United States District Court, D. Arizona
HONORABLE CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.
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.
Standard of Review
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
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”).
Factual and Procedural Background
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.
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).
Motion to Dismiss
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.
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
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.