United States of America v. Espinal (Barinas)

Filing

OPINION, affirming the judgment of the district court, by ALK, GC, JAC, FILED.[2088250] [16-2218]

Case 16-2218, Document 65-1, 07/28/2017, 2088250, Page1 of 20
16-2218
USA v. Barinas

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UNITED STATES COURT OF APPEALS

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FOR THE SECOND CIRCUIT

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------

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August Term, 2016

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(Argued: April 24, 2017

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Decided: July 28, 2017)
Docket No. 16-2218

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_________________________________________________________

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UNITED STATES OF AMERICA,
Appellee,

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- v. -

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EDUARDO BARINAS,

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Before: KEARSE, CALABRESI, and CABRANES, Circuit Judges.

Defendant-Appellant.*
_________________________________________________________

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Appeal from a 2016 judgment of the United States District Court for the Eastern

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District of New York, I. Leo Glasser, Judge, finding that defendant violated conditions of supervised

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release imposed on him upon his narcotics trafficking conviction in 1997 in the present case, E.D.N.Y.

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95-CR-00621 ("Barinas I"), and sentencing him to imprisonment for one year and one day, to be

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served consecutively to the sentence imposed on him in 2016--following his extradition to the United

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States and conviction on a new narcotics trafficking charge--in United States v. Barinas,

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No. 08-CR-772 (D.N.J. Mar. 28, 2016) ("Barinas II"). The district court found that defendant violated

*

The Clerk of Court is instructed to amend the official caption to conform with the
above.

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the terms of his supervised release by (1) failing to report to the probation office as directed, (2)

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leaving, without permission, the district in which he was to be supervised, and (3) committing the

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crime of which he was convicted in Barinas II. On appeal, defendant contends that because he was

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extradited to the United States specifically to face the charges in Barinas II, the district court's

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adjudication of supervised-release-violation charges contravened the principle of specialty and that,

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in any event, the narcotics trafficking crime of which he was convicted in Barinas II could not

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properly be the basis for a finding of supervised-release violation because he committed that crime

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after his term of supervision was scheduled to expire. We conclude that defendant lacks prudential

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standing to raise a rule-of-specialty challenge and that his other challenge lacks merit because his

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supervised-release term was tolled while he was a fugitive.
Affirmed.

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MICHAEL T. KEILTY, Assistant United States Attorney, Brooklyn,
New York (Robert L. Capers, United States Attorney for the
Eastern District of New York, Susan Corkery, Assistant United
States Attorney, Brooklyn, New York, on the brief), for
Appellee.

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SAMUEL I. JACOBSON, Assistant Federal Defender, Brooklyn, New
York (Barry D. Leiwant, Federal Defenders of New York, Inc.,
Appeals Bureau, New York, New York, on the brief), for
Defendant-Appellant.

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KEARSE, Circuit Judge:

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Defendant Eduardo Barinas, who in 1997 was convicted in the present case, E.D.N.Y.

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95-CR-00621 ("Barinas I"), of conspiring to possess with intent to distribute crack cocaine in

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violation of 21 U.S.C. § 846 and was sentenced principally to time-served and a five-year term of

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supervised release, appeals from a June 2016 judgment of the United States District Court for the

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Eastern District of New York, I. Leo Glasser, Judge, revoking his supervised release and sentencing

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him to imprisonment for one year and one day, to be served consecutively to the sentence imposed on

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him in 2016--following his extradition to the United States and conviction on new narcotics trafficking

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charges--in United States v. Barinas, No. 08-CR-772 (D.N.J. Mar. 28, 2016) ("Barinas II"). The

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district court found that Barinas had violated the terms of his supervised release by (1) failing to report

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to the United States Probation Department ("Probation") as directed, (2) leaving, without permission,

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the district in which he was to be supervised, and (3) committing the crime of which he was convicted

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in Barinas II. On appeal, Barinas contends principally that because he was extradited to the United

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States specifically to face the Barinas II charges, the district court's adjudication of charges of

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supervised-release violation contravened the principle of specialty, which generally requires a country

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seeking extradition to adhere to limitations placed on prosecution by the surrendering country, see,

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e.g., United States v. Suarez, 791 F.3d 363, 366 (2d Cir. 2015) ("Suarez"), cert. denied, 136 S. Ct. 800

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(2016). He also argues that the narcotics trafficking crime of which he was convicted in Barinas II

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could not properly be the basis for a finding of supervised-release violation because he committed that

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crime after his term of supervision was scheduled to expire. We conclude that Barinas lacks

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prudential standing to raise a rule-of-specialty challenge and that his claim that his supervised-release

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term ended prior to his Barinas II crime lacks merit because that term was tolled while he was a

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fugitive. We thus affirm the judgment.

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I. BACKGROUND

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The relevant facts are not in dispute. In Barinas I, following his plea of guilty, Barinas

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was convicted of conspiring to possess with intent to distribute narcotics in violation of 21 U.S.C.

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§ 846 and was sentenced in March 1997 principally to time-served and a five-year term of supervised

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release. As a mandatory condition of supervised release, Barinas was forbidden to commit any further

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federal or state crime, see 18 U.S.C. § 3583(d). The standard conditions of supervised release

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included the requirements that he report to his Probation officer as directed and that he not leave the

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judicial district in which he was subject to supervision unless he received permission from his

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Probation officer or the court.

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A. The July 1997 Charge of Supervised-Release Violation

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Originally Barinas was to be supervised by the Eastern District of New York ("EDNY")

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Probation office; after he failed to report to that office, Probation learned that he was living at his

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sister's apartment in Yonkers, New York, which is within the Southern District of New York

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("SDNY"). Accordingly, in April 1997 his immediate supervision was transferred to the SDNY

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Probation office. Some two months later, however, the SDNY Probation office notified the EDNY

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Probation office that Barinas had not reported as required since June 13, 1997. Probation then learned

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from Barinas's sister that Barinas had left her home in mid-June after an argument and had never

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returned. Probation was unable to determine Barinas's whereabouts.

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In July 1997, the EDNY Probation office filed a petition in the district court, describing

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the above events and charging Barinas with failing to report to Probation as required. (See Violation

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of Supervised Release Report dated July 30, 1997 ("1997 Violation Report").) On August 1, at the

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EDNY Probation office's request, the court issued a warrant for Barinas's arrest.

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Barinas, a citizen of the Dominican Republic and aware of that arrest warrant, left the

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United States in 1997. (See Supplement to the Violation of Supervised Release Report, dated April

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13, 2016 ("Supplemental Violation Report" or "2016 Violation Report"), at 2 (citing Barinas II

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presentence report describing Barinas's statements to Probation in the District of New Jersey

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("DNJ")).) He did not return until he was extradited from the Dominican Republic in 2013 (see Part

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I.B. below).

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B. Barinas's 2013 Extradition and His 2016 DNJ Conviction

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In late 2007, the United States received information that Barinas was in the Dominican

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Republic and was conspiring to ship cocaine into the United States. Following assistance from

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confidential informants, shipments were intercepted, and in 2008 Barinas was indicted by a DNJ grand

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jury, in Barinas II, on three substantive or conspiracy counts with regard to the importation of cocaine

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into the United States, see 21 U.S.C. §§ 952, 960(a)(1), 960(b)(1)(B), 960(b)(2)(B), and 963, and 18

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U.S.C. § 2. In 2009, pursuant to a 1909 extradition treaty between the United States and the

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Dominican Republic, see Convention Between the United States and the Dominican Republic for the

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Extradition of Criminals, June 19, 1909, 36 Stat. 2468 ("1909 Treaty" or "Treaty"), the United States

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formally requested that the Dominican Republic extradite Barinas to the United States to face those

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charges (see Diplomatic Note No. 268 from the Embassy of the United States of America, Santo
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Domingo, to the Secretariat of State for Foreign Relations of the Dominican Republic dated

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September 3, 2009 ("Diplomatic Note" or "Note")).

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The Note stated that Barinas was "wanted to stand trial in the District of New Jersey

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for narcotics offenses" and listed the three counts alleged in the Barinas II indictment (Diplomatic

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Note at 2), and it recited the basic factual allegations underlying that indictment (see id. at 3). An

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accompanying affidavit by an Assistant United States Attorney summarized the investigation leading

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to the DNJ indictment. (See Affidavit in Support of Request for Extradition dated June 25, 2009.)

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It included descriptions of (a) statements by Barinas, as reported to law enforcement authorities by a

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confidential informant in the Dominican Republic ("CI-DR"), that Barinas was planning to ship

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cocaine from the Dominican Republic to the United States to be received by Barinas's contact in New

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York (see id. ¶¶ 23-25); (b) the cooperation of CI-DR and of another confidential informant in New

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Jersey ("CI-NJ"), including recorded telephone conversations between CI-NJ and Barinas (see id.

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¶¶ 23-34); (c) the arrests, following a series of controlled deliveries, of Barinas's New York contact

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and two other coconspirators (see id. ¶¶ 33-39); and (d) the guilty pleas of those three coconspirators

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(see id. ¶ 40). Neither the Diplomatic Note nor the affidavit mentioned the Barinas I conviction or

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the warrant for Barinas's arrest on the charge of violation of supervised release in Barinas I.

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Barinas was arrested in the Dominican Republic in July 2013 and was extradited to the

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United States that September. In November 2015, after the filing of a one-count DNJ superseding

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information, he pleaded guilty to conspiring to import cocaine into the United States in violation of

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21 U.S.C. § 963. In March 2016, the Barinas II court sentenced Barinas principally to 78 months'

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imprisonment, to be followed by a three-year term of supervised release.

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C. The 2016 Violation Report and 2016 Proceedings in EDNY

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In April 2016, the EDNY Probation office filed its Supplemental Violation Report,

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adding to the charges asserted in its 1997 Violation Report, based on information that had emerged

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during the DNJ prosecution. In addition to the original charge of failure to report to Probation, the

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supplemental report charged Barinas with leaving the judicial district without the permission of the

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Probation officer or the court by traveling to the Dominican Republic (charge 2), and with committing

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another crime, i.e., the Barinas II narcotics importation conspiracy (charge 3).

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Barinas, represented by counsel, promptly moved to dismiss all three supervised-

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release-violation charges against him. He contended that the government's pursuit of any of those

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charges, since they were not mentioned in the extradition request, would violate the rule of specialty.

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He also noted that the second and third charges of supervised-release violation had not even been filed

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before he was extradited.

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The government opposed the motion to dismiss, arguing that only an extraditing

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sovereign has standing to raise a rule-of-specialty objection. In a reply memorandum, Barinas argued

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that even without regard to the rule of specialty, charge 3--violating supervised release by committing

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the Barinas II felony--must be dismissed because his supervised-release period had ended prior to the

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Barinas II offense conduct.

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After hearing oral argument, the district court denied Barinas's motion to dismiss. (See

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Hearing Transcript, June 9, 2016 ("Tr.").) Citing 18 U.S.C. § 3583(i), it rejected Barinas's contention

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that the third charged violation impermissibly focused on conduct that occurred after the end of his

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supervised-release period, stating that "the supervised release is still in existence." (Tr. 10; see id.

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at 9.) And citing precedents of this Court as holding that, "[a]s a matter of international law, the
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principle of specialty has been viewed as a privilege of the asylum state, designed to protect its dignity

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and interests," rather than as a privilege of the defendant (id. at 17), the court ruled that Barinas lacked

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standing to challenge the charges on the ground that they violated the rule of specialty.

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Following that decision and the district court's denial of a motion for an adjournment

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so that Barinas could request a rule-of-specialty objection from the Dominican Republic, Barinas and

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the government entered into the following stipulation:

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1. Eduardo Barinas, the defendant, failed to report to the Probation
Department after June 13, 1997;

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2. Eduardo Barinas, the defendant, traveled to the Dominican Republic
after his last time reporting to the Probation Department on June 13, 1997, and
did not notify the Court or the Probation Department of hi[s] travel;

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3. Eduardo Barinas, the defendant, pled guilty on November 18, 2015,
to a one-count superseding information in the District of New Jersey, charging
that from in or about October 2007 through in or about November 2007, Mr.
Barinas conspired to import cocaine into the United States.

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(Stipulation dated June 10, 2016, at 1.) The parties agreed that in signing the stipulation, Barinas did

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not waive "his right to argue on appeal that the violation of supervised release charges were brought

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in error, or contrary to any law or treaty." (Id.)

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On the basis of the stipulated facts, the district court found all three supervised-release-

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violation charges established. The court revoked Barinas's supervised release and sentenced him to

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imprisonment for one year and one day, to run consecutively to his Barinas II sentence.

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II. DISCUSSION

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On appeal, Barinas principally pursues his contentions (1) that the EDNY supervised-

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release-revocation proceedings violated the rule of specialty, and (2) that the district court lacked

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authority to find a supervised-release violation based on a crime he committed after the scheduled end

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of his supervised-release term. Reviewing issues of law and standing de novo, see, e.g., United States

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v. Baez, 349 F.3d 90, 92 (2d Cir. 2003) ("Baez") (de novo interpretation of extradition agreement and

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application of the rule of specialty); Rajamin v. Deutsche Bank National Trust Co., 757 F.3d 79, 84,

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86 (2d Cir. 2014) (de novo review of application of "prudential standing" rule that "normally bars

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litigants from asserting the rights or legal interests of others in order to obtain relief from injury to

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themselves" (internal quotation marks omitted)); United States v. Harris, 838 F.3d 98, 103-04 (2d Cir.

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2016) (de novo review of statutory construction), cert. denied, 137 S. Ct. 840 (2017), we reject

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Barinas's contentions.

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A. The Rule-of-Specialty Challenge

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Preliminarily, we note that although the United States and the Dominican Republic

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entered into a new extradition treaty in 2015--and that the arguments presented by the parties in the

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district court cited that new treaty--Barinas, as described in Part I.B. above, was extradited in 2013

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pursuant to the 1909 Treaty, and it is the 1909 Treaty that is applicable here. While the 2015 treaty

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supplanted the 1909 Treaty on the 2015 treaty's December 15, 2016 effective date, nothing in the 2015

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treaty suggests that its terms affect previously completed extraditions; indeed, the 2015 treaty states

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that even "requests pending upon entry into force [of the 2015 treaty] shall continue under the
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procedures of the 1909 Treaty supplemented by Article 6 of [the 2015 t]reaty," Extradition Treaty

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Between the Government of the United States of America and the Government of the Dominican

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Republic, art. 21(3), Jan. 12, 2015, T.I.A.S. No. 16-1215, at unnumbered page 14 (emphases added);

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see id. art. 6, at unnumbered page 8 (setting out provisions not relevant here, with regard to

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punishment).

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Under an extradition treaty, the principle of specialty means that an extradited

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defendant "can only be tried for one of the offences described in th[e] treaty [under which he is

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extradited], and for the offence with which he is charged in the proceedings for his extradition."

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United States v. Rauscher, 119 U.S. 407, 430 (1886); see, e.g., United States v. Alvarez-Machain, 504

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U.S. 655, 659 (1992); United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002); Shapiro v.

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Ferrandina, 478 F.2d 894, 905 (2d Cir.) ("Shapiro"), cert. dismissed, 414 U.S. 884 (1973); Fiocconi

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v. Attorney General, 462 F.2d 475, 478-81 (2d Cir.) ("Fiocconi"), cert. denied, 409 U.S. 1059 (1972).

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"'Based on international comity, the principle of specialty generally requires a country seeking

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extradition to adhere to any limitations placed on prosecution by the surrendering country.'" Suarez,

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791 F.3d at 366 (quoting Baez, 349 F.3d at 92). A country that consents to extradite a person has the

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right to enforce such limitations. See, e.g., United States v. Garavito-Garcia, 827 F.3d 242, 246-47

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& n.33 (2d Cir. 2016) ("Garavito"); Suarez, 791 F.3d at 367; Fiocconi, 462 F.2d at 479 n.8, 481.

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However, "'[a] treaty is primarily a compact between independent nations.'" Mora v.

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New York, 524 F.3d 183, 200 (2d Cir.) ("Mora") (quoting Head Money Cases, 112 U.S. 580, 598

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(1884)), cert. denied, 555 U.S. 943 (2008). "[I]nternational treaties establish rights and obligations

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between States-parties--and generally not between states and individuals, notwithstanding the fact that

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individuals may benefit because of a treaty's existence." Mora, 524 F.3d at 200; see, e.g., Medellín
10

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v. Texas, 552 U.S. 491, 506 n.3 (2008) ("[e]ven when treaties are self-executing in the sense that they

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create federal law, the background presumption is that '[i]nternational agreements, even those directly

3

benefiting private persons, generally do not create private rights'" (quoting 2 Restatement (Third) of

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Foreign Relations Law of the United States § 907 comment a, at 395 (1986))); Garavito, 827 F.3d

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at 247 n.33. "If contracting States-parties wish to impose upon themselves legal obligations that

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extend not only to each other, but to all individual foreign nationals, we would ordinarily expect

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expression of these obligations to be unambiguous." Mora, 524 F.3d at 202.

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Accordingly, "[a]s a matter of international law, the principle of specialty has been

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viewed as a privilege of the asylum state, designed to protect its dignity and interests, rather than a

10

right accruing to the accused." Shapiro, 478 F.2d at 906. And because "[t]he provisions in question

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are designed to protect the sovereignty of states, . . . it is plainly the offended states which must in the

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first instance determine whether a violation of sovereignty occurred, or requires redress." United

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States ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir.), cert. denied, 421 U.S. 1001 (1975). Absent

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an express provision in the agreement between the states, any "'individual rights are only derivative

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through the states,'" id. (quoting Restatement (Second) of Foreign Relations Law of the United States

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§ 115 comment e, at 364 (1965)); and "absent protest or objection by the offended sovereign, a

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defendant has no standing to raise the violation of international law," Garavito, 827 F.3d at 246

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(internal quotation marks omitted); see, e.g., Suarez, 791 F.3d at 367; United States v. Reed, 639 F.2d

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896, 902 (2d Cir. 1981).

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In sum, while "[t]he 'principle of specialty' reflects a fundamental concern of

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governments that persons who are surrendered should not be subject to indiscriminate prosecution by

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the receiving government," Fiocconi, 462 F.2d at 481, that principle can afford "the extraditee"
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himself a "remedy only if the surrendering government would object, since the underlying substantive

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wrong, which grows out of international law, is only to the latter," id. at 479-80 n.8. An extraditee

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lacks standing to complain of noncompliance with an extradition treaty unless the "treaty [contains]

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language indicating 'that the intent of the treaty drafters' was that such benefits 'could be vindicated'

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through private enforcement." Garavito, 827 F.3d at 247 (quoting Suarez, 791 F.3d at 367).

6

In the present case, the 1909 Treaty provides that "No person[] shall be tried for any

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crime or offence other than that for which he was surrendered." 1909 Treaty, art. IV, 36 Stat. at 2472.

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It does not state that this provision can be enforced by an individual, and we see no language

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indicating that the Dominican Republic and the United States intended the Treaty to be enforceable

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by individual defendants. Thus, under our existing precedents--which we decline Barinas's invitation

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to overrule--the principle of specialty can be invoked here only by the Dominican Republic, which has

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not lodged any objection to these proceedings. We conclude that the district court did not err in ruling

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that Barinas lacks prudential standing to invoke that principle.

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B. The Challenge to Supervised-Release-Violation Charge 3

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Barinas contends that even if his rule-of-specialty challenge is rejected, we should

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vacate the district court's ruling against him on supervised-release-violation charge 3, i.e., violation

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of the mandatory condition of supervised release by committing the additional federal crime of which

18

he was convicted in Barinas II. The district court ruled that it had authority to adjudicate that charge

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under § 3583(i), which provides that

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[t]he power of the court to revoke a term of supervised release for violation of
a condition of supervised release, and to order the defendant to serve a term of
imprisonment . . . , extends beyond the expiration of the term of supervised
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3
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release for any period reasonably necessary for the adjudication of matters
arising before its expiration if, before its expiration, a warrant or summons has
been issued on the basis of an allegation of such a violation,
18 U.S.C. § 3583(i).

5

Barinas argues that adjudication of charge 3 was beyond the court's authority because

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his Barinas II offense conduct occurred in 2007, after the March 7, 2002 scheduled expiration of his

7

EDNY supervised-release term. (He makes no similar argument with respect to the charge 1

8

allegation of his failure to report to Probation after June 13, 1997, as to which a warrant for his arrest

9

was issued in August 1997, or with respect to the charge 2 allegation of his absconding from the

10

district of supervision in 1997, see generally United States v. Edwards, 834 F.3d 180, 195 (2d Cir.

11

2016) (if, prior to the expiration of the supervised-release period a warrant or summons has been

12

issued, "§ 3583(i), by its terms, extends the post-expiration power of the court, so as to empower

13

courts to adjudicat[e] relevant matters arising before the expiration of supervision" (internal quotation

14

marks omitted)).) As to charge 3, Barinas contends that his "term of supervision was complete by the

15

time of the alleged [Barinas II] conduct" "[a]bsent tolling of the supervised release period during the

16

intervening years." (Barinas brief on appeal at 28, 30 (capitalization omitted).) He urges us to adopt

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the view of the First Circuit in United States v. Hernández-Ferrer, 599 F.3d 63 (1st Cir. 2010)

18

("Hernández"), that there can be no tolling of a supervised-release period on the basis of the

19

defendant's fugitive status (see Barinas brief on appeal at 28-29). We decline to do so, finding more

20

persuasive the majority view that tolling is appropriate, see, e.g., United States v. Buchanan, 638 F.3d

21

448, 455 (4th Cir. 2011) ("Buchanan"); United States v. Delamora, 451 F.3d 977, 978 (9th Cir. 2006),

22

given that the mere "lapse of time . . . does not constitute service of sentence," Anderson v. Corall, 263

13

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U.S. 193, 196 (1923) ("Corall"), and that a defendant is normally not allowed to take advantage of his

2

own misconduct.

3

Supervised release, as authorized by 18 U.S.C. § 3583, is the "form of postconfinement

4

monitoring[,] overseen by the sentencing court," fashioned by Congress with a view to improving a

5

defendant's odds of progressing successfully from prison life to liberty, by

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"eas[ing] the defendant's transition into the community after the service of a
long prison term for a particularly serious offense, or [by] provid[ing]
rehabilitation to a defendant who has spent a fairly short period in prison for
punishment or other purposes but still needs supervision and training programs
after release."

11

Johnson v. United States, 529 U.S. 694, 697, 708-09 (2000) (quoting S. Rep. 98-225, at 124 (1983),

12

reprinted in 1984 U.S.C.C.A.N. 3182, 3307). Some supervised-release conditions, such as the

13

prohibition against committing any further federal or state crime, are mandatory, see 18 U.S.C.

14

§ 3583(d); some are discretionary but considered "standard" in the sense that they are virtually always

15

imposed, such as the requirements that the defendant regularly report to Probation and that he not

16

leave the supervisory jurisdiction without first obtaining permission from Probation or the court; and

17

others are discretionary and closely tailored to the defendant, his offenses, and his personal

18

circumstances. See generally Sentencing Guidelines § 5D1.3. In sum,

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[s]upervised release "is not a punishment in lieu of incarceration."
United States v. Granderson, 511 U.S. 39, 50, 114 S.Ct. 1259, 127 L.Ed.2d
611 (1994). Rather, it "is a unique method of post-confinement supervision,"
Gozlon-Peretz v. United States, 498 U.S. 395, 407, 111 S.Ct. 840, 112 L.Ed.2d
919 (1991), that "fulfills rehabilitative ends, distinct from those served by
incarceration," United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146
L.Ed.2d 39 (2000).
Buchanan, 638 F.3d at 451.

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The court has authority to impose further supervised-release conditions or to revoke

2

supervised release if a defendant fails to comply with the conditions already imposed. See 18 U.S.C.

3

§ 3583(e). "A violation of the terms of supervised release tends to confirm the judgment that help"

4

in adjusting to life out of prison was needed; "and if any prisoner might profit from the decompression

5

stage of supervised release, no prisoner needs it more than one who has already tried liberty and

6

failed." Johnson, 529 U.S. at 709.

7

While § 3583(i) allows the court, as indicated above, a reasonable time beyond the

8

expiration of the supervised-release period where needed to adjudicate charges that a defendant has

9

violated a condition of his supervised release during the supervised-release period, the statutory

10

provisions do not address the court's authority to adjudicate a charge that the defendant absconded

11

during the supervised-release period and while a fugitive committed a prohibited act after the

12

scheduled end of the period. Barinas suggests simply that such fugitivity is irrelevant, and that when

13

the supervised-release period that was imposed has passed, by rote reference to a calendar, supervised

14

release is at an end. We view that approach as inconsistent both with Congress's goals in requiring

15

supervised release and with the "strong federal policy disfavoring fugitives in analogous

16

circumstances," which is based on "the '[d]eeply rooted' maxim 'that no man may take advantage of

17

his own wrong,'" Buchanan, 638 F.3d at 453 n.3 (quoting Glus v. Brooklyn Eastern District Terminal,

18

359 U.S. 231, 232 (1959)). For example, a fugitive is barred from invoking a statute-of-limitations

19

defense. See 18 U.S.C. § 3290 ("No statute of limitations shall extend to any person fleeing from

20

justice."). And a defendant who is a fugitive during the pendency of his appeal may have his appeal

21

dismissed to punish him for absconding, see, e.g., Allen v. Georgia, 166 U.S. 138, 141 (1897), or to

22

deter such escapes by others, see, e.g., Estelle v. Dorrough, 420 U.S. 534, 537-38 & n.7 (1975), or to
15

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deal with other problems caused by a defendant's fugitivity, see, e.g., United States v. Awadalla, 357

2

F.3d 243, 245 (2d Cir. 2004); see generally Ortega-Rodriguez v. United States, 507 U.S. 234, 239

3

(1993) ("It has been settled for well over a century that an appellate court may dismiss the appeal of

4

a defendant who is a fugitive from justice during the pendency of his appeal.").

5

It has also long been established that a defendant who becomes a fugitive is not entitled

6

to credit for the period in which he was in abscondence. See generally Corall, 263 U.S. at 196 (an

7

"[e]scape from prison interrupts service, and the time elapsing between escape and retaking will not

8

be taken into account . . . ." (emphasis added)). In the context of parole--an ancestor of supervised

9

release--we have ruled that a defendant's parole period is tolled when he is a fugitive, and that

10
11
12
13
14

tolling a parolee's sentence for the period during which he is in abscondence
does not "extend" or increase the original sentence. It merely incorporates the
common law rule that lapse of time does not constitute service of sentence and,
hence, stops the sentence from running for that period during which the
offender, through some fault of his own, has failed to serve his sentence.

15

Caballery v. United States Parole Commission, 673 F.2d 43, 46 (2d Cir.) ("Caballery") (emphases

16

added), cert. denied, 457 U.S. 1136 (1982). Caballery involved a provision of the Youth Corrections

17

Act ("YCA") that authorized a youthful offender's early parole, followed by an unconditional

18

discharge "on or before six years from the date of his conviction," 18 U.S.C. § 5017(c) (1982),

19

repealed by Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 218(a)(8), 98 Stat.

20

1837, 2027, and a claim by the defendant that the prescribed six-year period included 14 months

21

during which he had absconded. We rejected his claim that the parole commission's denial of credit

22

for those 14 months pursuant to a recently adopted regulation constituted a violation of the Ex Post

23

Facto Clause because the regulation did not constitute a change in the law, given the "well-established

24

common law principle that '[m]ere lapse of time without imprisonment or other restraint contemplated
16

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1

by the law does not constitute service of sentence.'" Caballery, 673 F.2d at 46 (quoting Corall, 263

2

U.S. at 196). We saw "not the slightest indication in the statute's language or its legislative history

3

that Congress intended to override this common sense lapse-of-time principle when it enacted the

4

YCA." Caballery, 673 F.2d at 46. We also noted that

5
6
7
8
9
10
11
12
13
14
15

[t]he rehabilitative purposes of the YCA quite obviously can only be
achieved if the offender undergoes the treatment and supervision contemplated
by the Act. Yet, under appellant's interpretation of 18 U.S.C. § 5017(c), a
youth offender would be afforded credit for time spent avoiding the very
supervision which was intended to further the beneficial goals of the YCA . . . .
Such an interpretation is patently unreasonable, and would fly in the face of
Congressional intent. There is simply no basis for holding that when Congress
specified a six-year period of rehabilitation, including time spent under parole
supervision, it intended to credit as part of that period whatever time the youth
offender could spend eluding parole authorities.
Caballery, 673 F.2d at 45-46 (emphasis in original).

16

The same reasoning applies to a defendant's abscondence from supervised release. For

17

example, in Buchanan, the Fourth Circuit described similar cases in which it had concluded that a

18

defendant cannot "obtain credit against the [probation] period for any period of time during which he

19

was not, in fact, under probationary supervision by virtue of his own wrongful act"--a view that

20

paralleled the general principle that "when the service of a sentence is interrupted by conduct of the

21

defendant the time spent out of custody on his sentence is not counted as time served thereon." 638

22

F.3d at 452 (internal quotation marks omitted) (emphasis added).

23
24
25
26
27
28

The Buchanan Court applied these traditional principles in the context of fugitives from
supervised release and concluded that
[w]hen a defendant absconds while on supervised release, his absence
precludes the sentencing court from exercising supervision over him. Tolling
is necessary in that instance to ensure that, upon being apprehended, the
defendant will be subject to judicial supervision for a complete term.
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2
3
4
5
6
7

However, that does not mean that a defendant who has absconded thereby
nullifies the terms and conditions of the supervised release order during his
flight. Rather, the terms and conditions remain in effect, and the fugitivedefendant is not at liberty to embark on a "holiday" from them. To the extent
that this result may seem harsh, it is the defendant's own misconduct which
creates it.
Id. at 458. Accord United States v. Delamora, 451 F.3d at 978.

8

We agree. While we do not read § 3583(i) itself as authorizing the tolling of the

9

supervised-release period based on the defendant's fugitive status, we conclude that such tolling is

10

consistent with the traditional principle that an absconder should not benefit from his fugitivity and

11

is consistent with Congress's sentencing scheme of supervision to facilitate the defendant's transition

12

to a law-abiding life in free society.

13

Although the First Circuit in Hernández concluded that the courts lack authority to rule

14

that a period of supervised release has been tolled by the defendant's fugitive status, see 599 F.3d

15

at 67-70, based largely on the fact that another statutory section provides that "[a] term of supervised

16

release does not run during any period in which the person is imprisoned" for another crime for 30 or

17

more consecutive days, 18 U.S.C. § 3624(e) (emphasis added), we are unpersuaded. We do not

18

interpret § 3624(e)'s provision for the tolling of supervised release when the defendant is "imprisoned"

19

as evincing congressional intent that a defendant who absconded from supervised release should be

20

treated as having performed his supervised-release obligations during the period in which he was a

21

fugitive. Accord Buchanan, 638 F.3d at 455-57; United States v. Murguia-Oliveros, 421 F.3d 951,

22

953 (9th Cir. 2005), cert. denied, 546 U.S. 1125 (2006). Such treatment would impede achievement

23

of Congress's stated goals for supervised release. And we typically expect a clearer expression of an

18

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intention to override such longstanding precepts as the principle that a fugitive should not profit by

2

his unlawful or contumacious conduct.

3

We note in addition that even if we were to adopt the First Circuit's views, its ultimate

4

position would afford Barinas little consolation. While Hernández disapproved of tolling, it

5

nonetheless concluded that the "fact that [a post-supervised-release-period] crime cannot itself be

6

deemed a supervised release violation does not mean that it is immaterial," for "as long as a warrant

7

or summons issues before the expiration of the [supervised-release] term" the defendant's post-

8

supervised-release-period "conduct while a fugitive will be considered at sentencing," 599 F.3d at 69

9

(emphases added).

10

Finally, Barinas's suggestion that this Court's decision in United States v. Balogun, 146

11

F.3d 141, 142 (2d Cir. 1998), requires disapproval of tolling is meritless. In that case, we ruled that

12

the district court could not properly impose a condition that the defendant's supervised release be

13

suspended upon his deportation and reinstated if he reentered the United States within 20 years. That

14

is a far cry from the circumstances here in which Barinas was to remain in the United States for

15

supervision and instead fled, in violation of the conditions imposed on him. As Buchanan noted, "the

16

fugitive-defendant's absence arises from his own misconduct. The same cannot be said about a

17

defendant who has been removed from the country by government order." 638 F.3d at 457.

18

Barinas's contention that the court was required to give him credit for the period in

19

which he became a fugitive and escaped supervision would be antithetical to the congressional

20

authorization for, and goals of, supervision. We conclude that the district court did not err in

21

adjudicating supervised-release-violation charge 3, Barinas's commission of the Barinas II crime while

22

he was a fugitive from supervised release.
19

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2
3

CONCLUSION

We have considered all of Barinas's arguments on this appeal and have found in them
no basis for reversal. The judgment of the district court is affirmed.

20