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United States v. Spencer

December 3, 2009

UNITED STATES OF AMERICA,
v.
JOSEPH SPENCER, DEFENDANT.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

MEMORANDUM OPINION AND ORDER

In late 2004, Joseph Spencer pleaded guilty to a one-count information for bank fraud. On February 20, 2006, this Court sentenced him to time served and three years of supervised release. Alleging that Spencer has violated certain conditions of his supervised release, the government now petitions the Court to revoke it. In response, Spencer moves to dismiss the government's revocation petitions on the ground that this Court lacks jurisdiction to hear them, and he also contests their merits. For the reasons that follow, the Court will deny the defendant's motion and grant the government's request to revoke the defendant's term of supervised release.

BACKGROUND

On May 19, 2004, the defendant, Joseph Spencer, was arrested for his alleged role in a bank fraud. (Govt.'s Response to Def.'s Mot. to Dismiss ("Govt.'s Response") 1.) He later pleaded guilty to a one-count information. (Id. 2.) The United States Probation Office for the Southern District of New York determined that the United States Sentencing Guidelines Range was 27 to 33 months' imprisonment and recommended a sentence of 27 months. (Id. 2.) On February 22, 2006, this Court sentenced the defendant to time served and three years of supervised release. (See Court's Judgment dated February 22, 2006 ("Judgment") 3.) The Court imposed standard conditions of supervision, including that the defendant not commit another federal, state, or local crime, and that the defendant notify the probation officer at least ten days prior to any change in residence or employment. (Id. 3.)

Less than two years after this Court sentenced Spencer, the Probation Office petitioned the Court for a warrant for Spencer's arrest. The Petition for Warrant alleged that Spencer had committed certain specific violations of the terms of supervised release, and a probation officer signed it "under penalty of perjury." (Govt.'s Response, Ex. A.) Attached to the Petition was a "Request for Court Action Detailing Probable Cause," which further explained the violations. (Id.) Specifically, the Request described Spencer's arrest by the New York City Police Department on January 9, 2008, for his alleged involvement in a scheme to cash unauthorized checks. (Id.) After reviewing the Petition and Request, this Court ordered the issuance of a warrant on February 14, 2008.*fn1 The defendant surrendered less than two weeks later and was released on his own recognizance. (Govt.'s Response 3.)

A revocation hearing was scheduled for May 21, 2008, but was adjourned a number of times. It was eventually held on June 3, 2009. The hearing addressed two questions: whether this Court retains jurisdiction over the revocation petitions, and whether, based on a preponderance of the evidence, Spencer violated certain conditions of his supervised release.

DISCUSSION

I. Motion to Dismiss

Spencer argues in his motion to dismiss that the Court lacks jurisdiction to revoke his term of supervised release. Because the Court did not revoke Spencer's supervised release before the term expired, its jurisdiction depends on 18 U.S.C. § 3583(i), which reads,

The power of the court to revoke a term of supervised release for violation of a condition of supervised release . . . extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

18 U.S.C. § 3583(i) (emphasis added). The defendant raises two objections to the Court's jurisdiction under this provision. First, he claims that no valid warrant issued. Second, he argues that, in any case, the delay between the expiration of the defendant's term of supervised release and the revocation hearing was not reasonably necessary to adjudicate the matter. Neither objection has merit.

A. Valid Warrants Issued During the Term of the Defendant's Supervised Release

Whether a valid warrant issued during the term of the defendant's supervised release turns on the meaning of "warrant" in Section 3583(i). On this point the Second Circuit has taken no position, and several other Circuits are divided. The defendant urges the Court to adopt the position taken by the Ninth Circuit in U.S. v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004). The court in Vargas-Amaya held that a warrant issued during a term of supervision is subject to the Fourth Amendment's constraints; it must thus be based on probable cause and be supported by oath or affirmation. Id. at 907. In U.S. v. Garcia-Avalino, 444 F.3d 444 (5th Cir. 2006), the Fifth Circuit took a contrary view. It found that there is no "implicit sworn-facts requirement embedded in the word . . . 'warrant'" in Section 3583(i). Id. at 445.

Whatever the right interpretation of Section 3583(i) may be, the Court need not reach the question. Even under the Ninth Circuit's more stringent standard, a valid warrant issued during the term of Spencer's supervised release. First, both warrants issued by the Court in this matter satisfied the "oath or affirmation" requirement. Both Petitions for Warrant were signed by a United States Probation Officer who "declare[d] under penalty of perjury that the foregoing is true and correct." (See Def.'s Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem."), Ex. B.) Swearing that facts are true under penalty of perjury has the same effect as an oath. See 28 U.S.C. ยง 1746 ("Wherever, under any law of the United States . . . any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, . . . such matter may, ...


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