United States v. Louzon

• Decision Date: 18 April 1975
• Docket Number: Crim. A. No. 49229.
• Citation: 392 F. Supp. 1220
• Parties: UNITED STATES of America, Plaintiff, v. Douglas LOUZON, Defendant.
• Court: U.S. District Court — Western District of Michigan

392 F. Supp. 1220

UNITED STATES of America, Plaintiff, v. Douglas LOUZON, Defendant.

Crim. A. No. 49229.

United States District Court, E. D. Michigan, S. D.

April 18, 1975.

COPYRIGHT MATERIAL OMITTED

William D. Richards, Detroit, Mich., for plaintiff.

Gershwin Drain, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This motion arises from the government's attempt to prosecute the defendant for alleged violation of probation. The defendant has filed what has been labeled a motion to dismiss the probation violation. The gravamen of the defendant's motion, however, is to quash the warrant under which the defendant was arrested on February 13, 1975. The uncontroverted facts pertinent to this motion are as follows:

On June 21, 1973, the defendant was sentenced by this court to the custody of the Attorney General for two (2) years for violating 18 U.S.C. § 4, but the execution of the sentence was suspended and the defendant was placed on three (3) years probation. At that time the defendant was already on parole from the State of Michigan.

Although the defendant was available to report to the United States Probation Department from June 21, 1973, to September 11, 1973, he allegedly failed to report to the Probation Department on July 9, 1973, which was in violation of his probation conditions.

On September 11, 1973, the defendant was arrested and held on various State charges. He was convicted on these various charges in State court on September 29, 1973, and sentenced to a total of ninety (90) days confinement in the Detroit House of Correction and one (1) year's probation. His prior parole for a previous State offense was also revoked as a result of these convictions. Upon the completion of his ninety (90) day sentence in the Detroit House of Correction, he was transferred on or about December 26, 1973, to the State Prison in Jackson, Michigan, to serve his sentence for parole revocation.

After learning of the defendant's convictions in the State court on September 29, 1973, the United States Probation Department in this district recommended revocation of the defendant's probation, imposed by this court on June 21, 1973. On December 12, 1973, this court issued a warrant for the arrest of the defendant. The defendant was not, at that time, arrested and brought before the court. Instead, based on the warrant issued by the court, the Probation Department, through the United States Marshal, then requested that the State authorities allow a federal detainer to be lodged against the defendant at the State Prison in Jackson, Michigan. Based on the issuance of the warrant, the State granted the request. The defendant wrote his federal probation officer at least once during his incarceration at the State Prison in Jackson, Michigan, requesting the detainer be lifted, but the request was denied.

On February 13, 1975, immediately before the defendant's State sentence for his parole revocation was to expire, he was turned over to the United States Marshal, pursuant to the federal detainer and warrant for his arrest. Thus, the arrest warrant, issued December 12, 1973, was not executed until that day, approximately fourteen (14) months after it was issued by the court. During this fourteen (14) month period, the Probation Department had actual knowledge of the location of the defendant, and deliberately withheld execution of the issued arrest warrant until the defendant had completed his State sentence. The filing of the detainer by the Probation Department and the withholding of any action until the defendant had completed his State sentence was done pursuant to a long standing policy of the Probation Department, and was not the result of any mistake or inadvertence.¹

The government contends that, although it generally does not approve of this policy of the Probation Department, the defendant has not demonstrated any resultant prejudice from the policy, or that the delay in the execution of the arrest warrant has fatally tainted the probation violation proceeding.

The issue presented in this motion is whether the Probation Department's policy of deliberately delaying prosecution for alleged probation violations, by withholding execution of a previously issued arrest warrant, based on the alleged violation, and filing a detainer, violates the defendant's right to a speedy trial under the Sixth Amendment. Framed in this fashion, the issue appears to be one of first impression in the federal courts.

I.

18 U.S.C. § 3653 provides that the court for the district in which the probationer is or has been supervised may issue a warrant for his arrest for a violation occurring during the probation period at any time during that period or at any time within the maximum probation period permitted by law, i. e. five (5) years. In the present case the warrant was executed well within the probation period. There is no language in the statute, however, which places a time limitation on when the warrant must be executed. The statute only provides that upon apprehension under a timely warrant the probationer shall be brought before the court "as speedily as possible after arrest (emphasis supplied) . . . ." In this respect, the laws are not dissimilar to the parole statutes which impose a time limitation for the issuance of a warrant and for the retaking of a prisoner who has been charged with violating parole, but are silent as to the period allowable for execution.² Accordingly, the question as to the period allowable for the execution of the probation warrant is not contemplated by the statute or its legislative history.³

The peripheral case law pertinent to this issue is also sparse and inconclusive. Only two previous cases have confronted the issue of whether an unreasonable delay in the execution of a probation violation warrant invalidated the warrant. In United States v. Gernie, 228 F.Supp. 329 (S.D.N.Y.1964), a probation violation warrant was executed some eleven (11) years after its issuance. During this period, the probationer had lived at the same residence and made no attempt to conceal his whereabouts. The Probation Department had made no attempt to execute the warrant or locate him. The Gernie court, however, was faced with the threshold issue, not present in this case, of whether the court still had subject matter jurisdiction over the probation proceedings since the probationary period had expired. The issue depended on the continuing validity of the warrant, which ordinarily extends the court's jurisdiction beyond the five (5) year time limit of 18 U.S.C. § 3653. In confronting the jurisdictional issue, and explicitly avoiding the constitutional issue this court must face in the present case, the Gernie court held that it lacked jurisdiction over the probationer under 18 U.S.C. § 3653. Id. at 339. The court reasoned that jurisdiction does not continue indefinitely merely because a warrant for arrest for violation of probation was timely issued, and that unless the warrant was executed within a reasonable time after issuance the warrant loses its force and vitality. Id. at 337. The court also felt the delay in Gernie's case was unreasonable because the probationer had done nothing to prevent the execution of the warrant and because the Probation Department had not been diligent in attempting to execute the warrant. Id. at 338-339.

A contrary holding was reached in United States v. Bartholdi, 453 F.2d 1225 (9th Cir. 1972). In that case the defendant began serving a two (2) year federal probationary sentence in September, 1968. Sometime in 1969, he was convicted in State court of a felony, and a probation violation detainer was placed with the State authorities. At the same time a probation violation warrant had been issued, but not executed. After repeated requests by the defendant for a hearing on the petition for revocation, the warrant was executed and the hearing was conducted in January, 1971. Probation was revoked and the defendant was sentenced to four (4) months custody, which would run consecutive to his State sentence. The Court of Appeals upheld this procedure, and explicitly allowed a delay in the execution of the probation violation warrant pending the outcome of criminal charges and sentences entered thereon, so long as there was no unreasonable delay.

While the facts of Bartholdi are closely analogous to the facts in the present case, the court's reasoning is far from satisfactory. The cursory opinion rests almost entirely on the previous case of Barr v. Parker, 453 F.2d 865 (9th Cir. 1971), in which it was held that a delay under similar circumstances in the execution of a parole violation warrant was acceptable. Moreover, Barr, in turn, was decided before the landmark parole revocation decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which held, inter alia, that the parolee was entitled to his revocation hearing within a reasonable time after being taken into custody. Thus, the legal authority on which Bartholdi rests is subject to question.⁴

The result of this inquiry is that neither the applicable statutory language nor case law directly answers the issue posed in the present case.

II.

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." Traditionally, the protection afforded by this Amendment has been "activated only when a criminal prosecution has begun and extends only to those persons who have been `accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). Invocation of the right need not await indictment, information, or other charge but begins with the actual restraints imposed by arrest if it precedes the formal preferring of charges. Id. at 307, 313, 320, 322, 92 S.Ct. 455.⁵ The fact a warrant was not issued pursuant to an indictment or information in ...