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United States v. Scott

decided: June 24, 1988.

THE UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
ROBERT A. SCOTT, DEFENDANT-APPELLEE



Appeal from United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 195-4--Charles P. Kocoras, Judge.

Bauer, Chief Judge, Cudahy, and Ripple, Circuit Judges.

Author: Bauer

BAUER, Chief Judge.

The defendant-appellant, Robert A. Scott, appeals from the district court's order revoking his probation. Scott argues that the district court erred by revoking his probation for acts that occurred prior to the beginning of the probation period and by violating his right to a speedy probation hearing. For the reasons discussed below, we affirm.

Scott's probation status arose from his conviction for delivery of cocaine. On November 23, 1982, the district court sentenced Scott to the custody of the Attorney General for two years, followed by a special parole term of eight years, and fined him $5,000. Scott also was given a suspended sentence for conspiracy to deliver cocaine and was placed on five years probation to run consecutively with his two-year prison term and concurrently with his special parole term. Scott appealed his conviction and remained free on bond until this court affirmed his conviction on February 24, 1984. After receiving a number of extensions, the district court ordered Scott to surrender on May 1, 1984. When Scott failed to appear, the district court issued a bench warrant and Scott was arrested on May 16, 1984. On May 17, 1984, Scott appeared before the district court. At that time, the government moved that Scott be held at the Metropolitan Correctional Center (MCC) pending a probation revocation hearing. The district court granted this motion in a written order on May 23, 1984.

On October 11, 1984, the government filed a motion for Scott to show cause why his probation should not be revoked based, in part, on Scott's failure to appear and Scott's involvement in a cocaine sale on April 27, 1984. The district court ordered Scott to respond to the government's motion by October 19, 1984, and set a date for hearing on October 25, 1984. On October 25, Scott filed his response and the district court ordered the government to disclose the evidence it planned to rely on at the hearing. Both parties requested additional time and a status hearing was scheduled for November 8, 1984. The hearing was delayed until November 15, 1984. Again, no hearing was held and a new status hearing was set for December 13, 1984 and then, December 27, 1984. On the 27th, the district court informed the parties that three trials were scheduled already for January, 1985 and that he would notify the parties about a new hearing date. On January 16, 1985 the district court ordered Scott to remain at the MCC until there was a hearing.

On June 18, 1985, the district court finally heard the government's revocation motion. On June 24, 1985, the district court revoked Scott's probation and reinstated the suspended five-year sentence. The district court found that Scott failed to surrender and, at the same time he sought extensions, he was involved in drug sales.

Scott first argues that the district court erred in revoking his probation for acts that occurred prior to the beginning of the probation period. Recently, this court rejected this argument in United States v. Yancey, 827 F.2d 83 (7th Cir. 1987). In Yancey, we expressly overruled United States v. Dick, 773 F.2d 937 (7th Cir. 1985), and held that a district court may revoke probation for a preprobation offense. Id. at 88. We believe Yancey was correctly decided and follow it here.

Scott argues next that he was denied his statutory and constitutional rights to a "speedy" probation revocation hearing by the thirteen-month delay between May, 1984 and June, 1985. Scott relies on Section 3653 of the Probation Act, 18 U.S.C. § 3651, et seq., which was in force at the time of his arrest.*fn1 Section 3653 states in relevant part:

At any time within the probation period, the probation officer may for cause arrest the probationer wherever found, without a warrant. 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. Such warrant may be executed in any district by the probation officer or the United States marshal of the district in which the warrant was issued or of any district in which the probationer is found. If the probationer shall be arrested in any district other than that in which he was last supervised, he shall be returned to the district in which the warrant was issued, unless jurisdiction over him is transferred as above provided to the district in which he is found, and in that case he shall be detained pending further proceedings in such a district.

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.

The district court did not violate the language of this statute. This section empowers a probation officer and the court for the district in which the probationer is being supervised to arrest, for cause, the probationer. The statute further provides that if arrested in any district other than the district in which he was supervised, the probationer shall be returned to the district that issued the warrant for his arrest, unless he is transferred to another district. If he is not transferred, the statute requires that "[a]s speedily as possible after arrest, the probationer shall be taken before the court for the district having jurisdiction over him." The "as speedily as possible" language does not necessarily relate to a revocation hearing. United States v. Curry, 767 F.2d 328, 329 (7th Cir. 1985). Rather, the statute ensures that the probationer appear immediately before the district court that holds proper jurisdiction over him so that the process of revocation may commence. See United States v. Daly, 839 F.2d 598, 602 (9th Cir. 1988). This particular statute, unlike Fed. R. Civ. P. 32.1, does not direct the district court or the government to do any more than that.*fn2 It also is unclear whether Scott's "arrest" on May 16 falls within the purview of § 3653 since he was not arrested for violating his probation but, rather, for failing to surrender to the Attorney General. See e.g., United States v. Sackinger, 537 F. Supp. 1245, 1248 (D.C. N.Y. 1982), aff'd, 704 F.2d 29 (2d Cir. 1983). Section 3653, by its plain language, relates only to arrests made by probation officers for violations of probation.

The plain language of the statute, therefore, requires that a probationer, upon arrest, be taken "speedily" before the court of proper jurisdiction to commence any revocation of probation. This was done. Scott was arrested on May 16, 1984. On May 17, 1984, Scott, along with counsel, appeared before the district court and the government moved that Scott remain at the MCC pending a revocation hearing.*fn3 Scott, therefore, was accorded his rights pursuant to section 3653.

Scott also contends that the thirteen-month delay violated his constitutional due process right to a "speedy" revocation hearing under the fifth amendment. In Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), the Supreme Court held that a probationer facing revocation is entitled to minimum due process. The Court reasoned that there was no "difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation," and held that "a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing." Id. at 782. The Court also noted that, although the revocation of probation is not a part of the criminal prosecution, it does result in the loss of liberty and requires due process. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972) (applying minimum due process protections to parolees)). In Morrissey, the Court discussed what process was due parolees ...


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