In United States v. Johnson, Tuesday, the sole issue before the Eleventh Circuit Court of Appeals was whether “a single incident of extreme domestic violence” was sufficient to terminate Johnson’s supervised release. The court had no problem finding that it was. It did so even though it did not explain the legal reasoning for its finding. But the facts were sufficiently horrendous that the court did not seem to care. The court pointed out that Johnson stood on the victim’s hair while he battered her and that three days after the battery the victim had bruises all over her body and the footprint of Johnson’s tennis shoe on her chest.

Yesterday, we looked at the case of a pedophiliac who was convicted of attempting to have sex with a government agent who he thought was a fourteen year old girl.

Today we look at pedophilia from a different angle. Clyde M. Hall was convicted of pedophilia related offenses in 1989 and 1999. After being release from state custody in New York in 1999 he was immediately arrested and convicted in Federal Court for possession of child pornography. He was sentenced to 63 months in custody and three years of supervised release. He participated in a program while in prison and he was released in 2004. Over the next several years he spent 28 months out of custody. During that time there were no instances of child abuse. His supervision was revoked in 2007 after he had sex with an adult and was found in possession of pornography. He was sentenced to 25 months in prison and 25 years of supervision with very strong conditions placed on his release.

Prior to his release the government moved to have him declared a “sexually dangerous person” pursuant to § 4248(a),” His release was stayed pending a hearing. Two experts testified for the government and one for Hall. All used actuarial tests, psychological tests, and their clinical judgment. But the trial court found that the government failed to prove by clear and convincing evidence that Hall is a sexually dangerous person. Each of three factors must be proved. First, that he has been convicted of pedophilia related crimes. Second that he suffers from a mental illness and finally that he is unable to control himself when around children. There was no question about the first two. But neither the trial court nor the Fourth Circuit Court of Appeals found by clear and convicncing evidence that he was a danger to children. They pointed out that he had not committed a sex act involving a child since 1999, Furthermore there were strong conditions placed upon his release and the consequences of violating the release were severe. Hall understands his illness and he understands the consequences of any failure to follow the conditions of release.

Saadiq Ibn Shabazz was convicted and sentenced to 21 months imprisonment and two years’ supervised release ¹ for conspiracy to utter and possess counterfeit securities.

He violated his supervised release and the court revoked the release. It then sentenced him to two years in prison and another year on supervised release. He violated his second supervised release and the court gave him another two years in prison. ²

On appeal he argued that two years was the maximum supervised release for the crime and therefore he could not be given a second two year period.

Prior to 2003 18 USC § 3583(e)(3) stated “that a defendant ‘may not be required to serve more than’ an enumerated number of years in prison based on the class of the underlying offense.” But the PROTECT Act changed the law to read: “that a defendant ‘may not be required to serve on any such revocation more than’ the relevant term of imprisonment for the underlying felony.” The Fifth Circuit ruled that the only possible reason the amendment was to allow courts to was to to give the maximum sentence on each violation without worrying about the aggregate total of violations.

Section 3583(h) states that the court:

may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.

Shabazz interpreted this to mean that the aggregate sentence, for all violations of supervised release could not exceed the maximum sentence for the offence which in this case is two years. But the court held that the limit in the above sentence only affects the maximum that can be imposed for any one violation of the supervised release. Otherwise the 2003 amendment would be meaningless.

The Ninth Circuit ruled in, United States v. Juarez, that the Federal that the tolling of a term of supervised release begins whenever a person absconds not when a warrant is issued.

Manuel Ignacio Juarez was sentenced to 46 months in prison and four years of supervised release in 1989 for bank robbery. After he did his 46 months he was turned over to INS and deported. At some point prior to 1993 when he applied for a California driver’s license under a false name he came back into the country illegally. Since he did not notify his probation officer of his new address within 72 hours he was considered to be a fugitive.

He was arrested and released in 1994 for possession of paraphernalia and he was arrested and kept in custody in 1995 for two robberies. He was sentenced to 15 years. Time in custody is tolled towards completion of the supervised release.

A Federal Judge issued a bench warrant for him for violation of his supervised release in 2005. When he was released from prison on the state robbery charges in 2009, he was turned over to the Feds on the supervised release warrant and he was sentenced to eighteen months. He appealed claiming that his supervised released terminated prior to the the issuing of the warrant. When excluding the time that Juarez was a fugitive and the time that he was in state custody his period of supervised release did not terminate prior to the issuance of the warrant in 2005. Once a warrant is issued the period is tolled until Juarez is brought back into Federal custody and a judge acts upon the warrant. In this case it was 2009.

Thus a period of supervised release can be a lifetime sentence. I doubt anyone really expected Juarez to report to his probation officer when he returned illegally to the country. (Although once I had a client who was released upon entering a plea and ordered to return for sentencing. No one expected this to happen since he was going to be deported. But just in case I showed up at the courthouse on the sentencing date. He had been deported and the judge issued a warrant. As I am walking out of the courthouse, who do I see? He knew he was supposed to be in court for sentencing so he illegally returned to the country for sentencing.) Thus Juarez was considered a fugitive. This could go on forever.