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January 8, 1959

Application of Angelo CHIEPPA, Plaintiff,
Alex KRIMSKY, Warden of Federal House of Detention, Defendant, to quash and vacate a warrant of arrest, etc

The opinion of the court was delivered by: HERLANDS

Petitioner has moved for an order (1) quashing a warrant issued by the United States Board of Parole, (2) releasing petitioner from the Federal House of Detention, (3) setting bail pending determination of the instant motion, and (4) for such further relief as may be deemed proper.

This matter of first impression involves the interpretation of a parole statute, title 18 U.S.C.A. § 4164.

 To be decided is the following basic question: Does the 180-day period made deductible from the maximum term by the statute for certain purposes apply not only to a conditional releasee, i.e., a person who has been released after serving his prison term less good-time deductions, but also to a person (like the petitioner) who has been paroled after serving one-third of his sentence, i.e., as distinguished from having been released after serving his term less good-time deductions.

 The distinction between a 'conditional releasee' and a 'parolee' is the fulcrum of this controversy because the statute (18 U.S.C.A. § 4164) literally read applies -- and this is admitted by petitioner -- only to a conditional releasee, that is, 'a prisoner having served his term or terms less good-time deductions.' The parties differ as to whether the statute should be interpreted literally.

 The present application must be viewed against the background of the following prior proceedings affecting the petitioner.

 On October 16, 1950, Honorable Philip Forman, United States District Judge for the District of New Jersey, sentenced petitioner to a term of three years' imprisonment in two cases involving violation of the Internal Revenue Liquor Laws. *fn1"

 On December 8, 1951, after serving 13 months, petitioner was released on parole for the remainder of his term which was to expire 23 months later on October 15, 1953. Petitioner was not released for 'good-time' while in prison, but was paroled in the discretion of the Parole Board.

 On August 18, 1953, petitioner was again arrested for conspiracy to violate the liquor laws. On October 9, 1953, a warrant was issued by the Parole Board charging a violation of parole.

 On September 13, 1956, petitioner was sentenced after trial before Honorable Alexander Holtzoff, United States District Judge, then sitting by designation in the Southern District of New York. A term of two years' imprisonment was imposed. In a presentence report made available to Judge Holtzoff upon sentence, Judge Holtzoff was advised that petitioner might be required by the Parole Board to serve twenty-two and one-half months over and above the sentence to be imposed. This Court has read the said presentence report.

 On June 11, 1957, conviction having been affirmed by the United States Court of Appeals for the Second Circuit (United States v. Chieppa, 241 F.2d 635), petitioner commenced serving the sentence imposed by Judge Holtzoff.

 On December 3, 1958, petitioner became eligible for mandatory release from prison for 'good-time.' On that date, the warrant previously issued (on October 9, 1953) by the Parole Board, charging violation of parole, was executed and lodged with the Warden, Federal House of Detention.

 Petitioner is presently incarcerated by virtue of this warrant. He seeks by the present motion to test the legality of his incarceration and to quash said warrant. Thus, two questions are raised: first, the propriety of the issuance of the warrant; second, the propriety of the delay in executing the warrant.


 For the reasons hereinafter set forth, the Court has concluded that the warrant was properly issued.

 Petitioner was paroled from prison on December 8, 1951, after serving thirteen months of the three-year term imposed by Judge Forman. Petitioner's release was pursuant to the provisions of Title 18 U.S.C.A. § 4202, and in the discretion of the Parole Board. Section 4202 provides:

 ' § 4202. Prisoners eligible

 'A Federal prisoner, other than a juvenile delinquent or a committed youth offender, wherever confined and serving a definite term or terms of over one hundred and eighty days, whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years. As amended July 31, 1951, c. 277, 65 Stat. 150.'

 Parole pursuant to Section 4202 is governed by Section 4203, ...

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