Criminal law - use of equitable tolling to enforce violations of supervised release after original term has expired - United States v. Buchanan, 638 F.3d 448 (4th cir. 2011).

• Author: Speed, Eric

The equitable tolling principle allows a court to suspend the "clock" of a statutorily mandated time limitation in the interests of equity. (1) The doctrine is used by the court to ensure that an individual does not escape justice simply because of a lapse in time. (2) In United States v. Buchanan, (3) the United States Court of Appeals for the Fourth Circuit examined whether the period of supervised release is tolled when an individual absconds from mandated federal supervision and becomes a fugitive. (4) The Fourth Circuit held that the period of supervised release is tolled while the individual is a fugitive, and subsequently, the individual is held accountable beyond the original term for violations of the provisions of the supervised release. (5)

In 1991, William Buchanan pled guilty to conspiracy to distribute fifty grams or more of crack cocaine, and he received a sentence of 120 months in prison. (6) Buchanan was then released in March 1993 and his term of supervised release began. (7) However, in May 1994, police in Ohio arrested Buchanan following his indictment on state drug trafficking charges. (8) When arrested in Ohio, he used the name William Buchanan and provided the same date of birth and social security number as "Kenneth Parker." (9) In February 1995, Buchanan failed to appear in court to face the state drug trafficking charges, and the court issued a warrant for his arrest. (10) In April 1995, Buchanan's probation officer filed a "Petition on Probation and Supervised Release," alleging multiple violations of the terms of his supervised release. (11) Buchanan remained a fugitive until December 2008, when police arrested him in Georgia. (12) Upon learning that Buchanan was being held in custody, based on his extensive history of alleged criminal activities while a fugitive, Buchanan's probation officer in Virginia filed an addendum to the "Petition on Probation and Supervised Release" alleging the newly discovered violations of the terms of his supervised release. (13) Buchanan conceded that the first petition filed in 1995 was properly before the court, but he challenged the addendum to the petition as beyond the term of supervised release originally set to expire in March 1998. (14) The United States District Court for the Eastern District of Virginia held that the supervised release term was tolled while Buchanan was a fugitive, based on the lack of clear statutory guidance governing supervised release and the congressional intent in creating the supervised release program. (15) The district court found Buchanan guilty of three of the supervised release violations, two of which occurred after the original term of supervised release expired. (16) The Fourth Circuit upheld this decision, deciding that a term of supervised release is tolled while an individual is beyond the supervision of government authorities, and that the individual should be held liable for all violations of the supervised release while a fugitive. (17)

18 U.S.C. [section]3583 regulates the supervised release system imposed on certain individuals convicted of federal crimes. (18) The statute provides specific statutory limits for the term of supervised release and provides for an express tolling provision in one specific instance: incarceration lasting more than thirty days. (19) The courts, however, have utilized the long-established theory of equitable tolling in certain cases to enforce the congressional intent of a statute. (20) The federal courts look at the circumstances surrounding a case to decide whether to use equitable principles in the interest of justice. (21) The Fourth Circuit, while addressing post-incarceration supervision, originally considered equitable tolling with regards to probation violations. (22) The court has further utilized equitable tolling in the context of an escapee from prison who claims that his time as a fugitive should be credited to his sentence so as not to reward illegal conduct. (23) Two federal circuits had previously addressed the issue of equitable tolling in the supervised release context and have come to different conclusions. (24)

The Court of Appeals for the Ninth Circuit was the first federal circuit to consider the issue of fugitive tolling in the supervised release context and has in subsequent cases reiterated its earlier findings. (25) The court found that the term of supervised release should be tolled while an individual is a fugitive to ensure that the individual does not benefit from his flight and that the goals of Congress in enacting the legislation are accomplished. (26) The court found it compelling that the individual did not receive the rehabilitative supervision intended by Congress with the enactment of the Violent Crime Control and Law Enforcement Act of 1994. (27) The Ninth Circuit subsequently confirmed the holding of United States v. Murguia-Oliveros (28) in United States v. Watson (29) reaffirming that an individual should serve the full term of his supervised release while being both monitored by government officials and being held accountable for violations of terms of release, to avoid rewarding wrongful acts. (30)

The First Circuit, however, has held that the equitable tolling provision is not available to courts under the statutory construction canon of expressio unius est exclusio alterius (31) In United States v. Hernandez-Ferrer (32) the court reasoned that because 18 U.S.C. [section]3624(e) provides an express statutory tolling provision for terms of incarceration lasting longer than thirty days, Congress did not intend to allow any other tolling of the term of supervised release. (33) The court further noted that a plain-language reading of the statute limited the sanctions to the "supervised release term," taking that to mean the original time period imposed by the court. (34) The First Circuit also found it persuasive that the individual who absconds from justice can still be prosecuted for the initial violation of the terms of his supervised release in the very act of becoming a fugitive, and further, that the court at sentencing may take into account the subsequent violations committed after the term had expired. (35) The court reasoned that tolling should only be utilized in limited circumstances, and it did not believe that a tolling provision was necessary to carry out the statute's goals, in light of the other deterrents in place. (36)

In United States v. Buchanan, the Fourth Circuit embraced the reasoning of the Ninth Circuit and held that reading an equitable tolling provision into the statute satisfied congressional intent. (37) The Fourth Circuit analogized the standard created for parole cases to the supervised release standard and found that case law favored equitable tolling in post-incarceration cases where the government was intended to have a measure of supervision over the individual. (38) The Fourth Circuit did not agree with Buchanan's argument, which he based on the standard adopted by the First Circuit: that the statutory construction canon and a plain-language reading of the statute did not allow equitable tolling to be used. (39) The court was not convinced that Congress had considered the possibility of fugitive flight when drafting the statute, and that Congress, therefore, could not have intentionally prohibited the use of tolling by the courts in other scenarios to carry out the intent of the statute. (40) Based on the court's interpretation of the congressional intent in enacting the statute, the Fourth Circuit reasoned that the individual should not receive credit to his time of supervised release when he was not subject to the supervision of the...