Fugitive Tolling of Federal Supervised Release

United States v. Swick, 5th Cir., No. 24-10172 (May 15, 2025)

Introduction

United States v. Swick addresses whether the doctrine of “fugitive tolling”—which pauses the countdown of a supervised‐release term when a supervisee absconds—applies in the federal supervised‐release context. After pleading guilty in 2009 to unlawfully possessing a stolen firearm (18 U.S.C. § 922(j)), Wesley Swick was sentenced to 33 months’ imprisonment (concurrent with state time) and two years’ supervised release. Although released from state custody in September 2017, Swick never reported to his federal probation officer as required. Years later, during federal proceedings on a separate felon-in-possession charge, the probation office discovered the omission. The Government moved to revoke Swick’s supervised release, asserting that it had been tolled from the moment he failed to report—i.e., fugitive tolling. The district court agreed and revoked supervision, and the Fifth Circuit affirmed.

Summary of the Judgment

The Fifth Circuit held, first, that the fugitive‐tolling doctrine applies to federal supervised release. Examining the statutory tolling provision in 18 U.S.C. § 3624(e) and the delayed‐revocation rule in 18 U.S.C. § 3583(i), the court concluded that Congress did not clearly foreclose fugitive tolling when it enacted the Sentencing Reform Act of 1984. The panel then applied the common‐law tradition—rooted in the principle that one should not benefit from one’s own wrongdoing—and aligned with four sister circuits (Second, Third, Fourth, Ninth) holding that a supervisee who absconds is “fugitive” for tolling purposes. Second, the court found no clear error in the district court’s factual determination that Swick intentionally failed to report, inferring knowledge from (a) the 2009 judgment’s explicit 72-hour reporting requirement, (b) Swick’s courtroom background, and (c) his own explanation that he thought his term expired in custody (which the court rejected as implausible). Accordingly, Swick’s supervised‐release term was tolled from October 2, 2017, and the revocation was timely.

Analysis

1. Precedents Cited

• Circuit Split: Second Circuit (Barinas, 865 F.3d 99), Third (Island, 916 F.3d 249), Fourth (Buchanan, 638 F.3d 448), Ninth (Murguia-Oliveros, 421 F.3d 951) adopt fugitive tolling for supervised release; First (Hernandez-Ferrer, 599 F.3d 63) and Eleventh (Talley, 83 F.4th 1296) reject it.
• Withdrawn Fifth‐Circuit Opinion: Cartagena-Lopez, 979 F.3d 356 (5th Cir. 2020)—briefly held that fugitive tolling applied by examining 18 U.S.C. §§ 3624(e), 3583(i), and common‐law tradition; vacated as moot but persuasive.
• Supreme Court on Parole Tolling: Anderson v. Corall, 263 U.S. 193 (1923)—tolled parole term while convict served state time for new offense, applying the escape/fugitive principle.
• Probation Tolling Cases: Pre-1984 probation cases (e.g., Lancer, 508 F.2d 719 (3d Cir. 1975); Nicholas, 527 F.2d 1160 (9th Cir. 1976); Workman, 617 F.2d 48 (4th Cir. 1980); Gerson, 192 F. Supp. 864 (E.D. Tenn. 1961)) applied fugitive tolling by analogy to escaped probationers.

2. Legal Reasoning

The court’s reasoning unfolded in two stages:

1. Statutory Construction
   • Expressio unius/Negative Implication: Section 3624(e) expressly tolls supervised release during “imprisonment . . . in any . . . facility” for over 30 days, but does not mention fugitives. This omission does not clearly exclude fugitive tolling, for negative implication requires a clearer indication that Congress intended to foreclose other tolling methods.
   • Delayed Revocation Provision: Section 3583(i) allows revocation “within the maximum term of supervised release” even if the term has expired, presuming that termination may be tolled. That text assumes tolling mechanisms exist.
2. Common‐Law Tradition
   • Rooted in the long‐standing principle that “one should not profit from one’s own wrongdoing,” courts historically tolled parole or probation terms when defendants escaped custody or absconded (e.g., Corall).
   • By 1984, although supervised release was new, the analogous parole/probation tolling tradition was firmly established. The court presumed Congress did not abolish that tradition “sub silentio.”

3. Factual Finding: Fugitive Status

A supervisee becomes a “fugitive” for tolling if he (a) knew of his obligation to report and (b) intentionally evaded supervision. Reviewing the district court’s finding for clear error, the Fifth Circuit found it plausible that Swick knew his reporting duty—affirmed by the 2009 judgment’s explicit 72-hour requirement and the judge’s own recollection—and rejected Swick’s professed misunderstanding that his term expired while incarcerated. Having no competing explanation, the court sustained the revocation.

4. Impact

• Fifth Circuit Alignment: The decision brings the Fifth Circuit into the majority of circuits recognizing fugitive tolling for supervised release, reducing forum shopping.
• Revocation Jurisdiction: District courts may invoke fugitive tolling to extend the supervised‐release term from the moment a supervisee absconds, even if the term would otherwise expire.
• Supervisee Compliance: Defendants must remain apprised of reporting obligations; probation offices may strengthen release-preparation protocols and document imparted duties to avoid jurisdictional challenges.
• Legislative Clarity?: Congress, if it opposes fugitive tolling in supervised release, may need to amend §§ 3624(e) or 3583(i) to expressly preclude absconder‐based tolling.

Complex Concepts Simplified

• Supervised Release: A post‐prison monitoring period imposed by federal courts (18 U.S.C. § 3583). Violations may lead to revocation and further imprisonment.
• Tolling: Pausing the countdown of a statutory or contractual period—for instance, a supervised‐release term—so that days during a specified condition do not count toward the total.
• Fugitive Tolling: A subset of tolling triggered when a supervisee knowingly absconds from supervision, preventing the term from running while at large.
• Expressio Unius: A canon of statutory interpretation meaning that the express mention of one thing may imply the exclusion of others.
• Negative Implication: Inferring legislative intent to exclude methods or circumstances not expressly mentioned, but only when the statute’s text and context so demand clearly.
• Common-Law Tradition: Pre-existing judicial principles and practices (e.g., courts historically tolled parole/probation for absconders) that Congress is presumed to respect unless it states otherwise.

Conclusion

United States v. Swick firmly establishes in the Fifth Circuit that supervised‐release terms are tolled by fugitive conduct. The decision harmonizes the circuit split in favor of a doctrine rooted in both common‐law tradition and the remedial purpose of supervised release: to ensure that defendants do not avoid accountability by simply disappearing. Moving forward, courts will apply fugitive tolling when supervisees intentionally evade reporting, and probation offices should bolster procedures to notify and document release obligations. Absent clear congressional action to the contrary, fugitives will not see their supervised‐release clocks run while they are at large.