Saturday, June 23, 2012

Case o' The Week: A Wing and a Prayer, Supervised Release Violations

Imagine, if you will, a judicial opinion that narrates hypothetical serial murders in the voice of Rod Serling. 

You have now entered . . . the Ninth Circuit Court of Appeals. United States v. Wing, 2012 WL 2354447 (9th Cir. June 21, 2012), decision available here.

Players: Decision by DJ Moskowitz. Big win for Montana AFPD John Rhodes. Interesting dissent by Judge Tallman.

Facts: Michelle Wing was convicted of embezzlement in Montana and received a term of supervised release following prison. Id. at *1. After Wing left custody, violations ensued. A Form 12 resulted in revocation, more prison and a second term of supervised release. Id. 

Five months later, Wing was indicted in Washington for different crimes, based on conduct that predated the second term of supervised release. Id.  

The Montana probation officer filed a new Form 12, seeking to violate the second term of supervised release because of the Washington crimes (again, crimes that predated the imposition of the second term of supervised release, but that took place during her first term of supervised release). Id. Wing unsuccessfully challenged the district court’s jurisdiction to violate the second term of supervised release, based on conduct that predated the imposition of the term. Id. at *2.

Issue(s): “The issue before us is whether, under 18 U.S.C. § 3583, a district court has jurisdiction to revoke a future term of supervised release based upon newly discovered violations of conditions of a past term of supervised release. We have not located any reported decisions addressing this issue under the current version of the statute.” Id. at *2.

Held:In this matter of first impression, we conclude that a district court lacks jurisdiction under 18 U.S.C. § 3583(e)(3) to revoke a term of supervised release based on newly discovered violations of a previously revoked term of supervised release . . . .” Id. at *1. 

“In 18 U.S.C. § 3583, Congress has established a scheme where separate and distinct terms of supervised release may be imposed upon a repeat offender of supervised release conditions. Each term has its own conditions as well as its own beginning and end (either by termination or revocation). This statutory scheme leads us to conclude that once a term of supervised release has been revoked, a later-discovered violation of a condition of that term cannot form the basis of a revocation of a subsequent term of supervised release.” Id. at *3.

Of Note: We disagree with the legal thrust of the dissent, but commend it to your reading for its Rod Serling narration. Id. at *12 (Tallman, J. dissenting). We quote: 

Wing will now begin an iniquitous journey through space and time. Her companion on this journey will be fraud. Her route, embezzlement. That’s a signpost up ahead; her next stop: The Twilight Zone.


Judge Tallman complains that “for villains like Wing, [gaps in supervised release] present a metaphysical netherworld constrained only by the outer limits of criminal imagination.” Id. 

 The dissent ends when the “screen transitions to the setting of our final scene.” Id. at *17. “Patty” (a fictional female federal inmate) strangles two other prisoners and leaves the third in a coma after a savage beating. Id. Patty’s federal “parole officer” [presumably a Probation Officer?] is helpless to save society from Patty’s reign of terror. Id.; but see id. at *10 & n.8 (observation in majority decision that because Prison Patty is actually not on supervised release while incarcerated hypothesized murders could never be supervised release violations).

How to Use: Judge Moskowitz’s majority decision lacks the dissent’s sense of drama. Read it nonetheless: it is a beautiful legal analysis of supervised release generally and the true meaning of the controlling statutes. Id. at *3. Wing is a very good primer for supervised release overall, outside of this narrow legal issue.      
For Further Reading: Finished reading the 1,573 pages of crim-law decisions that came down last week? Any correlation with the schedules of the law clerks, stressing over August departure dates and being pushed to clear their plates? For an interesting insight into the Ninth’s clerkship mix – and hiring schedules – see blog here.

Image of "The Twilight Zone" from 
Image of  Peppermint Patty from

Steven Kalar, Senior Litigator ND Cal FPD. Website at


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