Tuesday, August 30, 2005

US v. Murguia-Oliveros,

No. 04-50612 (8-29-05). "The Fugitive" was about the dogged pursuit of a doctor wrongfully convicted of murdering his spouse. In "The Fugitive 2: Revenge of the Tolling", the defendant as on SR for an illegal reentry. One of the conditions was that he wasn't supposed to return illegally etc. Well, his PO caught wind that he had been arrested on an unrelated charge, and sent a certified letter to him stating he should report to the PO. Right. In fact, the defendant didn't show up, and in January of 2004, the court issued a bench warrant. This warrant was not based on an affidavit or sworn facts. Defendant's SR expired in September of '04, and he was arrested in November of '04. He argued that because the warrant wasn't based on sworn facts, as is required for arrest after the SR term expires, the defendant couldn't be charged with violation. Vargas-Amaya, 389 F.3d at 907. The 9th wasn't about to reward a defendant a "get out of jail" free pass because of this, and so holds that the period of time he absconded and became a fugitive (the 8 mos) tolled the SR term, and so it was still running at the time of his arrest and revocation hearing. The 9th explains that "fugitive status" occurs when the defendant absconds. It points to Crane, 979 F.2d 687 (9th Cir. 1992), where a defendant walked away from a halfway house, and the 9th concluded that the term was tolled when he stopped serving the terms of SR by leaving the place he was supposed to serve it. The 9th doesn't go so far as to say that when the defendant left Mexico to return to the US, the SR term was tolled (although it could be read that way), but it was his failure to report when ordered by his PO (p. 11701) to do so. Defendant argues that tolling is too severe a sanction, but the 9th disagrees.


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