number seventeen and thirty eight twenty six  of the supreme court's recent teachings about what it means for a statute to be jurisdictional and the statute that without issue in mali now and that's at issue here isn't title eighteen section thirty five eighty three i and it affords a maccan ism purge irritating violations of supervised release that occurred late in the term of supervised supervision and the statute provides they even after supervision has expired the court has the power to claims processing law or some other sort of deadline and by virtue of its jurisdictional character not to be subject to aqueduct hauling or waiver so fast forward to this case the government acknowledges formally state i mean this this case is i mean what's interesting here is that you've got about four issues would seem to have circuit splits but the the one disc got to be the toughest for you it would seem is the six fugitive rule fair to be a fugitive for a year in the next turn the authorities seem he's he's he's shooting at a police officer actually shooting and hitting a police officer numerous times and that and then say it's true late you can't do a thing about  it yes it is fair that the concerns that the government raises about a windfall slipping through are really overblown i may just step back from one second's of a precedent the circuits put on this matter  we do think that not only has the first circuit ruled her favor but this court it minutely on different facts has stated unequivocally that the statute does not hold for any purpose other than facts of the cases are different language of coal that's important here where the court states outright that under the statute and i'll quote this is a page one hundred seventeen the statu provides for the supervised release period to start on the date of the defendant is released from prison it continues during the period of months or years the petitioner court ordered its judgment and here's the critical point as noted above that the only exception that five sixty seven after thirty one page one seventy three was was that essential to to the decision was that statement that you just read i believe it was the rationale for the   i mean it would seem to me pretty difficult to figure out what absolutely how you how you extend the date or what when it's told i think that's absolutely correct and so i'll try to offer some thoughts on it but i think a key point is that once a district court is engaged in these determinations we're going to be returning to a very amorphous jurisdictional practice which is exactly what merlin you know sad should not be allowed here no more of this practices today so what does it mean that's gone and i looked up those words because you know the government really really doesn't a labrat on that in the first place i looked was blacks and black's law dictionary offers meanings that in no way contemplate bad a failure to the jurisdiction both of them contemplate leaving the jurisdiction and perhaps more broadly some affirmative appart to escape detection here mr island was arrested at all right so he did cease affirmatively reporting he admitted that violation he was subject to revocation for it because it was timely alleged but apart from failing that condition of his supervisor he didn't do anything to try to escape detection so we don't think that there should be future tolling i do think the language and cole really have to be reckoned with i think cause absolutely correctly decided as well but if the court does wish it expressly authorizes a grant of power to the district court and conditions the existence of that power on a specific and minimally owners event does that control here such that we would have to go and bank to find that the date is something other than the date that has been set as the deadline for the power of the district court on which issue your honor might be cold i mean no but i'm saying you could read merlino to say that the power has been set and the power is conditioned on the exercise on a specific and minimally onerous event so there is no such thing as tolling some limitation period you know that there would be one thing if there is some limitation period of four months whatever but tolling a period it's almost as if in early no we're saying it's a statute of  and that's when it ends and there is no ability to change it now you could come in perhaps if you think the person is not reporting on their standing you can ask the court to set a different date for the expiration of supervised release because the person has got it but the way i read more leno you could argue that we would have to go in bank in order to say that the date is different because the power is set on that specific date here i think you might because of coal but to concentrate on the language your honour's focusing on i actually don't think that would require a non binding education what it points to is the distinction between the rather unique mechanism codified at thirty five eighty three i which is not tolling per se it's not a toll because you groceries those expire it's a kind of breach factors fiction so i don't mean while we have one danger of a windfall because provided a warrant issues during that time the person is going to be subject to education if and when he or she is one day comes back into the custody back comparisons because in parole you know you would get credit for different periods of time and i can't cite you law and verse on it but under supervised release the defendant gets no credit years and on top of that he could have a lengthy period of supervised release renewed to follow that five years something that didn't really exist with parole so that future is in sort of the maze of pay if you will by a new period of supervise me please the court bring you don't we came for the government this court should join committee giardia of the circuits in find that a period of supervised release is told by a defendant's fugitive status from supervision both the second circuit up the second circuit the ninth circuit in the four circuit have expressed this exact issue and they found notwithstanding the canon that was just cited by the defense that there was another more important rule statutory construction that is if the congress intended to override such a long standing firm and strong a policy of fugitive disentanglement it would have said so and the fourth circuit noted that in the night and the ninth pretty how does that apply here when a warrant can clearly be issued before the expiration of what the provides release is not not many cases your honor if somebody is a fugitive here the interesting part is is that the defendant actually committed the new offense five days before supervised release expired that is an issue that's related to the thirty five eighty three i issue the fugitive tolling doctrine is an entirely different creature thirty five eighty three i is as as the defense recognized is not a to it's an extension or reach back provision in certain circumstances when the time and is is she the fugitive towing doctrine takes it right out of the room of thirty five eighty three i what the courts have held is while you are a fugitive from supervision and are not subject to the court supervision that period is told so that if and when for example you could commit an offense as has happened in some of these cases eight years they have to your supervisory lease terms ended and that would be that's just a trigger in this case there could be some other violation that's alleged after the fact the most typical one would be if you're a fugitive they find you because you are arrested but there could be other scenarios so the point is there's been not just a longstanding concept so how do you square that with the language in marino that the thirty five eighty three i just received doesn't merely set a deadline it expressly authorizes a grant of power to the district tolling provision thirty five eighty three i is a reach back provision you have to commit the offense within the period of supervised release the tolling doctrine on the other hand is a much broader equitable conflict does it do it in that there's no way to play with nearly thirty five eighty three i think the worst so what would happen here what what happens you go in and you say ok he wasn't reporting for four months therefore the expiration date is a different date you made numerous efforts to find him this is laid out in the petition the he had given them a new address he went to the address he was told he wasn't live there this is all spelled out in the petition there was no objection made or no quote the reason not subject to supervision because of your own actions and your own long doing it's a far cry from the whole scenario somebody is removed from the country pursuant to a deportation order that case only addressed that but now we should there was can you order that as a condition of supervising any don't we why can't we view the provision regarding the expiration of saying ok the war has to be issued before the expiration supervised release because of something you've done now if that time comes where there would be if you're not a fugitive if the defendant was not a fugitive and that warrant wasn't returned until the day after the expiration of the pretty surprising release this entire argument would be about whether or not under thirty five eighty three i which was the second argument here were saying you don't even need to reach that because if you apply as for other circuits have the doctrine of fugitive tolling which is an equitable remedy then the court parole and the reason they replaced the parole system with supervised release one of the primary reasons was because there was inadequate supervision in the parole context so supervised release was actually intended to provide more supervision to be more helpful in easing the defendant's transition to society to promote rehabilitative goals these are the issues that were stressed by the courts who talked about fugitive tolling they found two principle reasons why fugitive tolling should apply number one to promote the goals of supervised release as expressed by congress and the courts secondly to it because it's consistent with and it's warranted by the longstanding quote was one of four circuits to address a very specific issue which is can a district court in and imposing conditions of supervised release order a defendant who is going to be subject the court's authority the re and there were two reasons there was one primary reason and the primary reason cited by all cases was this isn't a condition this is not what we typically see as a condition of supervised release and they referred to the statu and the types of conditions and judge rendell i think you outlined some of the types of condition in your opinion in co the this is a far cry from a condition it's a state of suspension so that was the primary holding cole had also argued the canon of cut statutory construction that congress only provided for one tolling exception not in thirty five eighty three but in thirty to sixty four the general with the statute said your your period supervised release runs on the first day that you are released from prison and six and it would be suspended or the clock would not run during the period if you were incarcerated for a period of more than thirty days and another crime so the defendants all argued in those cases that that that was controlling and so this court in response and i'd like to read the exact language said we find persuasive holes argument that the canon suggests that where congress  canon that's well recognized not consistent with what the first circuit held in that's that's the first circuits opinion turns entirely on this canon the other circuits have rejected that and the reason they have done so is because fugitive status is a far cry and that's the will of the second circuit use is a far cry from a condition of supervised release in a deeper cape a tolling of deportation during a deportation process and what they explained was it and it's it  more accurate reflection of the holding in call which was we are relying somewhat on the absence of a provision in this in this particular situation but that doesn't extend to other situations cocaine conceivably have been addressing for it to be dispositive in the fugitive tolling situation it's an entirely different scenario poster wise in the first circuits reasoning not persuasive oh to because you're talking about the case law  long established but they said but it made no similar reincorporation prayer case law provided patrolling during periods when offenders were fugitive status other than when they were in prison for another offense the failure and to do that you other circuits of explained why it's not persuasive because there is another is even only in principle because of lack of proper from their own wrong because of that principle but also if congress intends to override something that is as consistently aspect of tolling is perhaps that wasn't as well established or perhaps there was inconsistency in the case law i haven't researched that but there really was no reason to include an additional tolling provision for fugitive status it had been applied since the time a person was initiated it had been routinely inconsistently applied by the courts it was just no need to make it clear which is what i believe the imprisonment position was intended to do was to make it clear because i could easily see a judge saying i'm not going to find that it was suspended while you were in prison you couldn't comply with your conditions of release so they wanted to say yes judge it is suspended while you're in prison i said i did not do research on that issue but it's just  you know a logical assumption that there was a reason to include that specific provision but no need to include fugitive tone provision or perhaps it was an oversight but i really feel strongly that the more important statutory rule construction here is that you the congress simply doesn't override such a longstanding you just created equitable concept without saying so so what happens is a revocation hearing in that one of the issues is when should we deem when should we deem supervised release two to have expired and you'll have litigation over what mean it means to  abscond from supervised release there there could be a question raised about whether a defendant was truly a future event that has happened in the ninth circuit there's a series of cases that address that issue for example one defendant said just a failure to report isn't but parole how hollow they just found that the defendant would not receive credit for any period so if you violate parole and you end up back in prison you didn't get any credit for the period that you were in you hadn't gone to the were in fugitive status in other words you weren't going to benefit is that wasn't an extension of that time of parole as such which would be what it would be desired here you move the expiration date basically there it's a matter of ok you don't get credit for it your honor i have to apologize i didn't read all the parole cases i know that that that the fugitive doctrine was applied routinely in the parole context but one other point that if i could address i know my time is up but the fact that there won't be the defendant doesn't get a windfall from this well we're not arguing that the defendant gets a windfall from this the fugitive doctrine tolling doctrine is not based on what you know how big an advantage the defendant might get by this the fact is that the defendant does get a benefit and this case is a clear example if we take thirty five eighty three i out of the picture what we have here is a defendant who had been charged with certain reporting violations he then commits a pretty horrendous crime if the only thing that the court could consider because the warrant the second warrant was in time we filed and if we want that's a whole thirty five eighty three i issue then he wouldn't be that that issue wouldn't be before the court the court would be punishing him for a grade c violation of failing to report and failing some drug test that's a far cry most judges even if there is some there's a guideline that says you could consider such conduct so just it's not going to drive their sentence they're going to be in a very different posture if that whereabouts were unknown a reported by the probation officer in uncontested at the hearing then what what happens is he he actually is violating the court supervision he has breached that court's trust he's still supposed to be under the supervision of the district court judge and that new offense from regardless of what it is in this case it's a fairly serious crime in other cases it's not such a serious crime but that the court should have the opportunity and the ability to consider that in revoking supervised release and considering the appropriate punishment for that defendant again look within the context under the facts of this case or any nexus between the first four so no we would not argue that there is a relationship between the two unlike the edwards case in new york where there was a relation back because the travel violations resulted in the we that and that's another thing when we get into the cases they have rejected that idea that it has to be tied back that's more of a thirty five eighty three i argument whether the second war in the first warrant were related and i i'll stop talking of last year and seven other question on the other issue by resorting to equitable considerations i want to lay out if i may and it actually gets us back to thirty five eighty three i why our position does not raise any of the bugaboos that my colleague is concerned about or that the adverse circuits have identified those simply are not concerns and all these concerns can be resolved without doing violence to the language of the statute which is what is proposed here now the educated and surprised he's revolved and my colleague referred to what about conduct that occurred after the untold period of supervised release well that congress can still be considered so what happens in that situation what should happen in this case is that the court must adjudicate the time we filed violations strictly the court must determine whether on the basis of the timely filed violations it is appropriate to revoke supervised release and return the defend to prison if so at that point the you know court is free to consider all relevant information in determining how to exercise its discretion and fixing the prison term so whatever events took place after the expiration would be within the court's this crash and i was surprised to hear the statement that what i heard was that a court wouldn't take too seriously a shooting if it was only sentencing technical there doesn't need to be drawn some carve out from the statute that congress didn't make as far as the canon about the longstanding practice of fugitive tolling i think it's pretty clear then that we have two competing canons here can and it is strong because we know congress likely knew about the fugitive tolling practice and very much did not address it in cole addressing the deportation situation the courts added that it might well make sense to have an equitable exception for deportation but if congress wanted wanted it could have said so and i think the same rationale should apply to fugitive tolling especially since there really isn't the prospect