ORDER DENYING DEFENDANT'S MOTION TO DISMISS

(ECF Nos. 32, 34, 35, 39, 41)

STANLEY A. BOONE, Magistrate Judge.

On October 28, 2016, Defendant Leta Joretta Ertell ("Defendant") filed a motion to dismiss the petition for violation of probation for lack of jurisdiction.1 (ECF No. 32.) Plaintiff United States of America ("Plaintiff" or "the Government") filed an opposition on November 14, 2016. (ECF No. 34.) Defendant filed a reply on November 21, 2016. (ECF No. 35.) Defendant's motion was submitted to this Court upon Defendant's consent to proceed before a United States Magistrate Judge, filed on September 22, 2011. (ECF No. 6.)

The matter was heard on December 7, 2016. Erin Snider appeared on behalf of Defendant. Michael Tierney appeared on behalf of the Government. On December 7, 2016, the Court set a supplemental briefing schedule. (ECF No. 38.) On December 9, 2016, Defendant submitted supplemental briefing. (ECF No. 39.) On December 12, 2016, the Court issued an order amending the order setting the supplemental briefing schedule. (ECF No. 40.) On December 12, 2016, Plaintiff filed its supplemental opposition. (ECF No. 41.) The matter was deemed submitted upon receipt of Plaintiff's supplemental opposition. For the reasons set forth below, Defendant's motion is denied.

I.

BACKGROUND

On August 24, 2011, the Government filed an information charging Defendant with ten counts of unauthorized access to computer (28 U.S.C. § 1030(a)(2)(B)) and three counts of unauthorized inspection of returns or return information (26 U.S.C. § 7213A).

On November 10, 2011, Defendant pled guilty to one count of unauthorized inspection of returns or return information (26 U.S.C. § 7213A), and was sentenced to 1 year unsupervised probation with the conditions that she pay a $300 fine and $25 penalty assessment, complete 50 hours of community service, and obey all laws.2 (ECF Nos. 10, 11, 12.) The Court set a review hearing for May 10, 2012, but took a Rule 43 waiver. (ECF No. 12 at 3.)

At the May 10, 2012 review hearing, defense counsel appeared on Defendant's behalf pursuant to the Rule 43 waiver. (ECF No. 13.) The Government advised the Court that Defendant had not paid her fine. (Id.) The Court continued the review hearing to June 14, 2012. (Id.) The Court ordered Defendant to be personally present for that hearing since the Defendant had not complied with her conditions of probation. (ECF No. 13.)

At the June 14, 2012 review hearing, defense counsel stated that she had attempted to reach Defendant by phone and also had a defense investigator go to Defendant's last known address, but had no success in establishing contact with Defendant. Defendant failed to appear at the June 14, 2012 review hearing. (ECF No. 14.) United States Magistrate Judge Gary Austin purported to revoke Defendant's probation and issued a warrant for her arrest.3 (Id.)

Defendant contacted the Court on or about August 17, 2016, and Defendant was placed on the calendar for September 1, 2016. On September 1, 2016, Defendant appeared before the Court for her initial appearance. (ECF No. 19.) The parties agreed to set the matter over to October 6, 2016, to allow for the filing of a petition. (ECF No. 19.) On October 5, 2016, Probation Officer Mechem filed a sworn petition, which the Court signed, alleging that Defendant failed to prove that she had completed 50 hours of community service and that Defendant had failed to report for a review hearing as ordered on June 14, 2012. (ECF No. 22.)

II.

DISCUSSION

Defendant raises several issues in her motion to dismiss.4 Defendant argues that the Court lacks jurisdiction to now revoke Defendant's probation because it did not issue a warrant or summons on the basis of an allegation of a probation violation prior to the expiration of Defendant's term of probation. Defendant asserts that her term of probation expired on November 9, 2012, and therefore, the Court lacks jurisdiction to now revoke Defendant's probation. It is undisputed that the Court did not issue a warrant or summons on the basis of an allegation of a probation violation prior to November 9, 2012. However, the Government argues that the fugitive tolling doctrine applies to the instant case, and therefore, the Court has jurisdiction to now revoke Defendant's probation. The Government argues that Defendant's term of probation would have expired on November 9, 2012, but Defendant became a fugitive on or before June 14, 2012, and remained a fugitive until September 1, 2016.5 The Government argues that Defendant is not entitled to any credits against her probationary period for any period of time when she was a fugitive.

As of June 14, 2012, the latest day which Defendant allegedly became a fugitive, there were approximately one hundred forty-eight (148) days left on her probationary period.6 According to the Government's argument, those 148 days did not begin to run again until Defendant was returned to the Court's supervision. Therefore, if the 148 days began to run again on September 1, 2016, Defendant's probation does not expire until approximately January 26, 2017. The Government contends that because Defendant is still serving her term of probation, the Court has jurisdiction to consider the revocation of probation until the expiration of her probation period.

The issue before the Court is whether the fugitive tolling doctrine applies to the instant case. Defendant argues that fugitive tolling does not apply to unsupervised probation, and therefore, could not apply to her sentence. Defendant contends that the fugitive tolling doctrine is no longer a valid doctrine in light of the holding in United States v. Pocklington, 792 F.3d 1036, 1039-41 (9th Cir. 2015). Finally, Defendant argues that even if the fugitive tolling doctrine is still a valid doctrine, she did not assume "fugitive status" warranting tolling her probation.

A. Defendant Entered "Fugitive Status"

The Court first addresses whether Defendant entered "fugitive status" between June 14, 2012, and September 1, 2016. Defendant argues that she never entered "fugitive status" because she did not violate any condition of probation requiring her to stay in contact with the Court or notify the Court of her whereabouts. Defendant contends that a defendant does not enter "fugitive status" just because a defendant fails to comply with any term of probation, but rather, it must be a term of probation requiring the defendant to stay in contact with the court or notify the court of his or her whereabouts. The Government responds that Defendant became a fugitive when she violated the terms of her probation and placed herself beyond the supervision of the Court. See United States v. Grant, 727 F.3d 928, 930 (9th Cir. 2013) ("A defendant assumes fugitive status when he `fail[s] to comply with the terms of his supervised release. . . .'")

"Fugitive tolling begins when the defendant absconds from supervision . . ." U.S. v. Ignacio Juarez, 601 F.3d 885, 890 (9th Cir. 2010). In Grant, the defendant failed to comply with the terms of her probation when she moved, failed to inform her probation officer of her move within 72 hours, as her probation terms required, and failed to comply with other terms of her probation, such as failing to pay restitution, committing another felony, and failing to timely report her nolo contendere plea to the felony. Grant, 727 F.3d at 932. In U.S. v. Murguia-Oliveros, 421 F.3d 951, 953 (9th Cir. 2005), the Ninth Circuit clarified "what constitutes `fugitive status' for purposes of tolling a term of supervised release." The Ninth Circuit held that a defendant could become a fugitive merely by failing to comply with the terms of his supervised release. Murguia-Oliveros, 421 F.3d at 953. In Murguia-Oliveros, the defendant departed the place he was authorized to be and failed to contact his probation officer as required, and therefore, violated the terms of his supervised release. Id. at 953-54. The defendant was ordered to report by his probation officer, but he did not do so. Id. at 954. Therefore, the court held that the defendant "became a fugitive when he effectively absconded from serving the terms of his supervised release." Id.

Although Defendant was not ordered to stay in contact with the Court or notify the Court of her whereabouts, she was ordered to pay her fine according to a payment plan. Defendant failed to comply with the requirements to pay her fine. Defendant also was ordered to complete 50 hours of community service.7 She then failed to appear at the June 14, 2012 hearing.

At Defendant's November 10, 2011 sentencing, after the United States Magistrate Judge imposed the sentence on Defendant, he set a status hearing six months later. The Magistrate Judge told Defendant that she must inform her counsel of what payments have been made and submit her community service hours to her so that she could report to the Court at the review hearing. At the May 10, 2012 hearing, the Government stated that Defendant had not paid anything on her fine. The Magistrate Judge set another review hearing for June 14, 2012, and ordered that Defendant personally appear at that review hearing. Although Defendant was not ordered at the time of her sentencing to appear on June 14, 2012, the Court set the June 14, 2012 hearing during the May 10, 2012 hearing as a result of Defendant's noncompliance with the terms and conditions of her probation, and therefore, Defendant should have appeared at the June 14, 2012 hearing.

Defendant's counsel was not able to contact Defendant and she did not contact her counsel. Defendant was out of contact with the Court and her attorney for over four years. Therefore, the Court finds that Defendant absconded no later than when she failed to appear at the June 14, 2012 hearing. Accordingly, the Court finds that Defendant was in fugitive status from no later than June 14, 2012, through the date she returned to the Court's supervision.

B. Ninth Circuit Cases Support the Application of the Fugitive Tolling Doctrine in Probation Cases

Defendant argues that the probation statutes foreclose fugitive tolling; that the history of Ninth Circuit's cases applying the fugitive tolling doctrine suggests that it was not intended to apply to probation cases; and that Grant, the only Ninth Circuit published case which has applied fugitive tolling in a probation case is not binding precedent on the general validity of the fugitive tolling doctrine or its applicability in the probation context. These three arguments can be addressed by looking at the Ninth Circuit's case law regarding the fugitive tolling doctrine in both probation cases and supervised release cases.

A district court may sentence a defendant to probation pursuant to 18 U.S.C. § 3561. Section 3565(a) of Title 18 of the United States Code provides that the court may revoke the sentence of probation if the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation. Congress also codified a provision for delayed revocation of probation in 18 U.S.C. § 3565(c). Under 18 U.S.C. § 3565(c), the Court retains power to revoke probation and impose another sentence after a probationary period ends only if a warrant or summons, based on sworn allegation of violations, is issued before the end of the probationary period. See Pocklington, 792 F.3d at 1039-41.8

Defendant argues that Congress created and intended to create only one situation in which a person's probation is tolled when it codified the imprisonment exception in 18 U.S.C. 3564(b) as part of the Sentencing Reform Act of 1984. Section 3564(b) of Title 18 of the United States Code provides in part that "[a] term of probation does not run while the defendant is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than thirty consecutive days." Defendant is correct that the fugitive tolling doctrine has never been codified by Congress and that Congress did explicitly codify the tolling provision for when a person is imprisoned during a term of probation. See 18 U.S.C. § 3565(b). However, as discussed below, the judicially created fugitive tolling doctrine is still applied by the Ninth Circuit in probation cases and supervised release cases. Further, there does not appear to be anything in the legislative history or in the Act itself to indicate that Congress intended this statutory reference to be the only means to toll the statute nor is there anything abrogating this judicially created tolling provision.

Defendant contends that the Ninth Circuit created the fugitive tolling doctrine in United States v. Crane, 979 F.2d 687 (9th Cir. 1992) for supervised release cases because 18 U.S.C. § 3565(c) does not apply to supervised release cases and there was no comparable statute for supervised release cases at that time. In Crane, the magistrate judge sentenced the defendant to one year of imprisonment and one year of supervised release. Id. at 688. When the defendant was released from imprisonment on May 2, 1990, he went to a community treatment center to start his one year of supervised release. Id. However, the defendant left without authorization in September 1990. Id.

On September 5, 1990, a petition for revocation of supervised release was filed with the district court and the magistrate judge issued a bench warrant for the defendant's arrest. Crane, 979 F.2d at 688. In December 1990, the defendant was arrested on a charge of petty theft, for which he was sentenced to a term of 270 days imprisonment on January 25, 1991. Id. The defendant was taken into federal custody pursuant to the detainer on May 9, 1991, and admitted the violations of supervised release and was sentenced on May 29, 1991. Id.

The defendant appealed arguing that the district court did not have jurisdiction over him when he appeared for revocation proceedings on May 29, 1991, because his term of supervised release was originally to have expired on May 2, 1991. Crane, 979 F.2d at 691. The Ninth Circuit stated that the defendant's "argument misapprehends the impact of his status as a fugitive from September to December 1990. . . ." Id. The Ninth Circuit compared the supervised release statute to revocation of regular parole under 18 U.S.C. § 4214 and special parole under 21 U.S.C. § 841(c). Id. at 691. The Ninth Circuit had not required specific language in the statutes to toll the term of regular parole or special parole while the defendant was in fugitive status. Id. at 691. Therefore, the Ninth Circuit held that the district court retained jurisdiction to revoke the defendant's supervised release because the term of supervised release was tolled while the defendant was a fugitive. Id.

While courts recognize the rationale of the fugitive doctrine is to not reward those who flee and maintain fugitive status until the expiration of their original term of supervised release, Defendant argues that if a probationer absconds from probation, the government can ensure that the court retains jurisdiction by seeking a warrant or summons on the basis of a probation violation pursuant to 18 U.S.C. § 3565(c). Therefore, Defendant argues that the fugitive tolling doctrine is not necessary to deter probationers from absconding from probation. However, the Ninth Circuit has not limited the fugitive tolling doctrine because of a delayed revocation provision.

For supervised release, there is now a statutory provision for delayed revocation, which is similar to the delayed revocation provision for probation. See 18 U.S.C. §§ 3565(c), 3583(i). Section 3583(i) of Title 18, United States Code provides that the district court can revoke a term of supervised release after the period of supervised release has expired only if a warrant based on sworn facts was issued within the supervised release period. Even after 18 U.S.C. § 3583(i) was enacted, the Ninth Circuit applied the fugitive tolling doctrine to supervised release cases. See Murguia-Oliveros, 421 F.3d at 954 (finding, after 18 U.S.C. § 3583(i) was enacted, that the court should not reward those who violate the terms of their supervised release and avoid arrest until after the original term expires); United States v. Ahmadzai, 723 F.3d 1089, 1093 (9th Cir. 2013) (recognizing that fugitive status tolls a period of supervised release); Ignacio Juarez, 601 F.3d at 888-91 (reviewing Ninth Circuit's application of the fugitive tolling doctrine). Therefore, the fact that there is a delayed revocation provision in the statute for supervised release has not foreclosed the Ninth Circuit from applying the fugitive tolling doctrine in supervised release cases.9 Id.

Defendant cites to United States v. Hernandez-Ferrer, 599 F.3d 63 (1st Cir. 2010). In Hernandez-Ferrer, the First Circuit held that a period of supervised release cannot be tolled when a defendant is a fugitive. Id. at 67. The First Circuit relied upon statutory construction and found that Congress did not intend to toll a period of supervised release for any reason except when an offender is imprisoned for a different crime. Id. at 68. However, as the First Circuit recognized, the Ninth Circuit has found that fugitive status of a defendant tolled the term of supervised release so that the term of supervised release does not expire as scheduled. Id. at 67 (citing United States v. Delamora, 451 F.3d 977, 978 (9th Cir. 2006); Murguia-Oliveros, 421 F.3d at 952; Crane, 979 F.2d at 691). Since the Ninth Circuit has addressed this issue, this Court does not need to look to the First Circuit.10

While Defendant admits that in Grant, 727 F.3d at 930, the Ninth Circuit held that the defendant's term of probation was tolled when she assumed fugitive status, Defendant argues that the defendant in Grant did not challenge the general validity of the fugitive tolling doctrine or whether it is applicable in the probation context. Defendant contends that United States v. Nuno-Garza, 365 F. App'x 806 (9th Cir. 2010) (unpublished), is the only Ninth Circuit authority addressing the viability of the fugitive tolling doctrine in light of 18 U.S.C. §§ 3565(c) and 3583(i). In Nuno-Garza, the Ninth Circuit disagreed with a challenge similar to Defendant's, stating "[a]lthough Nuno-Garza asserts the doctrine of fugitive tolling is invalid as a matter of law, this court has recognized the doctrine's validity on multiple occasions. We are bound by those decisions." Nuno-Garza, 365 F. App'x at 807 (citing Delamora, 451 F.3d at 980-81; Murguia-Oliveros, 421 F.3d at 953-54; Crane, 979 F.2d at 691). In Nuno-Garza, the court found that the district court had jurisdiction to revoke Nuno-Garza's supervised release because statutory tolling combined with fugitive tolling extended the term of supervised release beyond the date that the district court revoked the term of supervised release. See Nuno-Garza, 365 F. App'x at 807; see also Grant, 727 F.3d at 930; United States v. Abraham, 2016 WL 4466001 (E.D. Cal. Aug. 22, 2016); United States v. Fields, 2016 WL 6611550 (E.D. Cal. Nov. 9, 2016). Therefore, this Court is bound by the Ninth Circuit's decisions recognizing the validity of the fugitive tolling doctrine.

C. The Fugitive Tolling Doctrine and Pocklington Can Coexist

Defendant argues that the holding in Pocklington cannot be reconciled with continued application of the fugitive tolling doctrine. Defendant asserts that because the Ninth Circuit found that 18 U.S.C. § 3565(c) is jurisdictional, the fugitive tolling doctrine is an invalid attempt to undermine Congress's express limitation of the court's jurisdiction in probation cases. In Pocklington, the defendant's probation expired without probation seeking a warrant or summons. 792 F.3d at 1040-41. The probation office asked the district court to extend probation while the FBI investigated allegations of a probation violation. Id. The Ninth Circuit stated that it has "no authority to create equitable exceptions to jurisdictional requirements." Id. at 1040. In Pocklington, the Ninth Circuit declined to resolve any tension between its prior cases where it applied the fugitive tolling doctrine and the Supreme Court's statements in Bowles v. Russell, 551 U.S. 205, 214 (2007). Pocklington, 792 F.3d at 1040 n.1.

In her supplemental brief, Defendant argues that when a limitations period is jurisdictional, the court cannot modify it, even if there are equitable considerations that would excuse noncompliance. See United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1631 (2015); Albillo-De Leon v. Gonzalez, 410 F.3d 1090, 1095 (9th Cir. 2005). In Kawi Fun Wong, the Supreme Court found that equitable tolling is permissible to toll the Federal Tort Claims Act's ("FTCA") statute of limitations because the FTCA's statute of limitations is not a jurisdictional statute. Kwai Fun Wong, 135 S. Ct. at 1631-32.

In Defendant's supplement, she argues that because Pocklington determined that 18 U.S.C. § 3565(c) is jurisdictional, the Court cannot modify the deadline prescribed by 18 U.S.C. § 3565(c). In its supplemental opposition, the government responds that the reasoning applied in Pocklington only applies to "delayed" revocations. The government argues that this case is not a case of a "delayed" revocation. The government argues that courts only look to 18 U.S.C. § 3565(c) after the end of a probation term. The government asserts that the expiration date of probation has to be calculated using all applicable timing adjustment rules, which includes the fugitive tolling doctrine. The government contends that Section 3565(c) would not begin to operate in this case until the end of the probation term, which according to the Court's calculations is approximately January 26, 2017.

In Grant, the Ninth Circuit held that "Grant's fugitive status tolled her Probation Term from July 2010 until she was found and arrested by federal authorities in April 2012." Grant, 727 F.3d at 931. Further, the Ninth Circuit held that "[t]he time added to her Probation Term extended it well beyond its original expiration date. As a result, the Revocation Hearing occurred during Grant's Probation Term." Id.

In United States v. Schmidt, 99 F.3d 315 (9th Cir. 1996), a defendant serving a three-year period of supervised release challenged revocation proceedings that occurred after the expiration of his original ending date of supervised release. The defendant argued that that the revocation was untimely because the district court did not comply with the delayed revocation provision of the supervised release statute, 18 U.S.C. § 3583(i). Id. at 318. However, the Ninth Circuit held that "the provisions of section 3583(i) apply only when the revocation of supervised release occurs after the term of supervised release has expired." Id. The Ninth Circuit found that tolling while the defendant was imprisoned affected the expiration of the term of supervised release, so that the district court had revoked the defendant's term of supervised release before the term of supervised release was set to expire. Id.

The Ninth Circuit has explained the interplay between the delayed revocation provision for supervised release and the tolling provision for imprisonment on a different crime. See Ahmadzai, 723 F.3d at 1092. The Ninth Circuit held that "the term of supervised release must be understood not as the originally imposed term before tolling, but as the total term after it has been automatically tolled." Id. (internal quotation marks omitted).

Based on the language in Ninth Circuit decisions, the Court finds that with the application of the two-step timing analysis for probation revocation, Defendant's term of probation does not expire until at least January 2017, and only then should the delayed revocation provision, 18 U.S.C. § 3565(c), be consulted. See Grant, 727 F.3d at 931; Schmidt, 99 F.3d at 318. Therefore, the Court does not need to consult 18 U.S.C. § 3565(c), and the fact that Section 3565(c) is jurisdictional does not result in the fugitive tolling doctrine being inapplicable to unsupervised probation. The Court finds that the fugitive tolling doctrine can coexist with Section 3565(c).

The Court finds that Defendant's fugitive status from June 14, 2012, through September 1, 2016, tolled the period of her probation so that the warrant issued by this Court on October 5, 2016, on sworn allegations of probation violations, was timely within the period specified in 18 U.S.C. § 3565(c). Accordingly, the Court retains jurisdiction over the petition for violation of probation and Defendant with regard to the alleged violations.

III.

ORDER

Accordingly, it is HEREBY ORDERED that:

IT IS SO ORDERED.