Opinion
CRIMINAL NO. 93-176 (CCC)
February 5, 2004
REPORT AND RECOMMENDATION
Above defendant's Motion to Quash Summons, Set Aside Tolling of Supervised Release, and Vacate Revocation Proceedings Based on Lack of Jurisdiction was received on January 15, 2004, for which reason this Magistrate set aside the hearing that had been scheduled for January 20, 2004. The parties were provided with copy of the court order of December 31, 2003, (D.E. #400) and ordered to file their briefs on the jurisdictional issue (D.E. #405). The record is pellucidly clear in that the Court minutes referring this matter to a Magistrate Judge, dated December 31, 2003, indicated that the expiration of the supervised release term was tolled (D.E. #400). The record is also clear that said referral was received by this Magistrate on January 13, 2004. It was immediately upon its receipt that summons were ordered to be issued and the hearing to show cause scheduled, all after expiration of the supervised release term of January 4, 2004.
The government had been ordered to file a reply to above defendant's motion within five (5) days back on January 15, 2004 (D.E. #405). As of today no reply has been received. Thus, this report is issued without the benefit of the government's brief.
Above defendant, who was not in custody or outside the jurisdiction of the United States for whom tolling could be made effective under 18 U.S.C. § 3183(i), would have had the expiration of his supervised release term on January 4, 2004. On December 22, 2003, the Probation Office filed a motion entitled Motion Requesting the Issuance of a Summons and Tolling of Supervision Term that upon being at the Honorable Judge Cerezo's chambers, resulted in minutes that were signed by the Honorable Judge's secretary on December 31, 2003, indicating:
By order of the Court the Motion Requesting the Issuance of Summons and Tolling of Supervision Term filed by the U.S. Probation Officer on December 22, 2003 (docket entry 399) is GRANTED. The supervised release term due to expire January 4, 2004 is TOLLED. The matter is referred to the U.S. Magistrate Judge for Issuance of summons, hearing, report and recommendation. Parties to be notified, /s Secretary.
The record shows the minutes were notified by the E-M Operations Manager on 1/12/04 and were then entered on the record. On same date and in the afternoon hours, the Memorandum of the Clerk took action on the referral order of the Court and randomly assigned the case to this Magistrate Judge for the issuance of summons (D.E. #401). By that time, the defendant's supervised release term had expired, without summons having been issued.
Upon receipt of the record on the following day, January 13, 2004, this Magistrate issued an Order to Show Cause scheduling for January 20, 2004, at 1:30 p.m., the hearing "or preliminary determination of the revocation issue and for the Clerk to issue the corresponding summons, notify counsel for defendant and the government (D.E. #402). The Clerk's Office issued the summons on same date.
Prior to the hearing, defendant's counsel, Atty. Epifanio Morales Cruz, filed on January 15, 2004, the Motion to Quash Summons, Set Aside Tolling of Supervised Release Term and Vacate Revocation Proceedings Based on Lack of Jurisdiction [ 18 U.S.C. § 3583(i)] (D.E. #402). An initial review of said motion resulted in this Magistrate setting aside the show cause hearing and ordering the parties to brief on the issue of tolling (D.E. #405). Attorney Morales Cruz filed on January 26, 2004, the Motion to Comply which reiterated the grounds previously submitted (D.E. #406). At this juncture, there is no government's submission of grounds nor this Magistrate considers a sound legal interpretation of the statute would concede for the government that the Court retains jurisdiction over the defendant, who had not absconded from supervision nor had been understate or federal custody during the concerned time span, insofar that his supervised release term had already expired by the time summons were issued and a hearing was scheduled.
18 U.S.C. § 3624(e) provides that:
Supervision after release — A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court. The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days. (Emphasis supplied)
The starting point in construing a statute should first address its wording or its language. Good Samaritan Hospital v. Shalala, 508 U.S. 402 at 409, 113 S.Ct. 2151 (1993). Although Congress amended the supervised release provisions on September 13, 1994, there was no reference to tolling of said period in 18 U.S.C. § 3583(i), except that jurisdiction by the courts was retained ". . . 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". (Emphasis supplied).
Above wording is clear in that either warrant or summons should have been issued before expiration of defendant's supervised release term and that an order, which neither grants nor denies the request of a timely motion by the probation officer, would initiate a tolling period. Similarly, the provisions of § 3583(e) as to modification of conditions or revocations make reference to the court's authority to modify same at any time prior to the expiration or termination of the term of supervised release. Clearly there is no intend to extend the authority once such a term has expired that could support a generalized tolling of supervised release by mere chanting of the word that same is tolled but rather a specific requirement that affirmative action of issuance of summons or warrant of arrest within the constraints of the supervised release term.
Other courts have approached the issue regarding tolling when a defendant has absconded or has been outside the jurisdiction of the United States. No First Circuit Court of Appeals jurisprudence could be identified on the tolling issue now being considered. See United States v. Morales Alelo, 193 F.3d 1102 (9th Cir. 1999); United States v. Crane, 979 F.2d 687 (9th Cir. 1992). See also United States v. Garret, 253 F.3d 443 (9th Cir. 2001); United States v. Naranjo, 259 F.3d 379, (5th Cir. 2001); United States v. Juan-Manuel, 222 F.3d 430 (8th Cir 2000).
Thus, it is recommended that the motion to dismiss BE GRANTED since the court's jurisdiction was not preserved by the Issuance of warrant and/or summons prior to expiration of the term of supervised release.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order Henley Drilling Co. v. McGee. 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co, v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser If a party were allowed to feint and weave at the Initial hearing, and save its knockout punch for the second round").