The opinion of the court was delivered by: ELFVIN
Defendant was indicted October 3, 1979 on three counts of transporting forged securities in interstate commerce in violation of 18 U.S.C. § 2314. Pursuant to a plea agreement, defendant pleaded guilty to one count in the Indictment, the remaining counts being dismissed on the government's motion. On September 8, 1980 I sentenced defendant to a term of imprisonment of three years but suspended execution of the sentence and placed defendant on probation for four years. The government now seeks to have defendant found in violation of probation due to his involvement in a burglary at a supermarket in South Dayton, N. Y. on or about February 16, 1981.
Following his arrest February 17, 1981 and indictment March 25, 1981 on burglary charges in the Cattaraugus County (N.Y.) Court, defendant pleaded guilty July 22nd to the crime of attempted burglary in the third degree. The plea agreement in the state court was based on the understanding that defendant would receive a sentence of from one and a half to three years imprisonment and that the state sentence would run concurrently with any term of imprisonment imposed as a result of defendant's violation of his federal probation. The state court initially delayed sentencing defendant in order to permit the federal probation violation proceedings to be conducted. However, the federal government adhered to its unwritten policy to refrain from commencing probation violation proceedings based on criminal charges under state law until the defendant has been sentenced on the state charges (or until some other final disposition of the charges is made). Therefore, defendant was finally sentenced by the state court November 9, 1981.
United States Probation Officer Rodney C. Early commenced the current probation violation proceedings November 23, 1981 by filing a petition for an order to cause defendant's arrest. The government filed an initial petition for a writ of habeas corpus ad prosequendum January 8, 1982. After two writs were issued but returned without service because defendant had been transferred between state correctional facilities, defendant was transferred to federal custody and brought before this court February 22nd pursuant to a third writ. A hearing was held March 24th with respect to the alleged probation violation. After the parties submitted memoranda of law, oral argument was heard April 26th.
Defendant opposes the government's petition to have him found to have violated probation on the grounds that the government unduly delayed commencement of this proceeding. Defendant does not complain of the delay between his arrest in February and his guilty plea in July, but attacks the delay between his plea and the state court's imposition of its sentence in November. Because a federal court lacks the authority to direct that a term of incarceration run concurrently with a term imposed under state law,
defendant argues that the government's delay in commencing this proceeding until after he had been sentenced in state court deprived him of the opportunity to have his imprisonment under state law and for federal probation violation run concurrently as was intended by the plea agreement in state court. Defendant claims that such delay violated 18 U.S.C. § 3653 and Fed.R.Crim.P. rule 32.1(a) (2) and denied him due process of law in contravention of the Fifth Amendment to the United States Constitution.
The supervision of probationers is provided for by 18 U.S.C. § 3653. Under that section, the probation officer is empowered to arrest the probationer for cause without a warrant at any time within the probation period. Additionally, the supervising court may issue a warrant for the probationer's arrest based on a violation of probation occurring during the probation period. Such a warrant may be executed by the probation officer or by the United States Marshal for the district in which the warrant was issued or in which the probationer is found. If the arrest is made in any district other than the supervising district, the probationer is to be returned to the supervising district (unless jurisdiction over the probationer is transferred to the district in which he is found) and "detained pending further proceedings in such district." The last paragraph of section 3653 requires that "(as) speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him."
Defendant's claim that the government has violated section 3653 is based on the section's requirement that the probationer be taken before the supervising court "as speedily as possible after arrest * * *." Defendant argues that where an alleged probation violation is based on state criminal charges for which the probationer has been arrested, the "arrest" to which the last paragraph of section 3653 refers is the arrest for the underlying misconduct-i.e., in the present case, defendant's arrest by state authorities in February, 1981 on charges of burglary. The government contends that section 3653's requirement that the probationer be taken before the supervising court as speedily as possible is not triggered until the probationer is in federal custody for a determination whether he has violated probation. Thus, the government maintains that said requirement did not arise until November, 1981.
The government's interpretation of section 3653 is persuasive. Statutory construction must, of course, be accomplished by considering the statute in its entirety rather than by focusing on isolated or particular portions thereof. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S. Ct. 1893, 1898, 44 L. Ed. 2d 525 (1975). When section 3653 is read as a whole, it is clear that the last paragraph refers to an arrest by federal authorities based on a violation of probation, not to an arrest by state authorities on charges which would constitute a basis for finding a violation of probation. Section 3653 determines which district shall have jurisdiction over a probationer and prescribes procedures for effecting the probationer's arrest by federal authorities.
Additionally, the portion of section 3653 which immediately precedes the last paragraph states that the probationer shall be detained pending further proceedings in the supervising district. Thus, the apparent purpose of the last paragraph's requirement that the probationer be taken before the court as speedily as possible is to insure that the probationer is not unduly detained in custody by reason of the alleged probation violation.
Because defendant was not incarcerated due to the alleged probation violation at any time prior to the sentencing by the state court, the government's delay in commencing the probation violation proceedings until after the sentencing by the state court was not contrary to the underlying purpose of the section. To the extent that section 3653 may also be intended to protect the probationer's ability to defend the violation allegations, such considerations are not implicated where, as here, the probationer has pleaded guilty to the state criminal charges.
In this regard, section 3653 is similar to the Sixth Amendment's guarantee that the defendant in a criminal prosecution shall enjoy the right to a speedy trial.
In United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), the Court held that the right to a speedy trial is not triggered until the defendant has been arrested or formally charged with a crime (such as by an indictment or information). Because section 3653 is somewhat analogous to the Sixth Amendment right to a speedy trial, the Court's holding in Marion lends further support to my conclusion that the section's requirement that the probationer be taken before the court as quickly as possible arises only when the probationer is in custody based on the alleged probation violation.
Moreover, at least one other court has clearly expressed the view that the "arrest" to which the last paragraph of section 3653 refers is an arrest based on the alleged probation violation, not an arrest by state authorities for criminal conduct which may constitute a probation violation. United States v. Jackson, 590 F.2d 121, 123 (5th Cir.), cert. denied 441 U.S. 912, 99 S. Ct. 2012, 60 L. Ed. 2d 385 (1979).
Defendant has suggested that the protection afforded by section 3653 should not depend on whether federal or state authorities first apprehend the probationer. Defendant also argues that the federal government should not be able to avoid section 3653's requirement of a speedy hearing by simply failing to "arrest" the probationer. However, unless the probationer is in federal custody due to the alleged violation of probation, there is no need to protect the probationer from undue federal incarceration. Although delay in the commencement of probation violation proceedings may impede the probationer's ability to defend against the violation charges, due process guarantees (not here derogated) are adequate to protect the probationer. Defendant's proposed interpretation of section 3653 would also increase the possibility that the federal probation proceedings would impede or interfere with the state's disposition of the underlying criminal charges.
Certainly, defendant has cited no case which supports his argument that section 3653 applies upon a probationer's arrest by state authorities for alleged criminal conduct which could per se constitute a violation of probation. United States v. Companion, 545 F.2d 308 (2d Cir. 1976), involved a delay following an arrest pursuant to a federal warrant for a violation of travel restrictions imposed on a probationer. Because arrests by federal authorities for probation violation and by state authorities for criminal conduct can not be ...