United States v. Joseph Merlino

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-4341
_____________
UNITED STATES OF AMERICA
v.
JOSEPH MERLINO,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-99-cr-00363-001)
District Judge: Honorable R. Barclay Surrick
______________
Argued April 14, 2015
______________
Before: AMBRO, VANASKIE, and SHWARTZ, Circuit
Judges
(Opinion Filed: May 5, 2015)
Zane D. Memeger, Esq.
David E. Fritchey, Esq.
Joseph F. Minni, Esq.
David E. Troyer, Esq. [ARGUED]
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Edwin J. Jacobs, Jr., Esq. [ARGUED]
Michael F. Myers, Esq.
Jacobs & Barbone
1125 Pacific Avenue
Atlantic City, NJ 08401
Gary S. Silver, Esq.
Silver Legal Services
2000 Market Street
Suite 2925
Philadelphia, PA 19103
Counsel for Appellant
___________
OPINION OF THE COURT
___________
VANASKIE, Circuit Judge.
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 issued before the term of supervised
release expired. We hold that 18 U.S.C. § 3583(i) is a
jurisdictional statute requiring that a warrant or summons
2
must issue before the expiration of supervised release in order
for a District Court to conduct revocation proceedings.
Because the summons in this matter was issued after the
termination of supervised release, we conclude that the
District Court lacked subject-matter jurisdiction to revoke
supervised release. Accordingly, we will vacate the District
Court’s order revoking supervised release and imposing a
prison term on Appellant Joseph Merlino.
I.
Section 3583(i) 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.
3
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 10.1
1
Specifically, the notice stated:
4
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, the deputy
clerk who had spoken to counsel testified that, absent
counsel’s request for a delay, the notice of hearing would
have issued on September 2 or 3, before the expiration of
supervised release. On that basis, the Court concluded that
the deadline in § 3583(i) had been equitably tolled, such that
the notice filed on September 16 was timely.
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’
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).
5
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,
402 F.3d 175, 178 (3d Cir. 2005).
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 “[f]ederal 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., 511 U.S. 375, 377 (1994) (citations omitted). In this
matter, the pertinent congressional enactment states that
“[t]he power of the court to revoke a term of supervised
release . . . extends beyond the expiration of the term of
supervised release . . . if, before its expiration, a warrant or
summons has been issued . . . .” 18 U.S.C. § 3583(i). This
language is clear and unequivocal. Read literally, a warrant
or summons must issue before a term of supervised release
expires in order for the District Court to exercise its authority
to revoke supervised release. The District Court, evidently
acknowledging the import of this condition, nevertheless
6
found that § 3583(i) was subject to “equitable tolling.” We
disagree, and to explain why we hold that the timely issuance
of a summons or warrant is jurisdictional, some historical
context is in order.
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 five-year probation window] and the
probationer was formally notified within that period that the
Government would seek to revoke his probation.” United
States v. Bazzano, 712 F.2d 826, 835 (3d Cir. 1983).
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,
7
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, 26 F.3d
490, 491–92 (4th Cir. 1994); United States v. Schimmel, 950
F.2d 432, 436 (7th Cir. 1991); United States v. O’Quinn, 689
F.2d 1359, 1360–61 (11th Cir. 1982). The Eighth Circuit
found jurisdiction even where no revocation petition had been
filed and no arrest warrant had issued, but the probationer
consensually appeared before the district court prior to the
expiration of his term. United States v. Strada, 503 F.2d
1081, 1083 (8th Cir. 1974).
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.2
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). And in the view of the Second Circuit,
“the most likely purpose of the amendment was to make
absolutely clear Congress’ earlier intention that sentencing
courts have the authority to hold hearings to revoke or extend
2
A nearly identical provision provides for continuing
jurisdiction over violations of federal probation. See 18
U.S.C. § 3565(c).
8
supervised release after expiration of the original term if they
issue a summons or warrant during the release period.”
United States v. Morales, 45 F.3d 693, 701 (2d Cir. 1995).
See also Sczubelek, 402 F.3d at 179.
C.
We now turn to the Government’s argument that §
3583(i) is subject to equitable tolling because it is not a
jurisdictional provision. We assess this position in light of
Dolan v. United States, 560 U.S. 605, 610 (2010), in which
the Supreme Court provided guidelines for the classification
of federal statutory deadlines, the consequences for
noncompliance with such deadlines, and the availability of
tolling. The Dolan framework divides federal statutory
deadlines into three broad categories, based in large part on
the “statutory language, [] the relevant context, and [] what
they reveal about the purposes that a time limit is designed to
serve.” Id. First, the Court acknowledged that certain
deadlines are “jurisdictional,” in the sense that they “prevent[]
the court from permitting or taking the action to which the
statute attached the deadline. The prohibition is absolute.
The parties cannot waive it, nor can a court extend that
deadline for equitable reasons.” Id. See, e.g., Bowles v.
Russell, 551 U.S. 205, 208–14 (2007) (no equitable relief for
defendant who missed appellate filing deadline in reliance on
district court’s erroneous order). Second, the Court identified
procedural “claims-processing” rules that “do not limit a
court’s jurisdiction, but rather regulate the timing of motions
or claims brought before the court. Unless a party points out
to the court that another litigant has missed such a deadline,
the party forfeits the deadline’s protection.” Dolan, 560 U.S.
at 610. And third, the Court characterized some deadlines as
“time-related directive[s]” that are “legally enforceable but
9
do[] not deprive a judge or other public official of the power
to take the action to which the deadline applies if the deadline
is missed.” Id. at 611.
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 Court cited the fact
that the rule “does not specify a consequence for
noncompliance with its timing provisions,” and noted that
characterizing the statute as jurisdictional would undermine
its remedial purpose, which was to assure that criminal
defendants pay restitution to victims. Id. at 611–14.
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,
333 U.S. 18, 27 (1948) (“No rule of construction necessitates
our acceptance of an interpretation resulting in patently
absurd consequences.”)).
10
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., 511 U.S. 244, 274
(1994) (“[J]urisdictional statutes ‘speak to the power of the
court rather than to the rights or obligations of the parties.’”
(quoting Republic Nat’l Bank of Miami v. United States, 506
U.S. 80, 100 (1992) (Thomas, J., concurring))). The plain
language of the statute, then, compels the conclusion that the
deadline is jurisdictional.3
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. 599 F.3d 204, 265–69 (2d Cir. 2010). The
Second Circuit found irrelevant the fact that the Government
had made unsuccessful efforts to obtain a warrant within the
term. And another district court reached the same outcome
on facts nearly identical to those presented here. See United
States v. Hazel, 106 F. Supp. 2d 14, 14–15 (D.D.C. 2000).
There, as here, the district court ordered the issuance of a
summons before expiration of supervised release, and defense
3
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.
11
counsel discussed a hearing date with the clerk before
expiration of supervised release, but the summons was
ultimately issued only after the expiration of supervised
release.4
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, 400 F.3d 273 (5th Cir. 2005). In
that case, prior to the expiration of the defendant’s supervised
release, the district court inadvertently issued a defective
warrant bearing the wrong defendant’s name. The Fifth
Circuit invoked the Supreme Court’s admonition in Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990), that
equitable tolling is appropriate “in situations where the
claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period.” English, 400
F.3d at 275. But despite phrasing its holding in terms of
equity, the panel ultimately emphasized that “[m]ost
importantly, as in Irwin, the defective document, along with
the petition and the order, were filed before the statutory
4
Many other courts have likewise referred to § 3583(i)
as “jurisdictional.” See, e.g., United States v. Juarez-
Velasquez, 763 F.3d 430, 433, 436 (5th Cir. 2014); United
States v. Hacker, 450 F.3d 808, 814–15 (8th Cir. 2006);
United States v. Ortiz-Hernandez, 427 F.3d 567, 579–80 (9th
Cir. 2004) (per curiam). The same is true of the supervised
release cases that predated § 3583(i). See, e.g., United States
v. Morales, 45 F.3d 693, 696, 701–702 (2d Cir. 1995); United
States v. Barton, 26 F.3d 490, 491 (4th Cir. 1994); United
States v. Neville, 985 F.2d 992, 994, 999 (9th Cir. 1993).
12
period had expired.” Id. at 276. We thus read English as a
recognition that even a warrant containing a technical error
may satisfy § 3583(i)’s mandate only so long as that warrant
is issued prior to the statutory deadline.
Nor are we persuaded by the Government’s suggestion
that strict application of § 3583(i) 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(i),
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, 369 F.3d 250, 252 (3d
Cir. 2004) (noting that the district court had jurisdiction over
revocation proceedings under § 3231 and “more specifically”
under § 3583(i)). On this theory, one might suggest that §
3583(i) imposes a “mandatory but nonjurisdictional” barrier
to the exercise of the District Court’s power to impose
sanctions for a violation of supervised where a warrant or
summons is not issued prior to the expiration of release.
13
Gonzalez v. Thaler, 132 S. Ct. 641, 656 (2012). Although
courts have a duty to enforce a mandatory nonjurisdictional
rule when it is properly and timely invoked, application of
such rules may be waived, Eberhart v. United States, 546
U.S. 12, 17–18 (2005) (per curiam), and they are subject to a
rebuttable presumption of equitable tolling, Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 95–96 (1990). For all of the
aforementioned reasons, however—including the plain
language of the statute, its historical context, and the weight
of the case law applying it—we conclude that § 3583(i) is in
fact jurisdictional and thus not subject to equitable tolling.
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
14
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, 237 F.3d
1279, 1281 n.1 (11th Cir. 2001), they reaffirm that a
summons traditionally is a document afforded special weight
due to its role in the formal initiation of both civil and
criminal proceedings. See, e.g., Black’s Law Dictionary 1665
(10th ed. 2014) (defining summons as a “writ or process
commencing the plaintiff’s action and requiring the defendant
to appear and answer”); Ballentine’s Law Dictionary 1238
(3d ed. 1969) (defining summons as “original process upon a
proper service of which an action is commenced and the
defendant therein named brought within the jurisdiction of the
court”).
15
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, Merlino would have never been
legally “requir[ed] . . . to appear and answer” absent the
September 16 summons (which issued only after the
expiration of supervised release).
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.5
5
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
16
Moreover, every court to have considered this
argument has rejected it. See Janvier, 599 F.3d at 268 (order
to issue a warrant not sufficient under § 3583(i)); United
States v. Hondras, 176 F. Supp. 2d 855, 857 (E.D. Wis. 2001)
(same); United States v. Hazel, 106 F. Supp. 2d 14, 15
(D.D.C. 2000) (order to set a revocation hearing with
voluntary appearance not sufficient under § 3583(i)). In
particular, we find the Second Circuit’s justification for its
holding convincing:
[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
served upon the releasee prior to the expiration of release,
satisfies § 3583(i). See, e.g., United States v. Ramos, 401
F.3d 111, 116–18 (2d Cir. 2005). In other words, the plain
language of § 3583(i) gives no indication that notice plays
any role in determining whether the deadline has been
satisfied in a given case. By this, of course, we do not mean
to overlook the separate and unrelated requirement that any
delay between the issuance of a warrant, its eventual
execution, and conclusion of the revocation proceedings be
“reasonably necessary.” 18 U.S.C. § 3583(i).
17
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 [i]ssuance of a
[w]arrant,” 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, 599 F.3d at 268 (emphasis in original).
Our dissenting colleague, despite agreeing that §
3583(i) 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., 748 F.2d
1058, 1067 (5th Cir. 1984); F & S Constr. Co. v. Jensen, 337
F.2d 160, 161 (10th Cir. 1964). Adoption of a “functional
equivalence” test here would signal a return to the amorphous
jurisdictional practices exemplified by the case law predating
§ 3583(i). Like the Second Circuit, we are unwilling to
18
“contemplate strained readings that would blur the bright line
provided by Congress,” particularly “[g]iven the ease with
which the statute can be satisfied.” Janvier, 599 F.3d at 268.
In sum, we reject the argument that anything other than the
formal issuance of a warrant or summons can satisfy the
mandate of § 3583(i).6
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
jurisdicition over Merlino’s revocation proceedings.
Accordingly, we will vacate the District Court’s order of
October 24, 2014.
6
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.
19
AMBRO, Circuit Judge, 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.,
748 F.2d 1058, 1067 (5th Cir. 1984); F & S Constr. Co. v.
Jensen, 337 F.2d 160, 161 (10th Cir. 1964). It is thus
appropriate to reverse the District Court’s order revoking Mr.
Merlino’s supervised release because the September 2, 2014
petition did not satisfy the provision’s bright-line requirement
that a summons or warrant issue before the end of the
supervision period on September 6. In this context, I concur
with the result set out in Judge Vanaskie’s opinion.
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, 132 S. Ct. 641, 656
(2012). Like jurisdictional rules, the courts have a duty to
enforce a mandatory nonjurisdictional rule when it is properly
invoked. Eberhart v. United States, 546 U.S. 12, 17–18
(2005) (per curiam). But unlike jurisdictional rules,
nonjurisdictional rules are waived if not invoked, id., and are
subject to a rebuttable presumption of equitable tolling, Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990).
The jurisdictional status of § 3583(i) 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, 769 F.3d 197, 200 (3d Cir. 2014);
United States v. Thornhill, 759 F.3d 299, 306 n.8 (3d Cir.
2014); United States v. Clark, 726 F.3d 496, 500 (3d Cir.
2013); United States v. Young, 634 F.3d 233, 237 (3d Cir.
2011); United States v. Doe, 617 F.3d 766, 769 n.3 (3d Cir.
2010); United States v. Dees, 467 F.3d 847, 850 (3d Cir.
2006); see also United States v. Walker, 742 F.3d 614, 616
(5th Cir. 2014); United States v. Griffin, 413 F.3d 806, 807
(8th Cir. 2005); United States v. Jackson, 176 F.3d 1175,
1176 (9th Cir. 1999) (per curiam).
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, 732 F.3d 283, 290 n.2 (3d Cir.
2014); United States v. Dillon, 725 F.3d 362, 365 (3d Cir.
2013); United States v. Carter, 730 F.3d 187, 190 n.3 (3d Cir.
2013). It would be strange if § 3583(e) were the source of
subject-matter jurisdiction for revocations of supervised
release. That provision merely says that the “court may . . .
revoke a term of supervised release . . . if the court . . . finds
by a preponderance of the evidence that the defendant
violated a condition of supervised release.” 18 U.S.C.
§ 3583(e)(3). This appears to “specify[] the remedial power[]
of the court” to revoke supervised release rather than grant
subject-matter jurisdiction. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 90 (1998) (emphasis omitted).
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
2
jurisdiction to impose a sentence, which can contain a period
of supervised release. See, e.g., United States v. Wallace, 663
F.3d 177, 179 (3d Cir. 2011); United States v. Charles, 467
F.3d 828, 830 n.4 (3d Cir. 2006); United States v. Ricks, 5
F.3d 48, 49 (3d Cir. 1993) (per curiam); United States v.
Castro-Verdugo, 750 F.3d 1065, 1068 (9th Cir. 2014); United
States v. Rosales-Garcia, 667 F.3d 1348, 1350 (10th Cir.
2012). I also read § 3231 to give a court jurisdiction to
supervise a defendant on release, to ensure he satisfies the
requirements of his sentence, and to revoke supervised release
if he fails to do so.
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.1
1
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, 546 U.S. at 17. Some circuits have held that
Federal Rule of Appellate Procedure 4(b) extinguishes a
district court’s jurisdiction to vacate a conviction even earlier,
when the deadline for filing a notice of appeal has passed.
See, e.g., United States v. Sumner, 226 F.3d 1005, 1013 (9th
Cir. 2000). Similarly, except under limited circumstances, 18
U.S.C. § 3582(c) and Federal Rule of Criminal Procedure
35(a) strip a district court of jurisdiction to modify a sentence
14 days after sentencing. See United States v. Higgs, 504
F.3d 456, 463-64 (3d Cir. 2007). None of these rules,
however, indicate when a district court loses jurisdiction to
revoke supervised release.
3
As I am unaware of any other legal rule that would do so, the
focus is whether § 3583(i) strips the district court of subject-
matter jurisdiction to revoke supervised release after its
expiration if a summons or warrant was not issued
beforehand.
Over the last two decades the Supreme Court has
repeatedly admonished lower courts to draw “a stricter
distinction between truly jurisdictional rules, which govern a
court’s adjudicatory authority, and nonjurisdictional . . . rules,
which do not.” Thaler, 132 S. Ct. at 648 (internal quotation
marks omitted); Steel Co., 523 U.S at 90. A rule is
jurisdictional if there is a “‘clear’ indication that Congress
wanted [it] to be ‘jurisdictional.’” Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011) (quoting
Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006)). It
need not use “magic words.” Id. In ascertaining “clear”
intent, we “look[] to [1] statutory language, to [2] the relevant
context, and to [3] what they reveal about the purposes that a
time limit is designed to serve.” Dolan v. United States, 560
U.S. 605, 610 (2010). I lay out below what I perceive to be
the key arguments for and against reading the deadline under
§ 3583(i) as a jurisdictional requirement for revocations of
supervised release after the end of the supervision period.
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, 131 S. Ct. at 1205. And the
language of the provision expressly “extends” the court’s
authority rather than curtails it. A grant of authority can
impliedly take something away, but it is natural to read
§ 3583(i) as adding power to the district court—whether it be
remedial or jurisdictional—rather than subtracting it.
4
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., 511 U.S. 244, 274 (1994)
(“[J]urisdictional statutes speak to the power of the
court . . . .” (internal quotation marks omitted)); Steel Co.,
523 U.S. at 89 (“[S]ubject-matter jurisdiction [is] the courts’
statutory or constitutional power to adjudicate the case.”
(emphasis in original)); United States v. Arredondo, 31 U.S.
691, 709 (1832) (“The power to hear and determine a cause is
jurisdiction . . . .”). But I note that “power of the court” also
has non-jurisdictional meanings, including the remedial
authority of the court. See Sioux Honey Ass’n v. Hartford
Fire Ins. Co., 672 F.3d 1041, 1052 (Fed. Cir. 2012) (“[A]
court’s power to grant relief is not synonymous with its
ability to exercise jurisdiction, as these two concepts are
separate and distinct. Power does not necessarily envelop the
concept of jurisdiction.”).
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, 410 F.3d 353, 360 (7th Cir. 2005) (referring to
the “power of the court to depart upward from the Guidelines
range”); United States v. Turner, 389 F.3d 111, 120 (4th Cir.
2004) (referring to “the power of the court to fix the
maximum sentence[]” (quoting Binkley v. Hunter, 170 F.2d
848, 849 (10th Cir. 1948)); United States v. Diaz, 245 F.3d
294, 301 (3d Cir. 2001) (referring in a parenthetical to the
“power of district courts [at sentencing] . . . to consider
circumstances not considered by the [U.S.] Sentencing
Commission”); United States v. Waugh, 207 F.3d 1098, 1101
5
(8th Cir. 2000) (referring to the “power of the Court to
impose consecutive sentences”).
And in other (admittedly unrelated) contexts, some
statutes refer to the court’s “power” without appearing to be
jurisdictional. See, e.g., 38 U.S.C. § 7253(g)(3) (“The Court
shall have the power provided under [28 U.S.C. § 361] to
award reimbursement for the reasonable expenses described
in that section.”); 38 U.S.C. § 7265(a) (“The Court [of
Appeals for Veterans Claims] shall have power to punish by
fine or imprisonment such contempt of its authority as . . .
misbehavior of any person in its presence or so near thereto as
to obstruct the administration of justice . . . .”); 12 U.S.C.
§ 1735f-14(d)(4) (“[T]he court [of appeals] shall have
the power to order payment of the penalty imposed by the
Secretary [of Housing and Urban Development].”); 42 U.S.C.
§ 3537a(c)(4)(D) (same).
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
6
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 “specif[ies] the remedial powers of the
court.” Steel Co., 523 U.S. at 90 (emphasis omitted). The
same could be said of § 3583(i) if it extends the remedial
“power of the court to revoke a term of supervised release”
(and, by implication, punish violations of release conditions).
7
B. Context
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, 559 U.S. 154, 162
(2010); Shinseki, 131 S. Ct. at 1205. Subsection 3583(i) is
sandwiched in the middle of § 3583, which contains the
procedural and substantive rules governing modification and
revocation of supervised release. This is not where we
typically find jurisdictional provisions. Shinseki, 131 S. Ct. at
1205.
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(i) to be non-waivable and non-tollable—or
merely its remedial authority to revoke supervised release.
See Eberhart, 546 U.S. at 18 (acknowledging that in the past
the Supreme Court “more than occasionally used the term
‘jurisdictional’ to describe” inflexible but non-jurisdictional
deadlines); United States v. Ceballos, 302 F.3d 679, 692 (7th
8
Cir. 2002) (“[J]udges and legislators sometimes use the term
jurisdiction to erroneously refer to a court’s authority to issue
a specific type of remedy[] rather than to the court’s subject-
matter jurisdiction.” (emphasis added)).
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. 551 U.S. 205, 207
(2007). Relying on a long-standing practice of treating
deadlines for filing a notice of appeal as jurisdictional, the
Supreme Court held that the court of appeals lacked subject-
matter jurisdiction. Id. at 209 n.2 (“[I]t is indisputable that
time limits for filing a notice of appeal have been treated as
jurisdictional in American law for well over a century.”).
Bowles relied on a theory of congressional acquiescence
based on “a long line of . . . decisions left undisturbed by
Congress.” See Union Pac. v. R.R. v. Bhd. of Locomotive
Eng’rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67,
82 (2009); Thaler, 132 S. Ct. at 648 n.3; Shinseki, 131 S. Ct.
at 1203.
The historical treatment of § 3583(i) here differs from
Bowles. The Supreme Court has never cited § 3583(i), 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(i) has existed but two decades. Thaler, 132 S. Ct. at
648 n.3 (“Congress did not enact the indication requirement
[under 28 U.S.C. § 2253(c)(3)] until 1996. There is thus no
long line of this Court’s decisions left undisturbed by
Congress on which to rely.” (internal quotation marks
omitted)).
9
Myriad lower courts have referred to § 3583(i)2 and
§ 3565(c)3 as implicating jurisdiction, and none of them to my
knowledge have questioned that proposition. Yet I am aware
of only two published circuit court cases where the
jurisdictional label expressly affected the outcome.4 See
Juarez-Velasquez, 763 F.3d 430, 433, 436 (5th Cir. 2014)
(expressly vacating for lack of jurisdiction a revocation order
issued after expiration of supervised release and without a
2
See, e.g., United States v. Janvier, 599 F.3d 264, 264 (2d
Cir. 2010); Sczubelek, 402 F.3d at 180; United States v.
Lominac, 144 F.3d 308, 310 n.2 (4th Cir. 1998), abrogated on
other grounds by Johnson v. United States, 529 U.S. 694
(2000); United States v. Juarez-Velasquez, 763 F.3d 430, 436
(5th Cir. 2014); United States v. Madden, 515 F.3d 601, 608
(6th Cir. 2008); United States v. Vargas-Amaya, 389 F.3d
901, 907 (9th Cir. 2004); United States v. Okoko, 365 F.3d
962, 964 n.3, 967 (11th Cir. 2004). The same is true of the
supervised release cases that predated § 3583(i). See, e.g.,
United States v. Morales, 45 F.3d 693, 696, 701–702 (2d Cir.
1995); United States v. Barton, 26 F.3d 490, 491 (4th Cir.
1994); United States v. Neville, 985 F.2d 992, 994, 999 (9th
Cir. 1993).
3
See, e.g., United States v. Crisler, 501 F.3d 1151, 1152
(10th Cir. 2007).
4
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, 450 F.3d 406,
409–411 (9th Cir. 2006), vacated by 479 F.3d 1153 (9th Cir.
2007); United States v. Hacker, 450 F.3d 808, 814 n.4, 816
(8th Cir. 2006).
10
timely summons or warrant even though the defendant failed
to raise the issue in the district court); United States v. Ortiz-
Hernandez, 427 F.3d 567, 579–80 (9th Cir. 2004) (per
curiam) (same). Moreover, no circuit court case referring to
§ 3583(i) as jurisdictional has provided reasoning or cited
Supreme Court cases that admonish a stricter use of the term
“jurisdiction.” We generally don’t afford much weight to
drive-by jurisdictional decisions, Arbaugh, 546 U.S. at 511,
and I believe neither does Congress.
In a capsule, Bowles’s theory of congressional
acquiescence is likely inapplicable here where there is no
Supreme Court precedent interpreting § 3583(i) or any other
similar provision; where § 3583(i) 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, 560 U.S. at 610. Obvious purposes of
§ 3583, which generally governs revocation of supervised
release, include protecting society, punishing offenders, and
deterring future offenders. A jurisdictional reading of the
timing requirement under § 3583(i) would frustrate these
purposes by precluding revocations for late-term violations in
cases where the Government had no opportunity to obtain a
timely warrant or summons. See Thaler, 132 S. Ct. at 650.
Congress likely enacted § 3583(i) to balance the need
to revoke supervised release for late-term violations with the
need to protect defendants from hasty revocation hearings
held at the 11th hour. See United States v. Janvier, 599 F.3d
11
264, 265-66 (2d Cir. 2010). Treating § 3583(i) as
jurisdictional—that is, non-waivable and non-tollable—would
serve neither objective here. Statutory purpose thus provides
little evidence Congress intended the deadline in § 3583(i) to
be jurisdictional.
* * * * *
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.
12
SHWARTZ, Circuit Judge, 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(i).
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, 677 F.3d 1263, 1265 (9th Cir. 2012); United States v.
Bernardine, 237 F.3d 1279, 1281 n.1 (11th Cir. 2001) (“No
other rule of criminal procedure, relevant statute or case law
supports the application of Rules 4 or 9 in the context of a
supervised release violation hearing where the court already
has supervisory jurisdiction and authority over the
defendant.”). Thus, we must look elsewhere for guidance.
Black’s Law Dictionary defines “summons” as “[a]
writ or process commencing the plaintiff’s 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(i), 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, 599 F.3d 264, 267 (2d Cir. 2010). This choice
demonstrates that mere notification to the defendant of the
alleged violation—an object achieved by the U.S. Probation
Office’s petition—is insufficient to confer subject matter
jurisdiction. Instead, Congress required district courts to
respond to the petition and affirmatively indicate to the
defendant its intent to adjudicate the alleged violation of
supervised release. It is thus the district court’s affirmative
invocation of its jurisdiction before the term of supervised
release expires that operates to extend its authority.
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
2
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
3
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(i) 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 adjudicated based upon a lesser standard of proof and are
decided by a judge and not a jury. United States v. Dees, 467
F.3d 847, 854-55 (3d Cir. 2006). Thus, reading the word
“summons” in the context in which it is used and remaining
mindful of the purpose it serves further bolsters a reading that
the word “summons” here contemplates an affirmative act of
the court to gather the parties to address the alleged violation
of its judgment.
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
4
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.
5