Rogoway v. Warden
| Decision Date | 12 December 1941 |
| Docket Number | No. 9827.,9827. |
| Parties | ROGOWAY v. WARDEN, United States Penitentiary, McNeil Island, Wash. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ted Rogoway, in pro. per.
J. Charles Dennis, U. S. Atty., and Frank Hale, Asst. U. S. Atty., both of Tacoma, Wash., for appellee.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
Appellant Ted Rogoway was convicted of violation of the Harrison Narcotic Law, 44 Stat. 96, 26 U.S.C.A. Int.Rev.Code, §§ 2550 et seq., 3220 et seq., and sentenced by the District Court of the United States for the District of Oregon on February 2, 1935, and his term began on that date, to imprisonment for a term of five years and adjudged to pay a fine of $1,000 on each of the two counts of the indictment under which he was tried, the sentences to run concurrently. Subsequently, on September, 15, 1937, Rogoway was released on parole from the United States Penitentiary at Leavenworth, Kansas, and he returned to Portland, Oregon, where he reported to a probation officer. On November 20, 1939, the United States Board of Parole, 18 U.S. C.A. § 723a, under the signature of its chairman, issued its warrant, 18 U.S.C.A. § 723c, for the arrest of Rogoway, which warrant stated reliable information had been presented a member of the parole board that the paroled prisoner named therein had violated the conditions of his parole, and commanded his apprehension and arrest. Arrest of appellant was made by the United States Marshal, 18 U.S.C.A. § 718, in Portland, Oregon, on authority of the warrant issued, on December 5, 1939, and Rogoway was returned to custody at McNeil Island Penitentiary. On December 14, 1939, a hearing was conducted by an Assistant Parole Officer at McNeil Island Penitentiary, wherein Rogoway was informed of the reason for revocation of his parole and was permitted to explain or excuse his conduct. May 6, 1940, the United States Board of Parole entered its order revoking the parole and directing that he serve the remainder of his sentence originally imposed, and the order was transmitted to the Warden of the Penitentiary.
On November 27, 1940, the appellant filed a petition for writ of habeas corpus in the court below, alleging that he had not violated the conditions or terms of his parole; that no valid inquiry had been conducted for the purpose of determining this question; that he had not committed the acts asserted to be in violation of the terms of his parole; that his employment had been approved by a parole officer; that he was being held "in violation of his constitutional rights." An order to show cause, dated December 16, 1940, was issued, directed to the respondent Warden, which, among other recitals, stated, "that the respondent is not required to bring the petitioner personally before the court in connection with the hearing on this order to show cause," and an attorney was appointed to represent the petitioner. Thereafter, on March 21, 1941, the court below, of its own motion, granted a rehearing of the petition for writ of habeas corpus and directed the warden of the penitentiary to bring the petitioner before it for hearing. A hearing was had on the day designated, at which the petitioner and his counsel were present, and testimony, including that of the petitioner, taken; the matter was argued and submitted; and the court thereupon denied the petition. Decree of dismissal was entered as were findings of fact and conclusions of law. The petitioner appeals from the order of dismissal.
Upon being granted his parole Rogoway returned to Portland, Oregon, where he took up work in a service station, which extended for a period of approximately two months, when by reason of change of ownership of the establishment, the services of the help were terminated. He then became employed, whether on his own or for another does not appear, as a salesman or peddler of ladies ready-to-wear clothing, having for his territory houses of prostitution, and for his customers, the inmates thereof. Although, obviously, this sort of work would bring him in contact with persons of questionable reputation and subject him to an environment not calculated to accelerate the moral uplift of a parolee, Rogoway testified his parole adviser approved of it. There was testimony, however, to the effect that the parole adviser did not give permission to the appellant to engage in that enterprise. The Portland probation office first reported unfavorably on the appellant on October 11, 1938, when a report was submitted to the Parole Executive that Rogoway had offered an unemployed waitress work as clothes model, induced her to go to his office and there encouraged her to enter a house of prostitution. Charges against him were dropped after the complainant refused to testify against him. A year later, November 10, 1939, the office submitted another report alleging violation of...
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