United States v. Miller, 75 CR 420.

• Decision Date: 08 August 1978
• Docket Number: No. 75 CR 420.,75 CR 420.
• Citation: 454 F. Supp. 440
• Parties: UNITED STATES of America v. Philip R. MILLER.
• Court: U.S. District Court — Northern District of Illinois

454 F. Supp. 440

UNITED STATES of America v. Philip R. MILLER.

No. 75 CR 420.

United States District Court, N. D. Illinois, E. D.

August 8, 1978.

Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for plaintiff.

Glenn E. Gutsche, Chicago, Ill., for defendant.

MEMORANDUM OPINION

FLAUM, District Judge:

This matter comes before the court upon defendant's Motion to Dismiss Government's Request for a Rule to Show Cause Why Probation Should Not Be Revoked. For the reasons set forth below, the Motion is denied.

On April 7, 1975, before the Honorable Robert A. Grant, in the United States District Court for the Northern District of Indiana, defendant pleaded guilty to making a false statement on a check in violation of 18 U.S.C. § 1014. Defendant was sentenced on May 30, 1975 to a term of two years imprisonment, the execution of which was suspended, and he was placed on probation for two years with the special condition that he make complete restitution in the amount of $24,820. In June, 1975, the case was transferred to the Northern District of Illinois, and assigned to the late Honorable William J. Lynch. After the death of Judge Lynch, the case was reassigned to this court.

On May 26, 1977, citing defendant's failure to make the restitution required by the probation order, the government filed a Motion for a Rule to Show Cause Why Probation Should Not Be Extended. A hearing was held on May 27, 1977, at which all parties were represented. However, the cause was continued until June 2, 1977 so that counsel could investigate the proper procedure to be followed in obtaining such an extension. On that date, with the express consent of defendant, both personally and through his attorney, the court extended defendant's probation for an additional two year period. No objection was made to the order granting the extension, and it was not appealed.

On April 24, 1978, the government filed a Motion for a Rule to Show Cause Why Probation Should Not Be Revoked. This Motion is grounded upon the government's claim that defendant was engaged in criminal activity in violation of the conditions of his probation between May 27, 1977 and February 27, 1978. At the beginning of May, 1978, defendant filed the motion which is presently at issue, along with a supporting Memorandum. A Response from the government and defendant's Reply thereto have also been received and considered by the court.

Defendant's argument in favor of the dismissal of the government's Motion for a Rule to Show Cause can be divided into two parts. The first goes to the validity of the order of June 2, 1977, extending defendant's term of probation. Defendant argues that the court lacked jurisdiction to enter this order on June 2, 1977, since defendant's original two year period of probation ended on May 30, 1977. In addition, defendant asserts that, as no showing was made that defendant had willfully violated his probation, the court had no lawful authority to extend the period of probation. Finally, defendant claims that the order extending the period of probation was of no legal effect, because the original sentencing court—Judge Grant, of the United States District Court for the Northern District of Indiana—did not consent to the change in the period of probation, as required by 18 U.S.C. § 3653.

Second, defendant urges that the government has not moved for revocation of his probation in a timely manner. Owing to the alleged invalidity of the order of June 2, 1977, defendant maintains that under 18 U.S.C. § 3653, this court may only revoke defendant's probation on the basis of a finding that defendant violated a condition of his probation during his original two year probationary period, and then only if formal revocation procedures had been initiated during that period. Initially, defendant asked the court to grant his Motion to Dismiss because of claimed failure on the part of the government to present before the court any information that would indicate that defendant did in fact violate any condition of his probation during that time period. But after the government stated, in its Response to Defendant's Motion to Dismiss Rule to Show Cause, that it expects to prove, at a hearing on its Motion for a Rule, that defendant was engaged in criminal and fraudulent activity in violation of the condition of his probation during the original two year period of probation, defendant appeared to shift his argument. Defendant now seems to rely on the fact that the motion to revoke probation was not filed by the government within the original two year probation period as the conclusive step in his analysis of why this court must grant his Motion to Dismiss.

However, defendant's formulation of the law governing this crucial question is meritless. Section 3653 provides, in pertinent part, that

. . . At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. . . . As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.

Some circuits now interpret this section as providing that "a revocation can occur after the probationary period only if the violation is one that occurred during that period and if formal revocation procedures—usually the issuance of an arrest warrant—are initiated during that period." United States v. Strada, 503 F.2d 1081, 1084 (8th Cir. 1974). But this circuit continues to adhere to the traditional construction of section 3653, according to which "a district court's jurisdiction over a person admitted to probation continues throughout the maximum probation period authorized by the statute (now 5 years under section 3651) even though the court fixed the supervised probation at a lesser time." United States v. Swanson, 454 F.2d 1263, 1265 (7th Cir. 1972).¹ The sole effect of the expiration of a probationer's term of probation, where that term is under five years in duration, is to terminate his supervision by the Probation Office. See id. at 1266. In this case, as the original probation period began on May 30, 1975, the government's present motion was obviously made within the aforementioned five year maximum probation period—i. e., it is timely. Thus, should the government prove that defendant violated the conditions of his probation within the original probationary period, this court would have the jurisdiction and the power to revoke his probation, whether or not the extension of his term of probation entered on June 2, 1977, was proper.² Accordingly, the government must be accorded an opportunity to prove its charges against defendant, and defendant's Motion must be denied.

But even if this circuit did not adhere to the rule followed in United States v. Swanson, defendant's Motion would still properly be denied. Defendant's objections notwithstanding, this court ordered a legally valid extension of defendant's term of probation on June 2, 1977. The government claims that defendant violated the conditions of that extended probation, and has requested its revocation within the period of its duration. When viewed from this perspective, too, this case is one in which the government is entitled to a hearing on its Motion for a Rule.

Contrary to defendant's assertions, this court had jurisdiction to enter the order of June 2, 1977, despite the fact that defendant's original two year period of probation ended on May 30, 1977. Assuming, arguendo, that the rule of United States v. Swanson did not apply in this context, the fact remains that defendant, having been put on notice by the Government's Motion to Show Cause Why Probation Should Not Be Extended that an extension would be sought, appeared on May 27,...