Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

United States v. Bristow

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 16, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KURTISS LEE BRISTOW, DEFENDANT.

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.

Background

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.)

Discussion

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 "fugitive status" in United States v. Murguia-Oliveros:

We publish this opinion to clarify what constitutes "fugitive status" for purposes of tolling a term of supervised release. Murguia-Oliveros argues that he could not become a fugitive merely by failing to comply with the terms of his supervised release. We disagree.

421 F.3d 951, 953 (9th Cir. 2005). In Murguia-Oliveros, the defendant was prohibited under the terms of his supervised release from reentering the United States, and he was required to report to the United States Probation Office ("USPO") within 72 hours of any re-entry. Id. at 952. The defendant reentered the United States, and his probation officer sent a letter to his last known address instructing him to report. Id. The defendant failed to report and did not make any contact with the probation officer. Id. A valid warrant for arrest did not issue during the term of the defendant's supervised release. Id. However, the district court assumed jurisdiction and revoked supervised release because it concluded that the defendant's term of supervised release was tolled because his status was equivalent to that of a fugitive. Id. The Ninth Circuit affirmed, concluding that the defendant was a fugitive because he absconded from serving the terms of his supervised release by reentering the United States and not contacting his probation officer. Id. at 954. Because Murguia-Oliveros provides a detailed explanation of what constitutes fugitive status, this Court examines the opinion at length.

In its central holding, the Ninth Circuit emphasized that absconding from serving the terms of supervised release triggers fugitive status, stating, "We therefore hold that MurguiaOliveros became a fugitive because he effectively absconded from serving the terms of his supervised release." Id. The Ninth Circuit then distinguished the tolling of supervised release from the fugitive disentitlement doctrine.*fn1 Id. The Ninth Circuit stated that cases applying the fugitive disentitlement doctrine were not analogous to Murguia-Oliveros' situation because the doctrine requires the government to show that a defendant has fled or has hidden from the jurisdiction of the court. Id. The fugitive disentitlement doctrine "does not apply when the convicted defendant fails to comply with the conditions of probation in failing to report to the probation office." Id. In contrast, the Ninth Circuit noted that tolling a term of supervised release can apply when a defendant fails to comply with the terms of his release, because tolling is not as severe a sanction as dismissal of a defendant's appeal from a conviction. See id. The Court further noted that tolling for failure to comply with supervised release terms is warranted because "we should not reward those who violate the terms of their supervised release and avoid arrest until after the original term expires." Id.

The Ninth Circuit also noted that Murguia-Oliveros' reliance on criminal statute of limitations cases was misplaced. Id. The Ninth Circuit noted that under 18 U.S.C. § 3290, a statute of limitation does not apply to "any person fleeing from justice." Id. (quoting 18 U.S.C. § 3290.) The Ninth Circuit explained that for 18 U.S.C. § 3290 to apply, the government must demonstrate that a defendant concealed himself with an intent to avoid prosecution. Id. The Ninth Circuit found that this standard does not apply to the tolling of a term of supervised release. See id. This is because the purpose of 18 U.S.C. § 3290 is to prevent a defendant from receiving the benefit of a statute of limitations when his intent is to evade prosecution, while the purpose of supervised release "is to establish a period of readjustment" and "to protect the public." Id. Accordingly, the Ninth Circuit found that supervised release should be tolled for the period of time during which the defendant "by virtue of his own wrongful act, . . . was not in fact observing the terms of his supervised release." Id.

Here, the Court must determine whether Defendant's actions were sufficient to trigger fugitive status for purposes of tolling his term of supervised release. It is not necessary for the Government to demonstrate that Defendant fled or hid from the jurisdiction of the Court. See id. Rather, Defendant can be considered a fugitive and his term of supervised release can be tolled if he "effectively absconded from serving the terms of his supervised release." See id. The facts support a finding that Defendant effectively absconded from serving the terms of his supervised release. Similar to the supervisee in Murguia-Oliveros, Defendant was directed to report to the USPO after it became apparent that he had violated the terms of his supervised release. (See Summary at 1.) Like the defendant in Murguia-Oliveros, Defendant failed to report. (See id.) Although Defendant summarily denies the USPO's assertion that he had no contact with the USPO after being informed of his outstanding warrant, Defendant offers no evidence that he subsequently attempted to report. There is no indication that Defendant was subject in fact to the terms and conditions of supervised release at any time after he contacted the USPO on November 22, 2004. See United States v. Vallejo, 69 F.3d 992, 995 (9th Cir. 1995) (stating that a term of supervised release runs only when "the defendant becomes subject in fact to the terms and conditions of supervised release"). Defendant thus became a fugitive when he failed to report to probation and effectively absconded from supervision. See United States v. Delamora, 451 F.3d 977, 980 (9th Cir. 2006) ("[Defendant] became a fugitive when he stopped reporting to his probation officer and absconded from supervision.").

Defendant argues that Murguia-Oliveros is inapplicable to the facts of his case because Murguia-Oliveros dealt with a defendant who left the area where he was supposed to serve his supervised release. (See Def.'s Supp. Brief at 2.) Specifically, the defendant in MurguiaOliveros reentered the United States in violation of the terms of his supervised release. Defendant argues that because he "never absconded or left the area permitted by the terms of his release," he never entered fugitive status. (Id. at 3.) However, the Ninth Circuit held in Murguia-Oliveros that a defendant can become a fugitive "merely by failing to comply with the terms of his supervised release." Id. at 953. Contrary to Defendant's assertions, the Government is not required to make an additional showing that Defendant fled or hid from the jurisdiction of the Court. See id. at 954. The defendant in Murguia-Oliveros became a fugitive not simply because he left the area in which he was required to serve his supervised release, but because he also failed to contact his probation officer as required. See id. at 955 ("MurguiaOliveros was then ordered by his probation officer to report, but did not do so. We therefore hold that Murguia-Oliveros became a fugitive because he effectively absconded from serving the terms of his supervised release."). After carefully examining the text of the Murguia-Oliveros opinion, the Court can discern no requirement that a defendant must leave the area permitted by the terms of his release in order to trigger fugitive status.

Defendant also argues that his case is distinguishable from Murguia-Oliveros because unlike the USPO in that case, the USPO for this district did not send a letter to his last address instructing him to report once it became apparent that he had violated the terms of his supervised release. (Def.'s Supp. Brief at 2, 4.) Defendant appears to assert that the USPO did not make adequate efforts to contact Defendant and instruct him to surrender. (Id. at 3-4.) However, the parties do not dispute that Defendant was aware that he had violated the terms of his supervised release. On September 24, 2004, Defendant left a recorded telephone message for his supervising probation officer stating that he attempted to use a device to submit a fraudulent urine sample. (SAP at 3.) Further, Defendant contacted the USPO on November 22, 2004, to find out why he had been terminated from drug testing. (Def.'s Supp. Brief at 4.) According to the Violation Sentencing Summary, the USPO informed Defendant at this time that there was a warrant for his arrest and instructed Defendant to report to the USPO. (Summary at 1.) Although the USPO failed to contact Defendant again after instructing him to surrender, Murguia-Oliveros does not indicate that the USPO's failure to do so would negate Defendant's fugitive status. In Murguia-Oliveros, the USPO sent the defendant a letter requesting that he report to his probation officer. Brief of Plaintiff--Appellee at 4, United States v. MurguiaOliveros, No. 04-50612 (9th Cir. March 3, 2005). The USPO had no further contact with the defendant until he was arrested nearly a year later. Id. Despite this, the Ninth Circuit upheld the district court's determination that the defendant was a fugitive for failure to comply with the terms of his supervised release. 421 F.3d at 954. There is thus no indication that a USPO is required to repeatedly contact a defendant before that defendant can be considered a fugitive.

In sum, Defendant "effectively absconded from serving the terms of his supervised release" by failing to report to probation at any time after being informed that there was a warrant for his arrest. See id. A defendant's failure to report to probation is sufficient to trigger fugitive status. See id. The Court thus FINDS that Defendant was in fugitive status. Defendant's term of supervised release is therefore tolled from the date on which the amended warrant issued for his arrest to the date on which his term of supervised release was set to expire. The amended warrant issued on January 19, 2005, and Defendant's term of supervised release was set to expire April 18, 2007. Defendant's term of supervised release was thus tolled for two years and three months past April 18, 2007. Defendant was arrested on June 10, 2007, well within the tolling period. Because Defendant's term of supervised release had not yet expired when he was arrested, the Court may properly assume jurisdiction to revoke supervised release. The Court therefore DENIES Defendant's Motion to Dismiss Supervised Release Revocation Proceedings.

Conclusion

For the reasons stated above, the Court DENIES Defendant's Motion to Dismiss Supervised Release Revocation Proceedings.

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.