U.S. v. Sanchez
| Citation | 30 F.Supp.2d 595 |
| Decision Date | 22 December 1998 |
| Docket Number | No. CR 89-408-02(ADS).,CR 89-408-02(ADS). |
| Parties | UNITED STATES of America v. Carlos SANCHEZ, T/N Luis Garcia, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Zachary W. Carter, United States Attorney, E.D.N.Y., Garden City, NY, by Assistant United States Attorney Joseph R. Conway, for U.S.
Law Office of Lynne F. Stewart, New York City, (Lynne F. Stewart, Jonathan D. Libby, of counsel), for Defendant.
In this unusual case, the Department of Probation served the defendant with a summons charging him with a violation of supervised release, approximately four years after the defendant pleaded guilty to the state drug charges which form the basis for the alleged violation. At issue is the defendant's motion to dismiss the summons, on the ground that the years of delay between the alleged violation and the issuance of the summons violates his due process rights and U.S.S.G. § 7B1.2(a).
On March 2, 1990, the defendant, Carlos Sanchez T/N Luis Garcia (the "defendant" or "Sanchez") pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine. On May 30, 1990, this Court sentenced him to a term of 63 months incarceration to be followed by five years of supervised release. On December 27, 1993, Sanchez was released from incarceration and he commenced his supervised release term in the District of New Jersey, an express condition of which was that he "shall not commit another Federal, state or local crime."
Five months later, on May 27, 1994, while on supervised release, state police arrested Sanchez in Clifton, New Jersey under his true name, Luis Garcia, for possession of cocaine with intent to distribute, aggravated assault and resisting arrest. The arrest took place on the date of the offense after the Clifton Township Tactical Narcotics Unit followed the defendant and his co-hort, Michael Eliasof, from a well-known drug site. The police ran a license plate check on Eliasof's car, and discovered his prior criminal record, including arrests for drug related offenses. When the officers pulled the car over and identified themselves, Eliasof put his hands in the air. The defendant, however, jumped into the rear seat of the car, and placed his hands in his groin area. One of the officers, thinking the defendant was reaching for a gun, struggled with him. Throughout the ensuing altercation, the defendant kicked and punched the officer, and refused to be handcuffed. As a result, the officer sustained blows to his head and face, and a broken finger. Although a search of the defendant revealed he was unarmed, the police recovered from his person a foil packet containing thirty-six grams of cocaine.
On September 22, 1994, the defendant pleaded guilty to state charges of possession of a controlled substance with intent to distribute. On January 23, 1995, the Passaic County Superior Court sentenced him to seven years incarceration. Less than a year and a half later, on June 11, 1996, the State of New Jersey released him to parole supervision through July 15, 1999.
There is some dispute as to when the Eastern District of New York Department of Probation was notified of the defendant's New Jersey arrest and conviction. The Government apparently concedes that the delay was due to the "failure of the District of New Jersey Probation Department to promptly notify the Eastern District Probation Department of Sanchez's violation." (Letter of AUSA Joseph R. Conway, at 2). According to the defendant, prior to his arrest, he was regularly reporting to his former probation officer, William Bartell in the District of New Jersey, and he promptly advised him of his arrest and guilty plea. The defendant further states that upon his release from New Jersey State custody, he received a letter from his federal probation officer instructing him to resume reporting once a month. In any event, it was not until August 20, 1998 that the U.S. Department of Probation sought a warrant or summons for the defendant's violation of the conditions of his supervised release for his New Jersey arrest approximately four years earlier.
The defendant concedes that 18 U.S.C. § 3583(g) makes revocation of supervised release mandatory upon a finding of a violation of the conditions of supervised release. Nevertheless, he urges the Court to find that the delay from the date of the alleged violation to the summons was so "unreasonable" as to violate the principles of "fundamental fairness" guaranteed by due process. He contends that he suffered "significant prejudice" from this delay in that "it is quite possible that the New Jersey case would have resulted in a sentence concurrent to that federal sentence" had a summons or warrant been promptly executed (Letter of Jonathan D. Libby, at 5). He also complains that the delay contravenes the Sentencing Commission Policy Statement, set forth at U.S.S.G. § 7B1.2(a), requiring a probation officer to "promptly report" any alleged violation. The Court considers each of these arguments in turn.
The Court considers the defendant's theory that the issuance of a summons at this late stage violates his due process rights.
It is indisputable that the revocation of supervised release raises important constitutional concerns. To determine the extent of constitutional protections to be afforded, the Court looks to cases involving revocation of supervised release, as well as probation and parole revocation, which the Second Circuit has labeled "constitutionally indistinguishable" for these purposes. See United States v. Meeks, 25 F.3d 1117, 1121 (2d Cir.1994)(citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)[ no constitutionally relevant difference between parole and probation for the purposes of due process analysis]).
The Court agrees with the defendant's basic premise that the revocation of supervised release, while "not part of a criminal prosecution, [nevertheless entails] the loss of liberty [which is a deprivation] .... worthy of some due process protection." United States v. Brown, 899 F.2d 189, 193 (2d Cir.1990)(citing Gagnon v. Scarpelli, 411 U.S. at 781, 93 S.Ct. 1756 []); see also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)(applying due process principles to parole revocation hearings). Because an individual on supervised release has an obvious interest in maintaining his conditional liberty against an unjustified deprivation, the Supreme Court has imposed certain procedural limits on revocation. See Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). "Foremost among these is the right to a hearing at which the court determines two issues: whether the probationer violated a condition of probation as a matter of fact and, if so, whether this fact warrants [or requires] revocation." United States v. Brown, 899 F.2d at 193-94 (). In addition, as a matter of due process, the probationer is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the fact-finder as to the evidence relied on and the reasons for revoking probation. Gagnon, 411 U.S. at 786, 93 S.Ct. 1756; Black v. Romano, 471 U.S. at 612, 105 S.Ct. 2254.
By the same token, the Supreme Court has declined to attach to revocation proceedings "the full panoply of procedural safeguards associated with a criminal trial." Black v. Romano, 471 U.S. at 613, 105 S.Ct. 2254. The basis for this distinction between revocation proceedings and criminal prosecutions is that a parolee or probationer already stands convicted of a crime, even though both proceedings may result in a loss of liberty. Gagnon v. Scarpelli, 411 U.S. at 782, 93 S.Ct. 1756; see also United States v. Brown, 899 F.2d at 192 ()(citing Roberson v. Connecticut, 501 F.2d 305, 308 [2d Cir.1974]; United States v. Nagelberg, 413 F.2d 708, 709 [2d Cir.1969], cert. denied, 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 [1970]; Knight v. Estelle, 501 F.2d 963, 964 n. 3 [5th Cir. 1974]), cert. denied, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 668 [1975])).
Bearing these principles in mind, the Court finds that the four years of delay between the violation and summons did not violate due process. Significantly, he has received the right which is considered to be "foremost" among the mandatory procedural safeguards: the right to a hearing at which the court determines whether he violated a condition of probation as a matter of fact and, if so, whether this fact warrants or requires revocation. United States v. Brown, 899 F.2d at 193-94 (). He also has at his disposal all the other rights mandated in the relevant Supreme Court opinions, namely: written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the fact-finder as to the evidence relied on and the reasons for revoking probation. See Gagnon, 411 U.S. at 786, 93 S.Ct. 1756; Black v. Romano, 471 U.S. at 612, 105 S.Ct. 2254.
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State v. Wonders
...F.2d at 1415. Tyler and Hamilton, therefore, do not establish that delay in itself is a due process violation. See U.S. v. Sanchez, 30 F. Supp. 2d 595, 599 (E.D. N.Y. 1998). Each case contained another factor—waiver of the violation by the government. Here, in contrast, Wonders complains on......