The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
On March 8, 2010, the Court of Appeals invited this Court to address Cirilo FloresPerez's ("Petitioner") Petition for Writ of Mandamus. The Court submits this response to clarify and reaffirm its December 1, 2009 denial of Petitioner's request for a preliminary hearing.
On November 8, 2007, Petitioner was convicted of attempted transportation of an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), in the instant case, D.C. No. 07CR1477-L. On February 4, 2008, the Court sentenced Petitioner to 30 months imprisonment, followed by 3 years supervised release. One of the mandatory conditions of Petitioner's supervised release was "not to commit another federal, state, or local crime."
On July 29, 2009, Petitioner was released from custody and his term of supervised release commenced. Shortly thereafter, on September 11, 2009, Petitioner was arrested for alien smuggling. On September 23, 2009, an indictment was returned, charging Petitioner with attempted transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). The case was assigned to District Judge Sabraw, D.C. No. 09CR3487-DMS (hereinafter "the new case").
On November 6, 2009, a Petition for Warrant or Summons for Offender Under Supervision was issued in the instant case on the basis of the indictment in the new case.*fn1 On November 17, 2009, a preliminary hearing was held before Magistrate Judge McCurine on the alleged supervised release violation. Petitioner requested an opportunity to question adverse witnesses at the hearing. ge McCurine denied the request, finding the interests of justice did not require live witness testimony. Judge McCurine further found there was probable cause that Petitioner had violated his supervised release, and referred the matter to this Court for the revocation hearing.
On December 1, 2009, Petitioner moved this Court to hold a contested hearing on the alleged violation. The Court denied the motion and set the final revocation hearing for February 1, 2010.*fn2 Petitioner objected and requested a preliminary hearing pursuant to Rule 32.1(b). The Court denied his request.
On January 25, 2010, Petitioner's trial in the new case commenced. The jury was unable to reach a verdict, and a mistrial was declared on January 29, 2010. Currently, a re-trial is set for April 12, 2010. Petitioner's revocation hearing has been continued to April 19, 2010.
II. DISCUSSION A. PETITIONER DOES NOT HAVE A RIGHT TO A PRELIMINARY HEARING
Petitioner argues the Court violated his due process rights and Rule 32.1 by denying his request for a preliminary hearing. As an initial note, Petitioner did receive a preliminary hearing on November 17, 2009. At that hearing, the Magistrate Judge found probable cause that Petitioner violated his supervised release. Petitioner just did not have the opportunity to question the agents who arrested him.*fn3 Even if the Magistrate Judge's rulings were erroneous, the relief Petitioner seeks is not appropriate because he has no right to a preliminary hearing.
In Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), the United States Supreme Court held that probationers are entitled to a preliminary and final revocation hearing, under the conditions outlined
Morrissey v. Brewer, 408 U.S. 471 (1972). Those rights were codified in Rule 32.1 of the Federal Rules of Criminal Procedure.
However, it is well settled law in the Ninth Circuit that a probationer is not entitled to a preliminary hearing when he is already in custody at the time of revocation proceedings for a crime committed while he was under supervision. See United States v. Diaz-Burgos, 601 F.2d 983, 984-85 (9th Cir. 1979) (per curiam). In Diaz-Burgos, the defendant had been convicted of illegally reentering the United States after having been previously deported. While he was on probation for that offense, he again illegally entered the United States and was arrested. Thereafter, his probation was revoked. The defendant appealed, arguing the revocation violated his due process rights. The Ninth Circuit rejected his claim. The Court held "we do not agree with [defendant's] contention that it was necessary to provide him with a preliminary probable cause hearing as was required in Gagnon v. Scarpelli, because [defendant] was already in custody at the time of the revocation proceeding by reason of a second re-entry prosecution." Id. at 984-85 (internal citation omitted).
The facts here are nearly identical to the facts in Diaz-Burgos. Like Diaz-Burgos, Petitioner was convicted of a federal crime and placed on probation. Like Diaz-Burgos, Petitioner was under supervision when he was arrested for committing a new federal crime. And finally, like Diaz-Burgos, Petitioner was in custody by reason of his new federal charges at the same time as the revocation proceedings. Therefore, under Diaz-Burgos, a preliminary hearing was not required in the instant See also United States v. McNease, 52 Fed.Appx. 384 (9th Cir. 2002) (unpublished) (citing Diaz-Burgos, 601 F.2d at 984-85) ("The district court correctly ruled that a preliminary probable cause hearing was not required because ...