United States v. Collazo-Castro

United States Court of Appeals
For the First Circuit

No. 10-1760

UNITED STATES OF AMERICA,

Appellee,

v.

MIGDALIA COLLAZO-CASTRO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

Before

Torruella, Thompson, Circuit Judges,

and Saris,* District Judge.

Thomas J. Trebilcock-Horan, Research and Writing
Specialist, with whom Héctor E. Guzmán-Silva, Federal Public
Defender, and Héctor L. Ramos-Vega, Assistant Federal Public
Defender, were on brief, for appellant.
Carlos R. Cardona-Torres, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Luke Cass, Assistant United States
Attorney, were on the brief, for appellee.

September 29, 2011

*
Of the District of Massachusetts, sitting by designation.
 SARIS, District Judge. Migdalia Collazo-Castro

(“Collazo-Castro”) appeals the revocation of her supervised release

on the ground that the district court lacked jurisdiction under 18

U.S.C. § 3583(i), the Delayed Revocation Statute, because the

warrant on which she was arrested did not comply with the oath or

affirmation clause of the Fourth Amendment.

Rejecting this contention, we AFFIRM the judgment of the

district court.

BACKGROUND1

Collazo-Castro pled guilty to one count of conspiracy to

smuggle illegal aliens into the United States in violation of 8

U.S.C. §§ 1324(a)(1)(A)(i), (v)(I). On December 7, 2004, Collazo-

Castro was sentenced to twelve months and one day of imprisonment,

followed by a three-year term of supervised release. Her term of

supervised release began on February 11, 2005, and was set to run

until February 11, 2008.

On April 26, 2005, Collazo-Castro’s probation officer

filed a Motion Notifying Violations of Supervised Release

Conditions, stating that Collazo-Castro had tested positive twice

for cocaine use, and had admitted to using crack cocaine. The

probation officer requested that the district court issue Collazo-

Castro a written reprimand warning her that any further violations

1
We have jurisdiction over Collazo-Castro’s appeal
pursuant to 28 U.S.C. § 1291.

-2-
would require her to appear in court and show cause why her

supervised release term should not be revoked. The district court

never acted on this motion, but Collazo-Castro did agree, pursuant

to a referral by the probation officer, to enter a residential

treatment and drug counseling program on April 11, 2005.

On May 11, 2005, Collazo-Castro’s probation officer

presented an “official report upon the conduct and attitude of the

offender” and filed a Motion for Revocation of Supervised Release

Term and Request for a Warrant, alleging that she had (1) abandoned

her drug treatment program on May 7, 2005; and (2) failed to report

after abandoning treatment. The motion was sent to the government

and to defense counsel. The allegations of the violation of

supervised release were not made under oath, but the motion was

signed by the probation officer. On May 19, 2005, the district

court issued an arrest warrant. The federal public defender

entered an appearance on Collazo-Castro’s behalf. On May 23, 2005,

a hearing on the order to show cause took place before the

magistrate judge with defense counsel and a probation officer

present. Collazo-Castro did not appear, and the court continued

the hearing until the defendant was arrested. On November 17,

2005, the magistrate judge to whom the motion had been referred

issued an order stating that the arrest warrant remained pending

and that a show cause hearing would be set upon Collazo-Castro’s

arrest.

-3-
 After an unexplained four-year delay2, Collazo-Castro was

arrested on October 8, 2009. On October 14, 2009, a preliminary

revocation hearing was held before a magistrate judge, who found

probable cause based on the probation officer’s testimony. At the

hearing, Collazo-Castro’s attorney argued that the district court

lacked jurisdiction to revoke her term of supervised release and

requested that the matter be dismissed given that the government

took no steps to arrest Collazo-Castro for over four years. The

magistrate judge referred the tolling issue to the district court

for a full revocation hearing and noted that defense counsel had

reserved the right to raise the jurisdictional claim.

On October 28, 2009, Collazo-Castro filed a “Motion to

Dismiss Revocation Proceedings,” contending that the original

arrest warrant was invalid under the Delayed Revocation Statute

because it was not based on a finding of probable cause supported

by a statement made under oath or affirmation. The district court

initially denied defendant’s motion without addressing the Warrant

Clause argument, finding that defendant’s term of supervised

release was tolled while she was a fugitive under the doctrine of

fugitive tolling. After this Court rejected the doctrine of

fugitive tolling in United States v. Hernandez-Ferrer, 599 F.3d 63,

69 (1st Cir. 2010), Collazo-Castro moved for reconsideration of the

2
The record does not explain why the delay was so long,
but there is reference to a sealed pleading by the U.S.
Marshal.

-4-
district court’s order denying the motion to dismiss. The district

court issued an order on April 23, 2010, finding that Collazo-

Castro’s fugitive status did not toll her term of fugitive release,

but concluding in any event that the motion to dismiss was properly

denied on other grounds:

Having considered the various arguments on
this issue, the Court believes that the
position adopted by the Fifth Circuit in
[United States v. Garcia-Avalino, 444 F.3d 444
(5th Cir. 2006)] that the warrant for the
arrest of a supervised releasee need not
comply with the Oath or affirmation clause of
the Fourth Amendment, later followed by the
Eleventh and Fourth Circuits, is the more
logical. To the reasons aptly explained by
the Fifth Circuit in adopting said position we
simply add but one: a warrant for the arrest
of a releasee may be triggered by ordinary
violations to standard conditions of release,
as often happens with occurrences as
nonchalant as failing to submit a required
monthly report, or a failure to inform of
change of address. It seems to us that such
situations should not require the heightened
sworn-facts crucible of the Warrant Clause,
especially when the arrest warrants are
requested by the supervising U.S. Probation
Officers. (Cf. Fed. R. Crim. P. 4(a), which
requires a warrant supported by Oath or
affirmation for the arrest of a person against
whom there is probable cause of having
committed a criminal offense.) Given those
circumstances, we are not persuaded that the
term “warrant” as used in 18 U.S.C. § 3583(i)
implicitly includes a sworn-facts requirement
as interpreted by the Ninth Circuit in [United
States v. Vargas-Amaya, 389 F.3d 901 (9th Cir.
2004)].

United States v. Nevarez-Ortega, 709 F. Supp. 2d 123, 124-25

(D.P.R. 2010).

-5-
 On May 5, 2010, the district court revoked Collazo-

Castro’s term of supervised release and sentenced her to time

served and an additional twenty-six month term of supervised

release. This timely appeal followed.

STANDARD OF REVIEW

Whether a district court has legal jurisdiction to revoke

a term of supervised release is a question of law and engenders de

novo review. Hernandez-Ferrer, 599 F.3d at 65.

DISCUSSION

A. Meaning of “Warrant”

The central dispute is whether the district court had

relation-back jurisdiction under the Delayed Revocation Statute,

which provides:

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
and, subject to the limitations in subsection
(h), a further 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.

18 U.S.C. § 3583(i) (emphasis added). “While section 3583 extends

the jurisdiction of a court to hold revocation hearings after the

term of supervised release has expired, [18 U.S.C. § 3606] actually

governs the issuance of warrants for the arrest of probationers or

-6-
supervised releasees.” Garcia-Avalino, 444 F.3d at 446 n.3; see

also Vargas-Amaya, 389 F.3d at 906 (same). Section 3606 provides:

If there is probable cause to believe that a
probationer or a person on supervised release
has violated a condition of his probation or
release, he may be arrested, and, upon arrest,
shall be taken without unnecessary delay
before the court having jurisdiction over him.
A probation officer may make such an arrest
wherever the probationer or releasee is found,
and may make the arrest without a warrant. The
court having supervision of the probationer or
releasee, or, if there is no such court, the
court last having supervision of the
probationer or releasee, may issue a warrant
for the arrest of a probationer or releasee
for violation of a condition of release, and a
probation officer or United States marshal may
execute the warrant in the district in which
the warrant was issued or in any district in
which the probationer or releasee is found.

18 U.S.C. § 3606. Sections 3606 and 3583 were enacted in 1984 as

part of the Sentencing Reform Act package that transformed the

federal parole system into a supervised release system. “Under the

Sentencing Reform Act's provisions for supervised release, the

sentencing court, rather than the Parole Commission, would oversee

the defendant's postconfinement monitoring.” Gozlon-Peretz v.

United States, 498 U.S. 395, 400-01 (1991).

Appellant argues that in the absence of a statutory

definition of “warrant,” this Court should apply the word’s

ordinary meaning, which, in her view, is the definition in the

Warrant Clause of the Fourth Amendment. The Fourth Amendment

provides that “no Warrants shall issue, but upon probable cause,

-7-
supported by Oath or affirmation.” U.S. Const. amend. IV. If the

term “warrant” in sections 3606 and 3583(i) is defined to require

sworn facts, the district court did not have jurisdiction to revoke

appellant’s supervision.

Two circuit courts have split on this precise issue. The

Ninth Circuit held that the term “warrant” requires an oath or

affirmation both as a matter of statutory interpretation and to

avoid an interpretation inconsistent with the Constitution. See

Vargas-Amaya, 389 F.3d at 904, 906. The Fifth Circuit came to the

opposite conclusion. See Garcia-Avalino, 444 F.3d at 447. We

agree with the Fifth Circuit.3

1. Delayed Revocation Statute

“The starting point in interpreting a statute is its

language, for ‘[i]f the intent of Congress is clear, that is the

end of the matter.’” Good Samaritan Hosp. v. Shalala, 508 U.S. 402,

409 (1993) (quoting Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842 (1984)). As we recently recited,

[u]nder settled principles of statutory
construction, we first look to whether the
statutory text is plain and unambiguous . . .
. In conducting this analysis, we begin with
the ordinary meaning of the terms as of the
time when the statutory provision was enacted.

3
Two other courts of appeal have alluded to the split
between the Fifth and Ninth Circuits, but neither took a
position. See United States v. Brennan, 285 F. App’x 51, 56
(4th Cir. 2008); United States v. Presley, 487 F.3d 1346, 1348
(11th Cir. 2007).

-8-
 To determine ordinary meaning, we may consult
dictionary definitions, interpretations given
to the same terms by judicial construction,
and the statutory context in which the words
are used.

Hernandez-Miranda v. Empresas Diaz Masso, Inc., No. 10-1639, 2011

WL 2557012, at *3 (1st Cir. June 29, 2011) (internal citations

omitted).

The standard dictionary definition of the term “warrant”

does not include a requirement that a warrant be supported by an

oath or affirmation. Black’s Law Dictionary defines “warrant” as

a “writ directing or authorizing someone to do an act, esp. one

directing a law enforcer to make an arrest, a search, or a

seizure.” Black’s Law Dictionary 1722 (9th ed. 2009). In

addition, Black’s Law Dictionary defines an “arrest warrant” as a

“warrant, issued only on probable cause, directing a law-

enforcement officer to arrest and bring a person to court.” Id.

The Random House Dictionary defines “warrant” as “an instrument,

issued by a magistrate, authorizing an officer to make an arrest,

seize property, make a search, or execute a judgment.” The Random

House Dictionary of the English Language 2144 (2d ed. unabr. 1987).

The Oxford English Dictionary defines “warrant” as a “writing

issued by the sovereign, an officer of state, or an administrative

body, authorizing those to whom it is addressed to perform some

act.” 19 Oxford English Dictionary 929 (2d ed. 1989). The Oxford

English Dictionary’s language was exactly the same in 1971 and thus

-9-
likely served as the definitional backdrop to Congress’s 1984

passage of the Sentencing Reform Act. See Oxford English

Dictionary 3691 (Compact ed. 1971).

Collazo-Castro argues that “warrant” is a “term of art,”

which must be imbued with the interpretation given in the

Constitution. In concluding that the term “warrant” means “a

document that is based upon probable cause and supported by sworn

facts,” the Ninth Circuit reasoned that “[i]t is a well-established

canon of statutory construction that when Congress uses a term of

art, such as ‘warrant,’ unless Congress affirmatively indicates

otherwise, we presume Congress intended to incorporate the common

definition of that term . . . .” Vargas-Amaya, 389 F.3d at 904.

See generally Morrissette v. United States, 342 U.S. 246, 263

(1952) ("[W]here Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries of

practice, it presumably knows and adopts the cluster of ideas that

were attached to each borrowed word in the body of learning from

which it was taken and the meaning its use will convey to the

judicial mind unless otherwise instructed."). The Ninth Circuit

noted that section 3606's inclusion of probable cause “[b]y

extension” required an oath or affirmation. Vargas-Amaya, 389 F.3d

at 905 n.2 (“By extension, if Congress intended to incorporate the

‘probable cause’ portion of the Warrant Clause in each statute, it

-10-
must have also intended to incorporate the ‘Oath or affirmation’

portion of the Clause.”).

The government responds that the term “warrant” is not a

term of art in the context of persons under the supervision of the

court (i.e. on pretrial release, probation, or supervised release)

where a warrant supported by oath or affirmation has not

consistently been required for violations of terms of release. As

the Fifth Circuit pointed out, explicit oath or affirmation

requirements, such as those in the Fourth Amendment and the Federal

Rules of Criminal Procedure, are “not proof that there is an

implicit sworn-facts requirement embedded in the very meaning of

the word ‘warrant’ as a legal term. If anything, such examples

suggest the converse, i.e. that a valid warrant need not be

supported by sworn facts unless a specific statutory provision

requires such support.” Garcia-Avalino, 444 F.3d at 445. As

examples, the Fifth Circuit pointed to Federal Rules of Criminal

Procedure 4 and 9, which have explicit oath requirements. See id.

Rule 4(a) provides that an arrest warrant may issue only “[i]f the

complaint or one or more affidavits filed with the complaint

establish probable cause to believe that an offense has been

committed and that the defendant committed it.” Fed R. Crim. P.

4(a). See also Fed. R. Crim. P. 3 (explaining that a complaint

“must be made under oath”); Black’s Law Dictionary 66 (9th ed.

2009) (defining “affidavit” as a “sworn” declaration of facts).

-11-
Similarly, Rule 9 provides that an arrest warrant may issue “if one

or more affidavits accompanying the information establish probable

cause.” Fed R. Crim. P. 9(a). The Advisory Committee Notes to

Rule 9 explain that “[t]he provision of rule 9(a) that a warrant

may be issued on the basis of an information only if the latter is

supported by oath is necessitated by the Fourth Amendment to the

Constitution of the United States.” Fed. R. Crim. P. 9 advisory

committee’s note to 1944 Adoption. In contrast, in the case of a

criminal defendant who is on pretrial release pending trial, there

is no sworn facts requirement. Rather, an “attorney for the

Government may initiate a proceeding for revocation of an order of

release by filing a motion with the district court. A judicial

officer may issue a warrant for the arrest of a person charged with

violating a condition of release.” 18 U.S.C. § 3148(b) (emphasis

added).

Significantly, prior to the advent of supervised release,

administrative warrants to revoke a prisoner on parole did not

require sworn facts. The governing statute under the parole regime

provided that a “warden, at any time within the term or terms of

the prisoner’s sentence, may issue his warrant to any officer

hereinafter authorized to execute the same for the retaking of such

prisoner.” 18 U.S.C. § 717 (1946); Act of June 25, 1910, ch. 387,

§ 4, 36 Stat. 820 (original enactment); Act of May 13, 1930, ch.

255, § 1, 46 Stat. 272 (amendment). In a case where a parolee

-12-
challenged an arrest warrant that was not under oath, the D.C.

Circuit held:

Appellant completely misconstrues the nature
and purpose of the laws governing parole and
conditional releases. A warrant issued for
the retaking of a person under these laws
proceeds upon an entirely different premise
and serves a different purpose than in the
case of a warrant for the arrest of a person
charged with the commission of a crime. A
released prisoner is not a free man. Prior to
the expiration of his maximum term he is a
ward of the Parole Board, subject to its
control and care. The Supreme Court has
characterized the violation of a condition of
parole as being, in legal effect, on the same
plane as an escape from the custody of the
warden. “His status and rights were analogous
to those of an escaped convict.” Anderson v.
Corall, 263 U.S. 193, [196 (1923)].
Consequently, it cannot be said that the
retaking of a prisoner who is already within
the legal custody of the authorities
constitutes an arrest within the meaning of
the constitutional provisions. Nor need the
warrant be under oath, for the same reasons.

Story v. Rives, 97 F.2d 182, 188 (D.C. Cir. 1938) (citing Jarman v.

United States, 92 F.2d 309, 311 (4th Cir. 1937) (observing that

“the warrant in question was not a warrant for the arrest of one to

be charged with and tried for a crime, nor for search and seizure

of property, as contemplated in the Fourth Amendment to the

Constitution”)). While this case law is old, courts have continued

to hold that the “[r]equirements contained in the Federal Rules of

Criminal Procedure that impose procedures for taking someone into

custody do not necessarily apply to people who . . . are under

court supervision as part of a criminal sentence.” Presley, 487

-13-
F.3d at 1349 (citing United States v. Harrison, 461 F.2d 1127, 1130

(5th Cir. 1972)). They have explained that the reason these rules

for taking someone into custody do not necessarily apply is that a

convicted criminal on supervised release (or parole) is already in

“constructive custody.” See id.; see also Harrison, 461 F.2d at

1130; cf. United States v. Brown, 117 F.3d 471, 475 (11th Cir.

1997) (concluding that a supervised releasee is “in custody” within

the meaning of 18 U.S.C. § 2255).

Because Congress is presumed to have known that the

parole statute had no oath requirement, its failure to engraft such

a requirement onto section 3606 speaks volumes. See United States

v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999) (“Congress is

presumed to have known of its former legislation and to have passed

new laws in view of the provisions of the legislation already

enacted.”); see also St. Louis, I.M. & S. Ry. Co. v. United States,

251 U.S. 198, 207 (1920) (“Congress must be presumed to have known

of its former legislation . . . .”); cf. United States v. Dyer, 589

F.3d 520, 527 n.6 (1st Cir. 2009) (stating that “we consider the

legislative history and the congressional findings of prior

iterations of the Act relevant to its present meaning”).

In light of this legislative history, the failure to

include an oath or affirmation requirement in section 3606 and the

inclusion of a probable cause requirement demonstrates

congressional intent not to require sworn facts.

-14-
B. Fourth Amendment Protections for Supervised Releasees

Even if the statute does not require a warrant based on

sworn facts, appellant argues that the warrant did not comply with

the sworn facts requirement of the Fourth Amendment.

The Supreme Court has held “that a parolee is not

entitled to ‘the full panoply’ of due process rights to which a

criminal defendant is entitled.” Pa. Bd. of Prob. & Parole v.

Scott, 524 U.S. 357, 365 n.5 (1998) (quoting Morrissey v. Brewer,

408 U.S. 471, 480 (1972)). “[T]he revocation of parole is not part

of a criminal prosecution and thus the full panoply of rights due

a defendant in such a proceeding does not apply to parole

revocations.” Morrissey, 408 U.S. at 480; see also Gagnon v.

Scarpelli, 411 U.S. 778, 781-82 (1973) (finding that parole

revocation is not a stage of criminal prosecution even if it

results in a loss of liberty). The Morrissey Court explained that

“[b]y whatever name, the [parolee’s] liberty is valuable and must

be seen as within the protection of the Fourteenth Amendment. Its

termination calls for some orderly process, however informal.” 408

U.S. at 482 (emphasis added).

The Fifth and Ninth Circuits disagree on the

constitutional requirements of arrest warrants issued for

supervised releasees. The Ninth Circuit has held that “an ordinary

judicial warrant that is statutorily required for the arrest of a

-15-
person on supervised release must comply with the Warrant Clause of

the Fourth Amendment in order to extend the court's jurisdiction

under § 3583(i).” Sherman v. U.S. Parole Comm’n, 502 F.3d 869,

884-85 (9th Cir. 2007) (citing Vargas-Amaya, 389 F.3d at 907 &

n.5). The Fifth Circuit rejected the argument that a sworn facts

requirement must be read into the term “warrant” to avoid

interpreting section 3583(i) in a way that would render it

unconstitutional. Garcia-Avalino, 444 F.3d at 446-47.

We conclude that the Fourth Amendment does not require a

warrant based on an oath or affirmation to revoke an individual on

supervised release. “An oath or affirmation ‘is designed to ensure

that the truth will be told by insuring that the witness or affiant

will be impressed with the solemnity and importance of his words.’”

United States v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002)

(quoting United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977)).

Probation officers, who notify district courts of alleged

violations, are supervised by the courts. See United States v.

York, 357 F.3d 14, 22 n.6 (1st Cir. 2004). Because probation

officers “function as an ‘arm of the court’” they possess a unique

role that does not require the same safeguards imposed on ordinary

affiants by the Fourth Amendment. Id. (quoting United States v.

Saxena, 229 F.3d 1, 5 n.1 (1st Cir. 2000)). Because a probation

officer’s credibility is typically known by the district court, and

because she is an officer of the court, an oath or affirmation is

-16-
not required either to ensure credibility or to impress the officer

with the consequences of failing to tell the truth. While it is

now considered a best practice4 to seek a revocation warrant based

on sworn facts, an oath or affirmation request is not

constitutionally mandated. Because the warrant was valid, the

district court had jurisdiction to revoke the appellant.

The judgment of the district court is hereby AFFIRMED.

4
Indeed, the form currently used by probation officers
in petitioning for a warrant to arrest a supervised releasee,
although not used in this case, is called a “Petition for
Warrant or Summons for Offender Under Supervision.” The form
has a space for the parole officer to sign, accompanied by the
language “I declare under penalty of perjury that the
foregoing is true and correct.” Form PROB-12C. Appellant
suggests that probation officers in Puerto Rico are now using
the recommended language.

-17-