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United States v. Sherry

United States District Court, E.D. Virginia, Richmond Division

May 5, 2017



          Robert E. Payne Senior United States District Judge

         This matter is before the Court on the DEFENDANT'S MOTION TO DISMISS PETITION ON PROBATION FOR LACK OF JURISDICTION (ECF No. 21) ("Def. Mot."). For the reasons set forth below, the Defendant's Motion will be granted and the Petition on Probation will be dismissed.


         The relevant facts in this matter are not in dispute. On January 14, 2013, Travis Mason Sherry was convicted of Driving Under the Influence of Alcohol in the Eastern District of North Carolina and was sentenced to a fourteen-month term of probation. On May 6, 2013, Sherry's term of probation was extended an additional twenty-two months after he committed violations of the conditions of his supervision, and jurisdiction over his probation was transferred to the Eastern District of Virginia shortly thereafter.[1] As extended, Sherry's term of probation was set to expire on January 13, 2016.

         On June 26, 2015, Sherry allegedly threatened and brandished a firearm against two of his neighbors. The officers who responded to the scene testified that Sherry appeared intoxicated. The same officers also testified that a gun matching the description given by the neighbors was found in Sherry's residence. Sherry did not report this contact with law enforcement to his probation officer as required by the conditions of his probation, and, when eventually confronted by the probation officer on December 1, 2015, he denied brandishing or otherwise displaying any firearms. The probation officer advised Sherry that an investigation into the matter would be conducted, and that he could face legal consequences if his version of the events proved untrue.

         On December 18, 2015, after obtaining a copy of the police report from the June 2015 incident that contradicted Sherry's narrative, the probation officer submitted a Petition on Probation (ECF No. 7) . It was approved by the Court and filed on December 28, 2015. The same day, a warrant was issued for Sherry's arrest; but, because the United States Marshals Service (USMS) "policy is to not enter misdemeanor warrants into NCIC, [2]and such warrants are of lower priority . . . USMS did not attempt to serve Defendant." (Gov. Resp. 2, n. 1); see also Tr. Evid. Hrg. of April 17, 12:18-13:5 (Proffer).

         Meanwhile, and apparently in accordance with a nationwide office protocol, the probation office placed Sherry's file into "inactive status" because the warrant had been issued. Id. at 6:22-24 ("Our office protocol is once a warrant is issued, the case is placed in inactive status, notification is made to the marshals, and we await execution of the warrant."). Because Sherry's case was "inactive, " the probation office did not further communicate with him or otherwise advise him that a warrant had been issued. Id. at 6:17-20. The probation officer did, however, alert USMS that Sherry was thought to be a poor candidate for self-surrender, and further explained that he might pose a safety concern to any USMS officers executing the warrant. Id. at 4:9-5:1. USMS did not ask Sherry to surrender on the warrant or attempt to arrest him. Id. at 13:10-14. Under the circumstances, the Court cannot find that Sherry was even aware of the outstanding warrant.

         On March 20, 2017, nearly fifteen months later, Sherry was arrested in Henrico County on a new, separate charge of brandishing a firearm. Meanwhile, USMS had "reviewed its database" in February of 2017 and decided to enter the original warrant into NCIC.[3] That warrant then served as a federal detainer; and, therefore, after being released on bond in state court on March 30, Sherry was transferred into federal custody in response to the outstanding warrant. He then made his initial appearance in this Court and was detained pending trial on the Petition on Probation that had been filed on December 28, 2015. The probation office also issued an Addendum to its original Petition on Probation that added the new brandishing charge. (ECF No. 9).

         Sherry made his initial appearance before Magistrate Judge Young on the Petition on Probation and the Addendum on April 3, 2017. The detention hearing was held that day, and Sherry was detained pending trial on the charges in the Petition on Probation and the Addendum. Sherry appealed the detention order, and the Court heard his appeal on April 3, 2017. See ECF No. 16. At the hearing on the appeal of the detention order, Sherry for the first time raised his jurisdictional arguments. See ECF Nos. 18, 20. Sherry moved to dismiss both the Petition on Probation and the Addendum on the ground that Sherry's probation had expired in January of 2016, and that, under 18 U.S.C. § 3565, the Court therefore lacked subject-matter jurisdiction to adjudicate either. (ECF No. 18) . The Court ordered expedited briefing on the matter. Id.

         On April 4, 2017, Sherry filed DEFENDANT'S MOTION TO DISMISS PETITION ON PROBATION FOR LACK OF JURISDICTION ("Def. Mot.") (ECF No. 22). The next day the UNITED STATES' RESPONSE TO DEFENDANT'S MOTION TO DISMISS ("Gov. Resp.") (ECF No. 23) was filed, asserting for the first time that the Court retained jurisdiction over Sherry as a consequence of the so-called "fugitive tolling" doctrine. Supplemental briefing was ordered. (ECF No. 24) . Following the additional briefing and an evidentiary hearing, argument was heard on the motion on April 27, 2017. (ECF No. 26). The matter is now ripe for adjudication.

         FUGITIVE TOLLING AND 18 U.S.C. § 3565(c)

         Fugitive tolling is a judicially-created doctrine based on the uncontroversial premise that a defendant "should not receive credit against his period of supervised release for time that, by virtue of his own wrongful act, he was not in fact observing the terms of his supervised release." United States v. Murguia-Oliveros, 421 F.3d 951, 954 (9th Cir. 2005); see also United States v. Workman, 617 F.2d 48, 51 (4th Cir. 1980) ("[A] probationer cannot obtain credit against the [probationary period] for any period of time during which he was not, in fact, under probationary supervision by virtue of his own wrongful act.").[4] Where applicable, fugitive tolling "operates to stop the clock" of probation, and the clock does not resume ticking until "federal authorities are capable of resuming supervision." United States v. Buchanan, 638 F.3d 448, 457 (4th Cir. 2011) (internal citation omitted).

         As its name implies, fugitive tolling is applied most regularly where a "defendant absconds while on supervised release" or probation, thereby becoming a fugitive from justice. Id. In such circumstances, the doctrine preserves the time that the defendant has remaining on his term until he returns to federal custody (either through surrender or arrest). Only then will the clock resume on the period of probation or supervised release. Id.

         Although some circuits have rejected fugitive tolling as unnecessary or even contrary to the statutes governing supervised release and probation, see United States v. Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010), the Fourth Circuit has followed the Ninth Circuit in adopting the doctrine. Buchanan, 638 F.3d at 455 (w [W] e agree with . . . the Ninth Circuit and hold that a term of supervised release is tolled when a defendant absconds from supervision."). In doing so, however, the Fourth Circuit appears to have acknowledged that the doctrine is of limited utility, conceding that "tolling is unnecessary to avoid allowing a defendant to benefit from absconding ... in cases where a petition or summons is filed before the expiration of the supervised release term." Id. at 455, n. 7.[5] That, of course, is quite sensible: in those cases ...

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