Hyser v. Reed (318 F.2d 225, 1963)

BURGER, Circuit Judge, with whom WILBUR K. MILLER, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, concur.

These cases arise from parole revocation proceedings and have been consolidated for en banc consideration by the court inasmuch as the basic questions are common to all the appeals. Each appellant was ably represented by court appointed counsel in the District Court and in this court.

Hyser v. Reed, No. 16716

Hyser was convicted of violation of the National Motor Vehicle Theft Act and the Marihuana Tax Act and was sentenced to a term of ten years imprisonment, on December 17, 1952. He was mandatorily released on March 5, 1959 from the United States Penitentiary, Leavenworth, Kansas. On November 18, 1959, he was arrested as a mandatory release violator and returned to Leavenworth Penitentiary. He had a hearing before a member of the United States Parole Board on January 12, 1960, but was not afforded the opportunity to be represented by counsel. His mandatory release was revoked on February 26, 1960. On May 10, 1961, following our holding in Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (-April 7, 1961), he was offered a new hearing with counsel present. He did not accept the offer and filed a declaratory judgment action seeking his release. Summary judgment was granted in favor of the Parole Board, and Hyser appealed. The record does not reveal what condition of parole Hyser was found to have violated, nor does Hyser’s complaint contain allegations denying violation of a condition of parole.

Jatoft v. Chappell, No. 16806

Jatoft was convicted of kidnapping and transporting a stolen vehicle in interstate commerce and was sentenced to a term of twenty years imprisonment, on June 27, 1947. He was released on parole, June 6,1956, from the United States Penitentiary, Atlanta, Georgia. On February 25, 1959, he was arrested on a parole violator warrant and on March 9, 1959, had a hearing before a member of the Parole Board at the Federal Detention Headquarters in New York City. At the hearing Jatoft was not advised of his right to have counsel and did not have the assistance of counsel. His parole was revoked on May 5, 1959. The violations of parole conditions upon which the Board relied to revoke Jatoft’s parole were association with one Brando, a person with a criminal record, and involvement with Brando in a scheme to defraud a department store by returning stolen goods for cash refunds. Before a representative of the Board, Jatoft admitted returning merchandise to the department store which involved the forging of names on credit slips. He denied knowledge of Brando’s criminal record. On May 15, 1961, after the decision in Glenn v. Reed, supra, he was offered a new hearing with the right to retain counsel, but he refused the offer and instituted a declaratory judgment action seeking his release. Summary judgment was granted in favor of the Parole Board and Jatoft appealed.

Whitling v. Reed, No. 16811

On June 18, 1957, Whitling was committed to the custody of the Attorney General under the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 5010(b) (1958). He was released on parole on June 20, 1959. On June 13, 1960, he was arrested on a parole violator warrant. He was afforded a hearing by the United States Board of Parole, on August 24, 1960, at the Federal Reformatory at Chillicothe, Ohio, but did not have assistance of counsel nor was he advised of his right to retain counsel. His parole was revoked on October 5, 1960. Appellant filed a declaratory judgment action in the District Court on March 1, 1961. Subsequent to Glenn v. Reed, supra, the Parole Board offered him a new revocation hearing with the right to retain counsel, which appellant refused. Summary judgment was granted in favor of the Parole Board in the declaratory judgment action and Whitling appealed. Whitling’s complaint does not contain allegations denying violation of condition of parole. Subsequent to judgment, however, Whitling asked leave to file an amended complaint which alleged that he had admitted violation of parole only as a result of coercion and threats, apparently allegedly made by representatives of the Parole Board. The District Court denied leave to file the amended complaint.

Thompson v. United States Board of Parole, No. 16873

Thompson was convicted of homicide by a General Court Martial while he was in service on June 22, 1945, ánd was sentenced to life imprisonment. Subsequently the Army jCIemency Board reduced the sentence to a term of twenty-eight years. He was released on parole on May 31, 1955, and was authorized to reside in the Bridgeport, Connecticut, district. On July 12, 1960, Thompson left his authorized parole district without permission. The same day he was arrested on a concealed weapons charge by New Jersey state authorities. He was tried and convicted of the weapons offense in a New Jersey state court and served a two month jail sentence. A parole violator warrant was issued for the retaking of appellant on August 25,1960, and he was arrested under this warrant on November 10, 1960, upon his release from a New Jersey state jail, and was returned to the Federal Penitentiary at Lewisburg, Pennsylvania. Thompson admitted violation of parole. He was afforded a hearing by a member of the Parole Board on February 7, 1961, but was not afforded the assistance of counsel nor advised of his right to counsel. His parole was revoked on March 14, 1961. On May 3, 1962, after Reed v. Butterworth, 111 U.S.App.D.C. 365, 297 F.2d 776 (Nov. 9, 1961), he was offered a new hearing with the right to retain counsel and present voluntary witnesses, which he refused. Appellant filed a declaratory judgment action seeking his release and summary judgment was granted in favor of the Parole Board. Thompson appealed.

Neiswenter v. Chappell, No. 17041

Neiswenter was convicted of mail theft and forgery and was sentenced to a term of ten years imprisonment, on July 17, 1953. He was mandatorily released on October 23, 1959. On September 18, 1960, he was arrested on a mandatory release violator warrant and was returned to the Federal Penitentiary at Lewis-burg, Pennsylvania. On September 30, 1960, he was interviewed by a case-worker at the Penitentiary, and was informed of the charges against him, which included theft, loss of employment due to absenteeism, leaving his authorized parole district without permission, contributing to the delinquency of a minor, breaking, entering and larceny. He admitted all of the charges except the charge of theft. He had a hearing before a member of the Parole Board on November 7, 1960, but was not given the opportunity to retain counsel. His mandatory release was revoked on January 6, 1961. Neiswenter filed a declaratory judgment action in the District Court seeking his release from custody on March 30, 1961. On May 2, 1961, after Glenn v. Reed, supra, the Board offered a new hearing with the opportunity to retain counsel, which he declined. On December 1, 1961, after Reed v. Butter-worth, supra, he was offered another hearing at which he would have been allowed to retain counsel and present witnesses in his behalf who would appear voluntarily. He declined the offer. Summary judgment was granted in favor of the Board of Parole in the declaratory judgment action on January 3, 1962, and Neiswenter appealed.

Fitzpatrick v. Chappell, No. 17042

Fitzpatrick was convicted of impersonating an Army officer and obtaining money under false pretenses in violation of 18 U.S.C. § 912 and transporting forged checks in interstate commerce and was sentenced to a total term of ten years imprisonment on April 16, 1951. He was released on parole on October 15, 1954. On October 27, 1957, he was arrested on a parole violator warrant and returned to the Federal Penitentiary at Atlanta, Georgia. On December 14, 1959, he was interviewed by the Chief of Classification and Parole of the Atlanta Penitentiary, was informed of the charges against him, which included failure to maintain contact with the parole office, leaving his authorized parole district without permission and issuing bad checks. He admitted that he violated the conditions of his parole. On February 12, 1960, he had a hearing before a member of the Board of Parole, at which time he was not represented by counsel nor advised of his right to retain counsel. His parole was revoked on May 2, 1960. Fitzpatrick instituted a declaratory judgment action in the District Court seeking his. release from custody, on May 10, 1961. A part of the relief requested was a declaration that his sentence expired April 16, 1961, and as a result he would not be subject to rearrest as a parole violator if he was released because of improper hearing by the Parole Board. On May 16 and June 26, 1961, after Glenn v. Reed, supra, he was offered a new hearing by the Board at which time he could be represented by retained counsel. He refused the offer. On November 30, 1961, after Reed v. Butterworth, supra, he was offered a new hearing at which he would have been entitled to be represented by retained counsel and to present witnesses who would testify in his behalf voluntarily. He refused the offer. On January 3, 1962, summary judgment was granted in favor of the Parole Board in the declaratory judgment action and Fitzpatrick appealed.

Williamson v. Chappell, No. 17043

Williamson was sentenced, on September 17, 1953, to a term of ten years in the custody of the Attorney General. On January 28, 1960, he was released on parole from the Federal Correctional Institution at La Tuna, Texas. On November 5,1960, a parole violator warrant was issued for his arrest and he was retaken on January 4, 1961, and was confined in the Leavenworth Penitentiary. On January 13, 1961, he was interviewed by a parole officer and informed of the charges against him, which included leaving his authorized parole district without permission and issuing worthless checks. lie admitted leaving/' the district without permission and de-'¡ nied issuing the worthless checks. On January 28,1961, Williamson had a hearing before a member of the Board of Parole but was not advised of his right to counsel. Parole was revoked on March 10, 1961. On May 5, 1961, after Glenn v. Reed, supra, he was offered a new hearing with the right to retain counsel, which he refused. He filed a declaratory judgment action in the District Court seeking his release. On December 1, 1961, after Reed v. Butterworth, supra, he was offered a new hearing at which he could be represented by retained counsel and could present witnesses in his own behalf who would appear voluntarily. He refused the offer. Summary judgment was granted in favor of the Parole Board in the declaratory judgment action and Williamson appealed.

Jamison v. Chappell, No. 17059

Jamison was convicted July 21, 1945, of transporting a stolen motor vehicle in interstate commerce and was sentenced to a total term of fifteen years imprisonment. On January 26, 1951, he was released on parole. On January 25, 1957, a parole violator warrant was issued for his arrest and he was retaken on April 1, 1957, and delivered into the custody of the warden of the Federal Penitentiary at Leavenworth, Kansas. He was afforded a hearing before a member of the Board of Parole. Although Jamison had retained an attorney to represent him at the hearing, the Board member refused to allow counsel to appear. Jami-son’s wife who came to the hearing to testify was not allowed to do so. The charges of violation of conditions of parole included leaving his authorized parole district without permission, associating with persons having a criminal background, passing worthless checks, burglary and robbery. At the hearing Jamison denied all charges against him. On June 5, 1957, his parole was revoked. On May 9, 1961, after Glenn v. Reed, supra, Jamison was offered a new hearing at which he could be represented by retained counsel. He refused the offer apparently on the ground that he was indigent at that time and could not pay his own counsel fee. On May 22, 1961, he filed a declaratory judgment action in the District Court seeking release. As a part of the relief, he requested a declaration that if he is released from custody because of the improper hearing that he not be subject to arrest on a violator warrant because his sentence time has run. On December 1, 1961, after Reed v. Butterworth, supra, he was offered a new hearing where he could be represented by retained counsel and present witnesses in his own behalf who agreed to appear voluntarily. He refused the offer. At the hearing on motions for summary judgment the District Court ordered the Board of Parole to hold the hearing which Jamison had refused. The hearing was held before a member of the Board of Parole in Washington, D. C. Jamison was represented at the hearing by counsel appointed by the District Court in the declaratory judgment action, though the appointment did not include this duty. On March 2, 1962, Jamison’s parole was revoked. On March 8, 1962, summary judgment was granted in favor of the Parole Board and Jamison appealed.

Proceedings Before The Board

In none of these cases were the appellants advised at the time of the hearing that they had a right to have retained counsel present at the revocation hearing, and counsel did not appear in their behalf. Nor were any of the appellants informed that they could present the testimony of voluntary witnesses, and such testimony was not presented. However as we have noted all these hearings occurred prior to our decisions in Glenn v. Reed or Reed v. Butterworth. Subsequent to the Glenn decision, in April, 1961, each appellant was advised of his right to have retained counsel present at a revocation hearing and a new hearing was offered, and in December 1961, following the Butterworth holding, each appellant except Thompson was advised that at a new hearing testimony of voluntary witnesses could be presented. Each appellant declined to sign statements accepting the proffered hearing, but elected instead to file suit for declaratory judgment in the District Court seeking immediate release from confinement. Each appeal is from summary judgment granted in favor of the government.

Contentions on Appeal

The claims for release by these appellants are predicated on the ground that the revocation steps taken by the United States Parole Board were void and illegal. In essence appellants claim they are entitled to a revocation hearing before the Board which includes

(a) appointed counsel for indigents,

(b) specification of charges,

(c) confrontation and cross examination of the Board’s informants,

(d) right to examine confidential reports of the Board,

(e) compulsory process to obtain witnesses, and

(f) a hearing held in the district where the alleged parole violation occurred.

In essence it is urged that except for a jury, parolees must be given virtually the full due process safeguards of a criminal prosecution before the Board can revoke parole. The due process argument rests on the contention that because the Board has discretionary power to deny parolees credit toward their sentences represented by the time spent on parstle, it deprives them of liberty in a constitutional sense. It is clear that a citizen must be given a criminal trial to ascertain his guilt of a crime in the first instance before a penalty may be imposed, but the question before us is: Does constitutional due process require the Parole Board to conduct adversary hearings in the nature of a non-jury criminal trial in order to revoke parole of a person whose guilt of crime has already been determined in a criminal trial ? Appellants’ contentions require us to decide whether the procedural safeguards urged are commanded (a) by the statutes creating the Parole Board, (b) by the Administrative Procedure Act, (c) by the Constitution.

Background of Parole System

In order to set the appellants’ claims in context, it is necessary to outline the procedures presently followed by the Board and to keep in mind the underlying purposes of parole. The United States Parole Board was established by Congress to administer the parole system as a part of the program to rehábilitate federal prisoners and restore them to useful membership in society. 18 U.S.C. §§ 4201-4207. The rehabilitation program of the Bureau of Prisons includes vocational training, education and the operation of industries by Federal Prison Industries, Inc., in which useful skills can be learned and developed and the prisoners benefited from participation in productive activity for which they are paid. 18 U.S.C. §§ 4121-4128. Inducements to rehabilitation are also held out in the form of deductions from the sentence based on work record and general behavior. 18 U.S.C. §§ 4161-4166. At a point the prisoner may be afforded an opportunity to serve part of the sentence outside the prison on parole — conditional release under supervision and restrictions but with liberty not otherwise impaired. 18 U.S.C. §§ 4164, 4203. Violation of a condition of parole can lead to arrest, return to prison and revocation of parole. 18 U.S.C. §§ 4205-4207. Thus a federal prisoner may come in contact with the exercise of the Board’s discretionary powers on two occasions: first when parole is granted and second when and if parole is revoked. While on parole, he is in frequent contact with the Board’s field representative, the parole officer.

The general category of parolees can be broken down into two distinct groups: mandatory releasees and parolees. Mandatory releasees are those prisoners who have served their sentences less a credit for good behavior, 18 U.S.C. § 4161, and for industrial or employment performance “good time,” 18 U.S.C. § 4162. When a prisoner has served his sentence Jess his good time credit he is entitled,