Mary C. Geddes
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, Alaska 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) NO. xxxxxxxxxxxxxxxx
)
Plaintiff, )
)
vs. ) DEFENDANT'S BRIEF
) IN SUPPORT OF MOTION
xxxxxxxxxxxxxxxxx, ) TO SET SENTENCING IN KODIAK
)
Defendant. )
____________________________________)
EXCLUDABLE DELAY:
A period of excludable delay under 18 U.S.C. 3161(h) may
occur as the result of the filing/granting/denying of this motion.
COMES NOW THE DEFENDANT, xxxxxxxxxxxxxx, by and through counsel Mary C. Geddes, Assistant Federal Defender, and submits this memorandum in support of his earlier motion to set the sentencing hearing in his case in Kodiak.
At a hearing before this honorable court last Friday, October 30, 1998, the court sought additional information and authority from the movant.
I. Is the court prohibited by the language of 28 USC 81A
from holding any sessions of court in locations other than those specified by Congress?
On June 6, 1900, Congress established a district court for the District of Alaska, dividing the territory into three recording divisions. 31 Stat. 321. The act provided that a regular term of court be fixed for each division. It also provided that special terms be held "at such place or places as may be deemed necessary and expedient." United States v. Stockslager, 116 F. 590, 593 (9th Cir. 1902) citing, 31 Stat. 321. After the admission of Alaska to the Union, Congress enacted Section 81A of Title 28 of the United States Code. This act created a single judicial district in Alaska, and although the act did not divide the district into divisions, it did identified five locations where "[c]ourt shall be held" within the state: Anchorage, Fairbanks, Nome, Ketchikan and Juneau.
The question before the court is whether the mandatory language, "[c]ourt shall be held," found in Section 81A precludes the court from designating other locations within the district for court sessions.
In interrupting the meaning of the phrase "shall be held," Section 81A must be read so as to harmonize with other sections of Title 28, Chapter Five. Cf. Robinson v. Shell Oil Co., --- U.S. ---, 117 S.Ct. 843, 849, 136 L.Ed. 2d 808 (1997) (The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in witch that language is used, and the broader context of the statute as a whole); Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675,684, 58 L.Ed. 2d 596 (1979) (The elementary canon of construction that a statue should be interpreted so as not to render one part inoperative). Section139 allows the district court, by rule and order, to determine the times for regularly transacting judicial business "at the places fixed by this chapter." The section directs that in only one of the locations "fixed by this chapter" is a district court required to be in session on all business days. At other locations, "a session of the court shall continue until terminated by order." It is this section that allows the district court in Alaska to maintain part-time schedules in Nome, Ketchikan, and Juneau. This section must be read to prohibit 'regularly-scheduled' court business in any other locations other than those specified by Congress.
Section 141 authorizes the district courts to hold "special sessions" in other locations on an 'as-needed' basis. Section 141 states:
Special sessions of the district court may be held at such places in the district as the nature of the business may require and upon such notice as the court orders.
This enactment was clearly intended to
grant broad discretion to the district court in its determinations as to whether a court
session should be held outside of the statutorily-identified court locations. A 1963
amendment to this section clarified the authority of the district court to make this
determination. The amendment deleted language which previously required deference to the
"rules approved by the judicial council for the circuit." P.L. 88-139. Thus, by
applying the canon of statutory construction, 2A
Sutherland Statutory Construction; 47.06, in reading 81A in conjunction with
139 and 141, it is clear that Congress' intent in listing locations in which
"court shall be held" does not preclude the district court from designating
other location within the district for special sessions. See United
States v. Hill, 42 F. 2d 812 (4th Cir. 1930) (Holding of special term by
district court at a place not provided in act was authorized under code authorizing
special term where nature of business requires); United
States v. Kessel, 63 F. 433 (N.D. Iowa 1894) (a8k_g,?SO[=X5 Ejk3Ȩ& ̝: ,M
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