United States v. Hondras, Ferlando R ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1202
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERLANDO RALPH HONDRAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-CR-164—Lynn Adelman, Judge.
____________
ARGUED JUNE 5, 2002—DECIDED JULY 18, 2002
____________
Before FLAUM, Chief Judge, and DIANE P. WOOD and
WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. Defendant Ferlando Hondras
moved to quash an arrest warrant issued to revoke his su-
pervised release, arguing that because a clerk, not a judge,
signed the warrant, it was insufficient to confer jurisdiction
to conduct a delayed revocation hearing. The district court
denied the motion. For the reasons stated herein, we affirm
the district court’s ruling.
I. Background
In 1993, Hondras pleaded guilty to conspiracy to import
heroin and conspiracy to distribute heroin. The district
2 No. 02-1202
court for the Northern District of Georgia sentenced him to
36 months’ imprisonment on each count, to be served con-
currently, followed by a five-year term of supervised re-
lease. Hondras’s supervised release—scheduled to expire
on April 20, 2001—was transferred to the Northern District
of Illinois in 1998, and to the Eastern District of Wiscon-
sin in 2000.
On April 17, 2001, Hondras was indicted for possession
with the intent to distribute heroin and for being a felon in
possession of a firearm. Later that day, his probation officer
submitted a petition alleging that Hondras had violated a
condition of his supervised release and requesting that the
court issue a warrant before the scheduled expiration of
that release.
On April 18, 2001, the district judge, finding probable
cause to believe that Hondras violated his supervised
release terms, granted the request and ordered the issuance
of an arrest warrant. On April 20, 2001—the originally
scheduled expiration date of Hondras’s supervised release—
the court completed issuance of the warrant, which was
signed by a deputy clerk of the court. On December 14,
2001, the district court revoked Hondras’s term of super-
vised release and sentenced him to 24 months’ imprison-
ment.
II. Discussion
A court may revoke a defendant’s supervised release even
after the term of release has ended, so long as a valid
warrant or summons was issued before the end of the
period, on the basis of an allegation that the releasee vio-
lated the terms of his release. 18 U.S.C. §3583(i). Although
Hondras originally complained that the warrant was is-
sued a day too late to allow the court to maintain jurisdic-
tion over his release, the district court found otherwise
and he does not appeal that ruling. Hondras contends only
No. 02-1202 3
that because a deputy clerk signed his warrant, it was not
valid and the court therefore lacked the authority both
to revoke his release and to resentence him in December
2001.
18 U.S.C. § 3606 provides that if probable cause exists to
believe that a person has violated the conditions of his
release, “[t]he court having supervision of the . . . releasee”
may issue a warrant for his arrest. The statute makes
no mention of who must sign the warrant. We first note
that no constitutional concern exists here. The Fourth
Amendment provides that “[n]o warrant shall issue, but
upon probable cause, supported by oath or affirmation.”
U.S. Const. amend. IV. Hondras does not—and cannot—
dispute that probable cause existed to believe that he
violated the conditions of his supervised release. 18 U.S.C.
§3583(g) provides that if a releasee possesses a controlled
substance in violation of the conditions of his release,
revocation is mandatory. Section 3581(d)(1) states that com-
mitting any other federal, state, or local crime is an explicit
violation of the terms of release. In light of Hondras’s in-
dictment for possessing heroin with the intent to distribute
and being a felon in possession of a firearm, probable cause
was clear. The current appeal is based solely on the theory
that even if probable cause exists, only a judge—not a
clerk of the court—may sign a valid arrest warrant revok-
ing a defendant’s supervised release. We disagree.
Issuing a warrant is not synonymous with signing a
warrant. See Boyer v. County of Washington, 971 F.2d 100(8th Cir. 1992). The Federal Rules of Criminal Procedure
discuss two types of cases where warrants may issue. Fed.
R. Crim. P. 4; 9. Although both rules apply to warrants
issued at the start of a criminal case, not to when a person
violates his supervised release, they are instructive to the
case at hand. Both Rule 4 and Rule 9 discuss the court’s
issuance of warrants in sections different from those dis-
cussing who shall sign the form. Rule 4 details the proce-
4 No. 02-1202
dure for issuing an arrest warrant or summons in cases
brought by complaint when probable cause exists to be-
lieve that the defendant has committed an offense. Fed. R.
Crim. P. 4. Rule 4(a), titled “issuance,” provides that in such
cases, an arrest warrant or summons “shall issue.” Id. 4(c),
titled “form” states that such a warrant shall be signed
by a magistrate judge. Id. Rule 9 provides for a warrant
or summons for defendants named in an indictment, or in
an information supported by probable cause under oath,
upon the government attorney’s request or at the discre-
tion of the court. Fed. R. Crim. P. 9. Rule 9(a), “issuance,”
states that “the court shall issue” a warrant or summons
in such cases, id., and 9(b), “form,” states that such war-
rants shall be signed by the clerk. Id. The Supreme Court,
in adopting the Federal Rules of Criminal Procedure, did
not intend that a rule allowing a court to issue a warrant
necessarily require that warrant to be signed by a judge.
In fact, Rule 9, like §3606 allows the court to issue a war-
rant; yet the rule provides that such warrant be signed by
a clerk. Id. Likewise, we do not believe that simply by
stating in §3606 that the court may issue a warrant to
revoke a defendant’s supervised release, Congress intended
to require a judge’s signature on that warrant; if it had, it
easily could have added such language to the statute.
Unless a relevant statute or rule of procedure directs
otherwise, if a judge finds probable cause to believe that a
person has violated his supervised release and directs a
clerk of the court to sign an arrest warrant, as happened in
this case, the court has validly issued that warrant. The
requirements of both the Fourth Amendment and §3606
are satisfied in this case. We AFFIRM the decision of the
district court.
No. 02-1202 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-18-02