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United States of America v. Dorothea Daraio

December 20, 2012

UNITED STATES OF AMERICA, PLAINTIFF
v.
DOROTHEA DARAIO
DEFENDANT.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

Before the Court is Defendant Dorothea Daraio's Motion to Dismiss the United States of America's ("United States") Petition for Violation of Supervised Release. The United States seeks to revoke Daraio's term of supervised release on the basis of sixteen alleged violations. Daraio has moved to dismiss the government's Petition on the ground that this Court no longer has jurisdiction to revoke her term of supervised release. For the reasons set forth below, Daraio's Motion to Dismiss the Petition for Violation of Supervised Release will be granted.

I.

On November 10, 2004, Daraio was convicted by a jury of tax evasion in violation of 26 U.S.C. § 7201 (Verdict Sheet, Nov. 10, 2004, Dkt. No. 46.) Daraio was subsequently sentenced to forty-one months in prison, three years of supervised release, a fine of $25,000 and a $100.000 special assessment. (Mins. of Proceedings, April 29, 2005, Dkt. No. 58.) Daraio's term of supervised release ended on October 1, 2012. (Def.'s Mem. to Dismiss Pet. 2, Nov. 21, 2012.)*fn1

On September 11, 2012, the U.S. Probation Office for the District of New Jersey ("Probation Office") filed a Petition for a Warrant or Summons alleging sixteen violations of Daraio's supervised release. (Pet. for Warrant or Summons for Offender Under Supervision, September 18, 2012. Dkt. No. 76.)*fn2 The last page of this Petition included a section beginning with the words, "THE COURT ORDERS" followed by boxes a judge could mark to order the issuance of either a summons or a warrant. (Id. (capitalization in original.)) Additionally, this section included a signature line, and a line for listing a hearing date. (Id.) On September 18, 2012, this Court marked the box to order the issuance of a summons and signed the Petition. (Id.) A hearing date of October 12, 2012 was listed. (Id.)

A copy of the signed Petition was sent as an e-mail attachment by the Probation Office to then-defense counsel Jeffrey Hark on September 21, 2012. (Mem. in Opp. of Def.'s Mot. to Dismiss Pet. Ex. 3, Dec. 4, 2012, Dkt. No. 83.) In the body of this e-mail was a brief note describing the attachment as an "electronic copy of the petition for summons, which has been signed by the court." (Id.)

At some point between September 21, 2012 and October 1, 2012, the hearing date was rescheduled from October 12, 2012 to November 13, 2012. However, at no time before the expiration of Daraio's term of supervised release was a document identified as a "summons" issued. On October 25, 2012, the Probation Office sent a letter by certified mail to Daraio, but this letter was returned as undeliverable. (Mem. in Opp. of Def.'s Mot. To Dismiss Pet. 2 n.1.) At a hearing held on December 18, 2012, defense counsel stated that this letter included the word "summons."

On November 21, 2012, Daraio moved before this Court to dismiss the United States' Petition for Violation of Supervised Release on the grounds that no summons was issued prior to the termination of Daraio's term of supervised release. The United States opposed this motion.

II.

Title 18, U.S. Code Section 3583(i) ("§ 3583(i)") states that:

The power of the court to revoke a term of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations of 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 matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

In this case, Daraio's term of supervised release ended on October 1, 2012. (Def.'s Mem. to Dismiss Pet. 2, November 21, 2012.) Therefore, this Court now has jurisdiction to revoke Daraio's supervised release only if "before the supervised release term expired, 'a warrant or summons ha[d] been issued on the basis of an allegation' that the releasee violated a condition of supervised release." See United States v. Hondras, 176 F. Supp. 2d 855 (E.D. Wis. 2001) (quoting 18 U.S.C. § 3583(i)).

The definition of "summons" as used in § 3583(i) presents an issue of first impression for this Court. No definition is provided within § 3583. Moreover, "[t]here is no Federal Rule of Criminal Procedure that by its terms governs the issuance of a summons or warrant on a petition to revoke supervised release." United States v. Vallee, 677 F.3d 1263, 1265 (9th Cir. 2012). Rule 4 of the Federal Rules of Criminal Procedure ("Rule 4") defines summons in the context of a summons on a complaint by stating that "[a] summons must be in the same form as a warrant except that it must require the defendant to appear before a magistrate judge at a stated time and place." However, while the Southern District of New York has applied the Rule 4 definition of a summons to § 3583(i), see United States v. Crusco, No. 90-945, 2000 WL 776906 (S.D.N.Y. 2000), most courts to address the issue have stopped short of reaching such a holding, see e.g. Vallee, 677 F.3d at 1265 (holding that, unlike Rule 4, a summons on a petition to revoke supervised release need not be signed by a judge); United States v. Janvier, 599 F.3d 264, 268 n.2 (2d Cir. 2010) (stating that the court is not ...


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