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In Roland, the Virginia court held, "a judicial officer has the inherent authority to initiate a release revocation proceeding to sanction a defendant with a revocation proceeding to sanction a defendant with a revocation of release and an order of detention based on the plain language of Section 3148."
Summary of this case from United States v. RubabaOpinion
Case No.: 1:05-mj-111.
August 31, 2005
MEMORANDUM OPINION
This matter came before the Court on Mr. Roland's Motion for Reconsideration of Detention Order. (Dkt. no. 7). This Memorandum Opinion addresses the sole question of whether the Court has the power, independently from the Government prosecutor, to initiate a proceeding for revocation of release and an order of detention under 18 U.S.C. Section 3148(b). For the reasons stated from the bench, and expressed herein, this Court holds that it, like the Government attorney, may initiate a proceeding to determine whether to initiate a proceeding for revocation of release and an order of detention pursuant to 18 U.S.C. Section 3148(b).
I.
On February 14, 2005, the Government charged Mr. Roland ("Defendant") with possessing marijuana at the Pentagon Reservation on December 7, 2004. (Crim. Information, Dkt. no. 1). By order of the Court, Defendant was placed on certain conditions of pretrial release pending his trial pursuant to 18 U.S.C. Section 3142(c). (Order Setting Conditions of Release, Dkt. no. 4).
The release order conditioned Defendant's freedom from pretrial, custodial confinement on, inter alia, his ability to report regularly to U.S. Pretrial Services, to undergo substance abuse testing as directed by U.S. Pretrial Services, and to abide by the uniform good behavior requirement to not commit any federal, state, or local offense while on release. (Dkt. no. 4 at 2). The release order further advised Mr. Roland of the adverse consequences for violating a condition of pretrial release:
A violation of any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention, and a prosecution for contempt of court.
(Dkt. no. 4 at 3).
Prior to Defendant's April 26, 2005 trial, a U.S. Pretrial Services Officer filed, on April 14, 2005, a Petition for Action on Conditions of Pretrial Release per 18 U.S.C. Section 3154(5) to inform the Court that Defendant had allegedly violated certain conditions of his pretrial release. (Pet. for Action on Cond. of Release, Dkt. no. 5). The U.S. Pretrial Services Officer alleged that Defendant had tested positive for cocaine and had failed to report to U.S. Pretrial Services as directed. (Pet. for Action on Cond. of Release, Dkt. no. 5). The U.S. Pretrial Services Officer further requested that the Court order a warrant for Defendant's arrest and order him to show cause why his conditional release should not be revoked. Based on the pretrial violation petition, the Court endorsed the petition and issued a warrant for Defendant's arrest on April 14, 2005.
"Pretrial services functions shall including the following: . . . (5) [i]nform[ing] the court and the United States attorney of all apparent violations of pretrial release conditions. 18 U.S.C. § 3154.
On the morning of April 26, 2005, Defendant, with counsel, appeared for his trial and self-surrendered to the custody of the U.S. Marshal's to satisfy the arrest warrant. Defendant pled guilty to possessing marijuana pursuant to the Criminal Information. After Defendant's guilty plea, the Court initiated a proceeding to determine whether Defendant had violated the terms of his pretrial release as alleged in the Petition for Action on Conditions of Release. Defendant admitted to violating the terms of his pretrial release as alleged in the petition. Accordingly, the Court, pursuant to 18 U.S.C. Section 3148(b), found by clear and convincing evidence that Defendant had violated the conditions of his release and determined that Defendant was unlikely to abide by any conditions or combination of conditions of release. The Court thereafter revoked the terms and conditions of release previously imposed and ordered that Defendant be remanded to the custody of the U.S. Marshals for detention until his sentencing. (See Detention Order, Dkt. no. 8).
After Defendant's guilty plea and conviction, the parties argued, and the Court determined, that a presentencing report would assist the Court in determining Defendant's sentence. With the consent of the parties, the Court scheduled Defendant's sentencing for July 26, 2005.
On April 28, 2005, Defendant filed a Motion for Reconsideration of Detention Order requesting that the Court reconsider its order detaining him until sentencing and release him. (Def.'s Mot., Dkt. no. 7). Defendant argued, in part, that the Court procedurally erred by detaining him because only the Government attorney, and not the Court, may initiate a proceeding to revoke an order of release under 18 U.S.C. Section 3148(b). (Def.'s Mot., Dkt. no. 7 at 3). Defendant contended that both the plain language of Section 3148 and a 1998 opinion from the U.S. District Court for the Northen District of Texas indicate that only the Government prosecutor has the power to initiate a proceeding to revoke the Court's conditional release order. (Def.'s Mot., Dkt. no. 7 at 3) (citing U.S. v. Herrera, 29 F. Supp. 2d 756, 759 (N.D. Tex. 1998)).
On May 4, 2005, the Court subsequently heard argument on Mr. Roland's Motion for Reconsideration of Detention Order, and did not embrace his argument that the Court lacked the authority to initiate a proceeding to sanction Defendant with a revocation of release and an order of detention. Ruling from the bench, the Court held that it had the inherent authority under Section 3148 to initiate a proceeding to revoke its own release order and detain defendants who violate conditions of their pretrial release. However, in consideration of Defendant's detention for eight days, the Court granted Defendant's Motion, and reinstated the conditions of release previously imposed. The Court advised the parties that it would address fully Defendant's Section 3148 argument through this Memorandum Opinion.
On July 5, 2005, a U.S. Pretrial Services Officer filed another Petition for Action on Conditions of Pretrial Release for Defendant's alleged failure to report to U.S. Pretrial Services as directed, positive urine screens for opiates, and citations for traffic violations in Maryland. At Defendant's July 26, 2005 sentencing, the Court dismissed the petition as moot.
II.
The Court must answer the following question: Under 18 U.S.C. Section 3148(b), does the court have the authority to initiate a proceeding for revocation of release and an order of detention when U.S. Pretrial Services informs the court, by petition, of an alleged violation of the court's release order? This Court holds that it may initiate a proceeding, independently from the Government attorney, for revocation of release and an order of detention when U.S. Pretrial Services informs the Court, by petition, of an alleged violation.
A.
At a defendant's initial appearance, the court may order the release of a defendant on certain conditions pending trial. 18 U.S.C. § 3142(a) ("Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be — . . . (2) released on a condition or combination of conditions under subsection (c) of this section."). The Court may release the defendant pending trial subject to both the uniform good behavior condition that the defendant not commit any crimes during the period of release and subject to specific, least restrictive conditions that will reasonably assure the defendant's appearance and the safety of the community. 18 U.S.C. § 3142(c)(1). The specific, least restrictive condition, or combination of conditions, may require that the defendant (i) remain in the custody of a designated person, (ii) maintain his employment, (iii) maintain his schooling, (iv) restrict his personal associations, place of abode, and travel, (v) avoid contact with certain people, (vi) report regularly to a U.S. pretrial services agency, (vii) comply with a specific curfew, (viii) refrain from possessing a firearm, (ix) refrain from excessive alcohol abuse and illegal drug use, (x) undergo treatment for medical, psychological, or chemical dependency, (xi) execute a secured bond, (xii) execute a bail bond with solvent sureties, or (xiii) return to custody for specified hours following release for employment or schooling. 18 U.S.C. § 3142(c)(1)(B)(i)-(xiii).
The court must hold a detention hearing to determine whether any condition or combination of conditions in Section 3142(c) will reasonably assure the defendant's appearance and the safety of any other person or the community. 18 U.S.C. § 3142(f). Subsequent to a release order on conditions under Section 3142(c)(1), the court may, at any time, "amend the order to impose additional or different conditions of release." 18 U.S.C. § 3142(c)(3).
During the pretrial release period, U.S. Pretrial Services has a duty to monitor the defendant to ensure compliance with the release order. 18 U.S.C. § 3154(3). When it appears that the defendant on pretrial release has violated a condition of release, U.S. Pretrial Services must inform both the court and the U.S. attorney of the apparent violation and recommend appropriate modifications. 18 U.S.C. § 3154(5).
Defendants who violate any of the conditions of their release under 3142(c) are subject to to the following available sanctions: (1) revocation of release, (2) an order of detention, and a (3) prosecution for contempt of court. 18 U.S.C. § 3148(a) ("A person who has been released under section 3142 of this title, and who has violated a condition of his release, is subject to a revocation of release, an order of detention, and a prosecution for contempt of court.") To effectuate the sanctions of a revocation of release and an order of detention, Congress mandates that the government attorney may file a motion, a judicial officer may issue a warrant for the defendant's arrest, the judicial officer shall convene a hearing on the alleged violation, and upon sufficient evidence, the judicial officer shall enter an order of revocation and detention:
(b) Revocation of release. — The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court. A judicial officer may issue a warrant for the arrest of a person charged with violating a condition of release, and the person shall be brought before a judicial officer in the district in which such person's arrest was ordered for a proceeding in accordance with this section. To the extent practicable, a person charged with violating the condition of release that such person not commit a Federal, State, or local crime during the period of release, shall be brought before the judicial officer who ordered the release and whose order is alleged to have been violated. The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer —(1) finds that there is —
(A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or
(B) clear and convincing evidence that the person has violated any other condition of release; and(2) finds that —
(A) based on the factors set forth in section 3142(g) of this title, there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community; or
(B) the person is unlikely to abide by any condition or combination of conditions of release.18 U.S.C. § 3148(b) (emphasis added). "If the person has violated a condition of release," the court may also "commence a prosecution for contempt, under section 401 of this title." 18 U.S.C. § 3148(c). 18 U.S.C. Section 401 empowers the court to punish by fine or imprisonment, at its discretion, the "[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command." 18 U.S.C. § 401(3).
B.
Defendant argues that the Court procedurally erred through its revocation of release and detention order. Relying on U.S. v. Herrera, 29 F. Supp. 2d 756 (N.D. Tex. 1998), Defendant contends that the plain language of Section 3148 provides that only the Government attorney has the authority to initiate a proceeding to determine whether to sanction Defendant through a revocation of release and an order of detention. This Court respectfully disagrees with Defendant, and the analysis in U.S. v. Herrera.
In Herrera, the defendant, who was on pretrial release, violated a condition of his release by testing positive for the use of controlled substances. Id. at 757. The U.S. pretrial services officer filed a petition for action on conditions of pretrial release that sought an arrest warrant and a hearing for revocation of the release order pursuant to Section 3148(b).Id. The magistrate judge issued a warrant for Herrera's arrest and conducted a hearing on the petition where Herrera orally moved to dismiss the petition for lack of jurisdiction. Id. Herrera argued that Section 3148(b) revocation proceedings could only arise procedurally on the government prosecutor's motion.Id. The magistrate judge granted Herrara's motion and held that Section 3148 does not authorize U.S. Pretrial Services to initiate a revocation proceeding. Id.
On appeal, the district judge affirmed the magistrate judge's ruling by holding that Section 3148(b) "permits only the attorney for the government" to initiate a revocation proceeding. Id. at 760. To reach its holding, the court reasoned that the plain language of the statute barred the pretrial services officer and the court from initiating a release revocation proceeding:
Section 3148(b) provides, in relevant part, that " The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court." Congress has spoken clearly and unambiguously. In identifying the entity or person who may initiate a revocation proceeding, § 3148(b) unmistakably refers only to the attorney for the government. No other possible initiators, such as a pretrial services officer or the court itself, are mentioned. The explicit inclusion only of the attorney for the government is properly understood as an express exclusion of all others.Id. at 759 (emphasis added in original). The court further opined that the roles for the government and judicial officer in fashioning the available sanctions are delineated in the statute: Section 3148(b) permits only the government prosecutor to initiate a proceeding for the sanctions of a revocation of release and an order of detention and Section 3148(c) permits only the judicial officer to commence a prosecution for contempt.Id. at 760-61.
This Court, sitting on a case of first impression in the Eastern District of Virginia, fundamentally disagrees with the holding reached in Herrera. Section 3148(a) identifies three available sanctions for violations of a release order, which are not mutually exclusive: "revocation of release, an order of detention, and a prosecution for contempt of court." 18 U.S.C. § 3148(c) (emphasis added).
The burden of proof required to sanction a defendant with a revocation of release and an order of detention is "probable cause to believe that the person has committed a Federal, State, or local crime while on release; or clear and convincing evidence that the person has violated any other condition of release." 18 U.S.C. § 3148(b)(1)(A)-(B). To conduct a release revocation proceeding, there must be a charge, process issued commanding the presence of the defendant, and a hearing on the violation. 18 U.S.C. § 3148(b). Alternatively, a law enforcement officer may arrest a defendant on pretrial release who violates certain conditions of release in the presence of a law enforcement officer:
A law enforcement officer, who is authorized to arrest for an offense committed in his presence, may arrest a person who is released pursuant to chapter 207 if the officer has reasonable grounds to believe that the person is violating, in his presence, a condition imposed on the person pursuant to section 3142(c)(1)(B)(iv), (v), (viii), (ix), or (xiii), or, if the violation involves a failure to remain in a specified institution as required, a condition imposed pursuant to section 3142(c)(1)(B)(x).18 U.S.C. § 3602 (cross-referencing conditions in Section 3142(c)(1)(B) that restrict place of abode, personal associations, firearm possession, use of controlled substances, etc.).
The other available sanction, prosecutions for contempt for disobedience to the court's lawful release order pursuant to Sections 3148(c) and 401(3), requires a higher burden of proof and incorporates different elements of proof:
There are three essential elements of criminal contempt under 18 U.S.C. § 401(3): (1) there must be a violation (2) of a clear and reasonably specific order of the court, and (3) the violation must have been willful. The Government carries the burden of proof on each of these elements, and the evidence must be sufficient to establish guilt beyond a reasonable doubt.U.S. v. NYNEX Corp., 8 F.3d 52, 54 (D.C. Cir. 1993) (citing Michaelson v. U.S. ex rel. Chicago, St. Paul, Minneapolis Omaha R.R. Co., 266 U.S. 42, 66 (1924); U.S. v. Turner, 812 F.2d 1552, 1563 (11th Cir. 1987)); See also U.S. v. Linney, 134 F.3d 274, 278 (4th Cir. 2003) ("To support a conviction of criminal contempt for violation of a court order, the Government must prove beyond a reasonable doubt that the defendant willfully violated a decree that was clear and left no uncertainty in the minds of those that heard it."). Moreover, to commence a prosecution, the court must give the alleged violator notice in either open court, through a show cause order, or by an arrest warrant, request a prosecutor, and conduct a trial:
(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.
(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:(A) state the time and place of the trial;
(B) allow the defendant a reasonable time to prepare a defense; and
(c) state the essential facts constituting the charged criminal contempt and describe it as such.
(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.
(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides.
Fed.R.Crim.Pro. 42 (emphasis added).
The plain language of Section 3148(b) clearly states that the "attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court" and that "[t]he judicial officer may commence a prosecution for contempt." Compare Section 3148(b) with Section 3148(c). This Court, however, does not read Section 3148(b) restrictively and maintains that the plain language of Section 3148 authorizes the Court, sua sponte, to initiate a proceeding for the sanctions of revocation of release and an order of detention under Section 3148(b).
C.
To distill the meaning of a statute, a court must determine whether the language is plain and unambiguous by considering the language used, its specific context, and the broader context within the statute as a whole:
Our examination of issues involving statutory interpretation begins with an analysis of the language of the statute. In analyzing the meaning of a statute, we must first determine whether the language at issue has a plain and unambiguous meaning. Our determination of ambiguity is guided by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. [T]he sole function of the courts is to enforce [the statute] according to its terms. Consequently, we cannot go beyond the plain meaning of the statute unless there is a clearly expressed legislative intent to the contrary, a literal application of the statute would thwart its obvious purpose, or a literal application of the statute would produce an absurd result.U.S. v. Jennings, 323 F.3d 263, 266-267 (4th Cir. 2003) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Russello v. U.S., 464 U.S. 16, 20 (1983); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982); U.S. v. Am. Trucking Ass'ns, 310 U.S. 534, 543 (1940); Caminetti v. U.S., 242 U.S. 470, 485 (1917)).
To construe a statute's language, unless statutorily defined, words will be given their ordinary meaning. U.S. v. Lehman, 225 F.3d 426, 428 (4th Cir. 2000) ("A fundamental canon of statutory construction requires that unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.") Additionally, "when Congress uses explicit language in one part of a statute and then uses different language in another part of the same statute, a strong inference arises that the two provisions do not mean the same thing." Sheppard v. Riverview Nursing Center, Inc., 99 F.3d 1332, 1335 (4th Cir. 1996) (holding that "may" and "shall" in the same statute means that Congress meant that "may means just what it says . . . [as] discretionary rather than mandatory."); See Anderson v. Yungkau, 329 U.S. 482, 485 (1947) ("when the same Rule uses both `may' and `shall,' the normal inference is that each is used in its usual sense-the one act being permissive, the other mandatory.")
Congress employs both "may" and "shall" in Section 3148, but provides no statutory definition:
• The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court. 18 U.S.C. § 3148(b) (emphasis added).
• The judicial officer may issue a warrant for the arrest of a person charged with violating a condition of release. Id.
• The person shall be brought before a judicial officer in the district in which such person's arrest was ordered for a proceeding in accordance with this section. Id.
• To the extent practicable, a person charged with violating the condition of release that such person not commit a Federal, State, or local crime during the period of release, shall be brought before the judicial officer who ordered the release and whose order is alleged to have been violated. Id.
• The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer . . . Id.
• The judicial officer may commence a prosecution for contempt, under section 401 of this title, if the person has violated a condition of release. Id.
In construing the plain language of Section 3148, because Congress uses both "may" and "shall," the Court holds that "may" is discretionary and "shall" is mandatory. In other words, "may means just what it says," the government has the discretion to file a motion to initiate a proceeding for revocation of an order of release under Section 3148(b). Sheppard, 99 F.3d at 1335.
The Government's ability to initiate, at its discretion, a release revocation proceeding must be considered in context. Congress mandates that a defendant who violates his conditions of pretrial release is subject to three available sanctions: revocation of release, an order of detention, and a prosecution for contempt of court. 18 U.S.C. § 3148(a). The word "sanction," refers to "a penalty or coercive measure that results from failure to comply with a law, rule, or order." Black's Law Dictionary (8th ed. 2004). The court, not the government attorney, imposes the available sanction.
In defining "may" as discretionary, Congress did not mean that "only the government may move to initiate" a proceeding to sanction a defendant with a revocation of release and an order of detention. Rather, a holistic reading of Section 3148 provides that the government, like the judicial officer, has the discretion to initiate a release revocation proceeding. Indeed, considering the Bail Reform Act of 1984 generally, Congress has granted to the court absolute control over the pretrial behavior of defendants on release pending trial: "The judicial officer may at any time amend the [release] order to impose additional or different conditions of release." 18 U.S.C. § 3142(c)(3). For these reasons, the Court holds that a judicial officer has the inherent authority to initiate a release revocation proceeding to sanction a defendant with a revocation of release and an order of detention based on the plain language of Section 3148.
A court could arguably modify a release order to require a defendant to (a) remain in the custody of the Bureau of Prisons (b) abide by a restriction on his place of abode, (c) remain in a specified institution for chemical dependency treatment, or (d) return to custody for specified hours following release for drug counseling. See 18 U.S.C. § 3142(c)(1)(B)(i), (iv), (x), and (xii).
Assuming that Section 3148 does not have a plain meaning and is not unambiguous, following Herrera would produce an absurd result and thwart the obvious purpose of Section 3148. Section 3148 operates to revoke conditions of release and detain defendants who commit crimes or violate specific conditions of release to ensure their appearance at trial and to protect the safety of the community.
It would thwart the purpose of Section 3148 to exclude the court from initiating a proceeding under Section 3148(b) to sanction the defendant on pretrial release with a revocation of a release and an order of detention. Herrera dictates that there are different burdens of proof and procedures depending on which judicial actor, the government attorney or the court, seeks detention. If, for whatever reason, the government attorney decides not to move to initiate a release revocation proceeding under the Section 3148(b), Herrera would require the court to commence a prosecution of contempt. For prosecutions of contempt, the court would have to request, paradoxically, that the government attorney prosecute for contempt, and the burden of proof would rise from probable cause to believe a crime had been committed or clear and convincing evidence that a condition had been violated to proof beyond a reasonable doubt irrespective of whether the defendant on pretrial release committed a criminal offense or violated a condition of release. Moreover, in lieu of a hearing under Section 3148(b) at the government attorney's discretion, the court, for a criminal contempt prosecution under Section 3148(c), would have to conduct a trial.
For instance, the defendant on pretrial release might be in the process of negotiating a favorable plea agreement where the defendant would offer substantial assistance to the government attorney in a collateral action. See e.g., Fed.R.Crim.Pro. 35(b).
Where a law enforcement officer arrests a defendant on pretrial release who violates a condition of release in his presence, Herrera would limit the court's power to sanction to prosecution for contempt, and would grant the sole discretion to initiate sanctions of a revocation of release and an order of detention to the government attorney — irrespective of the threat that the defendant poses to the community. See, 18 U.S.C. § 3062.
This is an incongruous construction of Section 3148 specifically and the Bail Reform Act generally. Section 3148(a) delineates three available sanctions, and the court has the inherent authority to initiate proceedings to revoke the defendant's pretrial release, enter a detention order, or prosecute for contempt. Reading Section 3148 from the vista of Herrera undermines the swift detention of pretrial release defendants who commit crimes on release, violate conditions of release, and who may otherwise pose a threat to the community. Congress could not have intended to apply different burdens of proof and procedures depending on which judicial actor, the prosecutor or the judge, decided to initiate a proceeding to detain the defendant pending trial. Such a result would indeed be absurd, and would undermine the purpose of Section 3148.
III.
Here, the U.S. Pretrial Services Officer properly informed the Court, by petition, that Defendant had violated certain conditions of his pretrial release order. The petition requested a warrant for Defendant's arrest and an order to show cause as to why Defendant's conditions should not be revoked. Upon its review, the Court endorsed the petition, which served as the charging document, and issued a warrant for Defendant's arrest under Section 3148(b). The endorsed petition and accompanying arrest warrant, absent a motion by the government attorney to initiate a revocation proceeding, satisfied the procedural requirements in Section 3148(b) necessary for the Court to initiate a release revocation proceeding to determine whether to sanction the defendant through a revocation of release and an order of detention.
For the reasons stated previously from the bench, and in accord with the reasons expressed herein, the Court holds that it may initiate a release revocation proceeding under Section 3148(b).