Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PHILLIPS v. UNITED STATES BOARD OF PAROLE

March 31, 1966

CHARLES H. PHILLIPS, PLAINTIFF,
v.
UNITED STATES BOARD OF PAROLE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Parsons, District Judge.

MEMORANDUM OPINION AND ORDER

On March 23, 1964, Charles H. Phillips brought an action against the United States Board of Parole seeking his release from detention on the ground that the United States Board of Parole had revoked his conditional release from a previous sentence without affording him a local revocation hearing of the kind contemplated in Hyser v. Reed, 115 U.S. App.D.C. 254, 318 F.2d 225 (1963). Jurisdiction is invoked by virtue of Title 28, United States Code, Section 1343, and Title 28, United States Code, Sections 2282-2284.

This cause has been transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1391(e) and 1404(a), according to the procedure outlined in Van Dusen v. Barrack, 376 U.S. 612, 623, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). The suit was originally filed in the Federal District Court in Washington, D.C. The District Court had granted summary judgment in favor of the United States Board of Parole and was reversed by the Court of Appeals for the District of Columbia (Phillips v. United States Board of Parole, 352 F.2d 711 [1965]). The Court of Appeals stated at page 715:

  "Although the literal requirements of Rule 56(e) may
  not have been complied with we think the record
  disclosed a `genuine issue' as to whether appellant
  had refused to request, and had thereby waived, a
  local hearing prior to the revocation of his
  release."

The Court of Appeals further stated at page 715:

  "Only three facts emerge with any clarity from this
  scrambled collection of allegations and
  counter-allegations. The first is that appellant is
  now incarcerated solely because of alleged violations
  of his conditional release. He has never yet been
  prosecuted on the charge on which he was arrested in
  Nevada and for which, among other things, his release
  was revoked. (The record does not disclose whether
  that charge is still pending against him.) Second,
  appellant's release was revoked without a hearing of
  the kind contemplated by this court in Hyser v. Reed.

  Appellees have never suggested otherwise but have
  contended throughout that appellant on two occasions
  waived his right to such a hearing. And, third,
  appellant has never had a hearing on whether he did
  in fact waive his right to a prompt, local hearing
  before his release was revoked. We think that, at a
  minimum, he is entitled to a hearing on this latter
  issue."

According to the directive of the opinion cited above, I set the matter down for hearing on January 13, 14, and 17, 1966, in order to determine whether Charles Phillips had waived his opportunity to have a local revocation hearing.

Plaintiff was first convicted of a Federal narcotics violation on January 13, 1956. He received a ten year prison term. In 1962, he was conditionally released to the Northern District of Illinois after a confinement of about six years and one month. Plaintiff states that he lived in Chicago and operated his own restaurant business. He alleges that he received a telephone message informing him that his sister in California was critically ill and he decided to visit her. There is some confusion in the record concerning whether Mr. Phillips received permission to leave the jurisdiction. While evidence on this issue would be relevant to the Parole Board in determining whether there had been a parole violation, I do not deem it relevant to the issue before me, i.e., whether Charles H. Phillips waived his right to a local revocation hearing.

In the course of the hearing before me, appellant testified that after he arrived on the West Coast he decided to stop in Las Vegas to play at The Casino. On September 15, 1963, he was arrested in Nevada on another narcotics charge. (Docket No. 9, Case No. 138, alleged violation of Title 26, Section 4704 [a] U.S.C.). A parole violation warrant issued, but it was not served upon him in Nevada. Phillips was then arraigned in Nevada on still another narcotics violation charge emanating from the Northern District of Illinois, and, in October 1963, he was removed from Nevada to Chicago to answer to the complaint on that charge.

Phillips testified that after he was here in Chicago, the parole violation was brought to his attention by Parole Officer Lee A. Rubens, but that instead of receiving the requested local hearing, he was returned to the Federal Penitentiary at Leavenworth, Kansas, where he submitted under protest to a hearing before the Board of Parole. It was determined at this hearing that he had violated the conditions of his parole, and he was ordered to serve the entire unexpired portion of his original sentence. Since the mandatory release occurred about forty-seven months prior to the termination of sentence, he now stands to be incarcerated for the remainder of that period of time.

The testimony of one David Julius Strong, another parole violator, was that on October 21, 1963, he saw plaintiff in custody at a meeting at which plaintiff and a John McMullen, still another alleged parole violator, conferred with Lee A. Rubens, a Parole Officer, on how to fill out Form 59a. Mr. Strong testified that Mr. J. Homer Heagley and Mr. Ben Meeker of the Probation Office also were present, and that he observed Phillips sign a document, although he could not state positively that it was Form 59a.

Mr. Rubens testified that on three occasions Mr. Phillips was given an opportunity to elect a local hearing, and failed to do so by refusing to sign Form 59a. The first opportunity was on October 21, 1963, when they met with plaintiff in the United States Marshal's Conference Room. He stated that subsequently, on December 24, 1963, Mr. Phillips was contacted twice regarding Form 59a, but that he would not elect any of the alternatives available to him on the form.

Two documents were introduced in evidence by the United States Board of Parole to corroborate the testimony of Mr. Rubens and Dr. Meyer. The first is a letter written by Mr. Rubens to Mr. Joseph N. Shore, a parole executive in Washington, D.C., and dated October 29, 1963. On Page 4 of the highly detailed factual account, the letter states in pertinent part:

    "It should be noted that Mr. Phillips did not
  refuse to sign Form 59a out of any pronounced
  resistance on his part. His decision appeared to be
  based on lack of understanding of possible
  consequences should the Government decide not to
  prosecute him after he had chosen an alternative and
  signed Form 59a."

The second document is Form 59a itself, with a notation in the upper right-hand corner in the handwriting of Mr. Rubens, which states: "Mr. Phillips refused to sign Form 59a in presence of PO and Sup. Charles Meyer on two occasions on 12-24-63." This form was in the Phillips' file here in Chicago.

Form 59a has recently come into use in cases of alleged Federal parole violation. Presumably the form is to be tendered to the suspected violator so that he may select one of three alternatives by checking the appropriate place on the form. The three choices are as follows: (1) that he be afforded a revocation hearing by the Board of Parole upon his return to a Federal institution; (2) that his preliminary interview be postponed to enable him to obtain counsel and witnesses to compile a record as to why his parole should not be revoked; and (3) that he request a local revocation hearing. In the interest of accuracy, photographs of the front and reverse sides of the form follow:

Parole Form 59a (Oct. 1963)

UNITED STATES DEPARTMENT OF JUSTICE United States Board of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.