U.S. v. Neville

• Citation: 985 F.2d 992
• Decision Date: 14 January 1993
• Docket Number: No. 91-50512,91-50512
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Todd David NEVILLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 992

985 F.2d 992

UNITED STATES of America, Plaintiff-Appellee, v. Todd David NEVILLE, Defendant-Appellant.

No. 91-50512.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1992.

Decided Jan. 14, 1993.

Lohn Lanahan, Asst. Federal Public Defender, San Diego, CA, for defendant-appellant.

Timothy D. Coughlin, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: BROWNING and FARRIS, Circuit Judges, and MacBRIDE, ^* Senior District Judge.

MacBRIDE, Senior District Judge:

Todd Neville appeals the district court's affirmance of the magistrate's revocation of Neville's term of supervised release and the imposition of a six month sentence of imprisonment under 18 U.S.C. § 3583(e) (Supp.1991). Neville violated the terms of his supervised release before the supervisory period expired. However, Neville argues that the district court lacked jurisdiction to revoke his supervised release and sentence him to prison under § 3583 because the supervisory period had expired by the time the revocation hearing was held. Neville also claims that a magistrate judge does not have jurisdiction to revoke a defendant's term of supervised release upon the defendant's withdrawal of consent to be heard by the magistrate judge.

We affirm the district court's ruling. We find that a court's assumption of jurisdiction under 18 U.S.C. § 3583 is proper to determine whether a defendant not in custody violated the terms of supervised release and remedy the violation by imposing a prison term when an order to show cause is issued during the period of supervised release. We also hold that a defendant's withdrawal of validly given consent to be heard by a magistrate judge at the supervised release revocation hearing stage is without effect.

I. BACKGROUND

On July 27, 1989, after consenting to be tried by a magistrate judge, Todd Neville pled guilty to possession of a controlled substance in violation of 21 U.S.C. § 844(a) (1988). The magistrate judge sentenced him to four months in custody and one year of supervised release. Neville's year of supervised release was scheduled to end on January 11, 1991. However, Neville violated the conditions of his supervised release before the end of his supervised release term. ¹ Neville's probation officer subsequently petitioned for an order to show cause why Neville's supervised release should not be revoked. A warrant for Neville's arrest was issued on January 4, 1991.

On January 14, 1991, three days after his term of supervised release expired, Neville contacted his probation officer and was told about the warrant. Neville appeared in the magistrate judge's court on January 16, 1991. At that proceeding, Neville entered his first objection to the court's jurisdiction arguing that the court no longer had jurisdiction since Neville's year of supervised release had ended on January 11. The court continued the hearing until January 24, 1991 at which time Neville renewed his objection to jurisdiction. Neville also withdrew his consent to appear before the magistrate judge and requested that his case be heard by the district court.

The magistrate judge ruled that jurisdiction was proper even though the term of supervised release was scheduled to end on January 11 because the warrant "tolled" the statute. After a hearing, the magistrate judge revoked the defendant's supervised release and sentenced Neville to six months imprisonment. Neville appealed the magistrate judge's ruling to the district court.

The district court affirmed the magistrate judge's ruling that the court had jurisdiction to revoke Neville's supervised release and affirmed the six month sentence. The district court record is silent as to the jurisdictional dispute relating to the magistrate's power.

II. STANDARD OF REVIEW

The only issues on appeal are questions of jurisdiction. Jurisdiction is a question of law subject to de novo review. United States v. Visman, 919 F.2d 1390, 1392 (9th Cir.1990), cert. denied --- U.S. ----, 112 S.Ct. 442, 116 L.Ed.2d 460 (1991).

III. DISCUSSION

A. JURISDICTION AFTER EXPIRATION OF SUPERVISED RELEASE TERM

Neville claims that the magistrate judge erred in ruling that the warrant issued on January 4, 1991 tolled the supervised release revocation statute because there is no "tolling" provision in 18 U.S.C. § 3583 for an individual not in custody for another criminal offense. Neville argues that the absence of an explicit tolling provision is a clear indication of Congress' intent not to extend the court's power beyond the expiration of a supervised release period. In contrast, the government contends that Congress' reference to the Federal Rules of Criminal Procedure within the text of § 3583(e) is indicative of Congress' intention to treat supervised release revocation the same as probation revocation. Thus, the government urges this court to import a tolling provision into the supervised release statute.

We recently decided that a term of supervised release is tolled while an individual is in custody for another criminal offense. United States v. Crane, 979 F.2d 687 (9th Cir.1992). ² Our decision in Crane was based primarily on the explicit tolling provision found in 18 U.S.C. § 3624(e) (Supp.1992) for revocation of supervised release for individuals in custody. ³ Id. at 691. We also premised our holding in Crane on our prior decisions that an explicit tolling provision is not required to toll a term of parole for a defendant in fugitive status. Id. Thus, Crane is not dispositive in the instant case because Neville was neither in custody nor a fugitive during his term of supervised release. His arguments based solely on § 3583(e) present new issues for this Circuit.

"In construing a statute in a case of first impression, we look to the traditional signposts of statutory construction...." Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1353 (9th Cir.1985). We look first to the statutory language. Church of Scientology of California v. U.S. Dept. of Justice, 612 F.2d 417, 421 (9th Cir.1979). Second, we turn to the statute's legislative history. Heckler v. Turner, 470 U.S. 184, 193-94 (1985). Importantly, the plain meaning rule requires that "if the language of a statute is clear and there is no ambiguity, then there is no need to 'interpret' the language by resorting to the legislative history or other extrinsic aids." Church of Scientology of California, 612 F.2d at 421. This rule also demands, however, that the "statutory language must always be read in its proper context." McCarthy v. Bronson, --- U.S. ----, ----, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991).

The statute of concern, 18 U.S.C. § 3583(e)(3), provides for revocation of supervised release. ⁴ Section 3583(e)(3) is silent as to whether the power to revoke supervised release terminates at the end of the supervisory period. The statute provides only that the court may ...

revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation ...

18 U.S.C. § 3583(e)(3).

Although § 3583 contains no explicit tolling provision, the statute incorporates a tolling provision by reference. Section 3583(e)(3) requires that revocation of supervised release be "pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation...." The rule referred to is Federal Rule of Criminal Procedure 32.1. ⁵ Rule 32.1 describes a defendant's rights when a court is considering revocation of either probation or supervised release. ⁶ The rule provides in part:

(2) Revocation Hearing. The revocation hearing, unless waived by the person, shall be held within a reasonable time in the district of jurisdiction.

Fed.R.Crim.P. 32.1. By making reference in § 3583(e)(3) to the rules governing probation revocation, Congress made clear that it expected a revocation hearing to be held in the event of a violation of a condition of supervised release before supervised release is revoked. The logical inference is that Congress expected some time to pass between the time a supervised release violation is discovered and the time supervised release is actually revoked. Congress must have intended the court's jurisdiction to continue throughout this period.

Moreover, a finding that there is no tolling provision would be contrary to the rest of the statutory scheme. Section 3583(d) states that "[t]he court shall order, as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during the term of supervision and that the defendant not possess illegal controlled substances." 18 U.S.C. § 3583(d). Congress further provided that "[t]he court may ... revoke a term of supervised release ... if ... the person violated a condition of supervised release...." 18 U.S.C. § 3583(e)(3). In the instant case, Neville used illegal drugs before his term of supervised release had ended and thus falls into the category of persons whose supervised release may be revoked. Congress made no exception in the statute for persons who, like the defendant, violated supervised release conditions close to the end of a term of supervision. Yet, such persons would be practically exempt from any sanction under the alternative construction urged by the defendant. Cf. Crane, 979 F.2d at 691 (18 U.S.C. § 3624(e) tolls supervised release term for fugitive defendants and those in custody). We find nothing in the language of the statute to suggest Congress intended such an absurd result. See United States v. Alfeche, 942 F.2d 697,...