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June 5, 2007

Will SCOTUS take up supervised release revocation issue?

I am very pleased to discover that SCOTUSblog has listed the Faulks case I involved with in its list of "petitions to watch" in the Supreme Court's upcoming conference this Thursday.   I have previously discussed the Faulks case here and here, and I will have my fingers crossed hoping for good news when the Justices announce new cert grants next Monday.  Here our pitch for cert and the main questions presented from our initial petition (which is available here; BIO here; reply here):

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years' supervised release. Seven years later, as Faulks's term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release.  Faulks denied the allegation.  At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof. Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment. This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year term of imprisonment based solely on the judge's disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).

June 5, 2007 at 05:00 PM | Permalink


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On a somewhat related topic, 18 USC 3148(b) for pretrial release revocation states that "the attorney for the government" is the one who may initiate a revocation hearing. For some reason, section 3583 is silent as to who should initiate a revocation of supervised release, only stating that the court shall revoke supervised release in certain situations.

Despite the language in 3148 which states an attorney for the government needs to initiate a revocation proceeding, courts around the country routinely allow pretrial services / probation officers (not attorneys for the government) to initiate such proceedings, despite the fact that these people are not licensed attorneys, are employees of the judicial branch which is supposed to be impartial, and have no ethical constraints or rules of professional conduct. The last time I had a revocation hearing under 3148 I brought this issue up at the hearing (there was one unpublished district court case out of the Northern District of Texas on point) and the judge agreed with me and dismissed the revocation proceeding.

I think the same principal should apply to revoking supervised release, even though the statute is silent on who initiates such a proceeding. Let probation report a violation/suspected violation to the AUSA, who then decides whether or not to proceed with revoking supervised release. While federal probation/pretrial services officials are typically good, hard working people, I have a major issue with people without law degrees, not members of the bar, and ministerial employees of the judicial branch acting as prosecutors.

Of course the justice department has no problem with this because they don't want to have to deal with all the added paperwork. An AUSA will show up at the revocation hearing when it occurs.

Posted by: BruceM | Jun 8, 2007 1:25:39 AM

Faulks was not on the order list today -- a very curious thing indeed that I take as a good sign.

Posted by: Aaron | Jun 11, 2007 11:35:57 AM

i have a question . i am on supervised release for five years. completed a year with zero problems but recently was arrestes for deceptive practice and theft. charges which are kind of crazy. i am part of the business the checks are from bu am not on the checking account. i was however arrested and never even talked to about the situation. we were shorted material and there was a dispute so a payment was stopped. we had open communications with the vendor..etc let me know. i had my first revocation hearing today and it was continued. what are the actual guidlines for revocation. i was told there is a chart just like for regular sentencing. thanx

Posted by: j | Jun 11, 2008 7:34:36 PM

I am also on supervised release now two years after searving 18 months in prison. I live two hours away from my probation office, so I don't have to report there much. Also i have been drug testing two to three times a month a hour away drive away since being out. I have worked, stayed clean and for the most part did everything I am supossed to do. A cop, from my small town, a few months ago started acussing me of taking a man's income tax money. The man, Rick asked for my help to do his taxes last year. I helped him do them on my computer, he signed them, I didn't, nor did it go into my account. My daughter was here the day of taxes, Rick didn't have a bank account so she (my daughter) let him put them in hers. The money came on a Sat. He called me, I called her. Since the bank was closed, I gave him a $300.00 money order until my daughter could get his out of the bank on Monday. She took his money out and gave it to him. This was March 2008. In August 2008 he filed a police report stating I kept all his tax money. Didn't give him a penny I spoke with the Det. told him i didn't take it, he threatened to put a warrant on me so I contacted a lawyer. Of course he called my probationer officer too. I have not spoke with the police. I offered through my attorney to take a polygraph pretaining to this issue and the Det. keeps saying he doesn't want to indidct me, just wants me to pay Rick three thousand dollars. I refuse... The assist. chif probationer officer sent me a letter wanting me to come to his office regarding the conditions of my supervised release..... I had a car accident that morning driving there, could'nt make it and have heard nothng back from my p.o. or anyone. It has been almost two months. I don't know what to do, have heard that federal does what ever they want to people?? Anything I can or should be doing???
Thank You

Posted by: Bonnie McMurray | Jan 10, 2009 9:07:16 AM

Where's S.cotus when you need him (or her)? Does my proposal to seize members of the family's property "work corruption of Blood"

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