# Lupo v. Zerbst, Warden, 92 F.2d 362 (5th Cir. 1937)

Canonical: https://mobfiles.org/items/courtlistener-lupo-v-zerbst-92-f2d-362/

Fifth Circuit opinion of 19 October 1937 affirming the denial of Ignazio Lupo's habeas corpus petition after the President revoked his conditional commutation in 1936 and he was returned to the Atlanta penitentiary.

United States Circuit Court of Appeals, Fifth Circuit, No. 8471, decided 19 October 1937, before Judges Foster, Sibley and Holmes; opinion by Judge Holmes. Rehearing was denied on 8 December 1937.

The court states: "Appellant was convicted of the crime of counterfeiting, in the United States District Court for the Southern District of New York, on February 19, 1910, and sentenced to serve a term of 30 years in the federal penitentiary at Atlanta. On February 21, 1910, he entered upon his sentence and served time uninterruptedly until June 30, 1920, on which date he was released on parole." On 29 October 1921 the President granted a conditional commutation; "The following month appellant went to Italy, returning in May, 1922." He was ordered deported at Ellis Island, but on appeal to the Secretary of Labor that order was reversed.

"On July 10, 1936, the President revoked said commutation because of appellant's association with persons of evil character, of his having been arrested and indicted on various charges, and of his having been engaged in racketeering and other unlawful enterprises." Those are the grounds recited in the revocation order, which the opinion quotes; they are not findings made in this case, and the opinion names no person, charge or enterprise. The order itself calls him "Ignatio Lupo." The court notes that "no attack was made upon the indictment, trial, or sentence."

The court held that the power to pardon includes the power to commute on lawful conditions, that Lupo had accepted the conditions, and that he had no vested right to good-time credit. "The judgment discharging the writ of habeas corpus and remanding appellant to the custody of appellee is affirmed."

## Sources

- CourtListener (Free Law Project), text of the opinion: https://www.courtlistener.com/opinion/1501858/lupo-v-zerbst/