The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant Kurtiss Lee Bristow's ("Defendant") Motion to Dismiss Supervised Release Revocation Proceedings. [Doc. No. 254.] For the reasons stated below, the Court DENIES this Motion.
On April 23, 1990, Defendant was sentenced to 163 months in custody and five years of supervised release for conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to distribute. (Pet. for Warrant at 1.) On April 18, 2002, Defendant began serving his five-year term of supervised release. (See Mot. to Dismiss at 1.) Defendant's term of supervised release was set to expire on April 18, 2007. (Id. at 4.) On September 30, 2004, United States Probation Officer Martin A. Andrews filed a Petition for Warrant alleging that Defendant had violated conditions of his supervised release. (Pet. for Warrant at 2.) The Petition for Warrant was unsworn. (See id.) The Petition for Warrant set forth the following allegations of noncompliance:
1. On September 24, 2004, Mr. Bristow failed to comply with drug testing by using a device to submit a fraudulent urine sample.
2. On April 15 and 19, June 21, August 30, September 13 and 23, 2004, Mr. Bristow failed to submit urine samples at Mental Health Systems, Inc. as evidenced by reports of stall.
On January 7, 2005, Mr. Andrews filed an Amended Petition for Warrant. [Doc. No. 242.] Unlike the original Petition for Warrant, the Amended Petition was sworn. (See Am. Pet. for Warrant.) The Amended Petition did not state the basis for probable cause on its face, but rather stated that probable cause was based on attached documents. However, the record did not show that any documents establishing probable cause accompanied the Amended Petition at the time the warrant was issued. The Court thus concluded that the Amended Petition was insufficient to support a finding of probable cause. [See Doc. No. 262.] Despite the insufficiency of the Amended Petition, the Court determined that it still had jurisdiction to revoke supervised release. (See June 29, 2007 Order at 6.) The Court found that Defendant's term of supervision was tolled during his status as a fugitive and denied his Motion to Dismiss Supervised Release Revocation Proceedings. (Id.) Defendant subsequently informed the Court that he had not had adequate time to review the Government's briefing regarding the issue of tolling, and he requested additional time to brief this issue. The Court granted this request on June 29, 2007, and Defendant subsequently filed a supplemental brief addressing the tolling issue. [See Doc. Nos. 260, 265.]
At the Court's direction, United States Probation Officer Lissa Williams submitted a Second Amended Petition for Warrant ("SAP") on July 26, 2007. [Doc. No. 264.] In contrast to the Amended Petition, the SAP describes in detail the two grounds for revocation of supervised release, namely, that Defendant failed to comply with drug testing by using a device to submit a fraudulent urine sample and that he failed to submit urine samples as instructed. (See SAP at 3.) In addition, the Violation Sentencing Summary accompanying the SAP states that on November 22, 2004, Defendant contacted the United States Probation Office ("USPO") by phone.
(Summary at 1.) Officer Trisha Skalmusky informed Defendant that he had an active federal warrant for his arrest and directed Defendant to turn himself in. (Id.) Defendant told Officer Skalmusky that he would call the USPO to arrange for self-surrender after he had contacted his attorney and employer. (Id.) However, according to the Violation Sentencing Summary, the USPO had no further contact with Defendant after November 22, 2004. (Id.)
Defendant has attached to his supplemental brief the transcript of his bond hearing before Magistrate Judge Ruben B. Brooks. (Def.'s Supp. Brief Ex. C.) At the hearing, Assistant United States Attorney Sherri Hobson stated that in November 2004, the USPO informed Defendant that there was a bench warrant for his arrest. (Rep.'s Tr. at 6.) AUSA Hobson stated that there was a notation in Defendant's probation file where Defendant was informed that there was a bench warrant for his arrest. (Id. at 6.) Judge Brooks then asked the parties whether Defendant had been avoiding the USPO. (Id. at 9.) Officer Williams stated that Defendant contacted the USPO on November 22, 2004, after he attempted to submit urine samples at a test center and was told that he had been terminated from the drug testing program. (Id. at 10.) Officer Williams further stated that Defendant was informed that he had been terminated from the program because a bench warrant had been issued for his arrest. (Id. at 10.) According to Officer Williams, Defendant never contacted the USPO again, nor did the USPO attempt to contact Defendant. (Id.) Officer Williams stated that USPO did not initiate further contact with Defendant because the officer handling Defendant's case retired. (Id. at 10-11.) Defendant denies that he failed to contact the USPO after he was informed that he had an outstanding warrant. (Def.'s Supp. Brief at 3.) However, he provides no details as to any further contact he had with the USPO.
In addition to the bond hearing transcript, Defendant has attached to his supplemental brief two documents from the Internal Revenue Service ("IRS") and the Social Security Administration ("SSA"). Defendant has attached a notice from the IRS for failure to pay taxes. (Def.'s Supp. Brief Ex. D-1.) The notice, which is dated April 16, 2004, lists a San Diego residence as Defendant's address. (See id.) He has also attached a Social Security Statement which is dated March 20, 2007, and lists the same San Diego residence as his address. (Def.'s Supp. Brief Ex. D-2.)
Defendant argues that his term of supervised release was not tolled because he never entered fugitive status. (See Def.'s Supp. Brief at 2.) Specifically, Defendant argues that he did not abscond from supervision because he has resided at the same San Diego address for several years. (See id.) Defendant's brief essentially raises the question of what constitutes fugitive status for purposes of tolling a term of supervised release. The Court therefore turns to recent case law to determine how the Ninth Circuit has defined fugitive status.
A defendant's term of supervised release is tolled when he becomes a fugitive. United States v. Crane, 979 F.2d 687, 691 (9th Cir. 1992). The Ninth Circuit delineated what constitutes ...