785 F.3d 79 (3rd Cir. 2015), 14-4341, United States v. Merlino

Docket Nº:14-4341
Citation:785 F.3d 79
Opinion Judge:VANASKIE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. JOSEPH MERLINO, Appellant
Attorney:Zane D. Memeger, Esq., David E. Fritchey, Esq., Joseph F. Minni, Esq., David E. Troyer, Esq., [ARGUED], Office of the United States Attorney, Philadelphia, PA, Counsel for Appellee. Edwin J. Jacobs, Jr., Esq., [ARGUED], Michael F. Myers, Esq., Jacobs & Barbone, Atlantic City, NJ; Gary S. Silver, ...
Judge Panel:Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges. AMBRO, Circuit Judge, concurring. SHWARTZ, Circuit Judge, dissenting in part. AMBRO, Circuit Judge, concurring SHWARTZ, Circuit Judge, dissenting in part.
Case Date:May 05, 2015
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
SUMMARY

Merlino, reputed former head of the Philadelphia mob, began a three-year term of supervised release in September 2011. In June 2014, law enforcement observed Merlino at a Boca Raton cigar bar with convicted felons, including Ciancaglini, Merlino’s co-defendant. The probation office presented a revocation petition. The court ordered issuance of a summons; a clerk called defense counsel in an... (see full summary)

 
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785 F.3d 79 (3rd Cir. 2015)

UNITED STATES OF AMERICA

v.

JOSEPH MERLINO, Appellant

No. 14-4341

United States Court of Appeals, Third Circuit

May 5, 2015

Argued April 14, 2015

On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 2-99-cr-00363-001). District Judge: Honorable R. Barclay Surrick.

Zane D. Memeger, Esq., David E. Fritchey, Esq., Joseph F. Minni, Esq., David E. Troyer, Esq., [ARGUED], Office of the United States Attorney, Philadelphia, PA, Counsel for Appellee.

Edwin J. Jacobs, Jr., Esq., [ARGUED], Michael F. Myers, Esq., Jacobs & Barbone, Atlantic City, NJ; Gary S. Silver, Esq., Silver Legal Services, Philadelphia, PA, Counsel for Appellant.

Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges. AMBRO, Circuit Judge, concurring. SHWARTZ, Circuit Judge, dissenting in part.

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OPINION

VANASKIE, Circuit Judge.

At issue on this appeal is whether a District Court has jurisdiction to revoke supervised release when neither an arrest warrant nor a summons concerning an alleged violation of supervised release was

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issued before the term of supervised release expired. We hold that 18 U.S.C. § 3583(i) is a jurisdictional statute requiring that a warrant or summons must issue before the expiration of supervised release in order for a District Court to conduct revocation proceedings. Because the summons in this matter was issued after the termination of supervised release, we conclude that the District Court lacked subject-matter jurisdiction to revoke supervised release. Accordingly, we will vacate the District Court's order revoking supervised release and imposing a prison term on Appellant Joseph Merlino.

I.

Section 3583(i) of Title 18 of the United States Code provides:

Delayed revocation.--The power of the court 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 . . . 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.

Id. (emphasis added). We must consider the meaning of this statutory provision in the following context.

Merlino, the reputed former head of the Philadelphia La Cosa Nostra, commenced a three-year term of supervised release on September 7, 2011. On June 18, 2014, law enforcement observed Merlino at a cigar bar in Boca Raton, Florida, conversing with several convicted felons, including John Ciancaglini, one of Merlino's former co-defendants. The Probation Office concluded that this contact violated the terms of Merlino's supervised release. Over two months later, on August 26, Merlino's probation officer presented a revocation petition to the District Court.

On September 2, the District Court ordered the issuance of a summons directing Merlino to appear for a revocation hearing. Either later that day or the following day, a deputy clerk called defense counsel in an effort to secure a mutually agreeable hearing date for the parties. Defense counsel, citing work obligations and an upcoming medical procedure, stated that he expected to be unavailable until December. The Government informed the deputy clerk that it was " reluctant" to accommodate any substantial delay. App. 72. In response, defense counsel asked the deputy clerk " to wait until the end of the following week to set a date" in the hope that he could clear his schedule. Id. The deputy clerk relayed this request to the District Court judge, who assented. On September 11, defense counsel informed the clerk that he could be available in October. On September 16, the clerk issued a " notice of hearing" summoning Merlino for a revocation hearing on October 10.1

On October 6, defense counsel notified the District Court of his belief that the Court lacked jurisdiction over the revocation proceedings because no warrant or summons had issued before the expiration of Merlino's term on September 6, 2014. At a hearing on the jurisdictional contest,

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the deputy clerk who had spoken to counsel testified that, absent counsel's request for a delay, the notice of hearing would have issued on September 2 or 3, before the expiration of supervised release. On that basis, the Court concluded that the deadline in § 3583(i) had been equitably tolled, such that the notice filed on September 16 was timely.

On October 24, the District Court conducted a revocation hearing and found that Merlino had violated the terms of his release by associating with Ciancaglini. The Court sentenced Merlino to four additional months' imprisonment, which Merlino began serving on January 15, 2015. He timely appealed.

II.

The District Court claimed jurisdiction to revoke supervised release under 18 U.S.C. § 3583(i). We have jurisdiction under 28 U.S.C. § 1291. Our review of jurisdictional issues is plenary. United States v. Sczubelek, 402 F.3d 175, 178 (3d Cir. 2005).

III.

A.

The overarching question presented here is whether the District Court, on these facts, had subject-matter jurisdiction to hold a revocation hearing when no warrant or summons was issued prior to the expiration of Merlino's supervised release. We begin with the principle that " [f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). In this matter, the pertinent congressional enactment states that " [t]he power of the court to revoke a term of supervised release . . . extends beyond the expiration of the term of supervised release . . . if, before its expiration, a warrant or summons has been issued . . . ." 18 U.S.C. § 3583(i). This language is clear and unequivocal. Read literally, a warrant or summons must issue before a term of supervised release expires in order for the District Court to exercise its authority to revoke supervised release. The District Court, evidently acknowledging the import of this condition, nevertheless found that § 3583(i) was subject to " equitable tolling." We disagree, and to explain why we hold that the timely issuance of a summons or warrant is jurisdictional, some historical context is in order.

B.

In 1948, Congress provided that, prior to the expiration of the maximum five-year period of probation, the district court had the authority to " issue a warrant for [the probationer's] arrest for violation of probation occurring during the probation period." 18 U.S.C. § 3653 (repealed 1987). Once the probationer was arrested on the warrant, he was to be taken before the court " as speedily as possible," after which the court had the authority to conduct revocation proceedings. Id. Over time, several federal circuits addressed the question of whether a federal district court retained subject-matter jurisdiction when a probationer allegedly violated the terms of probation shortly before the expiration date, thus requiring the revocation hearing to occur after the term's expiration. Our own view was that so long as the probationer was produced before the district court " [a]s speedily as possible after arrest" in accordance with § 3653, we saw no good reason " why a court should arbitrarily lose jurisdiction . . . when the alleged probation violation took place within [the

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five-year probation window] and the probationer was formally notified within that period that the Government would seek to revoke his probation." United States v. Bazzano, 712 F.2d 826, 835 (3d Cir. 1983).

Although our sister circuits unanimously agreed that Congress could not have intended for district courts to abruptly lose jurisdiction over already initiated revocation proceedings at the expiration of the five-year window, varying standards emerged as to the precise triggering event for continuing jurisdiction. For our part, we required that " formal revocation proceedings [be] commenced (by arrest warrant or otherwise) within the five-year period." Id. The Fourth, Seventh, and Eleventh Circuits identified the trigger as the Government's filing of the revocation petition prior to the term's expiration. See United States v. Barton, 26 F.3d 490, 491-92 (4th Cir. 1994); United States v. Schimmel, 950 F.2d 432, 436 (7th Cir. 1991); United States v. O'Quinn, 689 F.2d 1359, 1360-61 (11th Cir. 1982). The Eighth Circuit found jurisdiction even where no revocation petition had been filed and no arrest warrant had issued, but the probationer consensually appeared before the district court prior to the expiration of his term. United States v. Strada, 503 F.2d 1081, 1083 (8th Cir. 1974).

In 1994, Congress amended 18 U.S.C. § 3583 to make clear that the exercise of judicial authority over supervised releasees depended upon the issuance of a warrant or summons while the releasee was still under supervision.2 According to an " Explanation of Provisions" included in the Congressional Record, § 3583(i) " provid[es] continued court jurisdiction to adjudicate alleged supervised release violations and revoke supervised release" after its expiration. 137 Cong. Rec. S7769 (1991). And in the view of the Second Circuit, " the most likely purpose of the amendment was to make absolutely clear Congress' earlier intention that sentencing courts have the authority to hold hearings to revoke or extend supervised release after expiration of the original term if they issue a summons or warrant during the release period." United States v. Morales...

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