United States v. 2005-05-24 | 03-50577 | USA VVARGAS-AMAYA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-50577
Plaintiff-Appellee, D.C. No.
v. CR 00-1471 JTM  SD Cal.DANTE VARGAS-AMAYA,
Defendant-Appellant. ORDER

Filed May 25, 2005
Before: Thomas G. Nelson, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Order;
Dissent by Judge Callahan
ORDER
The panel has voted to deny the government’s petition for
panel rehearing. Judge Fisher votes to deny the petition for
rehearing en banc, and Judges T.G. Nelson and Tashima so
recommend. A judge of the court requested a vote on whether
to rehear the matter en banc, but the matter failed to receive
a majority of the votes of the nonrecused active judges in
favor of en banc rehearing.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
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CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
TALLMAN, and BEA, Circuit Judges, join, dissenting from
denial of rehearing en banc:
I respectfully dissent from the denial of rehearing en banc.
The panel’s decision is the first judicial determination that
absent an oath, a district court is without power to issue a
bench warrant to secure the appearance of an individual on
supervised release at a hearing to ferret out whether he has in
fact violated a condition of release. This decision is wrong as
a matter of law, disparages the role of district judges, insults
the integrity of federal probation officers, and unnecessarily
interferes with and complicates the administration of justice,
as it has already rendered thousands of outstanding warrants
potentially unenforceable.
I
The panel itself recognizes that “no case of which we are
aware has addressed” the question of whether an arrest war-
rant for a defendant on supervised release needs to be sup-
ported by an oath. United States v. Vargas-Amaya, 389 F.3d
901, 903 (9th Cir. 2004). I suspect that the issue has not been
the subject of litigation because it is well established that the
district court has wide discretion to order an individual on
supervised release to appear in court so as to ensure compli-
ance with conditions of supervision.
Failing to distinguish the average arrest/search warrant
from a warrant issued for a supervised-release offender, the
panel holds that “the district court lacked jurisdiction to con-
sider the alleged violations of supervised release because the
warrant . . . was not based on facts supported by oath or affir-
mation, as required by the Fourth Amendment.” Id. at 902
(emphasis added). The panel bases its conclusion on its read-
ing of 18 U.S.C. § 3583(i).1
1The statute provides:
The power of the court to revoke a term of supervised release for
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Although the panel concedes that the statute has no express
oath requirement, it nonetheless gleans such a requirement by
parsing the statute into three components: “(1) a warrant or
summons, (2) issue[d] before the expiration of a term of
supervised release, (3) on the basis of an allegation of a viola-
tion of supervised release.” Id. at 903. The panel treats each
part as an isolated requirement that has no bearing on the
meaning of the other components. Id. In utilizing this method
of statutory dissection, the panel avoids considering the defi-
nition of “warrant” in the context of the overall statute.2 It also
allows the panel to ignore the government’s argument that the
last phrase of the statute — “a warrant or summons has been
issued on the basis of an allegation of such a violation” —
provides that a “warrant” under these circumstances is some-
thing less than that required by the Fourth Amendment for the
ordinary individual. Id. at 905. Instead, the panel concludes
that Congress’s use of the term “warrant” in the statute is a
term of art that carries with it the full protection of the Fourth
Amendment’s requirement of an “ ‘oath or affirmation.’ ”3 Id.
at 904 (quoting U.S. Const. amend. IV) (emphasis omitted).
violation of a condition of supervised release, and to order the
defendant to serve a term of imprisonment and, subject to the
limitations in subsection (h), a further term of supervised release,
extends beyond the expiration of the term of supervised release
for any period reasonably necessary for the adjudication of mat-
ters arising before its expiration if, before its expiration, a war-
rant or summons has been issued on the basis of an allegation of
such a violation.
18 U.S.C. § 3583(i) (emphasis added).
2It appears that Congress intended the statute at issue, by its plain terms,
to be nothing more than a tolling provision, one which allows the district
court to determine whether an individual committed violations while he
was on supervised release even though the supervised-release term has
technically lapsed. United States v. Okoko, 365 F.3d 962, 964-65 (11th
Cir. 2004); United States v. Naranjo, 259 F.3d 379, 383 (5th Cir. 2001),
cert. denied, 534 U.S. 1163 (2002). The language of a tolling provision,
particularly language that is ambiguous, should not be construed to create
a jurisdictional requirement on how a probation officer seeks a warrant.
3The leading law dictionary does not reference an “oath” or sworn alle-
gations in defining a “warrant.” See BLACK’S LAW DICTIONARY (8th ed.
2004) (“A writ directing or authorizing someone to do an act, esp. one
directing a law enforcer to make an arrest, a search, or a seizure.”).
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The panel attempts to support its determination by citing
Federal Rules of Criminal Procedure 4 and 9. Id. at 905-06.
There is no question that both of these rules require sworn
allegations in order for a valid arrest warrant to issue. The
panel’s reliance on these rules, however, fails to distinguish
the dynamics of ordinary arrest proceedings from those con-
cerning supervised release. Id. While it is true that Congress
expressly requires an oath under Rules 4 and 9, it does not
require the same under the statute at bar or other related stat-
utes. This is because Congress, consistent with historical prac-
tice and the Constitution, treats the retaking of convicted
criminals on conditional release differently than unconvicted
targets of arrest.4
The panel’s decision overlooks Supreme Court and Ninth
Circuit precedent that reflects this congressional intent. In
Pennsylvania Board of Probation and Parole v. Scott, 524
U.S. 357 (1998), the Supreme Court observed that a parolee
does not enjoy “the absolute liberty to which every citizen is
entitled, but only [ ] the conditional liberty properly depen-
dant on observance of special parole restrictions.”5 Id. at 365
(quotation omitted); accord Gagnon v. Scarpelli, 411 U.S.
778, 782 (1973) (“[R]evocation[ ] is not a stage of a criminal
prosecution, [even if it] does result in a loss of liberty.”);
Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (recognizing
that a parolee does not have the full panoply of constitutional
rights to which a criminal defendant is entitled). Relying on
these cases, we have reached the same conclusion in the
4As the Seventh Circuit has aptly noted, Rules 4 and 9 “apply to warrant
issued at the start of a criminal case, not to when a person violates his
supervised release[.]” United States v. Hondras, 296 F.3d 601, 602 (7th
Cir. 2002).
5Whereas Scott dealt with a parolee, the case at bar concerns a defen-
dant on supervised release. This distinction is of little import. See United
States v. Kinkade, 379 F.3d 813, 817 n.2 (9th Cir. 2004) (en banc) (“Our
cases have not distinguished between parolees, probationers, [or] super-
vised releasees for Fourth Amendment purposes.”), cert. denied, 125
S. Ct. 1638 (2005).
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supervised-release context. See United States v. Soto-Olivas,
44 F.3d 788, 792 (9th Cir. 1995) (holding that “[p]roceedings
to revoke supervised release . . . need not comply with the
procedural protections constitutionally guaranteed for crimi-
nal prosecutions”). The panel’s decision is thus contrary to
this established line of precedent, which dispels the idea that
an individual arrested for violating supervised release is enti-
tled to have the probation officer subscribe to a formal oath
under the Fourth Amendment when petitioning the district
court to hold a hearing on the alleged violation.
The Supreme Court’s opinion in Scott also explains why
the usual warrant requirements do not apply to an individual
on supervised release. As the Supreme Court noted, the gov-
ernment “has an ‘overwhelming interest’ in ensuring that a
[defendant] complies with [supervision] requirements and is
returned to prison if he fails to do so.” Scott, 524 U.S. at 365
(quoting Morrissey, 408 U.S. at 483). The Supreme Court
appreciated that the “costs of allowing [one on supervision] to
avoid the consequences of his violation are compounded by
the fact that [he is] . . . more likely to commit future criminal
offenses than [the] average citizen[ ].” Id. “Indeed, this is the
very premise behind the system of close [ ] supervision.” Id.
The panel fails to square its literal application of the Fourth
Amendment with the reasons given by the Supreme Court for
not extending the full panoply of Fourth Amendment rights to
convicted defendants on supervised release. The question is
not whether a technical application of the Fourth Amendment
is logically possible, but whether in light of precedent such as
Scott and Morrissey, the panel’s interpretation is constitution-
ally compelled. I would hold that, pursuant to this procedure,
what is required for a valid warrant to issue is that a judge
find probable cause to believe that a defendant has violated
his supervised release. United States v. Hondras, 296 F.3d
601, 603 (7th Cir. 2002).
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II
The panel’s decision also fails to appreciate that courts
have approved warrant procedures allowing arrests of paro-
lees on unsworn allegations.6 As the government made clear
in its petition for rehearing, the statute at issue is similar to its
predecessor, 18 U.S.C. § 717, which provided in pertinent
part,
[i]f the warden of the prison . . . from which [a] pris-
oner was paroled or the Board of Parole or any mem-
ber thereof shall have reliable information that the
prisoner has violated his parole, then said warden, at
any time within the term or terms of the prisoner’s
sentence, may issue his warrant to any officer here-
inafter authorized to execute the same for the retak-
ing of such prisoner.
Pet. for Reh’g at 6 (quoting 18 U.S.C. § 717 (1934)).
The Fourth Circuit squarely held that an arrest warrant
issued under the predecessor statute did not require sworn
allegations of parole violations. See Jarman v. United States,
92 F.2d 309, 311 (4th Cir. 1937) (distinguishing for Fourth
Amendment purposes between the retaking of a parolee and
the arrest of an individual charged with a crime). Other cir-
cuits followed suit. E.g., United States v. Polito, 583 F.2d 48,
54-56 (2d Cir. 1978); Story v. Rives, 97 F.2d 182, 188 (D.C.
Cir. 1938). As the former statute has no oath requirement and
provided a blueprint for the current statute, we should accept
that Congress intended for the same rule to apply to defen-
dants on supervised release (especially in light of no evidence
that Congress intended otherwise). See United States v.
Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999) (“Congress is
6In enacting 18 U.S.C. § 3583, Congress replaced “parole” with “super-
vised release.” United States v. Kinkade, 379 F.3d 813, 817 n.2 (9th Cir.
2004) (en banc), cert. denied, 125 S. Ct. 1638 (2005).
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presumed to have known of its former legislation and to have
passed new laws in view of the provisions of the legislation
already enacted.”) (citing United States v. Trident Seafoods
Corp., 92 F.3d 855, 862 (9th Cir. 1996)).
Moreover, the panel attached significance to the fact that it
knew of no statute authorizing the issuance of any warrant
based on unsworn allegations. Vargas-Amaya, 389 F.3d at
904. There is, however, an existing statute that specifically
authorizes a warrant to be issued simply on motion of the
government. Title 18 U.S.C. § 3148(b) provides in relevant
part:
The attorney for the Government may initiate a pro-
ceeding for revocation of an order of release by fil-
ing a motion with the district court. A judicial officer
may issue a warrant for the arrest of a person
charged with violating a condition of release, and the
person shall be brought before a judicial officer in
the district in which such person’s arrest was ordered
for a proceeding in accordance with this section.
18 U.S.C. § 3148(b) (2005). Admittedly, this statute concerns
pretrial release rather than supervised release; nonetheless its
existence refutes the panel’s suggestion that issuing warrants
based on unsworn allegations is statutorily unprecedented.
The panel also failed to appreciate that another statute, 18
U.S.C. § 3606, states:
If there is probable cause to believe that a proba-
tioner or a person on supervised release has violated
a condition of his probation or release, he may be
arrested, and, upon arrest, shall be taken without
unnecessary delay before the court having jurisdic-
tion over him. A probation officer may make such an
arrest wherever the probationer or releasee is found,
and may make the arrest without a warrant.
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18 U.S.C. § 3606 (2005) (emphasis added). The Second Cir-
cuit has found that such warrantless arrests of releasees “fur-
ther the role of the probation officer as community
protector[.]” United States v. Reyes, 283 F.3d 446, 557 (2d
Cir. 2002).
III
The statutory scheme and applicable case law thus appear
to require that, in the supervised-release setting, constitutional
due process requires only written notice to the releasee and a
determination of probable cause by the district judge. These
requirements are evident in Congress designing a flexible sys-
tem that affords probation officials, working in conjunction
with district courts, tools to swiftly safeguard society from
violator conduct. 18 U.S.C. § 3583(e). “Thus, the trial court
having supervision over the defendant had the authority at
any time during the . . . supervised release period to issue an
arrest warrant for a violation.” MOORE’S FED. PRAC.
§ 632.1.02[2] (3d. ed. 2004) (emphasis added). Indeed, the
ultimate responsibility for issuing such a warrant rests with
the district judge, not the probation officer. In fact, the district
court may initiate proceedings sua sponte when it has reason
to believe that a violation has occurred, United States v.
Mejia-Sanchez, 172 F.3d 1172, 1175 (9th Cir. 1999), and a
judicial officer does not even have to personally sign the war-
rant. Hondras, 296 F.3d at 603. All that the district judge has
to do is determine that enough of a showing has been made
in order to arrest the releasee to appear for a hearing on the
alleged violation. Id. This is how this aspect of the criminal
justice system has traditionally worked. To add the require-
ment of an oath from the probation officer does little other
than provide more opportunity for violators to endanger our
communities.
The statute’s flexibility is also reflected in the manual sup-
plied to probation officers by the Administrative Office of the
United States Courts, entitled “The Supervision of Federal
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Offenders.” In its current form, the manual provides guide-
lines that supervising probation officers must follow when
requesting court action in a case where a convicted and sen-
tenced defendant is believed to be violating a condition of his
supervised release. Monograph 109 (Mar. 2004 Rev.) at V-
14-15. The manual does not advise probation officers to pro-
vide their allegations to the district court under oath. In defin-
ing the “Purpose of the Petition,” the manual states that the
petition serves to “assist the court in determining whether
probable cause exists to issue an arrest warrant and to detain
the offender, if necessary, during the revocation proceed-
ings[.]” Id. at V-15. In other words, the petition is not itself
intended to be an instrument determining that there is proba-
ble cause; that is a determination reserved for the district
judge.
The manual also instructs supervising probation officers to,
“[w]henever possible, avoid secondhand (hearsay) testimony
and obtain corroborating evidence (e.g., reliable documents or
testimony from other sources).” Id. at V-16. There are, of
course, cases where the officer is not able to “fully investigate
and document the alleged violation(s)” because “the defen-
dant poses an imminent danger to himself or others so as to
require immediate action.” Id. at V-18. Indeed, the manual
goes on to conclude that “a warrant may be requested prior to
obtaining complete documentation.” Id. These provisions add
further support to the concept that there are instances where
the probation officer should bring information to the district
court’s attention even though the information is not fully doc-
umented or supported by an oath.
IV
As noted, the panel’s novel approach unnecessarily inter-
feres with and complicates supervised-release procedures.
Once a supervising probation officer gets information that
leads him to suspect that a releasee has violated a condition
of his supervised release, it is incumbent on the probation
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officer to immediately notify the district judge with such
information. The district court then issues either a bench war-
rant or a summons requiring the releasee to appear for a
show-cause hearing, where the government, the defense, and
the probation officer can present evidence and argument sup-
porting their respective positions. Because both the safety of
the community and an individual’s freedom are at stake, a dis-
trict court usually makes time for a hearing on an alleged vio-
lation, even when its calendar is completely booked.
The expeditious and inherently less exacting nature of the
process serves two important purposes. First, lest the defen-
dant once again poses a risk of criminal behavior, the stream-
lined proceedings safeguard the community from potential
danger. Second, this process enables the district court to dis-
pense with the allegations without delay if they prove untrue
so that the defendant can continue his path toward rehabilita-
tion. Absent such a pragmatic procedure guiding the district
court’s review of supervised release, these important objec-
tives would be achieved infrequently, if at all.
V
There are other important practical considerations for dis-
tinguishing warrants for revocation of supervised release from
the average arrest warrant. One such consideration is the fact
that probation officers, who notify district courts of alleged
violations, are part of the judicial branch and are supervised
by the courts. As this court has found, probation officers are
the district court’s investigative arm. United States v.
Sifuentez, 30 F.3d 1047, 1049 (9th Cir. 1994). Unlike law
enforcement or citizen informants, a probation officer’s credi-
bility is tested by and known to the district court. Thus, the
district judge does not need an oath from the charging proba-
tion officer to vouch for the reliability and truthfulness of the
information.7
7Even assuming that an oath by the probation officer is the preferable
course, it does not follow that the absence of such an oath should deprive
the district court of jurisdiction to determine whether the releasee is in
compliance with his conditions of supervised release.
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Furthermore, it is demeaning to suggest that a district
judge’s determination of probable cause depends on the pro-
bation officer’s petition concluding with a formal oath. As
officers of the court, probation officials are expected to stand
behind their requests. In that regard, an oath in no way
improves the substance of the probation officer’s petition for
a warrant. Simply put, if the substance of a petition is insuffi-
cient to support a finding of probable cause, the petition
should be denied. If the panel was concerned with the level
of proof proffered in this case for the issuance of the warrant
— it should have said so — and not elevate the presence of
a formal oath to a jurisdictional requirement for a supervised-
release warrant.
VI
Finally, the negative repercussions of the panel’s opinion
are reverberating throughout the circuit. Because most, if not
all, district judges have issued warrants without requiring
oaths by probation officers, the panel’s opinion appears to
require the voiding of thousands of warrants and possibly the
release of thousands of supervised-release violators.
The government paints a clear picture of these conse-
quences through the affidavit of a Supervisory Deputy United
States Marshal for the Southern District of California’s war-
rants section. He states that his office has been instructed by
the United States Attorney not to execute warrants based on
probation or supervised-release violations, and to remove all
such warrants from their database. Furthermore, the panel’s
opinion has led to the immediate cessation of efforts by U.S.
Marshals and local law enforcement to investigate and appre-
hend charged violators on all outstanding warrants. In just the
Southern District alone, there are at least 1,380 outstanding
warrants that are affected by the panel’s decision. Of these
warrants, 820 involve a supervised-release term that has
already expired, thus casting doubt on whether the district
court can even hold these defendants accountable. The
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remaining 560 warrants will have to be withdrawn to be
replaced, where possible, with new warrants based on identi-
cal petitions but for the inclusion of oaths. Other districts in
our circuit are similarly affected. Again, unless constitution-
ally compelled, we should not mandate such a long, costly,
and drawn-out adjustment of the procedures for reviewing
possible violations of supervised release.
If we are going to part company with all of our sister cir-
cuits, and mandate a paradigm shift in a previously unques-
tioned, long-standing procedure by requiring oaths as a
jurisdictional prerequisite to the issuance of warrants for indi-
viduals on supervised release, we should do so sitting en banc.
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