

Andrew Louis FITZPATRICK, Appellant,

v.

Richard A. CHAPPELL, Chairman, United States Board of Parole, et al., Appellees.

William Francis LeRoy WILLIAMSON, Appellant,

v.

Richard A. CHAPPELL, Chairman, United States Board of Parole, et al., Appellees.

Larry T. JAMISON, Appellant,

v.

Richard A. CHAPPELL, Chairman, United States Board of Parole, et al., Appellees.

Nos. 16716, 16806, 16811, 16873, 17041-17043, 17059.

United States Court of Appeals, District of Columbia Circuit.

April 11, 1963

Argued Oct. 24, 1962.

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Mr. James H. Heller, Washington, D.C. (appointed by this court for appellant in No. 16873), argued for appellants in Nos. 16716, 16806, 16811, 16873.

Mr. Lawrence Speiser, Washington, D.C., with whom Messrs. David B. Isbell and Robert J. Muth, Washington, D.C. (all appointed by this court), were on the brief for appellants in Nos. 17041, 17042, 17043, 17059. Messrs. Richard S. Arnold and Mark A. Weiss, Washington, D.C., were also on the brief for appellants in Nos. 17041, 17042, 17043, 17059.

Mr. Harold H. Greene, Atty., Dept. of Justice, with whom Asst. Atty. Gen., Burke Marshall, Messrs. David C. Acheson, U.S. Atty., and Alan G. Marer, Atty., Dept. of Justice, were on the brief, for appellees in Nos. 16716, 16806, 16811, 16873.

Mr. David Rubin, Atty., Dept. of Justice, of the bar of the Court of Appeals of New York, pro hac vice by special leave of court, with whom Asst. Atty. Gen. Burke Marshall, Messrs. David C. Acheson, U.S. Atty., and Harold H. Greene, Atty., Dept. of Justice, were on the brief, for appellees in Nos. 17041, 17042, 17043, 17059.

Mr. Herbert M. Schulkind, Washington, D.C. (appointed by this court), was on the brief for appellant in No. 16716. Mr. Lawrence Speiser, Washington, D.C., filed a memorandum on behalf of appellant in No. 16716 as amicus curiae.

Mr. Geoffrey Creyke, Jr., Washington, D.C. (appointed by this court), was on the brief for appellant in No. 16806. Mr. H. Randall Bixler, Washington, D.C., also entered an appearance for appellant in No. 16806.

Messrs. Greene C. Furman and Elbert E. Blakely, Washington, D.C., (both appointed by the District Court), were on the brief for appellant in No. 16811.

Messrs. Patrick A. McDonald and John A. Yacovelle, Jr., Washington, D.C., (both appointed by the District Court), were on the brief for appellant in No. 16873.

Before BAZELON, Chief Judge, and EDGERTON, WILBUR K. MILLER, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER and WRIGHT, Circuit Judges, sitting en banc.

BURGER, Circuit Judge, with whom WILBUR K. MILLER, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, concur.

These cases arise from parole revocation proceedings and have been consolidated for en banc consideration by the court inasmuch as the basic questions are common to all the appeals. Each appellant was ably represented by court appointed counsel in the District Court and in this court.

Hyser v. Reed, No. 16716

Hyser was convicted of violation of the National Motor Vehicle Theft Act and the Marihuana Tax Act and was sentenced to a term of ten years imprisonment, on December 17, 1952. He was mandatorily released on March 5, 1959 from the United States Penitentiary, Leavenworth, Kansas. On November 18, 1959, he was arrested as a mandatory release violator and returned to Leavenworth Penitentiary. He had a hearing before a member of the United States Parole Board on January 12, 1960, but was not afforded the opportunity to be represented by counsel. His mandatory release was revoked on February 26, 1960. On May 10, 1961, following our holding in Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (April 7, 1961), he was offered a new hearing with counsel present. He did not accept the offer and filed a declaratory judgment action seeking his release. Summary judgment was granted in favor of the Parole Board, and Hyser appealed. The record does not reveal what condition of parole Hyser was found to have violated, nor does Hyser's complaint contain allegations denying violation of a condition of parole.

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Jatoft v. Chappell, No. 16806

Jatoft was convicted of kidnapping and transporting a stolen vehicle in interstate commerce and was sentenced to a term of twenty years imprisonment, on June 27, 1947. He was released on parole, June 6, 1956, from the United States Penitentiary, Atlanta, Georgia. On February 25, 1959, he was arrested on a parole violator warrant and on March 9, 1959, had a hearing before a member of the Parole Board at the Federal Detention Headquarters in New York City. At the hearing Jatoft was not advised of his right to have counsel and did not have the assistance of counsel. His parole was revoked on May 5, 1959. The violations of parole conditions upon which the Board relied to revoke Jatoft's parole were association with one Brando, a person with a criminal record, and involvement with Brando in a scheme to defraud a department store by returning stolen goods for cash refunds. Before a representative of the Board, Jatoft admitted returning merchandise to the department store which involved the forging of names on credit slips. He denied knowledge of Brando's criminal record. On May 15, 1961, after the decision in Glenn v. Reed, supra, he was offered a new hearing with the right to retain counsel, but he refused the offer and instituted a declaratory judgment action seeking his release. Summary judgment was granted in favor of the Parole Board and Jatoft appealed.

Whitling v. Reed, No. 16811

On June 18, 1957, Whitling was committed to the custody of the Attorney General under the provisions of the Federal Youth Corrections Act, 18 U.S.C.§ 5010(b) (1958). He was released on parole on June 20, 1959. On June 13, 1960, he was arrested on a parole violator warrant. He was afforded a hearing by the United States Board of Parole, on August 24, 1960, at the Federal Reformatory at Chillicothe, Ohio, but did not have assistance of counsel nor was he advised of his right to retain counsel. His parole was revoked on October 5, 1960. Appellant filed a declaratory judgment action in the District Court on March 1, 1961. Subsequent to Glenn v. Reed, supra, the Parole Board offered him a new revocation hearing with the right to retain counsel, which appellant refused. Summary judgment was granted in favor of the Parole Board in the declaratory judgment action and Whitling appealed. Whitling's complaint does not contain allegations denying violation of condition of parole. Subsequent to judgment, however, Whitling asked leave to file an amended complaint which alleged that he had admitted violation of parole only as a result of coercion and threats, apparently allegedly made by representatives of the Parole Board. The District Court denied leave to file the amended complaint.

Thompson v. United States Board of Parole, No. 16873

Thompson was convicted of homicide by a General Court Martial while he was in service on June 22, 1945, and was sentenced to life imprisonment. Subsequently the Army Clemency Board reduced the sentence to a term of twenty-eight years. He was released on parole on May 31, 1955, and was authorized to reside in the Bridgeport, Connecticut, district. On July 12, 1960, Thompson left his authorized parole district without permission. The same day he was arrested on a concealed weapons charge by New Jersey state authorities. He was tried and convicted of the weapons offense in a New Jersey state court and served a two month jail sentence. A parole violator warrant was issued for the retaking of appellant on August 25, 1960, and he was arrested under this warrant on November 10, 1960, upon his release from a New Jersey state jail, and was returned to the Federal Penitentiary at Lewisburg, Pennsylvania. Thompson admitted violation of parole. He was afforded a hearing by a member of the Parole Board on February 7, 1961, but was not afforded the assistance of counsel nor advised of his right to counsel. His parole was revoked on March 14, 1961. On May 3, 1962, after Reed v. Butterworth,

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111 U.S.App.D.C. 365, 297 F.2d 776 (Nov. 9, 1961), he was offered a new hearing with the right to retain counsel and present voluntary witnesses, which he refused. Appellant filed a declaratory judgment action seeking his release and summary judgment was granted in favor of the Parole Board. Thompson appealed.

Neiswenter v. Chappell, No. 17041

Neiswenter was convicted of mail theft and forgery and was sentenced to a term of ten years imprisonment, on July 17, 1953. He was mandatorily released on October 23, 1959. On September 18, 1960, he was arrested on a mandatory release violator warrant and was returned to the Federal Penitentiary at Lewisburg, Pennsylvania. On September 30, 1960, he was interviewed by a case-worker at the Penitentiary, and was informed of the charges against him, which included theft, loss of employment due to absenteeism, leaving his authorized parole district without permission, contributing to the delinquency of a minor,...

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