United States District Court, Eastern District of New York
October 13, 1999
UNITED STATES OF AMERICA,
STEVEN DWORKIN, DEFENDANT.
The opinion of the court was delivered by: Nickerson, District Judge.
MEMORANDUM AND ORDER
Defendant Steven Dworkin, a licensed pharmacist, the owner of
three pharmacies, and a vendor and wholesale distributor of
drugs, pleaded guilty in this court on September 11, 1990 to a
one-count information charging that in 1989 he received in
interstate commerce a drug called Zantac that was misbranded and
offered as delivery for pay in violation of 21 U.S.C. § 331(c)
and 333(a)(2). He cooperated with the government, and the court
sentenced him on January 7, 1994 to three years probation.
In November 1995, a Special Agent of the Federal Bureau of
Investigation ("FBI") learned that an individual had alleged that
he had been extorted by one Vincent Carnevale acting on behalf of
Dworkin. Carnevale was arrested and, according to the FBI, gave
statements damaging to Dworkin, statements he later recanted.
The Probation Department directed Dworkin to report for an
interview with his attorney on February 2, 1996. By that time
Dworkin had become aware that he was a target of an investigation
in the Southern District of New York. Dworkin's attorney
requested adjournments of any probation violation until the
Carnevale case in the Southern District had been decided. The
Probation Department then recommended to the court that violation
proceedings be deferred until Carnevale was indicted, and the
court directed the Probation Department to defer a violation
The Probation Department thereafter set a new interview date
for March 27, 1996. Two days before that date, Dworkin's attorney
called to say that he had had a conversation with an Assistant
United States Attorney in the Southern District and that that
conversation led defense counsel to believe Dworkin might be
indicted. Defense counsel said he therefore did not wish Dworkin
to be interviewed at that time.
In the meantime Carnevale had been indicted in the Southern
District. By May 14, 1996 he had not pleaded or been found
guilty. The Probation Department, believing that Carnevale's
testimony would be important to the violation hearing, again
recommended to the court that the violation proceedings be
deferred until Carnevale's case had been concluded. The court
By October 21, 1996, Carnevale's case had still not moved
forward. In the light of the approaching termination date of
January 7, 1997, of Dworkin's probation, the Probation Department
asked the court to issue a warrant, to be held in abeyance, in
order to "stop the clock" on his supervision term. The court so
ordered on October 25, 1996.
About ten months later, on September 2, 1997, Carnevale pleaded
guilty in the Southern District to conspiracy to commit
extortion. He was sentenced almost ten months later, on June 19,
1998, to twenty-four months incarceration, having received the
benefit of a three-level downward departure because of a serious
On September 9, 1997, the Probation Department informed the
court that the FBI expected that "an indictment against Dworkin
is soon likely." Thereafter, on a date not specified in the
record, the United States Attorney's Office in the Southern
District informed the Probation Department that the case against
Dworkin would not be pursued in that district.
On February 4, 1999, the Probation Department, having lost all
hope that Carnevale
would be available to testify or that Dworkin would be
prosecuted, asked the court to authorize the initiation of a
The question before the court is whether this court still has
power to revoke probation for violation of a condition of
probation although the term of probation expired on January 7,
1997, and the violation of probation was not initiated until
February 23, 1999. The answer turns on the meaning of
18 U.S.C. § 3565(c), which reads as follows:
"Delayed revocation — The power of the court to
revoke a sentence of probation for violation of a
condition of probation, and to impose another
sentence, extends beyond the expiration of the term
of probation for any period reasonably necessary for
the adjudication of matters arising before its
expiration if, prior to its expiration, a warrant or
summons has been issued on the basis of an allegation
of such a violation."
As noted above, on October 25, 1996, prior to the expiration of
the probationary term on January 7, 1997, the court issued a
warrant to be held in abeyance. Dworkin argues that the period of
more than two years between January 7, 1997, when the
probationary term expired, and February 23, 1999, when violation
proceedings were begun, was not, within the meaning of § 3565(c),
a "period reasonably necessary for the adjudication of [the]
matters arising before" the expiration.
This court approved the delay beyond January 7, 1997 in the
processing of Dworkin's alleged violation of probation because it
appeared to be uncertain whether the United States Attorney's
office in the Southern District of New York would prosecute
Dworkin. The Violation of Probation report shows, and the
government concedes, that the "matters arising" before the
expiration of the term of probation were the same "matters" that
were being assessed by the United States Attorney in the Southern
District to determine whether to indict Dworkin. The government
argues that to commence violation proceedings only after the
Southern District's investigation of Dworkin was concluded was
"not unreasonable," citing United States v. Lovasco,
431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v.
Hill, 719 F.2d 1402 (9th Cir. 1983); Barr v. Parker,
453 F.2d 865 (9th Cir. 1971).
None of those cases is on point. None of them was decided under
§ 3565(c) or under any other statute providing for a time period
"reasonably necessary" (emphasis supplied) to adjudicate
matters that arose before the expiration of a probationary term.
Section 3565(c) does not grant the court jurisdiction to revoke
parole where the violation proceeding was commenced within a
"reasonable time" taking into account "all the circumstances."
United States v. Hill, 719 F.2d 1402, 1404-05 (9th Cir. 1983).
Instead the section restricts the circumstances to the time
"reasonably necessary" to "adjudicate" the "matter" by a finding
of guilty or not guilty. This court is not free to read § 3563(c)
as if it did not contain the word "necessary."
The legislative history of § 3565(c) underscores this point.
Before Congress enacted that section, revocation of probation was
governed by § 3653, which permitted revocation any time within
the five-year maximum probationary period allowed by statute. The
Senate report accompanying the final version of § 3565 stated
that what is now subsection (c) was meant to "more narrowly
restrict the time within which probation may be revoked" than did
§ 3653. Sen.Rep. No. 225, 98th Cong.2d Sess., reprinted in
1984 U.S.C.C.A.N. 3182, 3285-86. See United States v. Morales,
45 F.3d 693, 700 (2d Cir. 1995) ("the effect of adding the delayed
revocation section in current § 3565(c) was not to extend the
power of the court to revoke probation, but to restrict it");
United States v. Neville, 985 F.2d 992, 998 (9th Cir. 1993)
In the present case, the government offers no "necessity" for
the delay in
bringing about an "adjudication" of the alleged violation. This
is not a case in which, for instance, the government learned of
an alleged violation shortly before the expiration of the
probationary term. Nor was the government unable to execute the
warrant because the probationer was imprisoned in another state
or otherwise absent from the jurisdiction. Cf. United States v.
Narviez, No. 97-50150, 1997 WL 686031 (9th Cir. 1997); United
States v. Hill, 719 F.2d 1402, 1404-05 (9th Cir. 1983) (listing
cases). Of course, even an expeditious, step-by-step adjudication
of pertinent "matters" may necessitate delays of many months or
years. In United States v. Ajayi, 42 F.3d 1386 (4th Cir. 1994),
for instance, the government promptly litigated the probation
violation and the underlying crime but nonetheless did not move
to revoke the defendant's probation until fifteen months after
the original term expired. The Fourth Circuit upheld the district
court's finding that this represented a "reasonably necessary"
The government here did not move to revoke probation until more
than three years after it learned of defendant's alleged
violation and two years after the probationary term expired. No
doubt the Probation Department and the government were thoroughly
convinced that Dworkin had committed extortion during his
probationary term and hoped to bring him to account if the
Southern District failed to do so. That may well have been
reasonable. But the government does not articulate why it may
have been "necessary." There was nothing to inhibit this court
from directing the Probation Department to give notice of the
violation and from holding a hearing prior to or soon after
January 7, 1997.
The government sought to defer violation proceedings in part
because Carnevale would not testify against Dworkin at a
violation hearing before his own case was resolved. But Carnevale
pleaded guilty in September of 1997, seventeen months before the
Probation Department initiated violation proceedings. It is
unclear how the Southern District's investigation proceeded
during the interim. In fact, there has been no apparent progress
in the investigation since the FBI first interviewed Carnevale
following his arrest in November, 1995. The government now
proposes to go forward based on the identical evidence and the
identical witness (the alleged victim of the extortion) it had
long before the expiration of the probationary term.
Since there was no, let alone a "reasonable," necessity to
delay the revocation proceeding to await the decision of the
Southern District, § 3565 stripped this court of its power to
revoke probation and impose another sentence.
The court does not reach any other issues.
The charges in the Violation of Probation Report are dismissed
and the summons to Dworkin is quashed.
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