United States v. Brown

• Docket Number: 1:19-po-00016-SAB
• Decision Date: 14 September 2022
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROGER L. BROWN, Defendant.
• Court: U.S. District Court — Eastern District of California

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UNITED STATES OF AMERICA, Plaintiff, v. ROGER L. BROWN, Defendant.

No. 1:19-po-00016-SAB

United States District Court, E.D. California

September 14, 2022

ORDER DENYING DEFENDANT'S MOTION TO DISMISS PROBATION VIOLATION PETITION

(ECF Nos. 51, 53, 56, 67, 68, 70)

I. INTRODUCTION

Currently before the Court is Defendant Roger L. Brown's (“Brown” or “Defendant”) motion for an order dismissing the Plaintiff United States of America's (the “Government”) petition for violation of probation, brought pursuant to Federal Rule of Criminal Procedure 12(b); Eastern District of California Local Rule 430.1; 18 U.S.C. § 3565(c); and other statutory and constitutional rules as applicable. (ECF No 51.) Having considered the moving, opposition, and reply papers, the parties' supplemental briefing, the arguments presented at the April 28, 2022 hearing, the June 16, 2022 hearing, as well as the Court's file, Defendant's motion to dismiss the petition for violation of probation shall be denied.

II. BACKGROUND

On January 16, 2020, Defendant pled guilty to a single count of possession of a controlled substance, in violation of 50 C.F.R. §27.82(b)(2); 16 U.S.C. 668 (dd)(f)(2). (ECF No. 12.) On the same date, the Court sentenced Defendant to one year of unsupervised probation with the conditions that he pay a financial penalty, participate in an inpatient drug treatment program, and obey all laws. (ECF No. 12.) The term of probation was originally set to expire on January 15, 2021, and Defendant was initially ordered to personally appear for a probation review hearing November 19, 2020. (Id.) Pursuant to the request of the parties, the Court extended Defendant's term of probation to May 31, 2021, and authorized him to participate in outpatient drug treatment in lieu of an inpatient program. (ECF Nos. 15, 17, 18, 19, 21, 22, 26, 27, 33, 34.) A probation review hearing was set for May 20, 2021. (ECF Nos. 34, 36.)

During the May 20, 2021 review hearing, the Court issued a warrant for Defendant's failure to appear. (ECF Nos. 37, 38.) Defendant proffers that on June 8, 2021, he placed himself back on the Court's calendar with the help of counsel. At the next hearing, on June 17, 2021, Defendant appeared via telephone, and the Court recalled the warrant and referred the matter to the U.S. Probation Office for review. (ECF No. 39.) The Court set a status hearing for July 15, 2021. (Id.)

On July 2, 2021, the Court ordered a warrant issue, to be held until July 15, 2021, based on a petition for violation of probation, alleging that Mr. Brown violated the terms of his probation by failing: (1) to pay his financial obligation by March 30, 2020; (2) to appear in Court for a review hearing on May 20, 2021; (3) to obey all laws as he was arrested for evading a peace officer and for possession of a controlled substance; and (4) to provide proof of completion of substance abuse treatment as ordered by the Court. (ECF No. 40.) The order was filed on the docket on July 6, 2021. (Id.) An arrest warrant issued on July 6, 2021. (ECF No. 41.)

On July 15, 2021, Defendant appeared for an initial appearance on the violation petition, and the arrest warrant was recalled. (ECF No. 43.) Following continuances, on December 7, 2021, Defendant filed the motion to dismiss probation violation petition that is currently before the Court. (Def.'s Mot. Dismiss (“Mot.”), ECF No. 51.) On January 7, 2022, the Government filed an opposition brief. (Govt. Opp'n Br. (“Opp'n), ECF No. 53.) On January 14, 2022, the Court granted a stipulated continuance and extension of the briefing schedule. (ECF No. 55.) On February 10, 2022, Defendant filed a reply brief. (Def.'s Reply Br. (“Reply”), ECF No. 56.) On February 11, 2022, a transcript of the proceedings held on May 20, 2021, was filed with the Court. (ECF No. 58.) A status conference was held on February 17, 2022, and oral argument on the instant motion was continued until February 22, 2022. (ECF No. 60.) On February 18, 2022, the Court continued the oral argument until April 28, 2022, and ordered supplemental briefing to be filed on or before April 14, 2022. (ECF No. 63.) On April 11, 2022, a transcript of the proceedings held on June 17, 2021, was filed with the Court. (ECF No. 65.) On April 14, 2022, Defendant filed a supplemental brief. (Def.'s Suppl. Br. (“Def.'s Suppl.”), ECF No. 67.) On the same date, the Government filed a supplemental brief. (Govt.'s Suppl. Br. (“Govt. Suppl.”), ECF No. 68.)

On April 28, 2022, the Court held a status conference and hearing on the motion to dismiss. (ECF No. 69.) The Court ordered Defendant's final supplemental briefing to be filed on or before May 13, 2022, and the Government's final supplemental briefing to be filed on or before May 27, 2022.^[1] The Defendant filed a supplement on May 13, 2022. (Def.'s Suppl. Br. (“Def.'s 2nd Suppl.”, ECF No. 70.) The Government did not file any further supplement by the May 27, 2022 deadline.

On June 16, 2022, the Court held a final hearing on the Defendant's motion to dismiss. (ECF No. 71.) Jaya Gupta appeared on behalf of Defendant, and Jeffrey Spivak appeared on behalf of the Government. The matter was taken under submission, and the status conference on the violation petition hearing was continued to September 15, 2022. (ECF No. 71.)

III. LEGAL STANDARD

A district court may sentence a defendant to probation pursuant to 18 U.S.C. § 3561.

Under 18 U.S.C. § 3565(c), the Court retains power to revoke probation and impose another sentence after a probationary period ends only if a warrant or summons, based on sworn allegation of a violation of probation, is issued before the end of the probationary period. See United States v. Pocklington, 792 F.3d 1036, 1039 (9th Cir. 2015) (“Pocklington”). The statute provides:

(c) Delayed revocation.--The power of the court to revoke a sentence of probation for violation of a condition of probation, and to impose another sentence, extends beyond the expiration of the term of probation for any period reasonably necessary for the adjudication of matters arising before its expiration if, prior to its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

18 U.S.C. § 3565(c).

IV. DISCUSSION

Defendant filed the motion to dismiss arguing dismissal is proper because this Court lacks jurisdiction to revoke Defendant's term of probation because it did not issue a warrant or summons prior to the expiration of that term, as governed by 18 U.S.C. § 3565(c). (ECF No. 51.) The Government's opposition then primarily responded on the basis the fugitive tolling doctrine extended the period of probation, and alternatively suggested the May 21, 2021 bench warrant may have satisfied § 3565(c). Thereafter, the parties focused supplemental briefing on the question of whether the bench warrant issued on May 21, 2021, was sufficient under § 3565(c) to qualify as a warrant for purposes of § 3565 and the requirements expressed by the Ninth Circuit in Pocklington. Defendant also maintains the fugitive tolling doctrine is no longer valid law. As the question regarding the May 21, 2021 warrant can potentially be resolved without determining whether the fugitive tolling doctrine is still good law, the Court first addresses the May 21, 2022 warrant.

A. The May 21, 2022 Warrant Satisfies the Requirements of 18 U.S.C. § 3565(c)

Defendant submits the May 21, 2021 bench warrant was not issued on the basis of sworn allegations that Brown had violated a condition of his probation, and therefore it did not meet two of the three requirements under § 3565(c) and was not sufficient to extend the Court's jurisdiction to revoke Defendant's probation.

“§ 3565(c) is jurisdictional and [] when Congress used the words ‘warrant or summons,' it meant them.” Pocklington, 792 F.3d at 1037. “Close enough doesn't fly under the statute [and] [i]f the government suspects wrongdoing and wants to extend the probation period, § 3565(c) provides easy-to-follow instructions: get a warrant or summons before the probation expires.” Id. (“Because the government did not do so, the district court lacked jurisdiction to extend Peter Pocklington's probation beyond its termination date.”).

Defendant directs the Court to Vargas-Amaya. There, the Ninth Circuit looked at the requirements of 8 U.S.C. § 3583(i), a statute largely similar to Section 3565(c) in its requirements for the issuance of a warrant or summons regarding a violation of supervised release. The Ninth Circuit emphasized the nearly identical language in Section 3583(i):

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h), a further term of supervised release, extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

United States v. Vargas-Amaya, 389 F.3d 901, 903 (9th Cir. 2004) (quoting 18 U.S.C. § 3583) (emphasis added by quoting source).

The Ninth Circuit held the italicized portion of § 3583(i) requires “that: (1) a warrant or summons, (2) issue before the expiration of a term of supervised release, (3) on the basis of an allegation of a violation of supervised release.” Vargas-Amaya, 389 F.3d at 903. The Ninth Circuit stated “in order to avoid any constitutional problems with § 3583(i), we construe it to mean that not all warrants or summonses will extend the district court's jurisdiction to revoke supervised release. Instead, the warrant issued must have...