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May 8, 2015
  USA v. Joseph Merlino - Third Circuit
Headline: Third Circuit Holds That a District Court Lacks Subject Matter Jurisdiction to Revoke Supervised Release When No Warrant or Summons Issues Before the Expiration of Supervised Release.

Area of Law: Criminal Law

Issue Presented: Does a district court have 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?

Brief Summary:
The district court revoked Joseph Merlino's supervised release for conversing with his co-defendants during the period of supervision. Merlino challenged this revocation, asserting that the district court did not have subject matter jurisdiction because no warrant or summons was issued prior to the expiration of his term of supervised release. In opposition, the Government argued that the district court had jurisdiction because the statute was subject to equitable tolling.
The Third Circuit Court agreed with the defendant, holding that 18 U.S.C. § 3583(i) was a jurisdictional statute that requires a warrant or summons to be issued before the expiration of supervised release in order for a district court to conduct revocation proceedings. Further, the Court held that the jurisdictional deadline described in § 3583(i) is not subject to equitable tolling. Because the summons in this matter was issued after the termination of supervised release, the Court concluded that the district court lacked subject matter jurisdiction to revoke supervised release. Accordingly, it vacated the district court's order revoking supervised release and imposing a prison term on Defendant Joseph Merlino.

Extended Summary:
Joseph Merlino, the reputed former head of the Philadelphia La Cosa Nostra, began 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 violated the terms of Merlino's supervised release. On August 26th, over two months later, Merlino's probation officer presented a revocation petition to the district court.
On September 2nd, the district court ordered the issuance of a summons directing Merlino to appear for a revocation hearing. Merlino's counsel stated that he would be unavailable for this hearing until December. Due to the Government's reluctance to accommodate the substantial delay, defense counsel asked the deputy clerk to wait until the end of the following week to set a date so that he could clear his schedule, and the district court judge agreed. On September 16th, after determining an agreed upon date five days earlier, the clerk issued a "notice of hearing" summoning Merlino for a revocation hearing on October 10th.
On October 6th, 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 supervised release term on September 6th. On the basis of the deputy clerk's testimony that absent defense counsel's request for a delay the notice of hearing would have issued prior to the expiration of Merlino's term, the Court concluded that the deadline had been equitably tolled, such that the notice filed on September 16th was timely. On October 24th, the district court conducted a revocation hearing, found that Merlino had violated the terms of his release, and sentenced Merlino to four additional months of imprisonment. Merlino timely appealed.
The issue on appeal required interpretation of 18 U.S.C. § 3583(i), the jurisdictional statute requiring that a warrant or summons must issue before the expiration of supervised release in order for a district court to conduct revocation proceedings. The district court claimed jurisdiction to revoke supervised release under this statute, citing the "delayed revocation" section. The "delayed revocation" section of § 3583(i) provides that the power of the court to revoke a term of supervised release extends beyond the expiration of the term of supervised release "for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation."
The Third Circuit Court found that the language of the statute was clear and unequivocal, in that 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 recognized this condition, but nevertheless issued revocation on its finding that § 3583(i) was subject to "equitable tolling."
The Court rejected the argument that § 3583(i) was subject to equitable tolling because it is not a jurisdictional statute. The Court found that the plain language of the statute makes clear that the deadline is jurisdictional. It reasoned that § 3583(i) does not merely set a deadline, but also expressly authorizes a grant of power to the district court and conditions the existence of that power on a specific event.
The Court also rejected the Government's argument 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 Court explained that while "summons" is not defined for purposes of § 3583, the term is defined elsewhere in the context of federal criminal proceedings as requiring a summons on a criminal complaint to 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. The Court explained that the district court's order directing the issuance of a summons failed to meet this definition because it did not require the defendant to appear and answer. Additionally, the deputy clerk's informal communication with defense counsel was not the functional equivalent of the "issuance" of a "summons." The Court emphasized that the statute requires "issuance," not notice. Therefore, anything other than formal issuance of a warrant or summons does not satisfy the mandate of § 3583(i). Accordingly, the Court vacated the district court's order.

To read the full opinion, please visit
Panel (if known): Ambro, Vanaskie, and Shwartz, Circuit Judges

Argument Date: April 14, 2015

Date of Issued Opinion: May 5, 2015

Docket Number: No. 14-4341

Decided: Vacated the district court's order of October 24, 2014

Case Alert Author: Jaclyn Poulton

Counsel for Appellant: Edwin J. Jacobs, Jr., Esq. and Michael F. Myers, Esq. (Jacobs & Barbone); Gary S. Silver, Esq. (Silver Legal Services)
Counsel for Appellee: Zane D. Memeger, Esq.; David E. Fritchey, Esq.; Joseph F. Minni, Esq.; David E. Troyer, Esq. (Office of the United States Attorney)

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 05/08/2015 08:05 PM     3rd Circuit  

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