United States v. O'Donovan
| Decision Date | 10 November 1948 |
| Docket Number | No. 48C867.,48C867. |
| Citation | 82 F. Supp. 435 |
| Parties | UNITED STATES ex rel. DE LUCIA v. O'DONOVAN. |
| Court | U.S. District Court — Northern District of Illinois |
COPYRIGHT MATERIAL OMITTED
William Scott Stewart, of Chicago, Ill., for petitioner.
Otto Kerner, Jr., U. S. Atty., of Chicago, Ill., for respondent.
On June 16, 1948, Louis Campagna, Paul De Lucia, Phil D'Andrea and Charles Gioe filed their petition in this court for the writ of habeas corpus. The petition alleges that the petitioners had been convicted and sentenced to serve ten years in a federal penitentiary after a trial on an indictment returned by a federal grand jury in the United States District Court for the Southern District of New York; that said indictment charged the petitioners and other defendants with conspiracy to violate Section 420a now § 1951, Title 18 U.S.C.A., known as the Federal Anti-Racketeering Act by extorting money from certain motion picture producers; that the judgment was affirmed by the Circuit Court of Appeals and after the petitioners served one third of the sentences imposed, they were granted paroles.
The petition asserts that the judgment of conviction in the District Court of New York is void because, among other things, it resulted from perjured testimony.
The petition further alleges that since the paroles were granted to the petitioners, a committee of Congress has conducted an investigation in an attempt to show that the paroles were brought about by corruption and undue influence and should not have been granted; that the committee seeks to compel the present members of the Parole Board to revoke the paroles; that although the petitioners have not violated the conditions of their paroles, members of the Parole Board have told the Congressional Committee that action will be taken on said paroles; that the petitioners have requested a hearing before the Parole Board before any action is taken to revoke the paroles but this request has been refused. A five volume copy of the transcript of the Congressional Committee hearings was filed with the petition.
Although the Parole Board had not yet revoked the paroles when the petition for the writ of habeas corpus was filed, the petition requests that should such action be taken by the Parole Board, this court issue the writ and grant the petitioners a hearing to determine if there is any evidence to support such action and to grant whatever relief is necessary to assure to the petitioners due process of law.
On June 15, 1948, Fred D. Rogers, one of the members of the Parole Board, signed and issued a warrant for the arrest and return to the federal penitentiary of the petitioner Paul De Lucia. The warrant recites the judgment of conviction in New York and the release of De Lucia on parole on August 13, 1947. It states that reliable information has been presented to the member of the Parole Board whose name is affixed to the warrant that the paroled prisoner named in the warrant has violated the conditions of his parole and that said prisoner is declared to be a fugitive from justice.
On June 16, 1948, the United States Marshal of this District executed the parole warrant by taking De Lucia into custody. Thereupon this court issued the writ of habeas corpus returnable forthwith. On the same day the Marshal produced the prisoner in court and filed his return to the writ.
The Marshal stated in the return that De Lucia was held under the parole warrant; that the petition for the writ did not state a cause of action because this court is without jurisdiction: (a) to review the judgment of conviction in New York; (b) to review the action of a member of the Parole Board in issuing a warrant; and (c) to inquire into the custody of a prisoner being held under a parole violation warrant until after the parole board has held the hearing on the warrant that is required by Section 719 now § 4207 of Title 18 U.S.C.A.
De Lucia furnished bond and is now at liberty under the writ pending determination of the issues. The other two petitioners were not brought before this court and are not parties to this proceeding.
An amendment to the Marshal's return was filed on July 8, 1948, denying that De Lucia was being illegally restrained under the New York judgment and denying and putting in issue the allegations of the petition in that respect.
On July 7, 1948, De Lucia filed his traverse to the Marshal's return. The traverse alleges that De Lucia's parole was issued in good faith by the parole board; that there is no basis in fact or law for its revocation; that a hearing will disclose that there has not been any violation of the conditions of the parole; and that the warrant was issued arbitrarily without just cause. The traverse also recites the testimony of different members of the Parole Board given at the Congressional Committee hearings on different dates. It alleges that Judge Rogers, the member who signed the warrant, testified before the Committee on June 7, 1948, that the parole board had not received any reports of parole violation by De Lucia. It recites testimony by other members of the board that although De Lucia was being watched by the FBI and the Chicago police, no report of violation had been received from the parole office in Chicago, notwithstanding that the board members knew of no instance where a parole had been revoked without the complaint coming from the parole officer. Other allegations in the traverse attacking the evidence supporting the conviction in New York are disregarded because the writ of habeas corpus cannot be used as a means of securing a review or modification of the judgment of conviction upon which a petitioner's custody and detention are based. Story v. Rives, 68 App.D.C. 325, 97 F.2d 182.
The United States Attorney acting in the Marshal's behalf, filed a demurrer to the traverse.
The function of the writ of habeas corpus is to provide the prisoner with an immediate hearing to determine whether his detention is legal and whether it is justified by law. Clark v. Surprenant, 9 Cir., 94 F.2d 969.
Section 716 of Title 18 U.S.C.A. combined with the later enacted sections 723a and 723b furnish the member of a parole board with authority to release prisoners in federal penitentiaries who apply for parole to return to their homes upon such terms and conditions as the board of parole shall prescribe. During the period of parole, the prisoners remain in the legal custody and under the control of the warden of the prison from which they were paroled until the expiration of the original sentence. Section 716, Title 18 U.S.C.A Section 717, 18 U.S.C.A. authorizes the issuance of a warrant for retaking a prisoner who has violated the conditions of his parole. This section reads as follows:
"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."1
Section 717 was amended in 1930 and again in 1940 by Section 723c so as to invest exclusive authority to issue a warrant for the retaking of a prisoner for violation of parole in the members of the board of parole. However, the conditions on which such a warrant may be issued remain as they are stipulated in the original Section 717.
Section 719, 18 U.S.C.A. provides that a hearing shall be given by the board of parole to a prisoner who has been retaken by a parole warrant. This section reads:
It is noted that Section 717 provides that if a member of the parole board shall have reliable information that a prisoner has violated his parole, he may issue a warrant for the retaking of said prisoner.
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.
As I view this situation, the question that is presented by the demurrer to the traverse can be divided into two parts: (1) whether the member of the parole board was required under Section 717, as amended, to be in possession of some information relative to violation of the parole before he could issue the parole warrant; and (2) does De Lucia have the right to have determined in this...
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