Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona Howard D. Sukenic Assistant U.S. Attorney Arizona State Bar No. 011990 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-00652-001-PHX-SRB Plaintiff, v. Rudy Albert Mendoza, Jr., Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR SPEEDY TRIAL (REVOCATION HEARING)

The United States of America, by and through its attorney undersigned, hereby responds to defendant's Motion for Speedy Trial and requests that this Court deny same. This request is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 3 RD day of April, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/ Howard D. Sukenic Howard D. Sukenic Assistant U.S. Attorney

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1 2 A. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

On December 6, 2004, this Court sentenced the defendant to a ten month 4 5

term of

incarceration (credit for time served) in the Bureau of Prisons to be followed by 36 months of supervised release for a violation of Count 1 of the Indictment, Possession of Stolen Mail, 6 charging defendant with a violation of Title 18, United States Code, Section 1708, a Class D 7 felony offense. 8 On June 14, 2005, a petition to revoke supervision was submitted to this Court and, as a 9 result, this Court ordered a warrant for the for the defendant on June 29, 2005. A superseding 10 petition to revoke supervision was submitted on February 13, 2006, which alleged additional 11 violations. This Court ordered a warrant for the defendant on February 16, 2006. On March 1, 12 2006, this court quashed the first warrant issued. 13 On January 23, 2006, the defendant entered into a guilty plea in the Maricopa County, 14 Arizona Superior Court in CR2005-127838-001-DT for the felony offense of Theft of Means 15 of Transportation. The plea agreement called for, among other things, a term of imprisonment 16 in the Arizona Department of Corrections. The defendant is currently incarcerated in the Arizona 17 Department of Corrections. On March , 20, 2007, the defendant filed his Motion for a Speedy 18 Trial requesting that he be brought into federal custody to appear before this Court while serving 19 his state sentence. 20 B. LAW 21 Due process requires that a person accused of violating supervised release, parole, or 22 probation receive a revocation hearing "within a reasonable time after [the person] is taken into 23 custody". Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (parole revocation); see also Gagnon 24 v. Scarpelli, 411 U.S. 778, 782 (1973) (applying the holding of Morrissey to revocation of 25 probation). In Moody v. Daggett, 429 U.S. 78, 86-87 (1976), the Supreme Court held that the 26 hearing mandated by Morrissey is required only after the person charged with violating parole 27 28 2

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is taken into custody for the parole violation and that the issuance of a warrant and the lodging of a detainer, while the person is incarcerated elsewhere for a separate crime, do not constitute being taken into custody. Rather it is the execution of the warrant, after termination of the intervening sentence, that takes the person into custody for the parole violation that triggers the obligation for a Morrissey hearing. The Ninth Circuit held that the United States is not required to writ a defendant out of state custody and bring him into federal custody for a supervised release revocation hearing even if the supervised release term expired while the defendant was in state custody. United States v. Garrett, 253 F.3d 443, 449-450 (9 th Cir. 2001). The Court found that no court or statute has placed such a duty on the government. C. CONCLUSION Based on the above, the defendant's motion should be denied. Once he has completed his state sentence he will be brought to the Federal District of Arizona to adjudicate his pending supervised release violation petition. Respectfully submitted this 3 rd day of April, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/ Howard D. Sukenic Howard D. Sukenic Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on April 3, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mr. Thomas Crowe Crowe and Scott PA 1100 East W ashington, #200 Phoenix,Az. 85304 I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Mr. Rudy Mendoza ADC # 203604 A.S.P.C. Douglas Unit Mohave P.O. Box 5002 Douglas, Arizona 85608 R. Scott Stipe U.S. Probation Officer Suite 160, SPC 7 401 W est W ashington Street Phoenix, AZ 85003-2119 s/ Howard D. Sukenic

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HOW ARD D. SUKENIC

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