United States v. O'Donovan

• Decision Date: 31 January 1950
• Docket Number: No. 9788.,9788.
• Citation: 178 F.2d 876
• Parties: UNITED STATES ex rel. DE LUCIA v. O'DONOVAN, Marshal.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F.2d 876 (1949)

UNITED STATES ex rel. DE LUCIA v. O'DONOVAN, Marshal.

No. 9788.

United States Court of Appeals Seventh Circuit.

December 8, 1949.

Rehearing Denied January 31, 1950.

Otto Kerner, Jr., United States Attorney, Chicago, Ill., John Peter Lulinski, Ass't U. S. Atty., Chicago, Ill., for appellant.

William Scott Stewart, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, FINNEGAN and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Respondent arrested the relator pursuant to a parole warrant issued by a member of the United States Board of Parole. On the day he was taken into custody, June 15, 1948, relator filed a petition for a writ of habeas corpus, to which, on the same day, respondent filed a formal return. Relator then filed a lengthy traverse, to which respondent demurred. The District Court overruled the demurrer and ordered respondent to answer within ten days; respondent, however, elected to stand by his demurrer, whereupon the court entered judgment discharging realtor.

Respondent asserts error in that, (1), the judgment was based upon certain statements appearing in the relator's traverse, which, because they are, as respondent argues, conclusions of law rather than allegations of fact, were not admitted by the demurrer; (2), the court having no authority to shorten the statutory time within which the return to the petition for writ of habeas corpus might be filed, wrongfully required respondent to file his return instanter; and, (3), the court was precluded from reviewing the facts upon which the parole board's jurisdiction was based until the administrative proceedings initiated by the issuance of the parole warrant had been completed.

The relator, with others, had been found guilty of conspiracy to violate the Anti-Racketeering Act, United States Code Annotated, Title 18, § 420a now § 1951, and sentenced to a term of ten years. After he had been released on parole, in August, 1947, a congressional subcommittee conducted an investigation into the grant of paroles to relator and his fellow conspirators. Hearings began September 25, 1947, and ended June 7, 1948. On June 15, 1948, Fred S. Rogers, a member of the parole board, issued a warrant reciting that he had reliable information that relator had violated the conditions of his parole and directing that he be arrested. On the day following relator was taken into custody upon this warrant and immediately filed his petition for a writ of habeas corpus.

On June 16, 1948, the court directed that the writ issue returnable instanter. Less than three hours later, a return was filed, showing that respondent had custody of relator by virtue of the warrant, and alleging that, because the court was without jurisdiction to review the issuance of such warrant by a member of the United States Parole Board or to inquire into the custody of one who was held under it, the petition failed to disclose any ground upon which relief could be granted. To this return, the relator filed a traverse, the pertinent parts of which averred that at the hearings conducted by the subcommittee, Mr. Rogers, the member of the board who issued the warrant, had testified on June 7, 1948, barely a week before issuance of the warrant, that relator had not violated the conditions of his parole. The relator included also his own affidavit that he had not at any time violated the terms of his parole. To this traverse, respondent demurred. The court overruled the demurrer, U. S. ex rel. De Lucia v. O'Donovan, D.C., 82 F.Supp. 435, and directed respondent to answer within ten days. When respondent elected to stand on the demurrer, the realtor was discharged.

Since a judgment may not be reversed for error not of prejudicial nature, Deery v. Cray, 5 Wall. 795, 18 L.Ed. 653, Gilmer v. Higley, 110 U.S. 47, 3 S.Ct. 471, 28 L.Ed. 62; Vicksburg & Meridian Railroad Co. v. O'Brien, 119 U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299; Seaboard Air Line Ry. v. Moore, 228 U.S. 433, 33 S.Ct. 580, 57 L. Ed. 907, we need not consider the contention that the District Court erred in ordering a returnable instanter, for, although respondent contends that under the applicable statute, 28 U.S.C.A. § 456 now § 2243 he should have been given three days within which to file his return, it is clear that no prejudice has resulted from the order that the return be filed immediately.

The pertinent statute, Title 18 U.S.C.A. § 717 now § 4205, is: "If the warden of the prison or penitentiary from which said prisoner was paroled or said board of parole or any member thereof shall have reliable information that the prisoner has violated his parole, then said warden, at any time within the term or terms of the prisoner's sentence, may issue his warrant to any officer hereinafter authorized to execute the same, for the retaking of such prisoner." (Emphasis supplied.) The trial court, having considered the specific averments of the traverse, found that it alleged specifically that no member of the board had any information of violation of any of the terms and conditions of De Lucia's parole when the warrant was issued and that this allegation was admitted by respondent's demurrer to the traverse.

Respondent argues that the pleadings do not support the conclusion; he contends that, because a demurrer admits only such facts as are well pleaded, he did not admit that the warrant was issued without any information relative to a parole violation by the relator, that being a conclusion of law rather than a mere allegation of fact. The relator insists that this argument constitutes a departure from the position taken by respondent in the court below, where, if the objection had been raised, relator could have met it by amending his pleading.

The record made in the District Court supports relator's statement that respondent failed to attack the sufficiency of petitioner's pleadings in the trial court. Consequently, he should not be allowed to do so for the first time in this court. Moreover, the respondent's argument, considered on its merits, seems to us to overlook the fact that this court, in resolving this issue, must go beyond a simple determination of whether, as an abstract proposition, a demurrer admits an allegation that a warrant has been issued without any information as to a parole violation; it must decide also whether, upon all the allegations of fact which were unquestionably admitted by respondent's demurrer, the trial court was justified in concluding that there was no information with respect to any such violation in the possession of the board member who issued the warrant.

Respondent's position with respect to this issue is best illustrated by the following quotation from his brief: "The petitioner's statement that he did not violate parole in the interim is his own conclusion and is not admitted by respondent's demurrer. As a matter of hard logic, the petitioner will have to allege facts concerning every moment of every hour from June 15, 1948. That he has not done. There is nothing before the court in the pleadings to show what activities, innocent or otherwise, the relator was engaged in during this period. In the absence of such allegations the petitioner's conclusion that he did not violate parole cannot be admitted." (Emphasis supplied) To adopt this viewpoint in a case where, as here, the facts have been alleged in great detail (petitioner's traverse was some 625 pages in length) would be to impose an unreasonable burden on the pleader as well as an unrealistic limitation on the lower court. We conclude that respondent's contention must be rejected on the merits, especially in view of the fact that it has been urged for the first time in this court. 4 C.J.S., Appeal and Error, § 241, page 465, citing cases.

In this connection the District Court said 82 F.Supp. 435, 439: "De Lucia's traverse to the Marshal's return to the writ does not contend that the information upon which the parole board member issued the warrant was not reliable. The traverse alleges substantially, that the members of the parole board did not have any information in respect of a violation of the terms and conditions of De Lucia's parole when the warrant was issued. It alleges that the member of the board who issued the warrant had previously testified before the Congressional Committee that no report or evidence of a violation of parole by De Lucia had been received by the board. And it asserts that the parole warrant was issued solely because the parole board member had been pressed to such action by the legislative committee. The legal effect of the demurrer filed by the United States Attorney acting on behalf of the parole board member is to say that even if all of the allegations in the traverse are true, nevertheless the detention of De Lucia under the parole warrant is legal and may not be inquired into by this court." We cannot reject a finding of the trial court unless it is clearly erroneous. Federal Rules of Civil Procedure, rule 52, 28 U.S. C.A.; Sunal v. Large, 4 Cir., 157 F.2d 165 affirmed 332 U.S. 174, 67 S.Ct. 1588, 91 L. Ed. 1982; ...