United States v. Fox

          ORDER

          HONORABLE CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.

         On July 11, 2019, Magistrate Judge Bruce G. Macdonald issued a Report and Recommendation (“R&R”) (Doc. 111) in which he recommended that Defendant's Motion to Dismiss the Petition to Revoke Supervised Release (Doc. 100) be denied and finding that Defendant violated the terms of his supervised release as set forth in the pending Superseding Petition to Revoke Supervised Release (Doc. 102). Defendant filed an objection to the R&R on July 23, 2019. (Doc. 112). The government filed a response on August 8, 2019. (Doc. 113).

         1. Standard of Review

         The Court has reviewed Defendant's Motion to Dismiss the Petition to Revoke Supervised Release (Doc. 100), the government's Response (Doc. 104), the R&R (Doc. 111), the Defendant's Objections (Doc. 112), and the government's Response. (Doc. 113). The R&R summarizes that Defendant seeks to dismiss the pending Petition to Revoke Supervised Release and the Superseding Petition to Revoke Supervised Release. Defendant alleges that there was an unreasonably long delay of his evidentiary hearing that should result in this Court granting his motion to dismiss. Defendant also alleges that he did not violate the conditions of his supervised release. The magistrate judge recommends this Court deny Defendant's motion to dismiss and find that Defendant did violate the conditions of his supervised release.

         The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made”).

         2. Factual and Procedural Background

         Although a full recitation of the facts has been provided in the R&R, the Court will provide a brief summary of the relevant facts. On February 18, 2019, Defendant was arrested pursuant to a warrant and a petition to revoke supervised release. Defendant had an Initial Appearance on February 20, 2019 and an Admit/Deny hearing was scheduled for March 20, 2019. This hearing was delayed in small part due to defense counsel's desire to continue the hearing and a conflict in the Magistrate Judge's calendar, and in large part due to Defendant being quarantined for an extended period and the government's request to continue the hearing in anticipation of the Defendant's probation officer filing a Superseding Petition to revoke supervised release.

         On June 4, 2019, Defendant filed a Motion to Dismiss Petition to Revoke Supervised Release. (Doc. 100). Defendant alleges that Federal Rule of Criminal Procedure 32.1(b)(2) requires a revocation hearing be held “within a reasonable time” and since Defendant had been held for an extended period without his consent, the petition should be dismissed. (Doc. 100, pg. 3).

         3. Defendant's Objections

         A. Motion to Dismiss

         Defendant alleges that the petition to revoke his supervised release should be dismissed because his revocation hearing was not held “within a reasonable time” since approximately four-months had elapsed between his initial appearance until the evidentiary hearing was ultimately held. Defendant argues that “for guidance the Court can consider the speedy trial time limits mandated by 18 U.S.C. §3161(c)(1), which requires that trials commence within 70 days of the filing of an information or indictment unless the defendant agrees to a later date or other extraordinary circumstances exist.” (Doc. 112, pg. 4). While that analogy is not unwarranted, the Ninth Circuit has cautioned against such a comparison and has held that “a reasonable time for proceeding to a full-scale criminal trial is not the same as a reasonable time for revocation proceedings, and therefore Speedy Trial Clause authority should not be applied in revocation proceedings as if it were directly controlling.” United States v. Santana, 526 F.3d 1257, 1261 (9th Cir. 2008). The Ninth Circuit went on further to state that a “four-month delay . . . would not even trigger ordinary Speedy Trial analysis.” Id. Therefore, given the length of the delay in this case, the Court finds that any attempt to utilize a Speedy Trial analysis to be improper.

         A defendant's “right to a prompt hearing on the petition for revocation of supervised release arises under the Due Process Clause of the Fifth Amendment.” Id. at 1259. The burden is on the defendant to show that the delay “was both unreasonable and prejudiced his rights.” Hopper v. U.S. Parole Comm'n, 702 F.2d 842, 845 (9th Cir. 1983). “‘Reasonableness' is itself a sort of balancing judgment in which the length of delay is considered in connection with the reasons for the delay.” Santana, 526 F.3d at 1260. Defendant cites no authority analyzing the reasonableness of this delay and seems to suggest that the mere passage of one-hundred and twenty days is per se unreasonable. Similarly, Defendant advances no argument that the delay was unreasonable. As the Court has previously highlighted, most of the delay here is attributable to a legitimate reason - a quarantine. This quarantine, in large part, led to a delay of approximately four months. Courts have routinely held that brief delays of a few months are reasonable for purposes of the Due Process Clause. See, e.g., United States v. Shampang, 987 F.2d 1439, 1443 (9th Cir. 1993) (“the delay of five months from the June violations was neither unreasonable nor fundamentally unfair”); Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (“A lapse of two months, as respondents suggest occurs in some cases, would not appear to be unreasonable”).

         Not only has Defendant advanced no argument that the four-month delay was unreasonable, he has provided no indication that he was prejudiced by the delay. Since a four-month delay has been routinely held to be reasonable and since that delay was caused by a legitimate public safety concern, Defendant's argument fails. The delay in this case was not unreasonable and the Court adopts the magistrate judge's recommendation denying Defendant's Motion to Dismiss. (Doc. 100).

         B. ...