Compagna v. Hiatt, 2329

• Decision Date: 18 September 1951
• Docket Number: No. 2329,2330.,2329
• Citation: 100 F. Supp. 74
• Parties: COMPAGNA et al. v. HIATT.
• Court: U.S. District Court — Northern District of Georgia

100 F. Supp. 74

COMPAGNA et al. v. HIATT.

Nos. 2329, 2330.

United States District Court, N. D. Georgia, Atlanta Division.

September 18, 1951.

Andrews, Nall & Stern, Atlanta, Ga., William Scott Stewart, Chicago, Ill., for petitioners.

J. Ellis Mundy, U. S. Atty., Harvey H. Tisinger, Asst. U. S. Atty., Atlanta, Ga., A. E. Gottshall, Atty. Dept. of Justice, Thomas E. De Wolfe, Atty. Dept. of Justice, Washington, D. C., for respondent.

E. MARVIN UNDERWOOD, District Judge.

The first trial of these habeas corpus cases, which were tried together, resulted in judgments discharging petitioners. Thereafter respondent presented certificates of revocation of the paroles issued by the Parole Board and filed motions for reconsideration of the judgments. Rule to show cause issued and hearing had. At the hearing and upon inquiry by the court, respondent and petitioners stated that they did not desire to present any additional evidence. Thereupon the motions were denied as nothing was to be gained by further hearing without additional evidence. The judgments of this court, 82 F.Supp. 295, were reversed by the Court of Appeals, 178 F.2d 42. Judge Waller dissenting. The Supreme Court affirmed the judgments of the Court of Appeals "by an equally divided court". 340 U.S. 880, 71 S.Ct. 192.

Findings of Fact.

The Parole Board has made it clear that the only claims of parole violations are as set out in the referrals; that there were no other complaints; that its action in revoking the paroles was based entirely and solely on conduct of parties subsequent to their release on parole, and that all the evidence they considered is now before the court and contained in the record (R. pp. 114, 137).

Petitioners were indicted and tried together in the United States District Court for the Southern District of New York for violation of the Anti-Racketeering Act. They were convicted and sentenced on December 31, 1943, to terms of ten years in the penitentiary. Because of their good conduct, they were released on parole August 13, 1947, but after unfavorable newspaper publicity and investigations by Congressional Committees and grand juries they were retaken into custody on July 23, 1948, under parole violator warrants issued July 21, 1948, by Judge Rogers, a member of the parole Board. The warrants stated that they were based on "reliable information" of parole violations but gave no information of specific acts. Referrals were issued at the same time, but petitioners had no notice of them or their contents until copies were handed to their counsel on September 2, 1948, the date on which these petitions were filed.

Compagna Case.

These referrals charged three violations to Compagna and five to Gioe. They were as follows.

As to Compagna: 1, Failure to reveal source of monies used in settlement of Internal Revenue tax, when questioned before a legally constituted body. 2, Failure to conduct himself honorably. 3, Failure to truthfully disclose associates on flight from Kansas City to Chicago following release from Leavenworth.

The violations charged to Gioe are: 1, Change of employment without permission. 2, Failure to truthfully disclose associates on flight from Kansas City to Chicago following release from Leavenworth. 3, Association with persons of bad reputation. 4, Failure to conduct himself honorably. 5, Failure to give a proper accounting of income and expenditures.

The above items are the only complaints of violations and the Board's action in revoking the paroles is based on these alone. (R. p. 130).

It will be observed that the violation charged to Compagna in item 3 is the same transaction charged to Gioe in item 2, and they may be considered together.

Petitioners and a co-defendant, de Lucia, were discharged together from Leavenworth Penitentiary August 13, 1947. They went by bus from the penitentiary to Leavenworth where they were met at the bus station by Mr. Eugene Bernstein, who was Compagna's attorney. The four were driven by a chauffeur to Kansas City Air Port, where they took a plane to Chicago. Upon arrival in Chicago, Gioe was met by his wife but no one met Compagna and de Lucia, who lived near each other. They went to their respective homes in a taxi.

Upon leaving the Penitentiary the parolees were given railroad transportation, but were told by the warden that they could travel by plane at their own expense if they desired. Having traveled by plane they promptly returned the railroad tickets to the warden. Bernstein went to Leavenworth on August 12th to meet Compagna and present certain parole papers at the request of Mrs. Compagna who was ill. The automobile was furnished by Gizzo, a friend of petitioners living in Kansas City who had furnished such transportation on other occasions when Bernstein had visited the Penitentiary to consult with his clients about income tax matters. Before seeing the Warden at the Penitentiary, Bernstein had purchased, at the hotel where he was stopping, two airplane tickets dated August 12th, from Kansas City to Chicago for himself and Compagna. When he later saw the Warden he was informed that Gioe and de Lucia would be released at the same time. He thereupon tried to secure two additional airplane tickets for the same flight, but was told there were none available. Gizzo said that a friend, who was present, might get tickets for him for that or some other flight and suggested that Bernstein give him the two tickets and he would get two additional or four new ones. The suggestion was adopted and the next morning Bernstein received four new tickets dated August 13th. All the tickets were in Bernstein's name but bore different dates. The two original tickets were evidently sold to other parties without change of name since the flight records show they were used, but they were unknown to Bernstein and petitioners, who had never seen them before, and who had, during the flight of a little over two hours, had no association or conversation with them. (R. pp. 105, 273). There is not a scintilla of evidence as to the identity or reputation of the two unknown passengers although the Parole Board and the Federal Bureau of Investigation made diligent effort to secure such information. (R. pp. 44, 112). Nor is there any evidence that petitioners had any acquaintance, connection or association with them.

Passing now to consideration of the other two allegations of parole violations charged to Compagna in items one and two, the facts are as follows.

In item one he is charged with failure to disclose the source of monies used in settlement of his tax case. This settlement was made by his attorney in 1946 while Compagna was in the penitentiary and all his property under tax lien. (R. p. 101). The money used to pay the claim was brought, by others than Compagna, to attorney Bernstein who received the money and paid the Government. Mr. and Mrs. Compagna and Bernstein all testified that they did not know who the individuals were who furnished the money and made no inquiry. Compagna said he did not know but assumed that they were friends and might have been gamblers and that he did not undertake to search them out after release from prison because he feared he might get them into trouble and also endanger his parole status by charges of improper association. The money was brought in and received in unusual circumstances. Eight or nine individuals over a period of about thirty days brought in varying amounts in cash and gave them to Bernstein or his secretary. Neither names nor identification were requested or furnished and receipts were given stated the amounts but not the names of the depositors. (R. p. 397). The money was deposited in bank and the Government paid with Bernstein's checks. It is not claimed that he violated his parole by acquiescing in the payment of the tax in the manner described. The payment was made approximately a year before he was released on parole. But the charge is failure to reveal the source of the money. Dr. Killenger testified that he did not believe that Compagna knew the individuals who furnished the money but that he "believed" he knew "the group or the composite". (R. p. 94).

Compagna could not disclose the sources of the money if he did not know them and he denied knowing them. There was no evidence of such fact other than the above circumstances and the suspicions and assumptions of the Board. (R. pp. 40, 94, 97, 98).

The alleged violation set out in item Two is failure to conduct himself honorably. The proof submitted to support this claim is the same as presented in support of the other two charges of violation of parole, items one and three. In the words of Dr. Killinger "his failure to reveal the identity of those two individuals (item three — airplane trip) and also his failure to disclose the source of the money (item one — tax settlement) we concluded that he did not conduct himself honorably by his action in regard to these two items." "Those are the only two instances, your Honor, on which we are setting forth the specific charges". (R. pp. 41, 46).

The facts and circumstances referred to in the consideration of items one and three, therefore, need no further mention since the establishment of violation, item two, depends entirely on proof of violation of items one and three, or one of them, which has not been established.

It will be seen that, as to the case against Compagna, the entire complaint rests on the charge of failure to reveal two facts, identity of the airplane passengers and the sources of the money to pay tax, which he testified he did not know, and the conclusion that such failure constituted dishonorable conduct. There is no substantial evidence, if any evidence at all, to establish the alleged violations.

Gioe Case.

Among the five violations of parole charged to Gioe is item two which alleges failure to disclose associates on the airplane flight from Kansas City to Chicago. The charge and evidence to support it were...