United States District Court, Northern District of Illinois, E.D
August 21, 1952
UNITED STATES EX REL. DE LUCIA
The opinion of the court was delivered by: Igoe, District Judge.
This is the second Habeas Corpus proceeding by Paul De Lucia.
It appears subsequent to the case of U.S. ex rel. De Lucia v.
O'Donovan, D.C., 82 F. Supp. 435, affirmed 7 Cir., 178 F.2d 876,
Dr. Killinger, Chairman of the Parole Board, issued a new parole
violation warrant on November 22, 1950. Petitioner, on November
24, 1950, filed his Petition for Writ of Habeas Corpus and
thereafter first and second amended petitions, which amended
petitions added Dr. Killinger and the Parole Board as
Respondents. On December 4, 1950, Motion of the Government to
Dismiss Dr. Killinger and the Parole Board on jurisdictional
grounds was allowed and the present Respondent is the U.S.
Marshal. Upon rule to show cause why the writ should not issue,
the Marshal filed his answer and amended answer, rule to show
cause was allowed, and thereafter, on February 16, 1951,
Respondent filed return to the writ which petitioner traversed
and respondent filed replication.
Under agreement of the parties and consent of the Court, this
matter has been continued from time to time pending the outcome
of Compagna v. Hiatt, in the District Court in Atlanta, Georgia,
decided September 18, 1951, reported in 100 F. Supp. 74, with
subsequent appeal dismissed by the Government.
The parties on May 27, 1952, nunc pro tunc, as of May 16,
1952, stipulated, subject to respondent's objection as to
materiality, competency and relevancy, that the Court consider as
evidence on behalf of Relator's position the following:
Atlanta Proceeding, June 11-14, 1951.
Testimony of Dr. Killinger, Chairman of the Board, beginning at.
[ Page 4]
Testimony of Mr. Lasho, Page 201, of transcript.
Testimony of Louis Campagna, Page 201, and Charles Gioe, Page
Testimony of Eugene Bernstein, Page 370.
Letter from Chief Probation Officer Fisher to Parole Executive
Urich dated March 8, 1948, at Page 64 of First Supplement to
Motion of Campagna and Gioe in the case of Compagna v. Hiatt.
Letter from Dr. Killinger to Fisher dated March 25, 1949, Page
Letter from Fisher to Dr. Killinger dated April 8, 1949, Page
Deposition of Mrs. Cook, Airline Hostess, at Page 132.
Testimony of Colosimo before the Hoffman Committee, found in
Relator's traverse of July 7, 1948 in the first De Lucia
proceedings and in this cause, and Thereafter, the Court to take
this matter under advisement.
The Government's principal objections to the evidence follows:
The evidence of the airplane trip and tax settlement at
Atlanta, Georgia is applicable only to Campagna and Gioe, and De
Lucia was not before that Court.
The present warrant dated November 22, 1950, is based on
charges different than the July 1948 warrant.
The evidence at Atlanta refers to matters prior to March 1948,
and the present warrant was issued two and one-half years later
and based on different charges.
Relator's previous statements and affidavits apply to the 1948
warrants and are not here applicable.
The Government has controverted all of Relator's statements and
affidavits by its pleadings and the writ should be discharged.
Neither party has offered or tendered further proof and the
Court concludes the evidence of both parties is before the court
and the same constitutes a full and complete hearing of the
respective contentions. The present motion filed by Relator is
that the Court make final disposition of this cause on the record
as it now stands.
Relator contends the instant proceeding is moot because
subsequent to this proceeding Relator was again placed on parole.
The court is of the opinion such Board action was to continue
supervision during the present litigation and should not be
construed as abandonment of the charge of parole violation.
Relator further contends the charges contained in the November
22, 1950 De Lucia case, are now res adjudicata; that the
Relator has never violated his parole, the Board has no new
evidence, and therefore the present warrant was arbitrarily
issued without any evidence, and therefore a nullity and Relator
is entitled to relief by habeas corpus.
The following referrals were charged in the first case:
"1. Failure to make full and truthful written
reports to the Supervisor of Parole.
"2. Untruthful statements covering expenditures
during the months of December 1947, and January 1948.
"3. Association with persons of bad reputation.
"4 Failure to conduct himself honorably.
"5. Failure to reveal source of monies used in
settlement of Internal Revenue Tax, when questioned
before a legally constituted body."
Referrals in the instant case are:
"1. Failure to make full and truthful parole report
covering expenditures during the month of January,
"2. Failure to reveal source of monies used in
settlement of Internal Revenue Tax when questioned
before a Federal Grand Jury.
"3. Failure to reveal source of monies used in
settlement of Internal Revenue
Tax when questioned before a Congressional Committee
of the Eighty-first Congress.
"4. Failure to reveal the identity of two traveling
companions on the TWA flight from Kansas City,
Missouri, to Chicago, Illinois, August 13th, 1947
when questioned before a Federal Grand Jury.
"5. Failure to conduct himself honorably."
Comparing the former with the present referrals, number one is
identical except the month of January, 1948 is in the present
referral; two is the same as number one in the present referral,
except here, December 1947 and January 1948 are designated;
former three has been omitted in the case at bar unless it means
the airplane trip; four is identical with present five; former
five is the same as present two and three except the legal bodies
are designated as Grand Jury and Committee, and present number
four is new unless contained in the general charge.
In the memorandum and explanation of the referrals, present
number one relates to the wedding breakfast and subsequent
reception for De Lucia's daughter at the Blackstone Hotel on
January 24, 1948. The charge is based that money given by guests
at the wedding breakfast and reception was not reported as income
to the parole authorities on petitioner's monthly report. The
local parole agent at the time had a complete report from
petitioner that the money contributed by such guests was the
property of the newly married couple and not income to
petitioner. Such report was accepted by the parole authorities
and there is no evidence to establish such funds belonged to
petitioner and should have been reported as income to him.
Referrals two and three relate to petitioner's failure to
disclose the source of money used in settlement of his federal
income tax when questioned by a 1947 Grand Jury and a special
congressional committee in 1950. Petitioner's tax liability was
settled by his attorney at Chicago under unusual circumstances.
Petitioner under oath has stated, he did not under the 1948
warrant, nor under the present proceedings, nor at the time of
the 1947 Grand Jury and the 1950 Special Committee, know the
source of the funds used for the payment of his tax, and there is
no evidence that he did know the source. Other than suspicious
circumstances, the Government has no further proof and there is
no evidence to support this charge. Referral four charges on
August 13, 1947, when petitioner was paroled, there were two
additional traveling companions on the airplane trip from Kansas
City to Chicago whose names petitioner refused to reveal to the
parole board and the 1947 Federal Grand Jury. Petitioner in the
prior proceeding and here denies he knew the other two
passengers; his testimony is he had no conversation or
association with them during the trip and upon arrival at Chicago
went directly to his home in a taxi with Louis Campagna who lived
near him. This is substantiated by the Campagna testimony in the
Atlanta case, and the Government has no evidence to the contrary.
Referral five relates to and is dependent upon the preceding four
There is no direct evidence of parole violation under the
present warrant. The charges are predicated upon the same
circumstances, events and evidence as the 1948 warrant. Such
charges and explanations are based upon inferences and
conclusions assumed or felt by the Board to exist and there is no
other or further evidence of a competent legal nature to the
The present statute, Sec. 4205, Title 18 U.S.C.A. omits
"reliable information", and now provides for a warrant for one
who has violated his parole. Respondent contends reliable
information is not required nor indeed is any information now
required to support a warrant of revocation. Such contention
would result without redress in the arrest and detention of a
parolee who has fulfilled all requirements of his parole, and
entitled to remain on parole. The court may not adopt such
contention. Before a prisoner is paroled, certain statutory facts
and circumstances are required to be present, born from the
nature of the offense, good prison conduct, the likelihood of
rehabilitation, and the effect on society. These, together with
others, relate to the right of a prisoner to parole
which the Board under the statute considers. Whether there exists
sufficient facts and circumstances to justify the exercise of
requisite statutory discretion remains with the Board. When
favorably exercised, a new status or legal right arises, the
prisoner is admitted to parole and allowed to serve his remaining
sentence outside prison walls under supervision and monthly
report to his local parole officer. Such parole rightfully
merited and earned under the statute invests in the parolee a
status or right which he has the right to defend by due process
in a court of law. In such case where it is alleged the parole
termination was unlawful, the court is required to inquire into
the legality of detention.
The parole laws are for the protection of society as well as
rehabilitation of the parolee. If a prisoner be required to serve
his maximum sentence he is ultimately turned back into society
without supervision, and in many instances without adequate
rehabilitation. When a parolee, as here, is normally adjusting
and abiding by the terms of his parole, no parole violator's
warrant should issue under the present statute without
substantial evidence of a parole violation. To do so permits
interruption of the rehabilitation by separation from family and
job, thereby delaying and demoralizing the parolee. This is a
loss to society and the unwarranted interruption imperils, and in
many cases, would destroy the rehabilitation and the parole
structure. The court is of the opinion such was not the
congressional intent. Where the parole has been rightfully earned
and the process of rehabilitation entered into with satisfactory
progress, the court is of the opinion the congressional intent is
such progress shall not be lightly interrupted and only disturbed
upon substantial evidence of a parole violation. Here, prior to
the present warrant neither the local parole officers, nor any
member of the Board appearing before the committee, had or knew
of any facts or information of parole violation, considered
petitioner was adjusting normally and was a good parole risk.
During the pendency of this proceeding, no new evidence of a
parole violation has been brought to attention, and the court is
of the opinion had such been the case, it would have been
presented to the court.
Having in mind the principles of the first case on appeal, the
opinions of the District and Circuit Courts of the Fifth Circuit
in the Campagna and Gioe cases, and from the evidence, arguments
and briefs before the court, the court finds the present warrant
is based upon the same charges as contained in the 1948 warrant,
and there is no substantial or legal evidence to justify the
charge of parole violation. The basis of both warrants are the
conclusions arrived at by the present Board from inferences and
suspicion created by the unfavorable publicity in the former
Board granting the three paroles and the desire of the current
Board to be relieved therefrom. Such are insufficient to support
a warrant for parole violation and the same was arbitrarily
issued without evidence and therefore a nullity.
The restraint by respondent is illegal and Relator is
discharged, not to complete liberty, but to conditional liberty,
in the custody of the Attorney General under supervision of the
Board of Paroles, as a reinstated parolee.
Judgment will be entered accordingly. Order to be presented to
the Court September 9th, 1952.
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