United States of America, Plaintiff-appellee, v. William D. Schimmel, Defendant-appellant, 950 F.2d 432 (7th Cir. 1991)

Christina McKee, Asst. U.S. Atty., Sharon Jackson (argued), Office of U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Ralph L. Tambasco, Indianapolis, Ind. (argued), for defendant-appellant.

Before CUDAHY and EASTERBROOK, Circuit Judges, and MOODY, District Judge.^* 

MOODY, District Judge.

William D. Schimmel appeals the revocation of his probation. We must decide whether the district court had jurisdiction. We conclude that it did.

In 1984, the United States District Court for the Western District of Kentucky convicted Schimmel of mail fraud and transporting fraudulently obtained goods in interstate commerce. The court suspended a sentence of one year and one day on each count, and placed Schimmel on probation for five years. Probation began on November 14, 1984, with supervision eventually transferred to the Southern District of Indiana.

In March and April of 1985, Schimmel made false statements to a federally insured bank. On September 25, 1989, a federal grand jury in the Southern District of Indiana charged him with two counts of violating 18 U.S.C. § 1014. An arrest warrant issued on the § 1014 indictment, and the defendant surrendered when the Marshals served it on October 10, 1989. The court then released Schimmel on bond, ordering him to report to pretrial services twice weekly.

Schimmel's probation supervision ceased upon his arrest on October 10, 1989. On November 3, 1989, Schimmel's probation officer filed a petition to revoke Schimmel's probation under the Kentucky sentence because of the § 1014 indictment. The officer notified Schimmel that she was initiating revocation proceedings. However, while the officer requested a summons, the court did not issue one.

On November 21, 1989, the defendant received a letter from the probation office stating that he was discharged from probation on November 13, 1989. The district court, however, had not ordered or approved this letter.

On January 18, 1990, after trial before Judge Sarah Evans Barker, a jury convicted the defendant of making false statements to a bank. On February 1, 1990, the government filed a second petition for probation revocation, again premised on the bank crimes, but adding that Schimmel stood convicted on both counts. On February 2, 1990, Judge S. Hugh Dillin responded to the second petition by issuing an arrest warrant ordering Schimmel to appear on February 8, 1990. However, the court postponed service of the warrant pending sentencing by Judge Barker in the bank case.

On February 23, 1990, Judge Barker sentenced Schimmel to three years in prison for the bank crimes. On March 6, 1990, the Marshal Service served the probation revocation warrant. On March 30, 1990, Judge Dillin held a hearing at which Schimmel questioned the court's jurisdiction for the first time. Schimmel's counsel argued in open court that jurisdiction did not exist under 18 U.S.C. § 3565(c) because no warrant or summons had issued before his term of probation ended. The government's counsel responded extemporaneously, having no prior notice of the jurisdictional defense. The court then engaged in a dialogue with counsel for each side, noted its need to research the law, and ordered briefs.

In its brief, the government argued for the first time that § 3565(c) does not apply to offenses committed before November of 1987. Judge Dillin subsequently agreed and ruled that he had jurisdiction under former 18 U.S.C. § 3651, et seq., and former § 3653 in particular. The court eventually conducted a hearing on the merits, and revoked defendant's probation, sentencing him to six months incarceration consecutive to any other sentence.

Schimmel contends the government waived its argument under former § 3653 by failing to object to the defendant's use of § 3565(c) during Judge Dillin's March hearing, thus requiring the court to apply § 3565(c). Schimmel makes this argument because § 3565(c) explicitly requires the district courts to initiate revocation proceedings by issuing a warrant or summons within the term of probation, while former § 3653 does not. Schimmel's chief argument, however, is that the district court had no jurisdiction to revoke his probation even under § 3653.¹ 

Schimmel's first argument is frivolous. It is unreasonable to suggest that the government somehow waived every argument that its counsel could not produce at a moment's notice on his feet at a hearing. Under any fair reading of the record, Judge Dillin ordered briefs for the very purpose of allowing each side to look into the law more deeply and advise the court as completely as possible.²  Nothing in the record suggests that Judge Dillin meant to take what would have been the remarkable step of limiting counsels' input to the wrong statute.³  The court appreciates that appellate counsel for Schimmel has vigorously pursued his duty of zealous advocacy, but notes also that "it has long been understood that lawyers best serve their clients' interests by concentrating on--and presenting fully--the subjects with the best chances of producing a favorable result." United States v. Bradley, 892 F.2d 634, 635 (7th Cir. 1990), cert. denied, --- U.S. ----, 110 S. Ct. 1935, 109 L. Ed. 2d 298 (1990) (citing Jones v. Barnes, 463 U.S. 745, 751-53, 103 S. Ct. 3308, 3312-14, 77 L. Ed. 2d 987 (1983)).

Turning to the statutes themselves, the court notes initially that former § 3653 is indeed the applicable statute,⁴  providing in pertinent part:At any time within the probation period, the probation officer may for cause arrest the probationer wherever found, without a warrant. At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision may issue a warrant for his arrest for violation of probation occurring during the probation period. Such warrant may be executed in any district by the probation officer or the United States marshal of the district in which the warrant was issued or of any district in which the probationer is found. If the probationer shall be arrested in any district other than that in which he was last supervised, he shall be returned to the district in which the warrant was issued, unless jurisdiction over him is transferred as above provided to the district in which he is found, and in that case he shall be detained pending further proceedings in such district.

As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.

Schimmel argues that under this provision his probation revocation proceedings were untimely because he received no summons or warrant before November 13, 1989, the last day of the imposed five year maximum term of probation. The government makes three alternative arguments in response: (1) the February warrant was timely because the crimes in 1985 tolled the running of Schimmel's term of probation, (2) the February warrant was timely because the October 10, 1989, arrest for bank crimes tolled the running of defendant's term of probation, or (3) no warrant or summons was necessary, and the initiation of formal revocation proceedings on November 3, 1989, was timely without any tolling. The government's second and third arguments prevailed in the district court, and prevail again in this court.

A term of probation is tolled when the probationer is "not in fact under probationary supervision by virtue of his own wrongful act." United States v. Bazzano, 712 F.2d 826, 855 (3d Cir. 1983) (en banc), cert. denied, 465 U.S. 1078, 104 S. Ct. 1439, 79 L. Ed. 2d 760 (1984). "The focus has been on whether the probationer's wrongful act resulted in the termination of probation supervision...." United States v. Workman, 617 F.2d 48 (4th Cir. 1980) (collecting cases). See also United States v. Brandt, No. 87 C 5113, 80 CR 90-4, 1987 WL 16235 (N.D. Ill. Aug. 26, 1987) (collecting cases). On October 10, 1989, Schimmel surrendered to the Marshals, his probation supervision ceased, and his conduct while on bond became a matter for Judge Barker. The district court reasoned correctly, therefore, that Schimmel's term of probation was tolled from October 10, 1989. Schimmel never completed his term of probation before revocation, and the warrant served on March 6, 1990, was timely. Thus, the district court had jurisdiction whether or not a warrant or summons is required.

Like the district court, and in the alternative, we agree with the position of the Third, Eighth, and Eleventh circuits, which have held in various contexts that jurisdiction may exist under former § 3653 even if no arrest warrant issues. Bazzano, 712 F.2d at 834-35 ("It is difficult to think of a reason why a court should arbitrarily lose jurisdiction at the end of the five-year statutory period when the alleged probation violation took place within the five year period and the probationer was formally notified within that period that the government would seek to revoke his probation."); United States v. Strada, 503 F.2d 1081, 1083-84 (8th Cir. 1974) ("It is our view that the issuance of an arrest warrant within the five year period is not the exclusive means by which tolling of the period for revocation can occur." (emphasis original)); United States v. O'Quinn, 689 F.2d 1359, 1360-61 (11th Cir. 1982) (jurisdiction arose from filing petition within maximum period). We are persuaded that when the statute states that the district court "may issue a warrant" for a probationer's arrest, it does not subtextually require that the district court must issue a warrant to obtain jurisdiction. As Judge Dumbauld of the Western District of Pennsylvania has explained:

[T]he intent of the statute is not to require issuance of an arrest warrant in every case as a talismanic condition precedent to revocation of probation, but merely to authorize an effective (and sometimes perhaps the only effective) means available to secure defendant's appearance in court for the revocation hearing. If other less drastic methods are sufficient to serve the purpose, issuance of an arrest warrant is not indispensable in order to conduct a valid revocation hearing.

United States v. Fontana, 510 F. Supp. 158, 161 (W.D. Pa.), aff'd 673 F.2d 1303 (3rd Cir. 1981) (table), cert. denied, 455 U.S. 957, 102 S. Ct. 1468, 71 L. Ed. 2d 675 (1982). See also United States v. Miller, 454 F. Supp. 440, 442-43 (N.D. Ill. 1978) (Flaum, J.) (citing Strada) . Accordingly, we hold that the initiation of formal proceedings by filing a petition within the maximum period of probation is sufficient to confer jurisdiction under former § 3653, providing the probationer is given notice where notice is practicable.⁵ 

In this case, the government initiated revocation proceedings by filing a petition within the five year limitations period arising from former § 3653. Further, Schimmel had notice of the government's petition to revoke his probation during the maximum period. This case, however, presents a wrinkle that neither the district court nor any other court seems to have addressed head on. The wrinkle arises because the second petition, on which Schimmel stands sentenced to six months incarceration, was not filed within the maximum five year period. The first petition was timely, and Schimmel had notice of it. But the first petition was replaced by the second many weeks after the five year period had run. Before turning back to one of the government's tolling arguments as a means of avoiding this problem, we look to analogous limitations law for a solution. The closest analogy is to the law controlling superseding indictments, which has been developed in this circuit by the district courts. It is held that "a true 'superseding indictment' is generally not barred by limitations." United States v. Lytle, 677 F. Supp. 1370, 1376 (N.D. Ill. 1988) (citing United States v. Friedman, 649 F.2d 199, 203-04 (3rd Cir. 1981)) (footnote omitted). This general rule begs the question, of course, and courts have answered it: "To the extent that the new language broadens the timely original charges, the superseding charges are barred by the statute of limitations." United States v. Roth, 669 F. Supp. 1386, 1390 (N.D. Ill. 1987) (citing Friedman and United States v. Grady, 544 F.2d 598, 601-02 (2d Cir. 1976)). See also United States v. Lytle, 658 F. Supp. 1321, 1323-24 (N.D. Ill. 1987) (collecting cases). Further, "notice is the touchstone in deciding whether a superseding indictment substantially changes the original charges." Lytle, 677 F. Supp. at 1376 (quoting Grady, 544 F.2d at 601).

In this case, examining the second petition as if it were a superseding indictment by a grand jury, the change in language from the first petition is of no substance. The second petition merely updates the information in the first by stating that the § 1014 charges underlying the revocation proceedings resulted in a conviction.⁶  No broader charge is contemplated by the second petition, and the notice given by the first was sufficient.

Accordingly, the district court had jurisdiction because the government timely filed its first petition with notice to Schimmel and the second petition worked no substantive change in the first.

Like the district court, we express no opinion on the government's remaining tolling argument. For the reasons discussed above, the judgment of the district court revoking Schimmel's probation and imposing a sentence of six months incarceration is AFFIRMED.