United States District Court, District of Columbia
March 5, 2002
TYSON FOODS, INC., DEFENDANT.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
GRANTING THE GOVERNMENT'S MOTION TO CONTINUE THE MARCH 7, 2002
PROBATION REVOCATION HEARING
Upon the consent of the government and the defendant, it is this 5th
day of March, 2002,
ORDERED that the government's motion to continue the probation
revocation hearing until the case in the Eastern District of Tennessee
involving the defendant is resolved is hereby GRANTED.
On January 12, 1998, this court sentenced the defendant to a four-year
term of probation. Among other things, the court ordered that Tyson
Foods had to do the following while on probation: submit quarterly
reports to the Probation Office reporting all of the organization's
expenditures related to all federal employees, officeholders or
candidates for federal office; submit a Corporate Code of Conduct and
Compliance Policy and a specific plan for the implementation of the
Compliance Agreement Program; disclose any criminal prosecution, civil
litigation, or administrative proceeding initiated against the company;
and submit to a reasonable number of regular or unannounced examinations
of its books and records by the probation officer or experts engaged by
the court. An additional condition of probation was that the defendant
would not commit another federal, state, or local crime.
On January 7, 2002, several days before the defendant's term of
probation would have expired, the court, on the recommendation of the
Probation Office, issued a summons to the defendant to proceed with a
hearing on a possible violation of probation to determine whether Tyson
Foods had engaged in new criminal conduct. On December 11, 2001, a grand
jury in the
Eastern District of Tennessee issued a 36-count indictment
against the defendant charging, among other things, conspiracy to violate
immigration and other laws, in violation of 18 U.S.C. § 371,
conspiracy to defraud and obstruct Immigration and Naturalization Service
enforcement of law, in violation of 18 U.S.C. § 371, and causing
illegal aliens to be brought into the United States, in violation of
8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2.
Soon thereafter, the court held a conference call with counsel for both
the government and the defendant and directed the parties to brief the
issue of what the defendant's probationary status would be following the
expiration of its probation on January 11, 2002. Specifically, the court
wanted to hear the parties' positions as to whether the terms of
probation, e.g., the requirement that Tyson Foods file quarterly reports,
would continue until the court held the probation revocation hearing. In
briefs filed with the court, both parties agree that because the court
issued the summons before probation expired, the court retained
jurisdiction pursuant to 18 U.S.C. § 3565(c) to address the issues
raised by the summons. See, e.g., Tyson Foods, Inc.'s Mem. Regarding Its
Probation Status at 1.
Moreover, both parties share the view that while the court's power to
revoke a sentence of probation continues after probation expires, the
probationary term itself is not extended. See id. at 3-4; Response of the
United States to Tyson Foods, Inc.'s Mem. Regarding Its Probation Status
at 1 ("we believe that the defense's legal analysis is correct . . .").
In addition, the United States District Court for the District of
Columbia's Probation Office concurs with counsel. In a memorandum dated
January 23, 2002, the Probation Office noted that the four-year term of
probation imposed on January 12, 1998 expired on January 11, 2002. While
pointing out that the court can conduct the delayed revocation hearing for
a violation occurring before January 11, 2002, the Probation Office
stated that "at this time, the court does not have the authority to
enforce the conditions of supervision imposed on January 12, 1998." See
Probation Office Mem. dated January 23, 2002 at 1.
After reviewing the parties' briefs and the relevant law, the court
agrees with the unanimous position of the government, the defendant, and
the Probation Office that while the court retains its jurisdiction
pursuant to 18 U.S.C. § 3565(c) to hold a delayed revocation hearing,
the probationary term expired on January 11, 2002. The best reading of
section 3565(c) is that Congress did not intend for a term of probation
to be extended under this provision without a court's finding that the
defendant had committed some violation of the condition of probation.
See 18 U.S.C. § 3565(c). While there is scant case law on this
issue, the court agrees with the analysis of the Ninth Circuit, which
addressed this issue, when it read section 3565(c)'s language to mean
that in such a circumstance, "[t]he probationary period `expir[es],' yet
the power of the court `extends.'" See United States v. Neville,
985 F.2d 992, 997 n. 8 (9th Cir. 1993).
Moving on, the only remaining issue concerns when the court should
conduct the probation revocation hearing. On February 20, 2002, the
government filed a motion to continue the probation revocation hearing
set for March 7, 2002 until the merits of the pending indictment of Tyson
Foods are resolved in the Eastern District of Tennessee. See Gov't's
Mot. to Continue at 1. Because this case is "so unusual and complex due
to the nature of the prosecution [and] the amount of documents and
pre-trial discovery," the government explained that "[t]here appears to be
no effective means of streamlining the evidence
in such manner as to
avoid a two-month `mini-trial' in advance of the estimated two-month
trial set for February 2003" in Tennessee. Id. The government stated
that both it and the defendant believe that "judicial economy would be
best served by allowing the merits of the Tennessee indictment to be
determined in Tennessee" before this court holds a probation revocation
hearing. See id. The court agrees.
Accordingly, it is
ORDERED that the probation revocation hearing set for March 7, 2002 is
VACATED; and it is
FURTHER ORDERED that the parties shall jointly contact chambers to
schedule future matters in this case within 30 days of the date of the
resolution of the indictment involving the defendant in the Eastern
District of Tennessee.
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