*2 HOLMES, Before SIB- and LEY, Judges. Circuit SIBLEY, Judge. Appellees con- Compagna Gioe were and victed, others, together South- ern District and New York imprison- ceived a years sentence of ten ment, Compagna, affirmed United States v. al., Cir., de- certiorari nied, L.Ed. U.S. 65 S.Ct. Flaving their served one-third of they placed parole Au- sentences gust pub- newspaper 1947. Unfavorable followed, investigation, licity and an Congress had committee of operations particu- and the Parole Board larly of this case. The Board members granted office, were out of and the then members testified knew of no to revoke them. The commit- tee, however, reported, things, among other agreed to take definite 19, 1948, action on the committee’s June request that these be revoked. On July Judge Rogers, one of the members, three Board issued warrants the usual form reciting that “reliable in- formation been has to the under- signed member this Board that the said paroled prisoner named in this has violated the conditions of his and paroled prisoner the said hereby declared fugitive justice”; to be a and order- ing peniten- his arrest return and to the tiary. parolees Both promptly ar- rested brought and to the Atlanta Peniten- tiary. Each on filed lengthy application corpus, for habeas at- tacking validity of their trial and sen- tence; attacking the warrants issued by Judge Rogers Congres- because of the enquiry sional and the testimony therein of each Board member that there had been no breach of further alleged there had not since been any breach Rogers reliable Mundy, Atty. Harvey Ellis U.S. J. any; information of the Board had Atty., Atlanta, Tisinger, Asst. S. Ga., U. H. appointed a hearing September 8, 1948, for Gottshall, Atty. Dept, Justice, A. E. but had announced no counsel would be C., appellant. Washington, D. prayers heard. The were that Andrews, Atlanta, Ga., Neil M. Wm. declare the conviction and warrants to be Stewart, Ill., Chicago, appellee. Scott void jurisdiction; Board without ái and alternatively Board; the Board be ordered ble that in counsel’s reply to to return request home letter, he had written an exhibited Chicago arrested, where they give enclosing copy Board’s Rules them a Ad- according Regulations, giving assurance that *3 Act, ministrative considered; with counsel Procedure conduct since would be and reporter witnesses a fur- and glad that the Board to confer would with nished by paid by applicants. the Board or counsel at its in Washington office or con- applications set the any pertinent out which sider in behalf of information the applicant Board parolees, would notified the but it had never been the be investigated as the justifying policy revocation Board’s its de- to admit counsel to parole. of the prison- liberations or when it the interviews er; allege were to that procedure amended that the aof criminal trial
two including members not of the was not a necessary to determination the Judge Rogers, September question society had in Atlanta on the whether welfare applicants promoted in which conducted granting, would be by the revo- charges denied cation, the and made them or of a It con- modification them, were cross on up, examined Court cluded: “To sum it is that position our notes, porter taking that no other evi- a you but formal the is kind seek not representation provided dence shall, was and introduced for the how- statute. We denied, ever, glad counsel was and the Board re- writing, you to have submit in comply person fused headquarters, to with the Administrative or at our mate- Act; Procedure that the bearing and matter or rial on cases.” Washington. appearances continued and all referred He further testified that stenographi- Board respondent is War- named the reported, cally running into hundreds at Penitentiary, is not den of Atlanta the meeting every *4 agency ac- preclude (2) judicial review or im conduct, the good or that shortened agency discre- serving tion is law committed may be ameliorated prisonment Certainly no tion.” 5 U.S.C.A. parole. See prison § it outside the walls on doing or has 196, the Board is 193, 44 review what Corall, Anderson 263 U.S. v. done can be 247, undertaken 43, legislative grace 68 L.Ed. is a S.Ct. party, not and no such the Board is legislature where thing right. and not a given applica- can be it as these directions may such provide conditions and affix such pray tions for. no will. have administration as it Courts function, except give them as the statutes judge, however, The district held that respects parole, power. the As the the uncontradicted two statutes, now as the revision well applicants Judge Rogers was that could force, given bristle discretion pa have had no “reliable information” of inter and are silent about court violation, violation, role for there was no 18, 4202, pro ference. Revised warrants, 1948, August, and his issued in “may prisoners vides that certain classes of void, ignoring change in the stat pre parole”. 4203, be released on Section ute effective and that leaving no scribing hearing, sort of could hold Warden not “opinion Board”, says “the though already the Board had interviewed may in its discretion authorize the them and had under advisement the revoca prisoner parole”, release such paroles. tion of their December conditions fixed “in the discretion of the gave judgment discharge he for the Board,” remaining custody “in the legal applicants custody days, after fifteen Attorney and under the control Gen unless within time the Board aor 4205 provides: eral”. “A Section possessed member becomes of reliable in any retaking pri for the United States formation of during parole, may soner has violated his days and a new fifteen warrant is issued. only by the issued Board of Parole or a days Within the fifteen the Board ren- member and within thereof the maximum an paroles, dered order he was term or terms which sentenced.” certification thereof was made to the War- requires designated Section officers to He den. made a motion to reconsider the “by taking prison the warrant execute judgment and this order to the returning er and him to the court, and asserted that he now holds cus- Attorney General”, is, prison. tody, not under the warrants Rog- “A upon Section 4207 is: retaken ers, but under the order of the Board re- Parole, issued a warrant the Board of voking paroles. This motion was enter- appear shall be be and a granted. tained show-cause order thereof, fore the a member or an Without further evidence the motion was designated by examiner the Board. The that, on the denied “the revocations then, may or at time in its dis illegal based on Parole Vio- cretion, revoke order of and ter lator Warrants were issued without parole modify minate such the terms and my hearings opinion fair in- conditions thereof.” There nothing is basis for saying valid.” present statute, of force Septem- since no fair is this recital in the what .judgment: or on let counsel “On what come before the full Board evidence, any, Washington revo- other than mere material or cations, shown, cases, information bearing though on the petitioners still the darkness left he declined to have full trial. This scale which trials shrouded the habeas was not unfair. refusal to answer interrogatories members of the Board declined some to the be was due lief, even what grounded, state violations think we well charged part indicated that hear- had no in the Board’s deliberations ings granted petitioner would than paroles. requirements about as to ‘appearances’ procedure had 'before in the Administrative Procedure ‘appearances’ fall far application Board. These short Act have no the Parole procedure of the fair law contem- Its Board. is fixed a later plates.” Appeals statute, j udg- are taken from both 18, Chapter Revised Title ments. Parole. Fleming We are that in aware Tate, U.S.App. D.C. incorrectly judge 1. The district 1 it statute, 18 U.S. then states that declined state paroled stating C.A. that a pri-j *5 charged. parole violations At the ' soner given returned to “shall be in time of each arrest notified opportunity appear an to said board before ! writing charges, against of the three Com c parole”, meant he an effe should have Gioe; ex pagna and five 1 hearing, including tive assistance of coun- original pleading. in hibited his notice his sel, practice long and the otherwise was \ they, irregular, warrants were served If the n unlawful. seem The decision would to i Board, 'bring parolees before the to corpus on validate habeas a vast number jur which and exclusive a continuous has. parole Congress, revocations. in revis-j respect pa in isdiction over them of their law, parole 18, ing the Revised They charges against roles. knew 4207, changed the read: “A wording to them, “appearance” given and were prisoner retaken upon a warrant issued says the statute shall be afforded Parole, the Board of shall op an any provide does not them. The law portunity appear Board, to before the a “hearing”. Irregularity the arrest designated member thereof or an examiner ¡ deportation alien does not invalidate of an change the Board.” deeply1 cuts This proceedings conformable otherwise to law. , appearance into the idea that the is to be Tod, Bilokumsky United States ex v. rel. a An now, trial. examiner may conduct it 158, 54, 149, U.S. 44 S.Ct. 68 L.Ed. 263 taking and it would seem that the 221; general ar nor does an unlawful prisoner, : perhaps prevent trying rest a court from one on a witnesses, contemplated. is alone charge jurisdiction; valid of which it has Chairman’s formal offer j, to counsel that Law, C.J.S., 144; 14 Am. 22 Criminal § or in j appear person before the Law, Jur., Criminal Parole revoca 219. desired, writing what he fol- f discretionary, is informal and and we tion appearance lowed person the! starting no need of afresh with a new see prisoners before two members of warrant, “appear affording if due after preserved heard of;! the record parole is satisfied that ance” say, had to we think is a suffi ' revoked, it. ought to and has -be revoked appear. opportunity cient to We think unimportant. has become warrant in holding district court erred ;] or- nullities, ders those ‘Chairman, Killing Dr. justifying not' the Warden in holding the er, was not member when the a Board 'Con prisoners. enquiry None gressional was made. anything Corall, had 3. When
present members to do Anderson v. 263 enquiry. 68 then under L.Ed. grant U.S. S.Ct. decided, incapacity of a They penitentiary to Warden do always a member of its parole, board duty. Chairman letter offered to dissenting. Judge, issue specifically lie was authorized He was parole a violator. following my study In of this case proper person to defend attack viewpoints developed: have pres corpus. Under the board habeas appellees lawfully paroled. 1. The parole part in ent has no law Warden 2. Between the dates of their matters, nothing about what knows reincarceration, and their re-arrest and in no Washington, and is Board does in con- they had committed no violation position proceed explain defend its ditions of their corpus against ings. The use of habeas neither at That the Parole wrong the Warden to reach time the issuance the warrant declar- such, procedure, is not Board’s con- ing the to have violated the Dishong, encouraged. In v. Bowers fugitives ditions of the Marshal, Cir., this Court 103 F.2d justice, nor at the time of revocation corpus lie to held that habeas would not information”, parole, “reliable judicially test whether violation kind, pa- or information of Sanford, Again ’occurred. Fox rolees had pa- the conditions of violated Cir., we held habeas role. sufficiency available test the Vas provisions 4. That the of the statute justify quiring the Board after the issuance of a Circuit, ijhe Board’s warrant. The Sixth warrant and before revocation of Bare, United States v. ap- to afford parolees an that a court should not pear were intended to re- interrupt procedure by quire comply *6 with the Consti- Circuit, prescribes. the statute The Fourth prohibition against depriva- tutional Nicholson, in United States liberty tion of opportunity be without remedy held that the fail for the Board’s heard, appearance parolees allowed give appearance ure to a proper before it in this case afforded no such corpus, proceed is not habeas but a direct to be heard as the law and the Constitution ing mandamus the Board in the contemplate. ruling District of Columbia. A similar Dillard, made United States v. rightfully 5. That one who has earned Cir., aIf revocation aof and lawfully parole achieved has a status— parole can ever collaterally be attacked call you it will—which he has the corpus against Warden, ought right it to defend and of which he be cannot only to be nullified on plain evidence and deprived except by process law, due of hearing. .a full The district court here or, afforded either upon that the warrant was failure, invalid and that all its the courts. void, that try followed was and did not at newspaper 6. Neither adverse criticism all pleading the Warden’s presenting of granting or demand or revocation, orders hastily condemned request a sub-committee of the Commit- on the them further that the hear Expenditures tee on in the Executive De- unfair, ing was and released the supplant partment 'Congress can lawfull from custody. the Warden’s requirement statute “reliable parole”. information of judgments appealed re- 7. That the rights Parole cannot appellees versed are directed to be fully granted revoke a parole lawfully with- Warden, remanded to grounds cause or for such out revocation applicants, advised, leave to the with if so acquaint and the failure of the Board to enlarge present, pleadings their so as either the or the 'Court with below can, a they nullity case total for the any grounds revocation of the orders proof be taken should as they held. that there were no but also now liberty deprivation granted,
should be taken Member Monkiewicz as process. appearing without due to have as such continued pris- throughout; each stating that 8. The judged by case the law must be oner time written at the notice it 1, 1948, as July at the time of existed or charges his arrest viola- arrest, the issuance of for the the warrants against him, being tion made that the fact Sep- and not Code of New Judicial then, charges the written were formulated tember seq. U.S.C.A. § appearing and it not made when may 9. The fact a criminal trial prisoners. known knew them Each despite lawful the fact the defendant Sept. 2, days six before the arrest, taken on an invalid warrant of alleged them analogized opinion, majority fully for ha- then filed inapt seems here. in a The trial criminal corpus. beas These are imma- inaccuracies case is on an indictment or information terial decision made. whereby, results, if conviction the defend- Since neither judge who concurred may deprived ant liberty. of his It is rehearing, desires a motion the indictment or informs therefor in the above numbered named and the defendant of the charges and what case is denied. expected shall be In meet. a revocation it is the arrest that deprives liberty him and that should (concurring acquaint him of the thing result). which he charged. my I adhere but agree dissent that under our Rule 29 the motion for re- newspapers, 10. Neither sub-commit- should denied. tees, political repercussions, whims, or capriciousness, singly collectively, or with- more, justifies out the incarceration longer
incarceration of an individual than is reasonably afford him necessary to charges
full and fair hearing on adduced
against him. pronouncement Notwithstanding the it, Board to the sub-committee Pilate, found no fault in the
like release, notwithstanding the since v. UNITED STATES. LANGFORD to answer the Board members refusal of No. 12156. divulge, either interrogatories or to Court, any parolees or to the lower reliable Appeals States Court of United information as Ninth Circuit. into men have been cast back Oct. which no relief can come Rehearing 28, 1949. Denied Nov. the law. is above facts, below, found without contradiction the evi- and I think that its should dence
be affirmed. Rehearing. Motion for CURIAM.
PER opinion in- seems stating that no member of the
accurate when Parole Board was such notes the that He answered a member of the Board. Washington transcribed and each case applicants for habeas holding the separately thereafter considered the sentences, delay members, Board that some is in- so Rogers which Judge warrants under the evitable; but that there no un- would be valid; Administra- he said were delay necessary deciding the cases of application, Act but had no tive Procedure applicants. interrogatories Several he- de- parole system thing generis, sui the was a answer, and clined to the Board’s files he by the Board administered discretion produce, because involved refused exempt judicial review from matters then before Board pending the Administrative Procedure language of an- member Monkiewicz decision. Board Act; is that conduct swered to same effect. No effort was corpus, parole be- not reviewable made further answers. to force legal right. not a grace ing a matter judge declined for want district traversed, habeas responses sentences, proof (cid:127)of to hold invalid the issued, hearing was a full writs perjured attacked as based on petitions together. Inter- two used, knowingly a con and on propounded rogatories like tenor conspiracy viction as made New two Rogers, Judge made, York, really Chicago. all, it at Board, one of whom was members Moreover, Title re Revised Congressional investi- appointed since quires attack that Rogers away home gation. tried case. Killinger answers. Chairman and made judge apparently The district meet had asked to counsel answered Act, thought the Administrative Procedure be- been but had refused 1001, and following, has no U.S.C.A. required by procedure was not cause (cid:127)application procedures to the of the Parole and was followed Parole Statute revoking, paroles, in granting Board; he was advised that the them, express- modifying though he did not inapplica- Act is Procedure Administrative 1, 1948, requiring that the warrant ap ber thought been ly rule. It has never so stated information” based on “reliable Attorney Gen plicable by Board or It is 18, Section approves former appoints its members eral who pa- whole matter very evident that the it re procedure The full dress its rules. discretion informed impos roles left is practically quires would render it part made a is not the Board. Court action its business. to handle for the Board sible Act, Procedure it. The Administrative penitentiary A sentenced acts of court executive, review authorizing by the turned over court them agencies governs, as to which it General, have the namely Attorney when “(1) excludes such action statutes may be term That the sentence executed.