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United States v. Flores-Perez


March 22, 2010


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.


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 [defendant] was not in custody on the ground that he violated a condition of supervised release, but rather was being held as a result of his subsequent arrest for importing marijuana.").

The Ninth Circuit is not alone in holding that a probationer does not have a right to a preliminary revocation hearing when he is in custody awaiting prosecution on other charges. See e.g. United States v. Pardue, 363 F.3d 695, 697-98 (8th Cir. 2004)(stating Rule 32.1 applies "only to those individuals in custody solely for the violation of probation or supervised release" and finding the district court did not erroneously deny the defendant a preliminary hearing where he was being held on charges of committing state law crimes in addition to his supervised release violation) (emphasis added); United States v. Tucker, 524 F.2d 77, 78 (5th Cir. 1975) (holding that where probationer is incarcerated at the time of attempted revocation, "there is no immediate loss of freedom which would require the immediate probable cause hearing which the Morrissey and Gagnon Courts deemed necessary"); United States v. Soles, 336 Fed.Appx. 287, 289 (4th Cir. 2009) ("Fed. R.Crim.P. 32.1 applies only to those in custody solely for the violation of their supervised release."); United States v. Jackson, 2009 WL 5064337, *1 (8th Cir. Dec. 28, 2009) (unpublished) (holding Rule 32.1 "does not apply in this case because [the probationer] was already in custody for the federal drug crime when the court issued the warrant for violating his supervised release"); Wallace v. United States, 474 A.2d 401, 402-03 (D.C. 1984) (holding requirement that probationer receive a preliminary revocation hearing is inapplicable in cases where probationer is currently incarcerated pursuant to a pending prosecution for the commission of another crime); and Wilson v. , 621 P.2d 1173, 1176 (Okla. Crim. App. 1980) ("It may be noted that the Due Process clause requirement of a preliminary hearing does not apply where the probationer or parolee is in custody on charges and for reasons separate from the revocation or acceleration proceedings.").

Under the controlling precedent of this Circuit, and the weight of well-reasoned persuasive authority, the Court finds Petitioner has no right to a preliminary hearing. Accordingly, the Court reaffirms its denial of Petitioner's request for a preliminary hearing.


Rule 32.1(b)(2) states that the district court "must hold the final revocation within a reasonable time." Under the circumstances of this case, the Court finds that it is reasonable to delay the final revocation hearing until after Petitioner's new case is resolved.*fn4 See United States v. Jackson, 295 Fed.Appx. 592, 594 (4th Cir. 2008) (holding revocation hearing was not unreasonably delayed by deferring action on the violation pending resolution of new charge that was inextricably linked with that alleged in the supervised release violation).

The Court believes holding the revocation hearing first does not promote judicial economy. For one, it will not resolve the matter on a global basis because of the different standards of proof between revocation proceedings and criminal trials. Therefore, as a practical matter, it will result in two trials, over the same issues, with the same witnesses. However, if the Court waits, the result of the new trial may resolve the revocation proceedings. If Petitioner is acquitted on the new charges it would alleviate the need for a full revocation hearing. Furthermore, postponing the hearing will avoid inconsistent findings on the same charge. For example, Petitioner could be found in violation of his supervised release for committing a new federal crime, only to be acquitted, under a higher burden of proof, at his criminal trial. Delaying will also avoid putting Petitioner in a situation where he must choose between invoking his right against self-incrimination at the revocation hearing, or risk having his statements used against him at his criminal trial. Therefore, the Court finds it makes far more sense to wait until Petitioner's new case is resolved before proceeding.

The Court notes that it is not alone in finding these policy reasons may justify delaying the final revocation hearing. For example, in United States v. Sackinger, 537 F.Supp. 1245 (W.D.N.Y. 1982), aff'd, 704 F.2d 29 (2d Cir. 1983), the court stated postponing probation violation proceedings "serves various salutary purposes" including:

(1) permitting the probationer to clear himself of the criminal charges with the likely result that the probation violation proceedings will not be held, (2) avoiding the need to have the probationer testify in the probation violation proceeding as to matters which may prejudice him in the criminal case, [and] (3) avoiding inconsistent findings in the probation proceedings and the criminal case . . . If the probationer is convicted of the underlying criminal charges, the government's burden of proving the probation violation is also eased. , at 1250 (citing LiPuma v. Gengler, 411 F.Supp. 948, 950 (S.D.N.Y. 1976) (finding policy of delaying a parolee's revocation hearing pending his trial on subsequent charges "was for his benefit"). See also Flint v. Mullen, 499 F.2d 100, 105 (1st Cir. 1974) (noting that holding revocation hearing after probationer's criminal trial "is apt to be, if not also appear, more just.").

Therefore, based on the policy reasons discussed above, the Court reaffirms its decision to delay Petitioner's final revocation hearing until after the trial on his new criminal charges.


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