UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 18, 2011
RE: STEVEN J. SCHIMMEL
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 October 12, 1993, the defendant appeared before Your Honor for sentencing regarding violation of 18 USC 1341, Mail Fraud. He was ordered to serve 18 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, the following special conditions were ordered:
1) Warrantless search and seizure; 2) Pay restitution in installments as determined by the probation officer; 3) Financial disclosure; 4) Drug and alcohol counseling and testing; and 5) Not be employed in the telemarketing sales field during term of probation.
On November 19, 1996, the Court issued a warrant for the defendant's arrest. The Petition alleges two separate charges. One charge alleges the releasee failed to submit monthly report forms and the second charge alleges the releasee failed to report a change of address.
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 14, 2011 Fresno, California RCL:rcl
cc: 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 United States District Judge
R ev. 11/2009 ME MO ~ C O U R T.MR G
© 1992-2011 VersusLaw Inc.