Saturday, May 31, 2008

Case o' The Week: Better Late Than Never, OK in Santana

The Ninth zinged us. In a rare show of efficiency, we had the following Santana memo finished last Thursday. The Court, of course, then issued the important Giberson decision on Friday (blogged above). It pays to procrastinate.

Here is the bonus Case o' The Week memo on Santana and a prisoner's long wait (left) to be picked up for a supervised release violation. United States v. Santana, __ F.3d __, 2008 WL 2178132 (9th Cir. May 27, 2008), decision available here.

Players: Hard-fought case by San Diego AFPD Zandra L. Lopez.

Facts: While on supervised release, Santana picked up a state case for which he got three days jail time. It was 121 days between his last day of state custody, and when the feds finally got around to getting him to his initial appearance. (Time spent in custody on the federal warrant, of course.). Santana moved for dismissal based on this delay: the district court denied the motion.

Issue(s): “Santana argues that his right to prompt disposition of the government’s petition to revoke his supervised release was violated by the government’s unjustified delays in executing the warrant for his arrest and in bringing him before a judge for his initial appearance.”

Held: “[Given the “short” length of delay,] the Court holds that the very recent Mendoza presumed prejudice rule is not appropriate.” “The Mendoza analysis being inappropriate, we apply our ordinary test in supervised release revocation cases and search for actual prejudice. . . . At oral argument, Santana’s counsel admitted that he received full credit against his sentence for the time he spent in pre-revocation incarceration. Santana has not identified any other prejudice, aside from the anxiety of awaiting his revocation proceedings. In this case, even though the delay appears attributable to the government’s neglect, in light of the lack of actual prejudice, we conclude that the four-month delay did not violate Santana’s due process rights or his rights under Rule 32.1.”

Of Note: The Court in Santana recaps the Speedy Trial Clause analysis, but cautions about how far that analogy goes in the Due Process analysis for supervised release proceedings:
Barker v. Wingo, 407 U.S. 514, 530 (1972), held that analysis under the Speedy Trial clause requires balancing the factors of length of delay, reason for the delay, the defendant’s timely protest of delay, and prejudice to the defendant. . . . Barker identified three types of actual prejudice: oppressive pre-trial incarceration, unnecessary anxiety of the accused, and impairment of the accused’s ability to mount a defense. 407 U.S. at 532. The longer the delay, the less the showing of prejudice required, until an extremely lengthy delay attributable to government negligence creates a ‘strong presumption that [the defendant] suffered prejudice,’ which the government has the burden to rebut. Mendoza, 2008 WL 1970339, at *5. We hasten to say that a reasonable time for proceeding to a full-scale criminal trial is not the same as a reasonable time for revocation proceedings, and therefore Speedy Trial Clause authority should not be applied in revocation proceedings as if it were directly controlling.

How to Use: Probation and AUSAs have been known to deliberately stall getting supervised release defendants back before the district court, as a way to guarantee custodial time regardless of the outcome of the Form 12 sentencing hearing. (What judge would ever undercut a custodial sentence that has already been served in transit?) Santana encourages this shoddy practice.

We should start building a prejudice record with Apprendi “sentencing memos” explaining the need for a below-guideline sentence while the client is waiting to be transported. Maybe this could be styled as a “Due Process Demand for Speedy Prosecution?” Maybe served on the U.S. Marshal as well? These motions would put everyone on notice, converting the feds’ “negligent” delay to “deliberate” delay. (Remember Barker’s “reason for delay” factor above . . . .)

For Further Reading: The best defense analysis of supervised release is a pair of very thoughtful articles written by AFPD Douglas Morris in The Champion, available here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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