United States v. Dante Vargas-Amaya

408 F.3d 1227 UNITED STATES of America, Plaintiff-Appellee, v. Dante VARGAS-AMAYA, Defendant-Appellant. No. 03-50577. United States Court of Appeals, Ninth Circuit. May 25, 2005. Carol C. Lam, U.S. Attorney, Renee M. Bunker, Assistant U.S. Attorney (on brief and at oral argument), and Larry E. Spong, Assistant U.S. Attorney (on Government's Petition for Rehearing and Rehearing En Banc), Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee. Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant. Before: T.G. NELSON, TASHIMA, and FISHER, Circuit Judges. 1 Dissent by Judge CALLAHAN. ORDER 2 The panel has voted to deny the government's petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en banc, and Judges T.G. Nelson and Tashima so recommend. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing. 3 The petition for panel rehearing and the petition for rehearing en banc are DENIED. 4 CALLAHAN, Circuit Judge, with whom O'SCANNLAIN, TALLMAN, and BEA, Circuit…

Dissent by

ORDER

The panel has voted to deny the government’s petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en banc, and Judges T.G. Nelson and Tashima so recommend. A judge of the court requested a vote on whether to rehear the .matter en banc, but the matter failed to receive a majority of the votes of the nonreeused active judges in favor of en banc rehearing.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

dissenting from denial of rehearing en banc.

I respectfully dissent from the. denial of rehearing en banc. The panel’s decision is *1228 the first judicial determination that absent an oath, a district court is without power to issue a bench warrant to secure the appearance of an individual on supervised release at a hearing to ferret out whether he has in fact violated a condition of release. This decision is wrong as a matter of law, disparages the role of district judges, insults the integrity of federal probation officers, and unnecessarily interferes with and complicates the administration of justice, as it has already rendered thousands of outstanding warrants potentially unenforceable.

I

The panel itself recognizes that “no case of which we are aware has addressed” the question of whether an arrest warrant for a defendant on supervised release needs to be supported by an oath. United States v. Vargas-Amaya, 389 F.3d 901, 903 (9th Cir.2004). I suspect that the issue has not been the subject of litigation because it is well established that the district court has wide discretion to order an individual on supervised release to appear in court so as to ensure compliance with…