Lupo v. Zerbst, 8471.
| Citation | 92 F.2d 362 |
| Decision Date | 19 October 1937 |
| Docket Number | No. 8471.,8471. |
| Parties | LUPO v. ZERBST, Warden, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Clint W. Hager and Eugene L. Tiller, both of Atlanta, Ga., for appellant.
Bates Booth, Sp. Asst. to Atty. Gen., Gordon Dean, Sp. Executive Asst. to Atty. Gen., and Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger and Hiram T. Nichols, Asst. U. S. Attys., all of Atlanta, Ga., for appellee.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
Appellant was convicted of the crime of counterfeiting, in the United States District Court for the Southern District of New York, on February 19, 1910, and sentenced to serve a term of 30 years in the federal penitentiary at Atlanta. On February 21, 1910, he entered upon his sentence and served time uninterruptedly until June 30, 1920, on which date he was released on parole.
On October 29, 1921, the President granted him what is styled in the document itself a conditional commutation of sentence. This instrument recites that whereas it was made to appear that it was highly important for business reasons that appellant return to Italy for a brief period, which he could not do under the Parole Act (18 U.S.C.A. §§ 714-723), and for other reasons appearing, the sentence of appellant was commuted to expire at once on condition that he be law-abiding and not connected with any unlawful undertaking during the period of his present sentence; and, on the further condition, that if he did violate the conditions of the commutation, of which fact the President himself should be the sole judge, the commutation should be null and void and of no effect, and appellant might, by direction of the President, be apprehended and returned to the penitentiary and required to complete service of his sentence. The following month appellant went to Italy, returning in May, 1922. In order to get back into the United States, he produced his conditional commutation to the Board of Special Inquiry at Ellis Island. Nevertheless, he was ordered deported, but, upon appeal to the Secretary of Labor, the Board's action was reversed on the ground that the continuance of his commutation contemplated that he remain in this country in order that, in the event of a breach of its condition, he could be remanded to custody.
On July 10, 1936, the President revoked said commutation because of appellant's association with persons of evil character, of his having been arrested and indicted on various charges, and of his having been engaged in racketeering and other unlawful enterprises. The order of revocation further provides as follows:
Pursuant to the aforesaid revocation, appellant was arrested by the United States Marshal for the Southern District of New York and transported to the Atlanta federal prison, where he was received by the warden and has since been confined. Immediately thereafter he sought to challenge the validity of his imprisonment, and applied for a writ of habeas corpus, which was granted. Upon the hearing no attack was made upon the indictment, trial, or sentence, but all the issues raised concerned the validity and regularity of the procedure in connection with the conditional commutation of sentence and the revocation of the same. The District Judge resolved the issues in favor of the appellee, ordered the writ of habeas corpus discharged, and directed that the appellant be remanded to custody for execution of the remainder of his sentence. From this judgment appellant has brought the case to this court for review by appeal. He insists that the President was authorized to grant the commutation of sentence, but was without power or legal authority to engraft conditions thereon. Therefore, he says, the...
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