Saturday, May 09, 2015

Supervised release provision requiring warrant or summons to issue before expiration of term is jurisdictional.


United States v. Merlino, No. 14-4341, 2015 WL 2059594 (3d Cir. May 5, 2015).  In this appeal, involving the reputed former head of the Philadelphia La Cosa Nostra, the Court decided that 18 U.S.C. § 3583(i) is a jurisdictional statute requiring that a warrant or summons must issue before the expiration of supervised release in order for a District Court to conduct revocation proceedings. Because the summons here was issued after the termination of supervised release, the Court concluded that the District Court lacked subject-matter jurisdiction to revoke supervised release, it vacated the order revoking supervised release and imposing a prison term on Merlino (note:  Merlino had commenced serving his 4-month term on January 15, 2015). 

Merlino’s three-year term of supervised release began on September 7, 2011. On June 18, 2014, law enforcement saw him at a cigar bar in Boca Raton, Florida, talking with several convicted felons, including a former co-defendant.  Probation concluded this violated the terms of his supervised release. Over two months later, on August 26, Merlino’s probation officer filed a revocation petition.  On September 2, the District Court ordered the issuance of a summons directing Merlino to appear for a revocation hearing. Either later that day or the following day, a deputy clerk called defense counsel in an effort to secure a mutually agreeable hearing date for the parties. Defense counsel asked for some time to clear his schedule. The deputy clerk relayed this request to the District Court judge, who assented. On September 11, defense counsel informed the clerk that he could be available in October. On September 16, the clerk finally issued the summons for October 10.  At the hearing, defense counsel argued that the court lacked jurisdiction over the revocation proceedings because the summons had issued after the expiration of Merlino’s term on September 6, 2014. The court held that § 3583(i)’s deadline had been equitably tolled by defense counsel’s request for time.

The Third Circuit reversed.  Read literally, § 3583(i) requires that a warrant or summons must issue before a term of supervised release expires in order for the District Court to exercise its authority to revoke.  Under Dolan v. United States, 560 U.S. 605, 610 (2010), in which the Supreme Court provided guidelines for the classification of federal statutory deadlines, the consequences for noncompliance with such deadlines, and the availability of tolling, the statute must be considered jurisdictional, and not subject to tolling.  This is because “it does not merely set a deadline—it expressly authorizes a grant of ‘power’ to the district court and conditions the existence of that power on a specific and minimally onerous event” – the issuance of a warrant or summons.  The deadline here easily could have been met, not only by seeking a summons earlier, but also by “asking the court to issue a summons with a control date, i.e., a date on which the parties briefly appear and agree upon further scheduling.”  The court’s request to the clerk to issue a summons was not the equivalent of a summons; a summons is a term of art, and must “requir[e] the defendant to appear and answer.”

 Judge Ambro wrote separately to acknowledge “countervailing considerations,” including recent Supreme Court cases, that raise doubt about whether Congress intended § 3583(i) to be jurisdictional rather than “mandatory but nonjurisdictional.”  In the end, thought, he was “swayed that § 3583(i) is jurisdictional by the provision’s reference to the ‘power of the court,’ by the legislative history (weak as it is) saying the provision grants ‘jurisdiction,’ and by the many circuit court cases calling it jurisdictional.” Judge Schwartz dissented, believing that the district court effectively issued a summons.  In communicating with Merlino’s counsel, the clerk clearly and affirmatively demonstrated to Merlino its intent to adjudicate the alleged violation and thus extended its revocation authority.  Judge Schwartz felt that a more informal definition of summons in this context was consistent with the way supervised release violations are treated generally.

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