640 F.3d 513 (2nd Cir. 2011), 10-1869-cr, United States v. Spencer

Docket Nº:10-1869-cr.
Citation:640 F.3d 513
Opinion Judge:POOLER, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Joseph SPENCER, Defendant-Appellant.
Attorney:Jessica Ortiz, David Raskin (on the brief), Assistant United States Attorneys, of Counsel, for Preet Bharara, United States Attorney, Southern District of New York, New York, N.Y., for Appellee. Steven M. Statsinger, Federal Defenders of New York, Inc., Appeals Bureau, New York, N.Y., for Appellant.
Judge Panel:Before: POOLER, B.D. PARKER, and LOHIER, Circuit Judges.
Case Date:May 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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640 F.3d 513 (2nd Cir. 2011)

UNITED STATES of America, Appellee,

v.

Joseph SPENCER, Defendant-Appellant.

No. 10-1869-cr.

United States Court of Appeals, Second Circuit.

May 20, 2011

Argued: May 9, 2011.

Page 514

Jessica Ortiz, David Raskin (on the brief), Assistant United States Attorneys, of Counsel, for Preet Bharara, United States Attorney, Southern District of New York, New York, N.Y., for Appellee.

Steven M. Statsinger, Federal Defenders of New York, Inc., Appeals Bureau, New York, N.Y., for Appellant.

Before: POOLER, B.D. PARKER, and LOHIER, Circuit Judges.

POOLER, Circuit Judge:

The district court sentenced Joseph Spencer to 14 months in prison and 18 months of supervised release for violating two conditions of his previous term of supervised release. Spencer asks that we vacate this sentence, arguing that the district court (1) lacked jurisdiction to revoke his term of supervised release because the delays in adjudicating the supervised release violation petition after his original term expired were not " reasonably necessary" under 18 U.S.C. § 3583(i); and (2) erred by finding that he had violated Condition 6 of his release by not notifying his probation officer about changes in employment and residence. We agree in part. The district court retained jurisdiction to revoke Spencer's term of supervised release, but erred by finding that Spencer had violated Condition 6 of his release. Conditions of release must be provided to a defendant in " a written statement" that " is sufficiently clear and specific to serve as a guide for the defendant's conduct." 18 U.S.C. § 3583(f). When determining whether a defendant has violated a condition of release, a court may not expand the meaning of the condition beyond what a person of ordinary intelligence would understand it to forbid, regardless of the court's view of " the purpose" of the condition. Because the district court's interpretation of Condition 6 omitted a key qualifier in the condition, holding Spencer responsible for conduct not clearly and specifically forbidden by Condition 6, we vacate the judgment and remand for further proceedings.

I.

In October 2005, Spencer pleaded guilty to bank fraud, after providing a cooperating witness six stolen and counterfeit checks, totaling $180,000. On February 16, 2006, the district court sentenced Spencer to time served (one day) and three years of supervised release. Among the conditions of Spencer's supervised release, the district court required that Spencer (1) " not commit another federal, state or local crime" and (2) " notify the probation officer at least ten days prior to any change in residence or employment." We refer to the latter condition as " Condition 6" because it is a " standard" condition recommended in a nonbinding policy statement by the United States Sentencing Commission. See U.S.S.G. § 5D1.3(c)(6).

Spencer's period of supervised release began on February 16, 2006 and was scheduled to end on February 16, 2009. About a year before his supervision terminated, on February 11, 2008, the Probation Office petitioned the district court for a warrant for Spencer's arrest. The Probation Office alleged that Spencer had violated two conditions of his release. First, the Probation Office alleged that Spencer engaged in new criminal behavior by forging, endorsing, depositing, and using the proceeds of three checks. Spencer had been arrested for this conduct and at this time was being prosecuted in New York state court. Second, the Probation Office alleged

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that Spencer had violated Condition 6 of his release by failing to report changes in his residence and employment. In particular, Spencer indicated to his probation officer that he worked at Etronics in May and August 2007, although Etronics's records indicated that Spencer was fired on April 20, 2007. In addition, in January 2008 Spencer stayed at an address different than the one he reported to his probation officer after a dispute with his girlfriend, in whose apartment he previously lived.

On February 14, 2008, the district court ordered that a warrant for Spencer's arrest be issued, and on February 27, 2008, the warrant was executed.

The district court initially set the supervised release revocation hearing for May 21, 2008. However, at that time two cases were pending against Spencer in New York state court based on the criminal conduct alleged by the Probation Office in its revocation petition. The state cases against Spencer were dismissed by August 2008, at which time Spencer and the Government resumed plea negotiations. Even though it initially had scheduled a May 2008 hearing, the district court granted the following adjournments:

To June 3, 2008: At Government's request (because supervising Probation Officer not available); without objection by Spencer.

To Aug. 8, 2008: At Government's request and with Spencer's consent (to allow disposition of state charges, relevant to plea bargaining).

To Sept. 3, 2008: Parties agree to adjourn for plea bargaining.

To Oct. 2, 2008: Parties agree to adjourn for plea bargaining.

To Nov. 21, 2008: Parties agree to adjourn for plea bargaining.

To April 1, 2009: Parties agree to adjourn for plea bargaining.

To April 28, 2009: Parties agree to adjourn for plea bargaining.

Meanwhile, Spencer's three-year term of supervised release expired on February 16, 2009.

In March 2009, the case was transferred to a new prosecutor. The new prosecutor, in what Spencer asserts was a change in the Government's position, informed Spencer that the Government would pursue violations based on the dismissed state cases and rejected Spencer's offer to admit to a single administrative violation to resolve the case. Defense counsel began preparing for the hearing. On April 21, 2009, a week before the scheduled hearing, the prosecutor phoned Spencer's attorney and asked him to agree to another adjournment. Defense counsel refused, but the prosecutor sent a letter to the district court requesting an adjournment of the April 28, 2009 hearing, while noting that Spencer would not consent to an adjournment. In the letter, the prosecutor sought " a short adjournment in order to obtain documents and the testimony of a witness necessary to prove the violations charged." The prosecutor stated that a witness currently was " out-of-state" and would be " out of the country from April 29, 2009 to May 16, 2009." In addition, the Government for the first time requested permission from the district court to view Spencer's probation report.

On April 22, 2009, Spencer opposed the Government's request for an adjournment, arguing that it was " entirely [the Government's] own fault" that it had not yet obtained the necessary documents because " [i]t could, and should, have subpoenaed them a year ago." Nevertheless, the next day the district court granted the Government's request, adjourning the hearing to May 14, 2009. Thereafter, the district

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court sua sponte adjourned the hearing to June 3, 2009 to accommodate its trial calendar.

Before the June 3, 2009 hearing, Spencer moved to dismiss the petition for lack of jurisdiction. Spencer argued that the district court's delay in holding the hearing was not " reasonably necessary" to adjudicate the revocation petition, and therefore the district court lacked power under 18 U.S.C. § 3583(i) to adjudicate the petition. On June 3, 2009, the district court held Spencer's revocation hearing. At the hearing, the district court reserved decision and requested the parties to submit post-hearing briefing, which was to be completed, at the parties' joint request, on July 24, 2009.

On December 3, 2009, about four months after receiving the last briefing, the district court denied Spencer's motion to dismiss and granted the Government's motion for revocation. Regarding the jurisdictional issues, the district court found that (1) a valid warrant issued during the term of Spencer's supervised release and (2) the delay between the expiration of Spencer's term of supervised release (February 16, 2009) and the date on which supervised release was revoked (December 3, 2009) was " ‘ reasonably necessary’ to adjudicate matters arising during the term of supervised release." Turning to the merits of the motion for revocation, the district court found that during Spencer's term of supervised release, Spencer " forged three checks, endorsed them in his name, deposited them into his bank account, and used the proceeds himself." Such conduct...

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