United States v. Block

• Decision Date: 20 June 2019
• Docket Number: No. 18-2128,18-2128
• Citation: 927 F.3d 978
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William BLOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

927 F.3d 978

UNITED STATES of America, Plaintiff-Appellee,

v.William BLOCK, Defendant-Appellant.

No. 18-2128

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2019

Decided June 20, 2019

Helene B. Greenwald, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.

Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL, Peter W. Henderson, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL, for Defendant-Appellant.

Before Bauer, Manion, and Rovner, Circuit Judges.

Manion, Circuit Judge.

In April 2014, William Block completed a 75-month prison term and began a three-year term of supervised release. With a little more than two months left in that term, the Probation Office reported to the district court Block had violated release conditions. Over a year later, the district court conducted a hearing and revoked Block's supervised release, sentencing him to 60 months' imprisonment followed by two more years of supervised release. Block appeals, claiming the district court lacked jurisdiction to revoke his supervised release. We agree with Block and vacate the district court's judgment.¹

I.

In 2008, a grand jury indicted Block on nine counts of wire fraud relating to an investment scheme he perpetrated from 2002 to 2008. This scheme took many forms, but the basic arrangement was always the same.² Block would tell potential investors he had a large amount of money (or in at least one case, gold) coming to him from some outside source (usually somewhere in Africa), and he needed investors to provide large amounts of capital up-front to pay fees and other costs. For example, Block claimed he needed money to pay fees and costs to get $ 17 million the Liberian government owed him, claimed to need money to pay the fees to bring gold to the United States from an African village, and claimed he needed money to pay fees to obtain a $ 30-million-plus bequest in New York. Block promised his investors they would receive large and quick returns.

Unsurprisingly, Block did not use the money to bring gold from Africa or pay fees to the Liberian government. He spent it on himself, including paying for a chartered plane and cigars. At least 15 people got caught up with Block, losing a total of over $ 1.6 million.

In 2013, Block entered an Alford plea to eight counts in the indictment. The district court sentenced him to eight concurrent 75-month terms of imprisonment followed by eight concurrent three-year terms of supervised release. As a special condition of supervised release, the district court ordered Block "shall not solicit money for ANY purpose."

Block completed his prison term on April 14, 2014,³ and entered into supervised release. On December 14, 2015, the Probation Office reported to the district court Block had violated the non-solicitation condition. An individual had attempted to wire approximately $ 41,000, but the bank, suspecting fraud, did not process the transaction. The FBI interviewed the individual involved, who explained he knew Block's family, believed Block's story about the money, and was in a financial position to take a risk. Given the circumstances, the Probation Office recommended a "hearing of admonishment." The court held that hearing on February 17, 2016. After confirming Block had been reminded of the non-solicitation condition, the court warned him, "If there is any more solicitation of any type or kind, we won't deal with it as easily."

The admonishment did not sink in. About a year after the hearing, on February 3, 2017, the Probation Office reported a further violation of the non-solicitation condition and also maintained the conduct constituted a new federal, state, or local crime. In the report, the Probation Office said Block told an individual Block was entitled to $ 67.5 million from Liberia, but he needed money for fees. Block promised the individual if he invested with Block, Block would donate millions of dollars to the individual's employer, a Christian school in Chicago. At Block's direction, the individual wrote 10 to 14 checks to Block's son. In total, the individual gave Block $ 125,900. To make these payments, the individual used personal savings and took out a home-equity line of credit.

This time, the Probation Office proposed no leniency. The statutory maximum prison term for Block on revocation was 24 months per count. 18 U.S.C. § 3583(e)(3). The Probation Office recommended that maximum for all eight counts to which Block had pleaded, amounting to an aggregate sentence of 192 months' imprisonment.

The Probation Office also recognized Block's three-year supervised-release term was set to expire soon, on April 13, 2017. Under 18 U.S.C. § 3583(i), a district court retains jurisdiction to revoke supervised release after the term's expiration only if it issues a warrant or summons before the term expires. To ensure the district court maintained the power to revoke Block's supervised release, the Probation Office recommended the district court issue a summons to Block if it intended to continue the proceedings beyond the expiration date. The probation officer attached a blank summons to her report for that purpose.

On February 14, 2017, the court issued a minute order stating, "as to William Block, Pursuant to the Special Report dated 2/3/2017 from probation, Status hearing set for 2/28/2017 at 09:00 A.M."

The district court held that hearing as scheduled. Block, his attorney, an Assistant United States Attorney, and a probation officer (but not the one who prepared the report) were present. At the hearing, the government requested Block be detained pending final resolution of the revocation proceedings. The district court agreed and remanded Block to the custody of the United States Marshal. At no point in the hearing did anyone serve Block with a summons.

After that hearing, the district court issued another minute order stating, "as to William Block The [sic] Court orders Defendant Block detained and remanded into the custody of the U.S. Marshal's.until [sic] resolution of of [sic] the rule to show cause. Hearing set for 3/6/2017 at 11:00 a.m."

Block's proceedings then inched along for over 14 months due in part to Block's counsel's request for Block to undergo a competency evaluation. Finally, on May 3, 2018, over a year after the expiration date for Block's supervised-release term, the district court held Block's revocation hearing. Block admitted to soliciting the funds in violation of the non-solicitation condition, but maintained he is actually entitled to the $ 67.5 million from the Liberian government. The government and the Probation Office recommended the statutory maximum 192-month prison term. The district court thought that was too severe and imposed a 60-month prison term. The district court did so without announcing Block's Guidelines range or explaining how it was stacking the sentences on the eight counts to reach that combined term. At the government's request for an additional period of supervised release, the court also imposed a further 24-month term of supervised release. Finally, the court imposed the special condition "that [Block] not solicit funds for any purpose whatsoever, even on behalf of his church or whatever, that he not go out and ask people for money."

II.

Block appeals the revocation judgment. His primary argument is the district court lacked jurisdiction to revoke his term of supervised release because the term expired before the court ordered the revocation. No party raised this issue below, but this type of jurisdictional defect cannot be waived. See Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). We review de novo . United States v. Maranda , 761 F.3d 689, 693 (7th Cir. 2014).

The government suggests two reasons why the district court did have jurisdiction to revoke Block's supervised release. First, the government maintains the district court retained jurisdiction to revoke because it issued a "summons" or "warrant" as 18 U.S.C. § 3583(i) requires before the term expired. Alternatively, the government argues Block's supervised-release term did not expire on April 13, 2017, because it was tolled from the time he was detained on February 3, 2017.

A. Tolling

We conclude Block's lengthy detention did not toll his supervised-release term, so it expired on April 13, 2017. The tolling provision of 18 U.S.C. § 3624(e) provides, "A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." The government argues Block's detention was imprisonment for at least thirty days in connection with a conviction, so it tolled his supervised-release term. But § 3624(e) is inapplicable to a situation like Block's because his detention was itself part of his supervised release.

The statute governing revocation of supervised release, 18 U.S.C. § 3583(e)(3), mandates this conclusion. Section 3583(e)(3) allows a district court to "revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release ...." Notice the statute does not say, "the court may revoke a term of supervised release and require the defendant to serve an additional term of imprisonment." Instead, it says the court may "require the defendant to serve in prison all or part of the term of supervised release ." The Supreme Court has interpreted that language to mean a "term of supervised release [can be] served, in whole or part, in prison." Johnson v. U.S. , 529 U.S. 694, 705, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (internal quotation marks omitted). That is, a term of supervised release "continues in some sense after revocation even when part of it is served in prison."...