Opinion
DOCKET NO. 97-Misc.Cr.-80E
October 19, 2000
William J. Knapp, Esq., Asst. United States Attorney, Buffalo, NY, ATTORNEYS FOR THE GOVERNMENT
Joseph B. Mistrett, Esq., First Assistant Federal Public Defender, Buffalo, NY, ATTORNEYS FOR THE DEFENDANT
MEMORANDUM and ORDER
Defendant Downs was convicted in the District of Kansas April 1, 1996 Of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846. He was sentenced to a period of imprisonment followed by three years supervised release. His supervised release commenced June 30, 1997 and was scheduled to end June 29, 2000. Jurisdiction over Downs was transferred to the undersigned September 17, 1997. On March 2, 2000 Downs' Probation Officer, Barry W. Horton, filed a Petition for a Warrant for Offender Under Supervision ("the Petition"), charging Downs with violating two conditions of his supervised release by consuming alcohol February 25, 2000 and a warrant was issued for his arrest March 7, 2000. On March 9 Downs executed a Waiver Of Preliminary Examination or Hearing at which time he requested that an attorney be appointed to represent him without payment of fee and the hearing was adjourned until August 11. Federal Public Defender Joseph B. Mistrett, Esq. was subsequently assigned to represent Downs.
Condition #3 of Downs' supervised release was that he follow the instructions of the probation officer and condition #7 was that he refrain from the excessive use of alcohol. The probation officer had told Downs that he was not allowed to consume any alcohol, yet a Breathalyzer test on February 25 revealed his blood alcohol level to be 0.9%.
On June 12 Downs was convicted of Driving While Ability Impaired and Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree in the Genesee County Court. On August 10 Horton amended the March 2 Petition to include, with the earlier charged violations, a third charge for violation of a further condition — i.e., "You shall not commit another federal, state or local crime". A summons, based on the Amended Petition, was issued that day. The status conference on the original violations was held August 11, at which time Downs was served with the summons for the Amended Petition. An evidentiary hearing was scheduled for August 22.
At such evidentiary hearing the prosecution, reserving the right to present proof on Charges #1 and #2, proceeded to present evidence on Charge #3 of the Amended Petition. The prosecution introduced only the Amended Petition into evidence. At the conclusion of the prosecution's evidence, Downs moved to dismiss the Amended Petition on the basis that he had not been served with a summons for such until August 11, over a month after his supervised release had been scheduled to end. The prosecution stated its intention to present proof on Charges #1 and #2 should the Court dismiss Charge #3. In response to such, Downs argued that the Amended Petition superseded and vacated the original Petition and that therefore the prosecution could not present proof on Charges #1 and #2. This Court directed the parties to submit briefs on these issues; however, the only responses received by this Court have been in the form of letters which fail to clarify the points made during the evidentiary hearing and only serve to further complicate the issues further. It also appears that Downs has raised two additional grounds for dismissal in the letter he submitted in lieu of the requested brief — viz., (1) that the original Petition was vacated because the prosecution did not introduce it into evidence during the August 22 evidentiary hearing and (2) that, because the prosecution chose to present evidence on only Charge #3, it cannot reopen the evidentiary hearing to present evidence on Charges #1 and #2 because the "situation is analogous to a Rule 29 [of the Federal Rules of Criminal Procedure ("FRCrP")] motion for a judgment of acquittal." Mistrett Letter of September 12 at 2.
A court retains jurisdiction to revoke supervised release, based upon a violation of the terms of supervised release, for a reasonable period after the date the supervised release was scheduled to end, provided that a warrant or summons was issued therefor before such date. 18 U.S.C. § 3583 (i); United States v. Morales, 45 F.3d 693, 696-697 (2d Cir. 1995). A court does not have jurisdiction to conduct a revocation hearing based upon a defendant's violation of the conditions of his supervised release if the defendant is not served with a warrant or summons regarding such violation prior to the end of his supervised release. United States v. Crusco, No. 90 CR. 945 JES, 2000 WL 776906, at *1.2 (S.D.N.Y. June 15, 2000). The prosecution argues that, although it can find no authority for the proposition,
"The power of the couft to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h), a further term 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."
"the language of § 3583(i) expressly expands the Court's jurisdiction and authority to adjudicate matters arising before the expiration of the term of supervised release and does not limit that authority only to the adjudication of matters charged before the period expired. As long as a violation occurred before the expiration of the term of supervised release and a warrant or summons has been issued on the basis of an allegation of such a violation, it is respectfully argued that the Court has authority to hear and determine other violations committed but not charged during the period of supervised release. Asst. U.S. Atty. William J. Knapp Letter of September 5 at 2.
The language of section 3583(i) states that the sentencing court retains jurisdiction to revoke a term of supervised release for a violation of the conditions thereof after such term was scheduled to end, if a warrant based on "an allegation of such a violation" issued before such end. The prosecution interprets this provision to mean that, if a petition was filed before the supervised release ends, the supervising court retains jurisdiction to hear evidence of other violations that occurred during supervised release but were not charged prior to its expiration. The prosecution therefore argues that Charge #3 is timely because it was made via an amendment to a petition filed March 2, 2000 and thus relates back to such date.This argument invokes a kinship with an amended indictment which can relate back to the original indictment so as to be considered timely "if and only if it does not broaden the charges." United States v. Grady, 544 F.2d 598, 601-602 (2d Cir. 1976). Charge #3, first brought against Downs in the Amended Petition, clearly broadens the charges against him insofar as it relates to a totally separate and distinct incident occurring several months after the charges contained in the original Petition. The undersigned therefore holds that section 3583(i) extends jurisdiction to revoke supervised release, after it had been scheduled to end, only when a warrant or summons is issued prior to the scheduled expiration of supervised release on the specific basis of the alleged violation upon which revocation is sought. The only warrant issued against Downs prior to the scheduled expiration of his supervised release concerned Charges #1 and #2 — which related to alcohol consumption February 25; therefore this Court does not have jurisdiction to consider Charge #3 against Downs — i.e., that he violated the mandatory condition of his supervised release by committing another offense June 12 — because the prosecution failed to bring such timely before the Court. The motion to dismiss the Amended Petition will therefore be granted.
This Court has given no consideration whether such holding effectively gives a supervisee carte blanche to violate the terms of his or her supervision at a point in time when the supervisee knows that the Probation Officer cannot possibly bring the violation to the court's attention prior to the expiration of the term of supervised release.
During the August 22 evidentiary hearing, the prosecution stated its intention to proceed with proof on Charges #1 and #2 should this Court dismiss Charge #3. Downs argues that the prosecution cannot do such because, by filing the Amended Petition wherein Charges #1 and #2 were identical to the charges in the original Petition, the "Amended Petition effectively superseded the original petition — making the former a nullity." Mistrett Letter of September 12 at 2. No authority is provided for this assertion although it appears that Downs is analogizing an amended petition to a superseding indictment.
However, when a superseding indictment is filed, the original indictment remains valid. United States v. Vavlitis, 9 F.3d 206, 209 (1st Cir. 1993). "[A]lthough a second indictment is often said to `supersede' the first, it does not dispose of it without an express quashal." United States v. Strewl, 99 F.2d 474, 477 (2d Cir. 1938). The undersigned can find "no authority which supports the proposition that a superseding indictment zaps an earlier indictment to the end that the earlier indictment somehow vanishes into thin air" as Downs seems to contend. United States v. Bowen, 946 F.2d 734, 736 (10th Cir. 1991).
Downs' next argument is that the original Petition has been vacated simply because the prosecution did not introduce it into evidence during the August 22 evidentiary hearing. Downs has presented no authority for this proposition and this Court has not found any. The original Petition neither has been dismissed by the prosecution pursuant to FRCrP 48(a) nor has it been quashed by this Court; thus it is still valid and the prosecution can proceed to offer proof on Charges #1 and #2. Strewl at 477. The prosecution specifically reserved the right to present proof on Charges #1 and #2, and may introduce the original Petition as part of that proof.
Finally Downs argues that the prosecution should be barred from submitting evidence on Charges #1 and #2 because the prosecution reserved proof on each at the hearing and produced proof only on Charge #3. Downs states that this is
"analogous to a [FRCrP] 29 motion for a judgment of acquittal. The government would not be able to reopen the trial to present additional evidence on counts charged but not proven. The [prosecution] should not now be permitted to reopen the revocation hearing to present evidence on Charges #1 or #2." Mistrett Letter of September 12 at 2.
Downs has provided no authority for this argument either. To the contrary, even when a defendant has actually moved for judgment of acquittal at the conclusion of the prosecution's proof, the cognizant court can allow the prosecution to reopen its case to present additional evidence when circumstances warrant. United States v. Leslie, 103 F.3d 1093, 1105 (2d Cir. 1997). In this instance, the prosecution chose to reserve proof on Charges #1 and #2 and proceed only with Charge #3 during the evidentiary hearing. Downs cannot now claim prejudice that the prosecution seeks to present the evidence it reserved on Charges #1 and #2.
Accordingly it is ORDERED that the Amended Petition is dismissed and that the parties shall appear before this Court on October 27, 2000 at 1:00 p.m. (or as soon thereafter as they may be heard) to set a date for the presentation of proof on Charge #1 and/or Charge #2 regarding Downs' alleged violation of the terms of his supervised release.