How Judge Marco Hernandez Deprived His Court of Jurisdiction Over SRV

Blast Zone No. 3250
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Category: Judges - Federal
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Beaverton, Oregon 97005
Judge Marco Hernandez
Judge Marco Hernandez

Judge Marco Hernandez deprived himself of jurisdiction over a supervised release violation charge in my case and this is how. You can't revoke a term of supervised release that has already been revoked after the sentence for that violation has been served. In my case I was in custody pending sentencing on a violation and the day before Judge Hernandez revoked my release my probation officer (Matthew Pruitt) filed a complaint charging me with a second violation for new criminal conduct. That charge formed the basis for a new criminal charge that eventually led to a guilty plea, so I was guilty of the new criminal conduct violation. Then after the new charge was filed Assistant United States Attorney Greg Nyhus wanted the violation bundled with the new case so that it could be resolved after trial.

The problem rose when my sentence for the first violation had been served and my official status changed from that of a prisoner serving a sentence to being a pre-trial detainee. Under the law the second term of supervision had to begin when I was no longer serving a sentence because even though I was in custody I was a pre-trial detainee and a pre-trial detainee is not considered a prisoner even if that detainee is eventually convicted and given credit for time served. As a pre-trial detainee I was shocked to learn that I was not a prisoner because I certainly felt like one. As a result the court lost jurisdiction over the new SRV because according to the Ninth Circuit once a new term of supervision begins one cannot be charged or sentenced for a violation of a previous term of supervision. Had Judge Hernandez not tabled the new SRV matter he could have sentenced me to the full 12 months that would have been recommended under the guidelines or the statutory maximum of two years but in the interest of convenience he denied himself the opportunity. However if he had not tabled it there would have been a good chance of seeing it dismissed by Nyhus to avoid the possibility of prejudicing his case at the new trial.

I was the first to raise this type of objection when I forced my lawyer to raise an objection at a hearing before U.S. Magistrate Judge Paul Papak after the violation was filed and before I was indicted. The argument was that you cannot revoke a term of release that has already been revoked. At the time I was still a prisoner serving my original SRV sentence, so Papak was able to hold me. At the time my own lawyer seemed to think that the argument was a loser. Mainly because the new violation was charged before the revocation and it would have given me the ability to violate supervision again without punishment.

Judge Hernandez never recognized his error and if he had he probably would not have corrected it himself. The last thing a judge wants to admit to is being wrong and Hernandez specifically cares far more about getting the outcome he wants than the technicalities of the law. Fortunately, Judge Hernandez recused himself and a judge from another state was appointed to oversee the case. That judge noticed while reviewing the record that the court lost jurisdiction over the matter when my original sentence expired. The new judge ordered Nyhus to prove why that violation should not have been dismissed and he could not do it.

To learn more see the Ninth Circuit case that led to this decision. That case is United States v. Wing, case number 1130017 (9th Cir. 2012).

I looked through my paperwork for a copy of the order and could not find it. If I find it I will post it. The important thing to remember here is that if someone is facing a second violation and they are in custody, did their status ever change from that of a sentenced inmate serving a sentence to that of a detainee awaiting trial or a charge of violating supervision? If they are a detainee then their new term of supervised release has already started and the second violation must be dismissed.

9/12/2019 - Another good thing about the difference between being a pre-trial detainee and being a prisoner, is that if you are convicted and get time served all of that pre-trial detention counts towards that second term of supervision. As a result I only had to do 9 months of supervision on that case because my second term was 24 months and I was a pretrial detainee for 13 months.

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