morning your honor may i please the court patrick pryor for philip thompson this morning the issue in this case is fugitive tolling in the supervised release context with knowledge that this court cannot overrule the  for a person on supervised release to become a fugitive the government has said it's basically any violation of our position is that any workable standard requires three things first the existence of actual charges pending second the person's knowledge that those charges are pending and third intentional acts to evade those charges taken by the defendant in response as any court is that fugitive tolling statute that applies in ordinary criminal cases that says a statute of limitations does not run while the defendant is a fugitive and so there were asking for consistency between the two and the reason for that is that buchanan borrowed from thirty to ninety in applying the principle that a person should not benefit him but it says nothing about the defendant it intending to avoid education of outstanding petition it just says defendant doesn't get credit for the portion of the supervisory least sentence where he wasn't under supervision i mean i just don't see how he can reconcile this with you can i guess and say well the first answer is that we buchanan we shouldn't stretch i'm just trying to read it's reasoning and the reasoning of buchanan seems to be that the reason we apply this fugitive tolling doctrine is because the defendant doesn't get credit for that portion of the supervised release sentence where he wasn't actually under supervision there are no of but then the question is what is the date that triggers that point when does the person become not under supervision and the government takes the position that it's basically as soon as the person commits a violation so somebody's not reporting to the probation officer somebody missing a drug test or a drug treatment session really anything  and these things there's a lot of ways to violate supervisor only and that it's very technical and so if the mere act of committing a violation makes a person a fugitive it's your court found here though right that in addition to not reporting that the defendant affirmatively concealed his presence to you to avoid having to report and to avoid getting caught for not reporting isn't that going to be enough i understand that we should be very careful about how we describe the standard but on the given the district court's factual finding here what's the concern well on the facts here are just being in the country and using an alias in order to survive and work and live in the country is not enough to show the case that really surveys a lot of those cases and there's the delhi on ramirez case that we've also cited and and so it because the the use of an alien is not specifically directed at avoiding a supervised release violation especially here where the petition wasn't filed until after he was deported so he had no knowledge the petition was pending or that he was facing charges but he had knowledge of the conditions of his supervised release based on his criminal conviction in the first instance and i mean that's the very first thing in the very first thing in the judgment order is the defendant shower or the very first two things in the standard conditions of supervised release are first not leave the judicial district without permission of the probation officer he knew he was violating that without a petition and number two sh to the probation officer within the first five days of each month he had to know he was violating that you don't need to put it a petition and have notice of those things were done arguing that it's not a violation so the knowing commission of a violation does not necessarily make one a fugitive any more than any other commission of wrongdoing makes someone a fugitive even when there's an affirmative duty so paying taxes for example people have an obligation to follow a tax return but every person who fails to punish that behavior including if he's ever brought back that behavior can be considered as a revocation perceiving at the sentencing under the thirty five fifty three a factors and there are certain circumstances account at that sentencing so he's not necessarily getting away with anything because it can be taken into account but he is because if he would've reported within the seventy two hours and a very turning to the united states he would have learned of the petition then but again the fact that he violated supervise released by not reporting doesn't make him a fugitive and what the government then is asking for is that it simply violating simply failing to report means that he should be constructively charged with some kind of knowledge and so the government used the phrase in its brief constructively absconded which is kind of like saying accidentally on purpose it's it's a constructive argument for something that in every other context requires specific intent knowledge of those charges and they tend to evade and here he had no knowledge of those charges the truth of the petition wasn't filed until after he was deported so how could he be of they doing it if he had no knowledge so that's our position we think that the government's position is completely unworkable it would create a situation where we don't know when someone is a fugitive until after the fact we don't know whether she provides releases told or not we don't know probably the most important point when it expires until well after the fact and so it creates  especially when someone might be facing other original charges and they would not be deemed a fugitive under section thirty two ninety we would have a situation where somebody could be a fugitive from one purpose and not a fugitive for another and there's no reason to open up a can of worms and i think we have to remember is that fugitive tolling in the supervised release context is not in the statute it's a judicially created equitable doctrine so there's no reason to read it any farther than the terms of  down to allow for a revocation proceeding to take place after expiration of the persons ever after ended and so if we allow fugitive tolling to to run indefinitely just from the point of a violation without any knowledge on the person's behalf then the period never expires we don't have to use thirty five eighty three ah and so an actual statute becomes obsolete because of a judicially created equitable  stay away and they are law enforcement long enough for supervised release to run and they he can come back without repercussion no not without repercussion your honor respectfully won't because in that situation if the person didn't report the probation officer would ordinarily file a petition that would allow for a delayed revocation under thirty five eighty three i when the person is ever caught so they're not getting away with anything but we're proceeding under the intend but wouldn't they get away with it in a case like this where the i mean the point is they're not supposed to be in the country so nobody knows they're supposed to be reporting so how how would a petition be filed in a case like this you know i'm saying if you're if the facts are hypothetical if they have facts or exactly as they are here and you're not supposed to be in the country at all how would anyone know that the person is they are not reporting so that at the same confession completely invades any knowledge well i think that's no different than any other situation where somebody commits a supervisor at least violation of the probation officer doesn't find out about it or simply going to be those kind of situations just as in an ordinary criminal context they're going to be situations where somebody commits a crime and the statue of limitations expires and they've gotten away with it and that's just the way the statute is a question are you just sort of separate issue are you you're not i know you're challenging the district court saying the tolling the clock stopped for tolling purposes but you're not challenging the other end of the equation are you when the district court and that is the court also said the clock did not start again before this revocation proceeding that the tolling continued until the actual revocation proceeding and you're not challenging that part of it are you well it would really be the arrest because that would be when the government has knowledge that he's here in the process has started right but that's not what the district court said the district court said that the tolling continues opt in till the time that he was holding the hearing which was twenty january two thousand and eighteen but i didn't you challenge that in your brief we didn't and i don't think that that time would make any difference here which which is why we didn't there there may be cases where that kind of distinction between arrest and hearing would matter but here and i could check the record but i don't believe it's matter and here it was twenty seventy you would have been ordinarily past the five years and were right t in violation as proof of this record he was involved because your client might correct had no obligation to report at all as long as he stayed out of the united states correct if he stayed out of the united states not not know it long as he stayed out the united states words of reporting right yes right so we know he was in the united states on twenty eleven right correct because they found him in california and he was deported right yes so those are the governments there is there from twenty eleven until the towel rests its toll right right correct yes that's the government's theory right now ok so what is the evidence in the record that he was in the united states more than seventy two hours after that because that's the only time he has a report if he comes back to you and stays within seventy two hours the ass to report but where is the evidence in this record that he was in the united states more than seventy two hours between twenty eleven and two thousand and seventeen well we didn't challenge that your honor and perhaps i will ask who was the record well the record comes from the underlying criminal report that he's got your case you need because otherwise he has no duty to do anything to reporting right you're right and so all saying that there's nothing in this record speaking to that but we didn't challenge well it doesn't have to report to their privation office or even when they're in custody no i mean he would have to report when he comes back in the country but while he's in custody supervised release tolls if he's in custody for more than thirty day that's under thirty six twenty four so they deported him to twenty eleven route exactly so he left the country and the only other evidence in this record leslie is that he was here for at least  in miami you know was now in california you for bank transaction a twenty four team but if but if there's no evidence that he was there beyond seventy two hours he has no duty to be under supervision they're supposed to he just left the country he was there that day it is transaction it would back to another country he would be under who do you agree with then i'm not trying to make you case but i just found it odd that the record right here and you look at me as what lawyers do just in candor your honor i think the way that the surprise release condition was worded was that he had to report within seventy two hours after he came back that's what i say said different well not that he had to be here for a good morning your honour's name please the court and in front of the government philip thompson was convicted of drug trafficking crimes and sentenced to one hundred eighty months imprisonment and five years supervised release the terms of that supervised release required him to stay outside of the country but to report to the u s probation office if you returned within seventy two hours ok so go on to greater ease question where is there evidence in the record that he returned and was here for seventy two hours so in the transcript of the revocation hearing there is testimony from the dea agents doing the investigation that said they had evidence that mr thompson returned to the united states as early as twenty thirteen in the district court's opinion and found that he was  i believe was interviewed and said she had met him sometime around august twenty sixth seen and then testimony of some of the drug coconspirators that he had been in the country and working with them for a period some time the record is unclear believe it's around joint appendix fifty five or fifty six they saw him they did not see him though this was based on evidence that they had collected during their investigation he was found and arrested in june of two thousand and seventeen or we  will but he had not they did not come into personal contact with him before that time but they had they presented evidence to the court that he had been in the united states since at least december twenty four teams the courts ultimate finding of fact as there is were transactions they were bank transactions but they weren't testing but there was also he had gotten a car nice at that point he had been living with a car all friend there were other evidence that he was physically present in the court not just bank transactions from his accounts even using multiple aliases i believe even had a california driver's license at one point it is your position if he was here as you say terms there and he lived he was obligated to come back to do he i believe had a friend get it for him and sign under his name and then i think but then i think it was assigned to him i'm not convinced i'm not sure in the exact name wrong but the the officers investigation turned up that they're in the revocation hearing i believe it's just the officers testimony about the investigation that he conducted if we look specifically to buchanan i think that addresses the question raised by opposing counsel about when tolling starts whether or not a mental state is required the public defenders argument in this case would turn fugitive tolling into not fugitive status from supervised release but from fugitive status for me or it for a violation of supervis not what you can and out you can and made very clear that it's been defendant removing himself from the custody of supervised release that begins the toll so it's not it's not the government's not arguing that the re entry in violation of the supervisory lease terms that's not what triggered the fugitive status it's the part where you don't report or give support to out of supervised release when he's not reporting when he's under any obligation to report he's essentially out of the legal custody of because the  public defender is concern is that there needs to be a distinction between violating a term of supervised release and being a fugitive right it can't be that if you one of the terms of supervised release release is you don't use drugs and you show up to meet with your v but you have been using drugs that you are now a fugitive so how exactly would you have this right the standard so we don't get into that problem yes your honor there's the this case standard way to write this case and then there's the ways to write a slightly stepped back broader perspective the way to do this case is the facts are so one sided about him being out of custody actively and consciously concealing himself that at minimum this conduct means that he is a fugitive from justice this step backwards if you look to the cases cited any buchanan particularly anderson and saddest from the supreme court the supreme court is talking about fugitive tolling as being outside of the legal or physical custody of the officer or the government so in prison it's escape from prison on probation it's being out of contact with your probation officer so i think there is this concept of custody that is that's at the core of i don't being in prison or being on supervised release here mr thompson defeated the very point of supervisor lease which is supervision and so at least in those circumstances he's out of the custody of his probation officer and i think in similar situations where an individual is essentially out of the legal custody of the probation i would say the purpose of supervised release is sort of materially up held at that point the defendant stays outside of the country i think the idea being that when the defendant returned to the united states with no intent to leave he has to check in with his probation officer and the fact that he didn't is the reason he didn't know about the morning and for his previous violations to go to judge harris's question earlier if we take out the first degree entry and petition no one would have known that mr thompson was in the country and till he was arrested in june twenty seventh teen and at that point he would have successfully invaded the entire period of supervised release at that point it fundamentally undermines the congressional purposes of supervise release to say that a defendant can simply run out the clock by successfully evading law enforcement for a long enough period of time can i ask you a question again about kind of the back end of the tolling in this case which i understand isn't being challenged but the so the revocation proceeding here is january two thousand and eighteen but the defendant is apprehended in june two thousand and seventeen so how does fugitive tolling continue to apply between june two thousand and seventeen in january two thousand eighteen i don't think it does you're on there is your court was wrong about that yes your honor buchanan specifically talks about the defendant coming back into the control does it matter is there enough time now to get you from two thousand said june two thousand and seventeen to january two thousand and eighteen yes i believe that's why they didn't work for makes december to make the finding but at least december two thousand and fourteen because that was the requisite period of time ok had to tell me how the math works is if it's because it's six months of tolling from december two thousand and fourteen and so i say if that's why i think the custody component is sort of the core of the fugitive told him doctrine because that's the benchmark that buchanan uses to start and then getting used to and on that note i'll just add that in footnote seven if you can in the court specifically contemplates the idea that the fugitive tolling doctrine kicks in before any petition is filed or before any arrest warrant is issued so it goes to the time the defendant is out of the supervision as opposed to when the government acts reasonably necessary the period of time between june two thousand and seventeen when he was rearrested and actually between the end of june twenty fifteen and the judy cation because it was the defendant's own willful acts that prevented  happening during the time of supervised release and although the public defender argues that essentially fugitive status controls both the inquiry under thirty five eighty three is actually just one of practicality and because the defender was either outside of the country which he concedes makes it impractical to adjudicate the violation and then once he was back inside the country he was actively hiding from law enforcement the six months that it takes from arrest to the final entry of the revocation order supervised or is out of the city there still has to be a finding by the district court about when the fugitive status started because that's what's relevant for all these dates and if i misspoke in response to judge harris's question earlier then i apologize now i'm not sure if i did or not but in this case the those dates didn't matter because of the judge's finding about when he was back but there could very well be cases where it really does matter exactly when the fugitive status started so there has to be a finding of something that triggers it and we submit that it's better if there's a charge if the standard is charges pending and the defendant's volition acts to evade those charges because that's a clear workable standard that's going to be understandable by defendants and by probation officers and by district courts when they calculate these periods so in just just very quickly on a point about thirty five eighty three i and the delayed revocation post expiration of we submit that even though the standard in the statute is one of quite reasonably necessary it was not reasonably necessary here because the twenty levon petition was not filed until after mr thomson had been deported and so and with no reason given it's entirely possible that on some records with some facts it probation officer may well be able to explain the reasons for a thirty nine day delay in filing a petition our position is that a delay for no reason cannot be reasonably necessary and there's nothing in the record here that would indicate any reason for that delay because the probation officer was notified immediately that mr thompson was back in the country had been arrested in california and there was nothing preventing that time and then the final point i would make is i would ask the court consider the scenario where a person commits an act that the probation officer suggests is a violation and there's charges filed and under the government's theory that person becomes a fugitive but then when we eventually hold a revocation hearing on that the person is acquitted they didn't do completely not guilty of the violation well then were completely at up up in the air about well was the person somehow retroactively not a fugitive during that period if in fact they were actually guilty of the violation and if so then if there wasn't tolling because the person wasn't a fugitive we have no idea when the period ended and if there's even jurisdiction to have a post revocation a post yes post revocation period revocation hearing and so the judge would be in the position of having to find whether the person is guilty or not in order to determine whether or not there's even jurisdiction over the violation so that's why we've argued government's theory throws this thing completely into chaos and our theory is the more workable standard that's consistent with other fugitive to doctrines the government's theory is the one that the courts have been using for a long time i mean have has there been chaos as a result well i would push back a little that i don't think there are a lot of cases published decisions that have dealt with fugitive tolling that it has been challenged and it really but yes there is some circuit case law on this and they all use a standard roughly like this and none of them uses the standard you're proposing yours is narrower than what any other circuit uses that's fair enough and it's jurisdiction it doesn't take a lot of examples for we're talking about sending someone to prison here for thirty months for something that there may not be jurisdiction over that's something that we don't need a lot of anecdotal data to say that