U.S. v. Buchanan

• Decision Date: 08 July 2009
• Docket Number: Criminal No. 1:91cr62.
• Citation: 632 F.Supp.2d 554
• Parties: UNITED STATES of America v. William BUCHANAN a/k/a Kenneth Parker.
• Court: U.S. District Court — Eastern District of Virginia

Page 554

632 F.Supp.2d 554

UNITED STATES of America v. William BUCHANAN a/k/a Kenneth Parker.

Criminal No. 1:91cr62.

United States District Court, E.D. Virginia, Alexandria Division.

July 8, 2009.

Kevin Brehm, Office of the Federal Public Defender, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

This supervised release proceeding presents the question—novel in this circuit— whether a defendant's period of supervised release is tolled for the period the defendant absconds from supervision such that the supervising court retains jurisdiction to adjudicate alleged violations of the supervised release that occur after the expiration of the originally-scheduled period of supervised release, but while defendant remains a fugitive.

Here, defendant, in 1995, was two years into serving a five-year period of supervised release when he was indicted on a state drug trafficking charge in Ohio. As a result, he was placed on bond by the state court and a federal petition on supervised release issued in this district. But before the petition could be adjudicated, defendant violated his state bond and absconded from federal supervision, remaining a fugitive for thirteen years, during which period he allegedly committed additional violations both before and after the originally-scheduled termination of his supervised release.

In these circumstances, defendant contends that there is jurisdiction to adjudicate and punish only the violations alleged in the petition that issued during the period of supervised release, but that there is no jurisdiction to adjudicate the violations alleged in the two addenda which issued after the originally-scheduled end of the five-year supervised release term and which alleged violations that occurred both prior to and after the originally-scheduled end of the supervised release period. The government disagrees, arguing that defendant's term of supervised release was tolled while he was a fugitive from supervision and hence that there is jurisdiction here over all alleged violations.

For the reasons that follow, there is jurisdiction to adjudicate all of the alleged violations.

I.

Resolution of this jurisdictional issue requires a summary of the essential facts and proceedings to date. Thus, the record reflects that on February 12, 1991, defendant, then known as Kenneth Parker,¹ waived his right to an indictment and pled guilty in this district to a criminal information charging him with one count of conspiracy to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. § 846. On April 19, 1991, defendant was sentenced on this offense to 120 months imprisonment—the statutory mandatory minimum—to be followed by five years of supervised release, subject to various standard conditions of supervision. See United States v. Parker, 1:91cr62 (E.D.Va. Apr. 19, 1991) (Judgment in a Criminal Case). Approximately a year later, on April 10, 1992, defendant's 120-month custody sentence was reduced to 30 months on the government's motion for a reduction in defendant's sentence pursuant to Rule 35(b), Fed.R.Crim.P., with all other terms and conditions of defendant's original sentence to remain in full force and effect. See United States v. Buchanan a/k/a Parker, 1:91cr62 (E.D.Va. Apr. 10, 1992) (Order).

Defendant was ultimately released from custody and commenced his five-year period of supervised release in March 1993, with a scheduled expiration date of sometime in March 1998. Because defendant was a resident of Ohio, his supervision was transferred to the Akron Division of the United States Probation Office for the Northern District of Ohio; jurisdiction was nonetheless maintained in the Alexandria Division of the Eastern District of Virginia. In the circumstances, therefore, defendant had a probation officer in Ohio to whom he was required to report on a frequent basis, as well as a probation officer in Virginia who continued to track defendant's supervision by maintaining regular contact with defendant's Ohio probation officer.

Defendant's supervision apparently proceeded without incident until April 5, 1995. On that date, defendant's supervising Virginia probation officer submitted a "Petition on Probation and Supervised Release" (the "Petition") alleging, inter alia, that defendant had violated the terms and conditions of his period of supervised release by incurring a new criminal charge in Ohio. In this regard, defendant's Virginia probation officer learned—nearly a year after it occurred—that defendant had been indicted on state drug trafficking charges in Ohio on May 2, 1994. This indictment was apparently filed against defendant under the name William Buchanan, using the same birth date and social security number as had been recorded in the instant case. Defendant was released on bond in connection with the Ohio indictment, but later failed to appear for trial in the state court on February 13, 1995, resulting in the issuance of a warrant for his arrest. He also absconded from federal supervision. In this respect, the Petition further alleges that defendant (i) failed to report to his supervising Ohio probation officer as directed and (ii) failed to notify his Ohio probation officer within 72 hours of any change in residence or employment. The Petition further notes that defendant's last known personal contact with his Ohio probation officer occurred on January 25, 1995, and thereafter defendant failed to appear for a February 24, 1995 scheduled office appointment with his Ohio probation officer; nor did defendant contact his Ohio probation officer to explain his absence on that occasion. The Ohio probation officer subsequently conducted several home visits to verify that defendant no longer resided at his approved Ohio residence, and in so doing, the Ohio probation officer confirmed that defendant had absconded from supervision and that his whereabouts were then unknown.

Based on the Petition's allegations, a federal arrest warrant issued for defendant on April 13, 1995. Significantly, this warrant remained outstanding for over thirteen years, during which time defendant's whereabouts remained unknown and he was deemed a fugitive by the United States Marshal's Service (USMS). Eventually, on December 27, 2008, defendant was found and arrested by the USMS in Chamblee, Georgia. At the time of his arrest, defendant was driving a U-haul truck in an apparent attempt to evade arrest and flee once again. Additionally, a search of defendant's person incident to this arrest disclosed that he was in possession of six means of false identification, including a false Nevada Driver's License bearing the name Terrence Baker and a birth date of October 13, 1968.

On February 23, 2009, shortly after defendant's arrest in Georgia, an addendum to the Petition ("Addendum I") was filed alleging that, during his thirteen-year absence from federal supervision, defendant had been charged with several additional crimes while using various aliases, all in violation of the terms and conditions of his period of supervised release in this matter. Addendum I set forth the following alleged violations, only the first of which occurred within five years of the commencement of defendant's period of supervised release:

(i) On September 8, 1996, defendant was arrested in Mobile, Alabama for marijuana trafficking. At the time of this arrest, defendant was using the name Christopher Michael Burch, with an alleged birth date of March 5, 1972, and a social security number ending in 7260. Defendant failed to appear at a December 19, 1996 scheduled hearing in that matter, resulting in the issuance of a bench warrant for his arrest.

(ii) On March 5, 2005, defendant was arrested in Springfield, Missouri for possession of a controlled substance, unlawful use of a weapon and distribution, delivery and manufacturing of a controlled substance. On this occasion, defendant was using the name Elton Flowers, with an alleged birth date of April 4, 1975, and a social security number ending in 7903.²

(iii) On January 15, 2008, defendant was arrested in Atlanta, Georgia for driving under the influence (DWI). At the time of this arrest, defendant was using the name Christopher Cooper, with an alleged birth date of February 7, 1977, and a social security number ending in 9134. Defendant failed to appear at a June 4, 2008 court hearing on that charge, resulting in the issuance of a bench warrant for his arrest.

(iv) Finally, on December 27, 2008, defendant was arrested in Atlanta, Georgia for entering an auto or other motor vehicle with intent to commit a theft or felony and financial transaction card fraud. Defendant was again using the name Christopher Cooper on this occasion, but this time with an alleged birth date of December 18, 1971, and a social security number ending in 4482 the same birth date and social security number recorded in the instant case.

Once defendant was brought to this district from Georgia,³ he appeared on March 6, 2009 for a hearing on the allegations set forth in the Petition and Addendum I. At the conclusion of that hearing, the matter was continued to March 27, 2009, to allow defendant and the government the opportunity to present additional witnesses and argument regarding the alleged violations. Moreover, in light of certain testimony presented in the course of the March 6, 2009 hearing, a second addendum to the Petition was filed on March 26, 2009 ("Addendum II"), alleging that in 2008 defendant violated his conditions of supervised release by committing the additional crime of identity theft. This additional alleged violation was based on the fact that on September 24, 2008, Christopher Cooper— the individual whose identity defendant was using at the time of his January 15, 2008 arrest for DWI in Atlanta, Georgia— filed an identity theft report with the State of Georgia Driver's Fraud Division.

The matter then proceeded to an evidentiary hearing...