02-1202 U.S. v. Hondras

Listen to this article

“Issuing a warrant is not synonymous with signing a warrant. See Boyer v. County of Washington, 971 F.2d 100 (8th Cir. 1992). The Federal Rules of Criminal Procedure discuss two types of cases where warrants may issue. Fed. R. Crim. P. 4; 9. Although both rules apply to warrants issued at the start of a criminal case, not to when a person violates his supervised release, they are instructive to the case at hand. Both Rule 4 and Rule 9 discuss the court’s issuance of warrants in sections different from those discussing who shall sign the form. Rule 4 details the procedure for issuing an arrest warrant or summons in cases brought by complaint when probable cause exists to believe that the defendant has committed an offense. Fed. R. Crim. P. 4. Rule 4(a), titled ‘issuance,’ provides that in such cases, an arrest warrant or summons ‘shall issue.’ Id. 4(c), titled ‘form’ states that such a warrant shall be signed by a magistrate judge. Id. Rule 9 provides for a warrant or summons for defendants named in an indictment, or in an information supported by probable cause under oath, upon the government attorney’s request or at the discretion of the court. Fed. R. Crim. P. 9. Rule 9(a), ‘issuance,’ states that ‘the court shall issue’ a warrant or summons in such cases, id., and 9(b), ‘form,’ states that such warrants shall be signed by the clerk. Id. The Supreme Court, in adopting the Federal Rules of Criminal Procedure, did not intend that a rule allowing a court to issue a warrant necessarily require that warrant to be signed by a judge. In fact, Rule 9, like §3606 allows the court to issue a warrant; yet the rule provides that such warrant be signed by a clerk. Id. Likewise, we do not believe that simply by stating in §3606 that the court may issue a warrant to revoke a defendant’s supervised release, Congress intended to require a judge’s signature on that warrant; if it had, it easily could have added such language to the statute. Unless a relevant statute or rule of procedure directs otherwise, if a judge finds probable cause to believe that a person has violated his supervised release and directs a clerk of the court to sign an arrest warrant, as happened in this case, the court has validly issued that warrant. The requirements of both the Fourth Amendment and §3606 are satisfied in this case.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Flaum, J.