Fugitive Tolling After Returning to US Without Permission

US v. De Leon-Ramirez: De Leon-Ramirez, a native of Guatemala, was returned there in 2006 after serving a sentence for counterfeiting. In 2007 he was arrested in Virginia following an argument in a store. Upon arrest De Leon-Ramirez gave police a different name. Police ran his fingerprints and found connections to two other different names. De Leon-Ramirez was released on bond, but failed to appear for subsequent proceedings and a state arrest warrant was issued (and a bounty hunter took the case). Nine years later, in 2016, De Leon-Ramirez was arrested on unrelated charges, which attracted the attention of immigration officials. De Leon-Ramirez was charged with illegal reentry. He moved to dismiss the charges because the five-year statute of limitations had lapsed. Concluding that officials knew De Leon-Ramirez had returned to the US in 2007, the court nonetheless concluded that he fled from justice, tolling the running of the statute of limitations. De Leon-Ramirez entered a conditional guilty plea and was sentenced to 21 months in prison.

The Fourth Circuit affirmed the conviction. After concluding that the unorthodox way in which the district court reviewed the recommendations of the magistrate judge who heard the motion to dismiss was acceptable, but not recommended, the court assumed without deciding that the statute of limitations began to run in this case in 2007. Fugitive tolling requires proof that the defendant “concealed himself with the intent to avoid prosecution.” The court found that standard met (or at least not found to be clearly erroneous) because De Leon-Ramirez used an alias to “withhold his true identity from law enforcement” when arrested in 2007 and that he failed to appear for subsequent state court hearings.

Plain Error To Revoke Supervised Release Based On Wrong Drug Type, But Not Prejudicial

US v. Dennison: Dennison was on supervised release following a drug conspiracy conviction. His probation officer filed a petition to revoke his release that alleged, among other things, that Dennison committed new criminal conduct by possessing crack cocaine with intent to distribute it. An investigation into alleged drug dealing (including crack) led to a search warrant being executed at Dennison’s house. Dennison was found “in the bathroom with his hands up” while officers heard “a toilet flush and water running.” Officers recovered four bags of marijuana and two bags of powder cocaine (confirmed as such by subsequent testing), but no crack (although the officer found packaging consistent with crack distribution). The district court found the allegations of possession of drugs with intent to distribute proven and sentenced Dennison accordingly, but didn’t address the crack/powder disparity between the petition and proof.

On appeal, the Fourth Circuit concluded that the district court’s decision did not rise to plain error. The court had “little reluctance in concluding that there was error and it was plain” because the “record contains no evidence that the drug involved in the violation was crack cocaine.” However, the court concluded that Dennison “cannot show that the error affected his substantial rights or changed the outcome of the proceedings” and therefore couldn’t clear the prejudice hurdle of plain error review. That was because whether the drug involved was crack or powder the evidence was sufficient to show Dennison possessed it with intent to distribute it and would have resulted in the same outcome in the end.

Fugitive Tolling While On Supervised Release

US v. Thompson: Thompson, a citizen of Jamaica, was convicted on drug and gun charges and sentences to (among other things) a five-year term of supervised release, which he began serving in June 2010. One special condition of his supervised release was that he not return to the United States without permission and, if he did return to the US (for any reason), he was required to report to the nearest probation officer within 72 hours.

In 2011, Thompson was found in California and promptly removed back to Jamaica. A petition was filed seeing the revocation of his supervised release was filed, and a warrant issued, but Thompson was deported before it was served. In December 2014, six months before his five-year term of supervised release would end, Thompson returned to the US. He did not notify a probation officer and was arrested in Florida on drug charges in June 2017, two years after his supervision was supposed to end. Thompson argued that the court lacked jurisdiction to revoke his term of supervised release. The district court disagreed, holding that Thompson had been a fugitive from justice, which tolled his term of supervised release beyond the originally projected termination date. Thompson was sentenced to 30 months in prison.

On appeal, the Fourth Circuit vacated Thompson’s revocation, partially. The court rejected Thompson’s argument that because he didn’t know about the original petition filed in 2011 that he could not have actively and knowingly avoided adjudication for it. Fugitive tolling in the supervised release context has nothing to do with whether the supervisee knows there is a petition pending against him, due to the nature of supervised release and Congressional desire that defendants serve their entire term. By failing to report to a probation officer Thompson did not serve his entire supervised release term and that was “the result of Thompson’s own misconduct, in the form of knowingly absconding from supervision.” However, the court noted that it was a more difficult issue to determine precisely when the tolling period ran and therefore remanded the matter to the district court to “consider other possible bases for jurisdiction in this case.” In particular, the court held that once Thompson was in custody in Florida his “fugitive status came to an end for tolling purposes.”