Kennedy, without any subsequent approval by this Court.
It is clear that this Court had the power to issue a warrant for a violation of probation that occurred during the defendant's period of probation. 18 U.S.C. § 3653. It is also clear, under 28 U.S.C. § 636, that this Court could have delegated to the Magistrate the task of issuing a bench warrant. Neither of these things, however, was done in this case. What was done was that the Court delegated to Magistrate Kennedy the authority to initiate and conduct hearings on violation of probation, pursuant to Local Rule 2-8(e). The local rule nowhere states that because a magistrate has been authorized to conduct a hearing on violation that the Magistrate therefore has authority to issue a bench warrant for defendant's failure to appear.
The government argues that the power to issue a warrant for failure to appear should be considered implicit in the Magistrate's authority to conduct hearings. It reasons that the Magistrate may be prevented from performing his delegated task if the defendant fails to appear, and thus the Magistrate needs to be able to compel attendance. Moreover, magistrates have express authority to issue bench warrants for the arrest of misdemeanants, see 18 U.S.C. § 3401, and for violations by any defendant of the conditions for pre-trial release, see 18 U.S.C. § 3146; I Legal Manual for United States Magistrates § 5.22 (1982).
On the other hand, the fact that issuance of a bench warrant by a magistrate is specifically authorized by statute in some contexts suggests that magistrates do not have "inherent" authority to issue bench warrants (where there is no statutory authorization). The only explicit authority that the government has cited to support the Magistrate's unapproved action here is Local Rule 2-8(e), and even that rule, by its terms, requires the Magistrate to submit a written recommendation to the District Judge before any action is taken with respect to a probationer. Thus, there is no statutory authority for the bench warrant issued by Magistrate Kennedy on May 5, 1978.
This absence of authority would not normally be terribly problematic,
and could easily have been avoided in this case by the Magistrate's submission of a recommendation to the district judge that a bench warrant be issued. As the facts stand, however, the Magistrate's bench warrant is relied upon to confer jurisdiction on this Court. Thus, its defectiveness undermines the very power of this Court to act. Since the warrant was defective, this Court had no jurisdiction to revoke defendant's probation.
III. THE COURT LACKS JURISDICTION BECAUSE THE BENCH WARRANT WAS NOT EXECUTED FOR FOUR YEARS AFTER IT WAS ISSUED
Even if the bench warrant were valid, it is not clear that it could toll the defendant's period of probation all the way up to the date of sentencing. The bench warrant was executed almost four full years after it was issued, and then only because defendant was arrested in Prince George's County on another charge. This four-year delay, in and of itself, can be considered sufficient to divest the Court of jurisdiction.
The parties have produced no prior decisions from this jurisdiction holding that a bench warrant can toll a period of probation, and certainly none holding that it can toll the period for as much as four years. In Shelton v. United States Board of Parole, 128 U.S. App. D.C. 311, 388 F.2d 567, 574 (D.C. Cir. 1967), the Court of Appeals for this jurisdiction stated, in the context of a parole violation, that "the issuance of a violator warrant triggers a process which, as a matter of fundamental fairness, must be pursued with reasonable diligence and with reasonable dispatch." The Court of Appeals was careful not to specify a particular time period that would fail to satisfy the requirement of "reasonable dispatch," but cited to two older cases, United States v. Gernie, 228 F. Supp. 329 (S.D.N.Y. 1964), and United States ex rel. Howard v. Ragen, 59 F. Supp. 374 (N.D. Ill. 1945), in which the delays between warrant issuance and execution were eleven and fourteen years, respectively. Later courts have deemed as unreasonable delays of four years, Simon v. Moseley, 452 F.2d 306 (10th Cir. 1971), and even as little as fourteen months, United States v. Louzon, 392 F. Supp. 1220 (E.D. Mich. 1975). Thus, this Court is well within its bounds to find that the four years between issuance and execution of the warrant here was unreasonably long -- long enough to divest this Court of jurisdiction over the defendant.
The government argues that consideration must be given to the efforts it made to locate and serve the defendant during the four years. Rather, the Court believes, like Judge Bogdanski in Parham v. Warden, Bridgeport Correctional Center, 172 Conn. 126, 374 A.2d 137, 143 (Conn. 1976), that consideration should be given to three factors:
1. the time lapse between the issuance of the warrant and its execution;