U.S. v. Herrera

• Decision Date: 10 December 1998
• Docket Number: No. CRIM. 3:98-CR-331-D.,CRIM. 3:98-CR-331-D.
• Citation: 29 F.Supp.2d 756
• Parties: UNITED STATES of America, Plaintiff, v. Kiamesha G. HERRERA, Defendant.
• Court: U.S. District Court — Northern District of Texas

Page 756

29 F.Supp.2d 756

UNITED STATES of America, Plaintiff, v. Kiamesha G. HERRERA, Defendant.

No. CRIM. 3:98-CR-331-D.

United States District Court, N.D. Texas, Dallas Division.

December 10, 1998.

Linda S. Eads, Ass't U.S. Atty., Dallas, TX, for Plaintiff.

Carlton McLarty, Ass't Federal Public Defender, Dallas, TX, for Defendant.

FITZWATER, District Judge.

This appeal from an order of the magistrate judge dismissing a petition of a pretrial services officer for action on conditions of pretrial release presents the question whether the attorney for the government alone has the authority to initiate a proceeding for revocation of an order of pretrial release. Concluding in this case of apparent first impression that only the attorney for the government possesses such authority, the magistrate judge's order is AFFIRMED.

I

A grand jury indicted defendant Kiamesha Herrera ("Herrera") for wire fraud. Following her arrest, the government moved for pretrial detention. United States Magistrate Judge Jeff Kaplan conducted a detention hearing and denied the government's motion. He ordered that Herrera be released on bond and that she comply with certain conditions, including the requirement that she refrain from using controlled substances. According to the U.S. Pretrial Services Agency officer assigned to Herrera's case, Herrera violated this condition by using marihuana, as evidenced by her testing positive for the use of this controlled substance on November 18, November 21, and November 24, 1998.

On November 24, 1998 the pretrial services officer filed a petition for action on conditions of pretrial release. The petition¹ sought, pursuant to 18 U.S.C. § 3148(b), a hearing for revocation of the release order. This court issued an order to arrest Herrera for a show cause hearing. Judge Kaplan conducted the hearing on December 4, 1998.

Before the hearing commenced, Herrera orally moved to dismiss the petition for lack of jurisdiction. She asserted that only the attorney for the government, not a pretrial services officer, may initiate a proceeding for revocation of release. After considering the relevant statutes and the parties' arguments, and recognizing the dearth of guiding precedent,² Judge Kaplan granted Herrera's motion. He did not explicitly concur in her assertion that the defect deprived the court of jurisdiction, but he held in his written order that § 3148(b) is clear and unambiguous and does not authorize the Pretrial Services Agency to initiate a revocation proceeding.³

The government appeals the order pursuant to 18 U.S.C. § 3145(c), contending that the Pretrial Services Agency is statutorily authorized by 18 U.S.C. § 3154(5) to initiate a proceeding to revoke pretrial release, that it is common practice throughout the United States for the Agency to do so, and that a contrary ruling would improperly result in higher costs, longer administrative delay, and less efficiency.

II

The court reviews de novo an appeal brought pursuant to 18 U.S.C. § 3145(c) of a decision denying revocation. United States v. Jones, 804 F.Supp. 1081, 1090 (S.D.Ind. 1992); see United States v. Kinslow, 105 F.3d 555, 557 (10th Cir.1997). The court must first decide whether the appeal presents an issue of subject matter jurisdiction or of a procedural defect in initiating a revocation proceeding.

Herrera moved to dismiss the petition for lack of jurisdiction, which the court understands to mean subject matter jurisdiction. As noted, Judge Kaplan did not expressly rest his dismissal order on this basis. The court now rejects Herrera's contention that, absent a motion filed by the attorney for the government, the court is deprived of jurisdiction.⁴

Subject matter jurisdiction ordinarily refers to a court's power or authority to hear and determine a class of cases to which a particular case belongs. See BLACK'S LAW DICTIONARY at 854, 1425 (6th ed.1990). Herrera does not contend, nor could she plausibly maintain, that this court lacks the power to hear and determine a proceeding to revoke her release. See 18 U.S.C. § 3148(b) (authorizing judicial officer who ordered defendant's release to conduct hearing concerning revocation of release order). Instead, Herrera asserts that the pretrial services officer improperly initiated the proceeding because § 3148(b) authorizes only the attorney for the government to do so. This contention is properly understood as asserting a procedural error rather than a jurisdictional defect. See BLACK'S LAW DICTIONARY at 1204 (defining "procedure" as the form, manner, and order of conducting a suit). Accordingly, the court rejects Herrera's contention that the court lacks subject matter jurisdiction. The court will decide only whether Judge Kaplan correctly dismissed the petition on the ground that the pretrial services officer lacked authority to initiate the instant revocation proceeding under § 3148(b).

III

A

To resolve the question presented, the court must interpret two statutory provisions: 18 U.S.C. §§ 3148(b) and 3154(5). Section 3148(b) provides:

Revocation of release. — The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court. A judicial officer may issue a warrant for the arrest of a person charged with violating a condition of release, and the person shall be brought before a judicial officer in the district in which such person's arrest was ordered for a proceeding in accordance with this section. To the extent practicable, a person charged with violating the condition of release that such person not commit a Federal, State, or local crime during the period of release, shall be brought before the judicial officer who ordered the release and whose order is alleged to have been violated. The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer —

(1) finds that there is —

(A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or

(B) clear and convincing evidence that the person has violated any other condition of release; and

(2) finds that —

(A) based on the factors set forth in section 3142(g) of this title, there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community; or

(B) the person is unlikely to abide by any condition or combination of conditions of release.

If there is probable cause to believe that, while on release, the person committed a Federal, State, or local felony, a rebuttable presumption arises that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community. If the judicial officer finds that there are conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community, and that the person will abide by such conditions, the judicial officer shall treat the person in accordance with the provisions of section 3142 of this title and may amend the conditions of release accordingly.

Section 3154 states, in relevant part, that

Pretrial services functions shall include the following:

* * * * * *

(5) Inform the court and the United States attorney of all apparent violations of pretrial release conditions, arrests of persons released to the custody of providers of pretrial services or under the supervision of providers of pretrial services, and any danger that any such person may come to pose to any other person or the community, and recommend appropriate modifications of release conditions.

* * * * * *

Neither the government nor the court has located any precedent that dictates the answer to the question whether a pretrial services officer may initiate a proceeding to revoke an order of release under § 3148(b). The court must determine the intent of Congress from the relevant statutory language. "It is the intent of Congress — not the choice of a judge — that must control." Senior Unsecured Creditors' Comm. v. FDIC, 749 F.Supp. 758, 765 (N.D.Tex.1990) (Fitzwater, J.) (quoting Driggs v. United States, 706 F.Supp. 20, 21 (N.D.Tex.1989) (Fitzwater, J.)).

In a statutory construction case, the court must begin with the language of the statute. Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); Reich v. Arcadian Corp., 110 F.3d 1192, 1195 (5th Cir.1997). The court is required to read the statute as a whole to ascertain the meaning of the language in the context of the desired goals that Congress envisioned. Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 448 (5th Cir.1995). Absent a clearly expressed legislative intention to the contrary, the language of the statute itself is to be regarded as conclusive. United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986); see Negonsott v. Samuels, 507 U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993); United States v. One Parcel of Land in Name of Mikell, 33 F.3d 11, 12 (5th Cir.1994). Where the terms of the statute are unambiguous, judicial inquiry is complete. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992); Reich, 110 F.3d at 1195. Only if the language is unclear, or if following the plain meaning of the statute would lead to bizarre results, does the court turn to extrinsic evidence of the statute's meaning. See Johnson v. Sawyer, 120 F.3d 1307, 1319 (5th Cir.1997); Hightower, 65 F.3d at 448.

B

Section 3148(b) provides, in relevant part, that "The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court." (emphasis added). Congress has spoken clearly and unambiguously. In identifying the entity or person who may initiate a revocation proceeding, § 3148(b) unmistakably refers...