Lead Opinion
OPINION OF THE COURT
At issue on this appeal is whether a District Court has jurisdiction to revoke supervised release when neither an arrest warrant nor a summons concerning an alleged violation of supervised release was
I.
Section 3583® of Title 18 of the United States Code provides:
Delayed revocation. — The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment ... 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.
Id. (emphasis added). We must consider the meaning of this statutory provision in the following context.
Merlino, the reputed former head of the Philadelphia La Cosa Nostra, commenced a three-year term of supervised release on September 7, 2011. On June 18, 2014, law enforcement observed Merlino at a cigar bar in Boca Raton, Florida, conversing with several convicted felons, including John Ciancaglini, one of Merlino’s former co-defendants. The Probation Office concluded that this contact violated the terms of Merlino’s supervised release. Over two months later, on August 26, Merlino’s probation officer presented a revocation petition to the District Court.
On September 2, the District Court ordered the issuance of a summons directing Merlino to appear for a revocation hearing. Either later that day or the following day, a deputy clerk called defense counsel in an effort to secure a mutually agreeable hearing date for the parties. Defense counsel, citing work obligations and an upcoming 'medical procedure, stated that he expected to be unavailable until December. The Government informed the deputy clerk that it was “reluctant” to accommodate any substantial delay. App. 72. In response, defense counsel asked the deputy clerk “to wait until the end of the following week to set a date” in the hope that he could clear his schedule. Id. The deputy clerk relayed this request to the District Court judge, who assented. On September 11, defense counsel informed the clerk that he could be available in October. On September 16, the clerk issued a “notice of hearing” summoning Merlino for a revocation hearing on October 10.
On October 6, defense counsel notified the District Court of his belief that the Court lacked jurisdiction over the revocation proceedings because no warrant or summons had issued before the expiration of Merlino’s term on September 6, 2014. At a hearing on the jurisdictional contest,
On October 24, the District Court conducted a revocation hearing and found that Merlino had violated the terms of his release by associating with Ciancaglini. The Court sentenced Merlino to four additional months’ imprisonment, which Merlino began serving on January 15, 2015. He timely appealed.
II.
The District Court claimed jurisdiction to revoke supervised release under 18 U.S.C. § 3583(i). We have jurisdiction under 28 U.S.C. § 1291. Our review of jurisdictional issues is plenary. United States v. Sczubelek,
III.
A.
The overarching question presented here is whether the District Court, on these facts,’ had' subject-matter jurisdiction to hold a revocation hearing when no warrant or summons was issued prior to the expiration of Merlino’s supervised release. We begin with the principle that “[fjederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co.,
B.
In 1948, Congress provided that, prior to the expiration of the maximum five-year period of probation, the district court had the authority to “issue a warrant for [the probationer’s] arrest for violation of probation occurring during the probation period.” 18 U.S.C. § 3653 (repealed 1987). Once the probationer was arrested on the warrant, he was to be taken before the court “as speedily as possible,” after which the court had the authority to conduct revocation proceedings. Id. Over time, several federal circuits addressed the question of whether a federal district court retained subject-matter jurisdiction when a probationer allegedly violated the terms of probation shortly before the expiration date, thus requiring the revocation hearing to occur after the term’s expiration. Our own view was that so long as the probationer was produced before the district court “[a]s speedily as possible after arrest” in accordance with § 3653, we saw no good reason “why a court should arbitrarily lose jurisdiction ... when the alleged probation violation took place within [the
Although our sister circuits unanimously agreed that Congress could not have intended for district courts to abruptly lose jurisdiction over already initiated revocation proceedings at the expiration of the five-year window, varying standards emerged as to the precise triggering event for continuing jurisdiction. For our part, we required that “formal revocation proceedings [be] commenced (by arrest warrant or otherwise) within the five-year period.” Id. The Fourth, Seventh, and Eleventh Circuits identified the trigger as the Government’s filing of the revocation petition prior to the term’s expiration. See United States v. Barton,
In 1994, Congress amended 18 U.S.C. § 3583 to make clear that the exercise of judicial authority over supervised releasees depended upon the issuance of a warrant or summons while the releasee was still under supervision.
C.
We now turn to the Government’s argument that §,3583® is subject to equitable tolling because it is not a jurisdictional provision. We assess this position in light of Dolan v. United States,
Dolan itself concerned the repercussions of noncompliance with 18 U.S.C. § 3664(d)(5), which provides a deadline for restitution orders in the context of criminal sentencing. The Court held that “a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution — at least where, as here, the sentencing court made clear prior to the deadline’s expiration that it would order restitution.... ” Id. at 608,
The Government argues that here, like in Dolan, (1) the relevant rule fails to specify consequences for noncompliance, and (2) strict enforcement would defeat the purpose of the statute, which is, in the Government’s view, “to assure the defendant’s proper compliance and accountability through the complete period of supervised release.” Gov. Br. at 31. And the Government further suggests that strict construction of the rule would result in “absurd” consequences such as windfalls to defendants who violate the terms of their release immediately prior to its expiration. Gov. Br. at 32-33 (citing United States v. Brown,
Section § 3583(i) is noteworthy, however, insofar as it does not merely set a deadline — it expressly authorizes a grant of “power” to the district court and conditions the existence of that power on a specific and minimally onerous event. See Landgraf v. USI Film Prods.,
This conclusion is bolstered by the strict application of § 3583(i) by other federal courts. In United States v. Janvier, for instance, the district court ordered the issuance of a warrant on the defendant’s final day of supervised release, but the warrant was not issued until two days after the expiration of the term.
The Government offers no basis on which to distinguish Janvier and Hazel, and submits that they were decided incorrectly. Instead, like the District Court, it relies on United States v. English,
Nor are we persuaded by the Government’s suggestion that strict application of § 3583® will result in routine windfalls to opportunistic criminal defendants. As noted by the Second Circuit in Janvier, the Government could have satisfied its minimal burden here in a variety of ways— most notably by seeking a summons earlier, but also by asking the court to issue a summons with a control date, i.e., a date on which the parties briefly appear and agree upon further scheduling. Tellingly, there is no evidence in the record that any governmental actor brought the approaching deadline to the Court’s attention at any relevant time. The fact that the Government is a sophisticated and repeat player in these interactions, however, comforts us that the failure to meet the statutory deadline exhibited in this case will be an isolated occurrence.
Finally, we must address the occasional reference in our case law to the notion that a district court’s jurisdiction over revocation proceedings stems not only from § 3583®, but also from the broader grant of jurisdiction in 18 U.S.C. § 3231 over “all offenses against the laws of the United States.” See, e.g., United States v. Williams,
IV.
The Government argues that the District Court’s order directing the issuance of a summons, taken in combination with notice to Merlino’s counsel, satisfied § 3583(i)’s requirement that “a warrant or summons [be] issued.” The United States Code does not define “summons” for purposes of § 3583, although the term is defined elsewhere in the context of federal criminal proceedings. For instance, the Code’s general guidelines pertaining to “Arrest and Commitment” direct the reader to Federal Rules of Criminal Procedure 4 and 9. See 18 U.S.C. § 3046. Rule 4 states that a summons on a criminal complaint “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.” Fed. R.Crim.P. 4(b)(2). A warrant on a criminal complaint must:
(A)contain the defendant’s name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;
(B) describe the offense charged in the complaint;
(C) command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer; and
(D) be signed by a judge.
Id. 4(b)(1). Where founded on a criminal indictment or information, both documents must be signed by the clerk. Id. 9(b).
Although these definitions lack controlling weight in this context, see, e.g., United States v. Bernardine,
To repeat, the Government’s position is that the September 2 order directing the issuance of a summons, which was served electronically on counsel, functionally served as a summons: it put Merlino on notice of his obligation to appear, and did so prior to the expiration of the term of supervised release. But crucially, the September 2 order fails to meet even the textbook definition of a summons because it does not “requir[e] the defendant to appear and answer.” Black’s Law Dictionary 1665. Because the order only authorized the issuance of a summons, and did not issue a summons on its own, Merli
Nor do we find it particularly relevant that Merlino’s counsel learned of the revocation proceedings by telephone prior to the statutory deadline because § 3583(i) permits jurisdiction only “if ... a summons ... has been issued.... ” “Issue,” in turn, means “[t]o be put forth officially.” Black’s Law Dictionary 960. We cannot conclude that a deputy clerk’s informal communication with counsel, even taken in conjunction with the District Court’s order that a summons be issued, is the functional equivalent of the “issuance” of a “summons” in this context.
Moreover, every court to have considered this argument has rejected it. See Janvier,
[T]o adopt the government’s argument would be to rewrite the statute to say something that it does not say because we or the government think the revised version would be preferable. The language of the statute ... is simply inconsistent with this approach. The statute states that the extension of jurisdiction occurs when “a warrant or summons has been issued,” clearly referencing the issuance of a warrant as an action that has been perfected. The order of the district court, in contrast, merely directed “[t]he [ijssuanee of a [wjarrant,” clearly contemplating the issuance of the warrant as an act ordered to occur at some future time. By its own terms, the order does not issue a warrant; it directs someone else to issue one. That order was not carried out until two days later, after the expiration of Janvier’s term of supervised release.
Janvier,
Our dissenting colleague, despite agreeing that § 3583(f) is jurisdictional, makes a somewhat different argument from the Government: she contends that “an affirmative act of the court to gather the parties to address the alleged violation of its judgment” may satisfy § 3583(i) where such act was “functionally equivalent to and served the purpose of a summons.” Dissent at 4-5. But we are mindful that “statutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction.” Boelens v. Redman Homes, Inc.,
V.
Because the jurisdictional deadline described in § 3583(i) is not subject to equitable tolling, and because no warrant or summons was issued prior to the expiration of Merlino’s term of supervised release on September 6, 2014, we conclude that the District Court lacked subject-matter jurisdiction over Merlino’s revocation proceedings. Accordingly, we will vacate the District Court’s order of October 24, 2014.
Notes
. Specifically, the notice stated:
TAKE NOTICE, That Petition of the Probation Officer, a copy of which is attached, charges you with certain violation[s] which may warrant revocation of your supervised release. You are directed to appear at the United States Courthouse ... on Friday, October 10, 2014, at 10:00 a.m. in Courtroom 8-A, at which time you will be given a hearing on the charges....
Supp. App. 2 (emphasis omitted).
. A nearly identical provision provides for continuing jurisdiction over violations of federal probation. See 18 U.S.C. § 3565(c).
. The Government conceded at oral argument that there is some temporal limitation on a district court’s jurisdiction over a supervised release. Specifically, it agreed that a district court would not have authority to conduct revocation proceedings if a revocation petition was not filed until after the expiration of supervised release.
. Many other courts have likewise referred to § 3583(f) as “jurisdictional.” See, e.g., United States v. Juarez-Velasquez,
. The Government attaches great significance to the fact that Merlino was placed on notice of the revocation proceedings prior to the expiration of the statutory deadline. Section 3583(i), however, does not speak in terms of "notice.” Instead, it turns on “issu[ance].” To wit, the issuance of a warrant or summons, even if not executed or served upon the releasee prior to the expiration of release, satisfies § 3583(i). See, e.g., United States v. Ramos,
. Merlino also argues that the evidence presented at the violation hearing was insufficient to support the District Court’s conclusion that he "associated with” a convicted felon in violation of the conditions of his supervised release. Because we are vacating the District Court’s order on jurisdictional grounds, we will not address this argument.
Concurrence Opinion
concurring.
Does the deadline to issue a warrant or summons under 18 U.S.C. § 3583(i) limit the subject-matter jurisdiction of the district court to revoke supervised release after the end of the supervision period, or does it merely limit the court’s remedial power to do so? The great weight of circuit court authority supports the conclusion that the deadline is jurisdictional. Moreover, “statutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction.” Boelens v. Redman Homes, Inc.,
That noted, I write separately to acknowledge countervailing considerations, including recent Supreme Court cases, that raise doubt about whether Congress ■ intended § 3583(i) to be jurisdictional rather than “mandatory but nonjurisdictional.” Gonzalez v. Thaler, — U.S. -, ’
The jurisdictional status of § 3583© is complicated by our own inconsistency in identifying the source of a district court’s subject-matter jurisdiction to revoke supervised release even in run-of-the-mill cases where revocation occurs during the supervision period. We usually cite 18 U.S.C. § 3231, which grants “original jurisdiction ... [over] all offenses against the laws of the United States.” See, e.g., United States v. Paladino,
In a few cases, however, we have cited both § 3231 and 18 U.S.C. § 3583(e) as the sources of subject-matter jurisdiction to revoke during the supervision period. See, e.g., United States v. Manuel,
Section 3231 is the more plausible source of subject-matter jurisdiction for revocations of supervised release generally. It provides a clear grant of “original jurisdiction” in criminal cases. 18 U.S.C. § 3231. That grant includes jurisdiction to impose a sentence, which can contain a period of supervised release. See, e.g., United States v. Wallace,
Section 3231 includes no. express time limit for its grant of subject-matter jurisdiction. The District Court thus had jurisdiction to revoke Merlino’s supervised release unless some other legal rule stripped the Court of its jurisdiction.
Over the last two decades the Supreme Court has repeatedly admonished lower
A. Statutory Text
Several features of § 3583(i) are relevant to the inquiry. At the outset, its title, “Delayed Revocation,” gives no evidence Congress intended the provision to be jurisdictional. See Shinseki,
Next, § 3583(i) refers to the “power of the court.” This is significant evidence that Congress intended for the provision to be jurisdictional because “power of the court” is commonly associated with “jurisdiction.” See, e.g., Landgraf v. USI Film, Prods.,
In the- supervised-release context, there are reasons to think that “power of the court” refers to this remedial authority rather than subject-matter jurisdiction. In administering criminal laws, courts frequently use “power of the court” in just this way. See, e.g., United States v. Cieslowski,
And though Congress need not use magic words to confer jurisdiction, when it references the court’s “power” in provisions that appear to be jurisdictional it frequently also inserts the word “jurisdiction.” See, e.g., 50 U.S.C. § 47d(b) (“A determination made by the Attorney General under section 47b of this title shall be final and conclusive and no court shall have power or jurisdiction to review it.”); 42 U.S.C. § 2014(j) (“Any determination by the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, that such an event has, or has not, occurred shall be final and conclusive, and no other official or any court shall have power or jurisdiction to review any such determination.”); 42 U.S.C. § 2184 (“No court shall have jurisdiction or power to stay, restrain, or otherwise enjoin the use of any invention or discovery by a patent licensee, to the extent that such use is licensed by section 2183(b) or 2183(e) of this title.”); 38 U.S.C. § 7252(a) (“The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.... The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.”); 32 U.S.C. § 326 (“In the National Guard not in Federal service, there are general, special, and summary courts-martial constituted like similar courts of the Army and the Air Force. They have the jurisdiction and powers, except as to punishments, and shall follow the forms and procedures, provided for those courts.”); 16 U.S.C. § 820 (“The Attorney General may ... institute proceedings in equity in the district court ... for the purpose of revoking for violation of its terms any permit or license issued hereunder.... The district courts shall have jurisdiction over all of the above-mentioned proceedings and shall have power to issue and execute, all necessary process and to make and enforce all writs, orders and decrees to compel compliance with the lawful orders and regulations of the commission.... ”). That Congress omitted “jurisdiction” from § 3583(i) may be telling.
Finally, jurisdictional terminology does not necessarily mean Congress intended that a statutory requirement implicate subject-matter jurisdiction and that it be treated as non-waivable and non-tollable. For example, 42 U.S.C. § 11046(c) says that the “district court shall have jurisdiction in actions brought ... against an owner or operator of a facility to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement.” This provision is not jurisdictional as to subject matter because it merely “specifies] the remedial powers of the court.” Steel Co.,
We also look to statutory context for evidence of congressional intent. First, the Supreme Court sometimes looks to the location of a provision within a larger statute. See, e.g., Reed Elsevier, Inc. v. Muchnick,
Second, legislative history may also shed light on whether Congress intended to treat a provision as jurisdictional. True enough, according to an “Explanation of Provisions” included in the Congressional Record, § 3583(i) “provid[es] continued court jurisdiction to adjudicate alleged supervised release violations and revoke supervised release” after its expiration. 137 Cong. Rec. S7769 (1991). This lends modest support to a jurisdictional reading of § 3583(i). For a statement that was no doubt written by a staff person, that was published in the Congressional Record three years before the enactment of § 3583(i), and was never uttered on the Congressional floor, can hardly be strong evidence of legislative intent. Moreover, the statement was published years before the Supreme Court began demanding a stricter distinction between truly jurisdictional and non-jurisdictional rules. It is therefore hard to tell whether the staff person was referring to the court’s subject-matter jurisdiction — and intended § 3583© to be non-waivable and non-tollable — or merely its remedial authority to revoke supervised release. See Eberhart,
Finally, the Supreme Court has considered the historical treatment of similar statutory provisions. For example, 28 U.S.C. § 2107(c) allows district courts to grant a 14-day extension to file a notice of appeal. In Bowles v. Russell, the district court granted a 17-day extension, and the notice of appeal was filed 16 days later.
The historical treatment of § 3583© here differs from Bowles. The Supreme Court has never cited § 3583©, let-alone spoken to its jurisdictional status. It has also never cited § 3565(c), the analogous provision for probation. And in contrast with a century’s worth of precedent in Bowles, § 3583© has existed but two decades. Thaler,
Myriad lower courts have referred to § 3583(i)
In a capsule, Bowles’s theory of congressional acquiescence is likely inapplicable here- where there is no Supreme Court precedent interpreting § 3583® or any other similar provision; where § 3583® is only two-decades old; where so many cases have called the provision jurisdictional yet the outcome of so few cases has been affected by that label; and where not one has explained why it should be jurisdictional.
C. Statutory Purpose
The Supreme Court also looks to statutory purpose to determine whether Congress intended for a provision to be jurisdictional. Dolan,
Congress likely enacted § 3583® to balance the need to revoke supervised release
‡ ‡ ^ ‡
Ultimately I am swayed that § 3583(i) is jurisdictional by the provision’s reference to the “power of the court,” by the legislative history (weak as it is) saying the provision grants “jurisdiction,” and by the many circuit court cases calling it jurisdictional (though without even questioning whether the label is appropriate). While I concur with the result stated by Judge Vanaskie, I find this to be a close issue and am surprised federal courts have yet to wrestle with it.
. Other legal rules not relevant here extinguish a district court’s subject-matter jurisdiction to vacate a conviction or modify a sentence. For instance, there is a "basic principle of judicial process” that a district court loses jurisdiction to vacate a conviction after the circuit court decides an appeal. Eberhart,
.See, e.g., United States v. Janvier,
. See, e.g., United States v. Crisler,
. Two other cases considered the absence of a timely summons or warrant even though the defendant failed to raise the issue in the district court, but this did not affect the outcome of the case because the circuit court concluded the district court did have jurisdiction for reasons not pertinent here. See United States v. Ortuno-Higareda,
Dissenting Opinion
dissenting in part.
I agree with the majority that 18 U.S.C. § 3583(i) is a jurisdictional statute but conclude that the unique facts here satisfy the jurisdictional prerequisites. Thus, I would affirm.
Shortly before Joseph Merlino’s term of supervised release was to expire, the U.S. Probation Office filed a petition alleging that he violated conditions of his supervised release that prohibited him from associating with known felons and members of La Cosa Nostra. The District Court promptly sought to schedule a hearing to address the allegations, but the hearing did not occur until after the term of supervised release expired. In such a situation, § 3583(i) governs the District Court’s authority.
Section 3583(i)'permits a district court to adjudicate violations of supervised release after the supervised release term expires so long as a warrant or summons issues before the term expires. Because there is no assertion here that a warrant issued, I turn to whether a summons issued. Section 3583 does not define “summons.” See 18 U.S.C. § 3583(f). Moreover, unlike summonses for complaints and indictments, the Federal Rules of Criminal Procedure do not have a provision that “governs the issuance of a summons or warrant on a petition to revoke supervised release.” United States v. Vallee,
Black’s Law Dictionary defines “summons” as “[a] writ or process commencing the plaintiffs action and requiring the defendant to appear and answer.” Black’s Law Dictionary 1665 (10th ed.2014). The definition does not require a specific document, format, or label. Thus, the absence of a written document here does not preclude a finding that the District Court satisfied § 3583(i)’s jurisdictional prerequisites. To determine what constitutes a summons in this context, we must therefore ascertain the goal Congress sought to achieve in adopting the summons requirement.
In enacting § 3583(f), Congress changed the triggering event for the court’s jurisdiction from the filing of a petition to the issuance of a warrant or summons. See United States v. Janvier,
Here, the District Court clearly and affirmatively demonstrated to Merlino its intent to adjudicate his alleged violation and thus extended its revocation authority. Acting through its Deputy Clerk, the District Court directed the parties to appear for a hearing and, as a courtesy, inquired of counsel as to their availability. But for defense counsel’s request to delay setting an exact date, written notice would have issued before the supervised release term expired. The fact that a formal written document embodying the hearing date was not transmitted before the period expired does not change the fact that the District Court affirmatively acted during the period of supervised release to invoke its authority to adjudicate the violation and only delayed; issuing a written document because defense counsel asked it to delay selecting a date.
Allowing defense counsel to play a role in selecting the date ensured that Merlino’s right to counsel of choice was respected. Merlino wanted a particular attorney to appear at the hearing and obviously was willing to wait until he was available. The District Court, having already taken affirmative action to exercise its authority before the end of Merlino’s supervised release term, merely delayed selecting a specific date and memorializing it in writing to ensure Merlino’s counsel of choice was available. It would be an odd result to deprive the District Court of the power to address a violation of its judgment where it invoked its authority to convene a prompt hearing to address the violation and only delayed selecting a specific date to enable Merlino’s counsel of choice to appear.
Moreover, the District Court’s actions furthered Congress’s goal of ensuring prompt adjudication of violations of supervised release. By requiring court action during the period of supervised release in the form of commencing the process of convening a hearing, Congress ensured that petitions did not languish and only required an alleged violator to address them when the District Court acted during the supervised release period to convene a proceeding. The events here, where the District Court affirmatively demonstrated its intent to hold a hearing and took steps to set a hearing date during the period of supervised release, fulfill the purpose of the statute and thus satisfy the jurisdictional prerequisites.
Finally, this reading of the word “summons” as used in § 3583(f) is also consistent with the nature of the relationship between the court and a defendant on supervised release. Defendants on supervised release have previously appeared in court and are subject to a judgment of the court and its requirements concerning their conduct while on supervised release. Defendants who appear in court as a result of a summons issued in connection with complaints and indictments, on the other hand, have no pre-existing relationship with the court. Greater formality in summonses issued to these defendants makes clear to them their obligation to appear — a formality not needed in the supervised release context. A more informal summons requirement for supervised release violations is also consistent with the fact that violations of supervised release are adjudi
In' short, § 3583(i)’s jurisdictional prerequisites were satisfied. Although a written document embodying the agreed-upon hearing date did not issue before the expiration of the term, other events occurred that were functionally equivalent to and served the purpose of a summons. Thus, the District Court had jurisdiction to conduct a hearing to determine whether Merlino violated the conditions of his supervised release. Because the evidence adduced at that hearing supported the District Court’s conclusion that Merlino violated the associational restrictions embodied in the conditions of his supervised release, the District Court did not abuse its discretion in ordering revocation.
For these reasons, I would affirm the judgment of the District Court and respectfully dissent in part from the majority opinion.