United States ex rel. De Lucia v. O'Donovan, 178 F.2d 876 (7th Cir. 1949)

Circuit Court of Appeals, Seventh Circuit, decided 8 December 1949 before Judges Major, Finnegan and Lindley; rehearing denied 31 January 1950.

The opinion states that after De Lucia’s parole in August 1947 a congressional subcommittee investigated the grant of paroles to him and “his fellow conspirators. Hearings began September 25, 1947, and ended June 7, 1948.” It records that Fred S. 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 district court overruled the government’s demurrer; when the government “elected to stand by his demurrer,” the court “entered judgment discharging” De Lucia.

The Seventh Circuit agreed: “it seems clearly arbitrary and capricious to issue a parole warrant without any information relative to a parole violation by the one against whom it is directed, when, as here, the statute makes ‘reliable information’ a necessary condition precedent to a valid warrant.” It distinguished the Fifth Circuit’s decision the month before in Hiatt v. Compagna.

The records differ in small details, and each is quoted as printed. This opinion prints the Board member as “Fred S. Rogers” where the district court printed “Fred D. Rogers.” It gives June 15, 1948 as the day De Lucia was taken into custody, where the district court gave June 16. Its closing date for the hearings (June 7, 1948) is the court’s statement; the printed hearing record was not found.