U.S. v. Colacurcio, 95-30362

• Decision Date: 17 May 1996
• Docket Number: No. 95-30362,95-30362
• Citation: 84 F.3d 326
• Parties: , 96 Cal. Daily Op. Serv. 3472 UNITED STATES of America, Plaintiff-Appellee, v. Frank F. COLACURCIO, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 326

84 F.3d 326

64 USLW 2771, 96 Cal. Daily Op. Serv. 3472

UNITED STATES of America, Plaintiff-Appellee, v. Frank F. COLACURCIO, Sr., Defendant-Appellant.

No. 95-30362.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1996.

Decided May 17, 1996.

Floyd G. Short and Andrew R. Hamilton, Assistant United States Attorneys, Seattle, Washington, for the plaintiff-appellee.

Sheryl Gordon McCloud, Law Offices of Irwin H. Schwartz, Seattle, Washington, for the defendant-appellant.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, District Judge, Presiding.

Before PREGERSON and TASHIMA, Circuit Judges, and JONES, District Judge ^*.

PREGERSON, Circuit Judge:

Defendant Frank F. Colacurcio appeals the district court's order revoking his probation in a felony case and sentencing him to 36 months imprisonment. A federal magistrate judge held a probation revocation hearing under a district court local rule without defendant's consent. After the hearing, the magistrate judge filed a report and recommendation, which the district court adopted. The district court had jurisdiction under 18 U.S.C. § 3231 (1996). We have jurisdiction under 28 U.S.C. § 1291 (1996).

We must decide whether a magistrate judge has authority under the Federal Magistrates Act, 28 U.S.C. § 636 (1996), to conduct a probation revocation hearing without defendant's consent. We reverse and remand. We hold that a magistrate judge has authority to conduct a probation revocation hearing only with defendant's consent and only for probation imposed in a misdemeanor case. On remand, the district court is instructed to conduct a new probation revocation hearing.

BACKGROUND

The underlying facts are not in dispute. On April 12, 1991, the defendant plead guilty to a felony, aiding and assisting in the preparation and presentation of false corporate tax returns for 1984. The district court placed the defendant on probation for a period of five years. The probation order prohibited defendant from violating any federal, state, or local laws and from participating in the operations of various businesses, including the Talents West nightclub.

On May 16, 1995, defendant's probation officer filed a violation report with the district court. The report alleged that the defendant had violated his probation by being involved with Talents West and also by committing the crime of "indecent liberties" under Washington law.

An evidentiary hearing was set before a magistrate judge under the Western District of Washington's Local Rule 9(f). The defendant filed written objections to the magistrate judge conducting the hearing and requested a hearing before the district court. Defendant's request was denied, and the magistrate judge conducted a hearing to decide whether defendant had violated the conditions of his probation.

At the hearing, both the government and the defendant presented about three hours of conflicting testimony. The magistrate judge resolved the credibility issues in favor of the government and recommended to the district court that defendant's probation be revoked. The magistrate judge filed his report and recommendation with the district court.

In district court, the defendant objected to the magistrate judge's report and recommendation. The defendant maintained that the district court was required to conduct a new hearing and make its own determination whether the defendant had violated his probation. The district court, however, adopted the magistrate's factual findings, without conducting an evidentiary hearing of its own, revoked defendant's probation, and sentenced him to 36 months in prison. This appeal followed.

STANDARD OF REVIEW

Whether the district court's delegation of authority to a magistrate judge to conduct a probation revocation hearing is proper under the Federal Magistrates Act and Article III of the U.S. Constitution raises questions of law subject to de novo review. See United States v. Foster, 57 F.3d 727, 731 (9th Cir.1995); United States v. Carr, 18 F.3d 738, 740 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 82, 130 L.Ed.2d 35 (1994).

DISCUSSION

The authority of federal magistrate judges is limited to those matters authorized by Congress. As we recently explained:

[F]ederal magistrates are creatures of statute, and so is their jurisdiction. We cannot augment it; we cannot ask them to do something Congress has not authorized them to do. We need not and must not reach the constitutional question if we can first determine that the magistrate had no statutorily-created jurisdiction to handle the referral we gave it.

NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir.1994).

Thus, we must begin with the Federal Magistrates Act (the "Act"), 28 U.S.C. § 636, which establishes the jurisdiction of federal magistrate judges. To determine whether magistrate judges have authority to conduct probation revocation hearings, we must construe two separate provisions of the Act, § 636(a)(3), which grants magistrate judges authority over misdemeanor cases, and § 636(b)(3), which grants magistrate judges authority over "additional duties." 28 U.S.C. § 636.

A. Authority under 28 U.S.C. § 636(a)(3).

Section 636(a)(3) provides, in relevant part, that a magistrate judge has "the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section." 28 U.S.C. § 636(a)(3). Therefore, to determine what authority magistrate judges have under 28 U.S.C. § 636(a)(3), we must look to 18 U.S.C. § 3401.

Section 3401 grants magistrate judges authority over misdemeanor cases only subject to defendant's consent:

Any person charged with a misdemeanor may elect, however, to be tried before a judge of the district court for the district in which the offense was committed. The magistrate shall carefully explain to the defendant that he has a right to trial, judgment, and sentencing by a judge of the district court.... The magistrate shall not proceed to try the case unless the defendant, after such explanation, files a written consent that specifically waives trial, judgment, and sentencing by a judge of the district court.

18 U.S.C. § 3401(b) (1996) (emphasis added). ¹ In addition, subsection (d) specifically provides that a magistrate judge only has authority "to revoke, modify, or reinstate the probation of any person granted probation by a magistrate judge." 18 U.S.C. § 3401(d) (emphasis added).

Thus, under a plain reading of 18 U.S.C. § 3401, a magistrate judge has authority to conduct a probation revocation hearing only if the following three conditions are satisfied: (1) defendant's probation was imposed for a misdemeanor; (2) the defendant consented to trial, judgment, and sentence by a magistrate judge; and (3) the defendant initially was sentenced by a magistrate judge.

These three conditions have not been satisfied in this case. Defendant's probation was imposed for a felony. There is no evidence that the defendant consented to trial, judgment, and sentence by a magistrate judge. The defendant was sentenced to probation by the district court. In these circumstances, the magistrate judge did not have authority under 28 U.S.C. § 636(a)(3) and 18 U.S.C. § 3401 to conduct defendant's probation revocation hearing.

The fact that the district court conducted an independent review of the magistrate judge's report and recommendation before making the decision to revoke defendant's probation does not cure the problem that the probation revocation hearing was conducted without defendant's consent. As we have previously recognized, the statute explicitly provides that a defendant must consent to a magistrate judge handling all phases of a criminal proceeding: "trial, judgment, and sentencing." A-Plus Roofing, 39 F.3d at 1416 (quoting 18 U.S.C. § 3401(b)). An independent review by the district court of a magistrate judge's report and recommendation "does not grant United States magistrates the power to conduct ... non-consensual criminal" hearings and trials. Id.

The circumstances in A-Plus Roofing are analogous to this case. There, we referred a petition for civil and criminal contempt to a magistrate judge in a case in which an employer had disregarded an order from this court enforcing an NLRB order. A-Plus Roofing, 39 F.3d at 1414. After conducting a hearing on the contempt motion, the magistrate judge filed his report and recommendation with this court. Id. The employer objected to the magistrate's report and recommendation, arguing that the magistrate judge did not have authority under the Federal Magistrates Act to conduct a criminal contempt hearing. Id.

We agreed and held that a magistrate judge only has authority under 18 U.S.C. § 3401 to conduct a criminal evidentiary hearing with defendant's consent. A-Plus Roofing, 39 F.3d at 1416. ² As we explained:

Even though it is we who would render judgment and, if necessary, sentence Wesson, that involvement does not cure the fact that the trial itself [the criminal contempt Id.

                hearing] was conducted by a magistrate without Wesson's consent....  [A]lthough our referral did not grant to the magistrate judge the power to enter judgment, we did permit him to conduct a criminal trial.   However, a "magistrate's criminal trial jurisdiction depends on the defendant's specific, written consent."  ...   No specific, written consent was obtained.   Therefore, the magistrate had no jurisdiction, and we cannot rule based on his recommendations
                

Similarly, here we hold that the magistrate judge did not have authority to conduct a probation revocation hearing, and that, as a result, the district court could not adopt the magistrate's report and recommendation. A probation revocation hearing is, for all practical purposes, a trial to determine whether a defendant has violated his probation. Because the outcome of the probation revocation hearing...