UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 14, 2011
RE: THOMAS D. MCCRACKEN
The opinion of the court was delivered by: Honorable Oliver W. Wanger Senior United States District Judge
Dismissal of Probation Warrant
This memorandum is to request the Court vacate and recall the probation warrant issued for the defendant's arrest.
The Ninth Circuit Court of Appeals' decision in U.S.v. Vargas-Amaya, 389 F.3d 901 (2004) ruled that a district court's jurisdiction to revoke supervision beyond the term of supervision ordered, is extended only if the warrant was issued "upon probable cause, supported by Oath or Affirmation," as required by the Fourth Amendment. On violation Petitions issued prior to 2004, there had been no requirement for an oath or affirmation; therefore, there was no oath or affirmation on the defendant's Petition.
On January 6, 1992, the defendant appeared before Your Honor for sentencing regarding violation of 18 USC 241, Conspiracy Against Rights. He was ordered to serve 21 months in the custody of the Bureau of Prisons. Furthermore, he was to serve a 3-year term of supervised release. In addition to standard conditions, he was ordered to submit to warrantless search and seizure and participate in drug aftercare counseling and testing.
On April 25, 1994, the Court issued a warrant for the defendant's arrest. The Petition alleges two separate charges alleging New Law Violations. One charge alleges the releasee committed 14 separate violations of section 211 of the California Penal Code, Robbery. The second charge alleges the releasee possessed a firearm during one of the robberies.
Based on the decision in U.S. v. Vargas-Amaya, since there was no oath or affirmation from the probation officer on the Petition, it is recommended the Court recall the warrant and dismiss the case.
Respectfully submitted, Rick C. Louviere Assistant Deputy Chief U.S. Probation Officer Dated: January 13, 2011 Fresno, California RCL:rcl
United States District Court Clerk's Office United States Marshals Service
THE COURT ORDERS
(X) Vacate the Petition on Probation and Supervised Release (Bench Warrant) dated April 25, 1994, and recall the warrant issued, pursuant to U.S. Vargas-Amaya.
OLIVER W. WANGER Senior United States District Judge
R ev. 11/2009 ME MO ~ C O U R T.MR G
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