Amicus Curiae Brief — Isabel Rico, Petitioner v. United States

No. 24-1056

In the

Supreme Court of the United States

_________

ISABEL RICO,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

_________

AMICUS BRIEF ON BEHALF OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN

SUPPORT OF PETITIONER

_________

Adeel M. Bashir*

Jeffrey L. Fisher

Eleventh Circuit Vice

National Co-Chair

Chair

NACDL Amicus Curiae

NACDL Amicus Curiae

Committee

559 Nathan Abbott Way Committee

Stanford, CA 94305

400 N. Tampa Street

Suite 2660

Tampa, FL 33602

adeel_bashir@fd.org

703-835-3929

Counsel for Amicus Curiae

August 21, 2025

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................. iv

INTEREST OF AMICUS CURIAE................... 1

SUMMARY OF THE ARGUMENT .................. 2

ARGUMENT ..................................................... 4

I. No Common-law Principle Supports

the Government’s Punitive Expansion

of Fugitive Tolling to Supervised

Release. ................................................... 4

A. The maxim “no man may take

advantage of his own wrong”

operates as an equity principle to

deny wrongdoers unearned

benefits, not to impose

punishment........................................ 5

B. Related equity doctrines confirm

that the no-profit maxim prevents

unfair advantages without

imposing punishment........................ 8

C. True fugitive tolling reflects

equity’s core principle by denying

unearned benefits without

creating additional punishment. ...... 12

D. The government’s theory violates

the no-profit maxim........................... 14

II. The Government’s Theory

Contravenes Core Doctrines of

Criminal Law. ......................................... 21

iii

TABLE OF CONTENTS—Continued

Page

A. Due Process ....................................... 21

B. Double Jeopardy ................................ 27

C. Sixth Amendment ............................. 29

CONCLUSION .................................................. 32

TABLE OF AUTHORITIES

Page

Cases:

Anderson v. Corall, 263 U.S. 196 (1923) ..... 13, 14

Apprendi v. New Jersey, 530 U.S. 466

(2000)....................................................... 29

Artis v. District of Columbia, 583 U.S. 71

(2018)....................................................... 10

Bailey v. Glover, 88 U.S. 342 (1874) ............ 8

Bein v. Heath, 6 How. 228 (1848) ................ 7

California Pub. Employees’ Retirement

System v. ANZ Sec., Inc., 582 U.S. 497

(2017)....................................................... 8

Cathcart v. Robinson, 30 U.S. 264 (1831) ... 7

Crawford v. Washington, 541 U.S. 36

(2004)....................................................... 11

Credit Suisse Securities (USA) LLC v.

Simmonds, 566 U.S. 221 (2012) ............. 8

Deweese v. Reinhard, 165 U.S. 386 (1897) .. 6

Dolan’s Case, 101 Mass. 219 (1869) ............ 13

Dunne v. Keohane, 14 F.3d 335 (7th Cir.

1994) ........................................................ 13

Escoe v. Zerbst, 295 U.S. 490 (1935)............ 14

Esteras v. United States, 145 S. Ct. 2031

(2025)....................................................... 21

v

TABLE OF AUTHORITIES—Continued

Page

Ex parte Lange, 85 U.S. 163 (1873) ............. 27

Giles v. California, 554 U.S. 353 (2008) ..... 11

Glus v. Brooklyn Eastern District

Terminal, 359 U.S. 231 (1959) ............... 8

Holmberg v. Armbrecht, 327 U.S. 392

(1946)....................................................... 8

Iavorski v. INS, 232 F.3d 124 (2d Cir.

2000) ........................................................ 9

Illinois v. Allen, 397 U.S. 337 (1970) ........... 11

Johnson v. Yellow Cab Co., 321 U.S. 383

(1944)....................................................... 6

Johnson v. United States, 529 U.S. 694

(2000) ...................................................... 15

Keystone Driller Co. v. Gen. Excavator

Co., 290 U.S. 240 (1933) ......................... 6

Kolender v. Lawson, 461 U.S. 352 (1983).... 22

Lord Morley’s Case, 6 How. St. Tr. 769

(H.L. 1666) .............................................. 11

Lozano v. Montoya Alvarez, 572 U.S. 1

(2014)....................................................... 10

vi

TABLE OF AUTHORITIES—Continued

Page

McDonald v. Lee, 217 F.2d 619 (5th Cir.

1954) ........................................................ 12, 13

Molina-Martinez v. United States, 578

U.S. 189 (2016) ....................................... 20

Mont v. United States, 587 U.S. 514

(2019) ...................................................... 15, 22,

25

Morissette v. United States, 342 U.S. 246

(1952)....................................................... 21

Mut. Life Ins. Co. v. Armstrong, 117 U.S.

591 (1886) ............................................... 6

Pappas v. Pappas, 320 A.2d 809 (Conn.

1973) ........................................................ 6

Precision Instrument Manufacturing Co.

v. Automotive Maint. Mach. Co., 324

U.S. 806 (1945) ....................................... 7

Rehaif v. United States, 588 U.S. 225

(2019)....................................................... 22, 27

Reynolds v. United States, 98 U.S. 145

(1878)....................................................... 11

Riggs v. Palmer, 115 N.Y. 506 (1889).......... 6

vii

TABLE OF AUTHORITIES—Continued

Root v. Lake Shore & M.S. Ry. Co., 105

U.S. 189 (1881) ....................................... 6

Page

Rosales-Mireles v. United States, 585 U.S.

129 (2018)................................................ 20

Sherwood v. Sutton, 21 F. Cas. 1303

(C.C.D.N.H. 1828) ................................... 9

Simon & Schuster, Inc. v. Members of

New York State Crime Victims Board,

502 U.S. 105 (1991)................................. 5, 6

Streep v. United States, 160 U.S. 128

(1895)....................................................... 12, 22

Talbot v. Jansen, 3 U.S. 133 (1795)............. 7

United States v. Barinas, 865 F.3d 99 (2d

Cir. 2017) ............................................... 4

United States v. Benz, 282 U.S. 304

(1931) ...................................................... 27

United States v. Bescond, 24 F.4th 759 (2d

Cir. 2021) ................................................ 24

United States v. Buchanan, 638 F.3d 448

(4th Cir. 2011) ......................................... 4

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. Haymond, 588 U.S. 634

(2019)....................................................... 15, 29

United States v. Ibarra, 502 U.S. 1 (1991) .. 10

United States v. Island, 916 F.3d 249 (3d

Cir. 2019) ................................................ 4

United States v. Juan-Manuel, 222 F.3d

480 (8th Cir. 2000) .................................. 20

United States v. Liddy, 510 F.2d 669 (D.C.

Cir. 1974) ................................................ 13

United States v. Morgan, 922 F.2d 1495

(10th Cir. 1991) ....................................... 12

United States v. Murguia-Oliveros, 421

F.3d 951 (9th Cir. 2005) ......................... 4

United States v. Scott, 437 U.S. 82 (1978) .. 27

United States v. Talley, 83 F.4th 1296

(11th Cir. 2023) ....................................... 14, 15,

16, 18, 20

United States v. Vladimirovich, 2025 WL

2101184 (2d Cir. 2025) ........................... 24

Walden v. Heirs of Gratz, 14 U.S. 292

(1816)....................................................... 9

ix

TABLE OF AUTHORITIES—Continued

Page

White v. Pearlman, 42 F.2d 788 (10th Cir.

1930) ........................................................ 13

WinMark Ltd. Partnership v. Miles &

Stockbridge, 345 Md. 614 (1997) ............ 7

Statutes, Guidelines, and Rules:

1 Stat. 119 (1790) ......................................... 12

18 U.S.C. § 921 ............................................. 22

18 U.S.C. § 1073 ........................................... 22

18 U.S.C. § 3290 ........................................... 12, 22

18 U.S.C. § 3583 ........................................... 16, 17,

18, 19, 20, 23, 28, 29

U.S.S.G. § 7B1.1 ........................................... 19

Fed. R. Crim. P. 32.1 .................................... 16

Other Authorities:

Fiona Doherty, Indeterminate Sentencing

Returns: The Invention of Supervised

Release, 88 N.Y.U. L. Rev. 958 (2013) ... 24

Hale, The History of the Pleas of the

Crown (1726) ........................................... 5

x

TABLE OF AUTHORITIES—Continued

Herbert Broom & R.H. Kersley, A

Selection of Legal Maxims (10th ed.

1939) ........................................................ 5

Page

H.G. Wood, Statutes of Limitations (2d ed.

1893) ........................................................ 9

James John Wilkinson, A Treatise on the

Limitation of Action (1829) .................... 9

Joseph Story, Commentaries on Equity

Jurisprudence (1836) .............................. 9

Joseph Story, Commentaries on Equity

Jurisprudence as Administered in

England and America (W.H. Lyon ed.,

14th ed. 1918) ......................................... 7

Ori J. Herstein, A Normative Theory of

the Clean Hands Defense, 17 Legal

Theory 171 (2011) ................................... 8

T. Leigh Anenson, Announcing the “Clean

Hands” Doctrine, 51 U.C. Davis L.

Rev. 1827 (2018) ..................................... 7

USSC, Federal Probation and Supervised

Release Violations (July 28, 2020) .......... 17

USSC, Quick Facts – Supervised Release

(FY 2024) ................................................. 19

xi

TABLE OF AUTHORITIES—Continued

Page

USSC, Reader‑Friendly Version of Final

2025 Amendments to the Sentencing

Guidelines (Apr. 30, 2025) ...................... 23

USSC, Supervised Release Toolkit:

Research and Data.................................. 19

William Blackstone, Commentaries on the

Laws of England (1766).......................... 5

INTEREST OF AMICUS CURIAE

Founded in 1958, the National Association of

Criminal Defense Lawyers (NACDL) is a nonprofit

voluntary professional bar association that works on

behalf of criminal defense attorneys to ensure justice

and due process for those accused of crime or

misconduct. It has a nationwide membership of many

thousands of direct members, up to 40,000 with

affiliate members. NACDL’s members include private

criminal defense lawyers, public defenders, military

defense counsel, law professors, and judges. NACDL

is the only nationwide professional bar association for

public defenders and private criminal defense

lawyers. NACDL is dedicated to advancing the proper,

efficient, and just administration of justice. NACDL

files many amicus briefs each year in this Court, and

other federal and state courts, seeking to provide

amicus assistance in cases presenting issues of broad

importance to criminal defendants, criminal defense

lawyers, and the criminal justice system. 1

NACDL’s interest in this case centers on three

critical concerns: (1) the fundamental equity

principles that constrain judicial expansion of

criminal sentences; (2) the constitutional protections

that safeguard defendants from vague and arbitrary

punishment; and (3) the practical enforcement

problems that undermine supervised release’s

rehabilitative purposes.

NACDL agrees with Petitioner that there is no

common-law fugitive tolling doctrine that resembles

1

No persons or entities other than amici, their members, or

their counsel authored this brief, in whole or in part, or made a

monetary contribution to this brief’s preparation or submission.

2

the government’s supervised-release fugitive tolling

theory, and that, more fundamentally, common-law

principles cannot support increasing criminal

sentences without congressional authorization. See

Pet. Br. 33–34, 44–47. This brief offers a

complementary analysis demonstrating why the

government’s fugitive tolling theory in the context of

supervised release misapplies centuries-old equity

principles and violates core criminal law protections.

NACDL’s perspective draws on extensive experience

representing defendants in supervised release

proceedings across all federal circuits, providing

practical insights into how the government’s theory

operates inequitably and undermines Congress’s

carefully designed supervised release framework.

SUMMARY OF THE ARGUMENT

The equitable doctrine of fugitive tolling draws on

the ancient maxim that no one should profit from their

wrongdoing. It also reflects common sense: the law

should not let a wrongdoer disappear into the night

only to come back better off in the morning. Here is

how the principle works: it pauses the clock—stopping

the sentence (or statute of limitations) from running—

then restarts it when the fugitive returns. Nothing

more.

The government’s fugitive tolling theory in the

context of supervised release, however, bears no

resemblance to this equitable principle. The

government’s theory is something else altogether,

parting ways with equity in two distinct ways.

First, the government applies fugitive tolling where

there is no profit to prevent. Unlike prison escapees

3

who stop serving their sentences, supervised-release

absconders remain bound by every condition, no

matter where they are, subject to revocations for even

non-criminal violations. These safeguards block any

potential benefit that absconders might gain.

Second, the government uses tolling to punish. It

allows the supervision clock to run throughout the

abscondment: a three-year supervision term becomes

four or more. It then uses that extra time as a

springboard for higher ranges under the Federal

Sentencing Guidelines and longer prison terms. This

converts a fixed period of supervision into an openended vehicle for increased punishment, flipping

equity and the no-profit maxim on its head.

This betrayal of equity principles also collides with

bedrock criminal law protections. It offends due

process by giving no clear notice of what counts as

absconding or when supervision ends, inviting

arbitrary enforcement akin to what the void-forvagueness doctrine forbids. It triggers double

jeopardy concerns by increasing a sentence after it

was imposed and had become final, outside Congress’s

statutory scheme. And it raises Sixth Amendment and

separation-of-powers concerns by letting probation

officers, prosecutors, and courts, not juries, extend

supervision past statutory limits.

Equity and the no-profit maxim have always been a

shield against unfair advantage, not a weapon for

expanded punishment. The Court should reject the

government’s novel supervised-release fugitive tolling

theory that finds no grounding—and indeed flouts—

this centuries-old maxim.

4

ARGUMENT

I.

No Common-law Principle Supports the

Government’s Punitive Expansion of

Fugitive Tolling to Supervised Release.

Proponents of fugitive tolling in supervised release

frequently invoke the maxim that no one should profit

from their own wrongdoing as support. 2 Yet they

misunderstand the maxim, and their reliance on it is

misplaced.

History shows that the no-profit maxim operates by

preventing unjust advantages and denying unearned

benefits. But properly understood, the maxim does not

authorize new punishment. Indeed, no equitable or

common-law principle supports increasing a sentence

simply because a defendant becomes a fugitive after

sentencing.

The government’s supervised-release fugitive tolling

theory breaks with every principle of equity and the

common law. It applies fugitive tolling to supervisee

absconding where no benefit exists. And it creates

punishment in two unprecedented ways: first, by

extending supervised release beyond its scheduled

end; and second, by using post-expiration conduct to

enhance Guidelines ranges. In doing so, the

government’s theory results in a Schrodinger’s cat

scenario: supervised release is both suspended and

unsuspended, depending on which status yields a

2 See, e.g., United States v. Barinas, 865 F.3d 99, 107 (2d Cir.

2017) (invoking the no-profit maxim to apply fugitive tolling to

supervised release); see also United States v. Island, 916 F.3d

249, 253–54 (3d Cir. 2019); United States v. Buchanan, 638 F.3d

448, 455 (4th Cir. 2011); United States v. Murguia-Oliveros, 421

F.3d 951, 954 (9th Cir. 2005).

5

harsher outcome. This theory defies the no-profit

maxim’s core distinction between preventing

unearned benefits and imposing punishment beyond

existing legal consequences.

A. The maxim “no man may take

advantage of his own wrong” operates

as an equity principle to deny

wrongdoers unearned benefits, not to

impose punishment.

The longstanding maxim that “no man may take

advantage of his own wrong”—Nullus commodum

capere potest de injuria sua propria—has anchored

common law equity for centuries. See 1 Hale, The

History of the Pleas of the Crown 482 (1726); Herbert

Broom & R.H. Kersley, A Selection of Legal Maxims

191 (10th ed. 1939). Early commentators understood

the maxim as an equitable principle preventing

wrongdoers from earning unjust legal advantages

rather than imposing punishment. See id. Blackstone,

for example, shows this protective function through

the fraudulent conveyance doctrine, where transfers

made to cheat creditors are void. 2 William

Blackstone, Commentaries on the Laws of England,

Ch. 30 (1766). The doctrine illustrates the no-profit

maxim that shields against unjust advantages but

does not act as a sword to impose additional

punishment.

American courts have “long recognized the

fundamental equitable principle that no one shall be

permitted to profit by his own fraud, or to take

advantage of his own wrong, or to found any claim

upon his own iniquity, or to acquire property by his

own crime.” Simon & Schuster, Inc. v. Members of

New York State Crime Victims Board, 502 U.S. 105,

6

119 (1991) (cleaned up). Early cases established the

principle that a wrongdoer should not “make a profit

out of his own wrong.” Root v. Lake Shore & M.S. Ry.

Co., 105 U.S. 189, 207 (1881). 3

This principle underlies established doctrines like

Slayer’s Rule, which prohibits murderers from

collecting their victims’ life insurance proceeds. See,

e.g., Riggs v. Palmer, 115 N.Y. 506, 511–12 (1889)

(denying Palmer his inheritance because he murdered

his grandfather to prevent a will challenge based on

the principle that “[n]o one shall be permitted to profit

by his own fraud, or to take advantage of his own

wrong…”). 4 Slayer’s Rule reflects how all equity

doctrines operate, “not by way of punishment but on

considerations that make for the advancement of right

and justice.” Pappas v. Pappas, 320 A.2d 809, 811

(Conn. 1973) (citing Johnson v. Yellow Cab Co., 321

U.S. 383, 387 (1944)).

Another well-known expression of the no-profit

maxim is the unclean hands doctrine. English

3 See also Keystone Driller Co. v. Gen. Excavator Co., 290 U.S.

240, 244–45 (1933) (stating the governing principle that courts

are shut to parties whose prior conduct “has violated conscience,

or good faith, or other equitable principle” (citation omitted));

Deweese v. Reinhard, 165 U.S. 386, 390 (1897) (affirming the

principle that a “court of equity acts only when and as conscience

commands; and, if the conduct of the plaintiff be offensive to the

dictates of natural justice, then, whatever may be the rights he

possesses, and whatever use he may make of them in a court of

law, he will be held remediless…”).

4 See also Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591, 600

(1886) (stating that “[i]t would be a reproach to the jurisprudence

of the country if one could recover insurance money payable on

the death of the party whose life he had feloniously taken.”).

7

barrister Richard Francis first developed this

conception in his 1728 book “Maxims of Equity,”

articulating the principle that “[h]e that hath

committed iniquity shall not have equity.” T. Leigh

Anenson, Announcing the “Clean Hands” Doctrine, 51

U.C. Davis L. Rev. 1827, 1847 (2018). This doctrine

has “served the justice system for more than three

centuries,” preventing wrongdoers from taking unfair

advantage of their misconduct. Id. 5

American courts adopted this principle just after the

founding, Talbot v. Jansen, 3 U.S. 133 (1795), and

within half a century described it as “well settled,”

Cathcart v. Robinson, 30 U.S. 264, 276 (1831). The

doctrine is “rooted in the historical concept of court of

equity as a vehicle for affirmatively enforcing the

requirements of conscience and good faith,” and

operates through a principled “refusal on its part to be

‘the abetter of iniquity.’” Precision Instrument

Manufacturing Co. v. Automotive Maint. Mach. Co.,

324 U.S. 806, 814–15 (1945) (citing Bein v. Heath, 6

How. 228, 247 (1848)). And like all doctrines deriving

from the no-profit maxim, it “is not applied for the

protection of the parties nor as a punishment to the

wrongdoer; rather, the doctrine is intended to protect

the courts from having to endorse or reward

inequitable conduct.” WinMark Ltd. Partnership v.

Miles & Stockbridge, 345 Md. 614, 628 (1997).

5 For instance, Joseph Story remarks that “[a]ny willful act in

regard to a matter in litigation, which would be condemned and

pronounced wrongful by honest and fair-minded men will be

sufficient to make hands of the application unclean.” Joseph

Story, Commentaries on Equity Jurisprudence as Administered

in England and America § 99 (W.H. Lyon ed., 14th ed. 1918).

8

Taken together, these principles form the

foundation of all no-profit doctrines, ensuring

wrongdoers do not benefit from their misdeeds

without adding punishment. See Ori J. Herstein, A

Normative Theory of the Clean Hands Defense, 17

Legal Theory 171, 195–96, 199–200 (2011).

B. Related equity doctrines confirm that

the no-profit maxim prevents unfair

advantages without imposing

punishment.

Other well-known equitable doctrines also reflect

the principles embodied by the no-profit maxim,

guarding against unjust advantage without creating

or increasing punishment.

Consider the related doctrine of equitable tolling.

This Court has explained that equitable tolling rules

flow directly from the principle that “no man may take

advantage of his own wrong.” Glus v. Brooklyn

Eastern District Terminal, 359 U.S. 231, 232–33

(1959). The doctrine is “deeply rooted in AngloAmerican history, deriving from the courts’

traditional equitable powers, designed to modify a

statutory time bar where its rigid application would

create injustice.” California Pub. Employees’

Retirement System v. ANZ Sec., Inc., 582 U.S. 497, 507

(2017); see also Holmberg v. Armbrecht, 327 U.S. 392,

397 (1946); Bailey v. Glover, 88 U.S. 342, 349 (1874). 6

6 Courts require that “a litigant seeking equitable tolling bears

the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Credit Suisse Securities (USA)

LLC v. Simmonds, 566 U.S. 221, 227 (2012).

9

Originally, “there was no limitation as to the time

within which an action might be brought,” reflecting

the maxim “that a right never dies.” James John

Wilkinson, A Treatise on the Limitation of Action 2

(1829). Over time, however, the “abuses from stale

demands became so great as to be unendurable,”

prompting English legislators to create statutes of

limitations. 1 H.G. Wood, Statutes of Limitations § 2,

at 6 (2d ed. 1893). American colonists “founded” their

own statutes of limitations using these English

statutes as a guide. Walden v. Heirs of Gratz, 14 U.S.

292, 297 (1816). Yet despite the justifications for these

limitation periods, courts of equity quickly began

permitting exceptions to them, even when those

exceptions were not “within the letter” of the statute.

Sherwood v. Sutton, 21 F. Cas. 1303, 1308

(C.C.D.N.H. 1828) (Story, J.). 7

Equitable tolling prevents defendants from profiting

through misconduct while preserving the protective

character that defines all proper equity applications.

Courts apply equitable tolling when defendants have

concealed fraud, explaining that “where fraud or

concealment of the existence of a claim prevents an

individual from timely filing, equitable tolling of a

statute of limitations is permitted until the fraud or

concealment is, or should have been, discovered.”

Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). The

doctrine thus operates as a shield protecting

legitimate claims against defendant manipulation,

7 Justice Story, for example, instructed that “Courts of Equity

[should] not refuse their aid in furtherance of the rights of the

party,” when there are “peculiar circumstances . . . excusing or

justifying the delay.” 1 Joseph Story, Commentaries on Equity

Jurisprudence § 529, at 503–04 (1836).

10

not as a sword extending time periods beyond their

authorized scope, underscoring the essential

limitation that governs all applications of the noprofit maxim.

This Court has consistently interpreted tolling,

including in various contexts informed by equitable

tolling, as a mechanism that pauses or suspends the

running of time periods without extending them

beyond their original limits. See Artis v. District of

Columbia, 583 U.S. 71, 80–81 (2018) (“tolled,” in the

statutory context, means “that the limitations period

is suspended (stops running) while the claim is sub

judice elsewhere, then starts running again when the

tolling period ends, picking up where it left off.”); see

also id. at 81 (providing that the Court’s “decisions

employ

the

terms

‘toll’

and

‘suspend’

interchangeably.”).

This consistent understanding shows that tolling

functions as a protective pause, preventing injustice

without adding time to impose punishment. Equitable

tolling “effectively extends an otherwise discrete

limitations period set by Congress,” doing so only to

restore the plaintiff’s position without the injustice.

Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014).

When applied, “the time remaining on the clock is

calculated by subtracting from the full limitations

period whatever time ran before the clock was

stopped.” United States v. Ibarra, 502 U.S. 1, 4 n.2

(1991). In this way, all tolling doctrines deny

advantages from misconduct while avoiding

punishment beyond what the law originally allows

under the no-profit maxim.

11

Forfeiture by wrongdoing provides another example

of the no-profit principle in operation. This ancient

doctrine “permit[s] the introduction of statements of a

witness who was ‘detained’ or ‘kept away’ by the

‘means or procurement’ of the defendant.” Giles v.

California, 554 U.S. 353, 359 (2008) (citing Lord

Morley’s Case, 6 How. St. Tr. 769, 771 (H.L. 1666)).

Reynolds v. United States, 98 U.S. 145 (1878),

explains the basic rule, which rests on the no-profit

maxim: while “[t]he Constitution gives the accused

the right to a trial at which he should be confronted

with the witnesses against him,” when “a witness is

absent by his wrongful procurement, he cannot

complain if competent evidence is admitted to supply

the place of that which he has kept away.” Id. at 158.

Crawford v. Washington, 541 U.S. 36 (2004),

emphasized that forfeiture by wrongdoing rests on

“essentially equitable grounds.” Id. at 62.

The doctrine thus embodies the no-profit maxim by

neutralizing the unfair advantage a defendant would

otherwise gain by removing adverse witnesses, while

maintaining the original confrontation framework. In

this way, it restores balance without extending

punishment or adding new disadvantages beyond

those flowing from the defendant’s own misconduct. 8

8 Another example of this principle is a defendant’s Sixth

Amendment right to be present, which he forfeits if he is so

disruptive that he must be removed from the courtroom. Having

forfeited that right, he cannot later profit by claiming that the

trial violated it. See Illinois v. Allen, 397 U.S. 337, 343 (1970).

12

C. True fugitive tolling reflects equity’s

core principle by denying unearned

benefits without creating additional

punishment.

Building on these principles, true fugitive tolling

operates under the same equitable logic: it denies

defendants unearned advantages without imposing

additional punishment. For example, the First

Congress exempted fugitives from the first federal

statute of limitations: “Nothing herein contained shall

extend to any person or persons fleeing from justice.”

1 Stat. 119 (1790). 9

Nearly a century later, Streep v. United States, 160

U.S. 128 (1895), explained that this rule operates

according to equitable principles. Id. at 133. There,

the Court explained that defendants who flee “with

the intention of avoiding being prosecuted” cannot

“benefit” from the statute of limitations. Id. Streep

thus illustrates how the no-profit maxim functions,

making sure defendants gain no procedural

advantage from flight (like invoking the statute of

limitations as a defense) while imposing no additional

punishment beyond the denial of that unearned

benefit.

In time, courts applied similar logic to fugitives in

the custodial context through the continuous sentence

rule, which provides that “a prisoner has a right to

serve his sentence continuously, and c[ould not] be

required to serve it in installments.” McDonald v. Lee,

9 This provision, codified at 18 U.S.C. § 3290, has “remained

virtually unchanged since it was enacted by the First Congress

in 1789” and reflects “the generally accepted rule of law.” United

States v. Morgan, 922 F.2d 1495, 1497 n.1 (10th Cir. 1991).

13

217 F.2d 619, 623 (5th Cir. 1954). This rule

safeguarded against governmental manipulation: the

state could not delay sentence completion by

“postponing the commencement of the sentence or by

releasing the prisoner for a time and then

reimprisoning him.” Dunne v. Keohane, 14 F.3d 335,

336 (7th Cir. 1994).

At the same time, courts recognized that “a

continuous sentence may be interrupted by some fault

of the prisoner,” United States v. Liddy, 510 F.2d 669,

674–75 (D.C. Cir. 1974), such as “escape” or “violation

of parole,” White v. Pearlman, 42 F.2d 788, 789 (10th

Cir. 1930). This balance reflects how the no-profit

maxim operates, shielding prisoners from state abuse

while denying them advantage from their misconduct,

ensuring the sentence runs as imposed.

Anderson v. Corall, 263 U.S. 196 (1923), articulates

this principle across custodial sentences, including

both prison and parole. There, the Court held that

“[m]ere lapse of time without imprisonment or other

restraint contemplated by the law does not constitute

service of sentence.” Id. at 196. Consequently, when

prisoners escape, Anderson explained, “time elapsing

between escape and retaking will not be taken into

account or allowed as a part of the term.” Id. (citing

Dolan’s Case, 101 Mass. 219, 223 (1869) (“Expiration

of time without imprisonment is in no sense an

execution of sentence”)). And while parole represents

“an amelioration of punishment, it is in legal effect

imprisonment” because the “convict is bound to

remain in the legal custody and under the control of

the warden until the expiration of the term.” Id.

14

These applications show that true fugitive tolling

“does not increase the total length of a sentence. It

simply pauses and then restarts the clock, such that

the original end date of the sentence is pushed down

the road for however long the clock was stopped.”

United States v. Talley, 83 F.4th 1296, 1301 (11th Cir.

2023). Fugitive tolling, in other words, preserves the

sentence without adding to it, reflecting the limits of

the no-profit maxim, especially in the criminal

context. See id. at 1302.

D. The government’s theory violates the

no-profit maxim.

Against this backdrop, the government’s claim that

its supervised-release fugitive tolling theory comports

with established common-law principles falls apart.

Rather than seeking a legitimate extension of fugitive

tolling based on equity, it pushes an unprecedented

expansion that breaks with equity in two key ways: by

applying it where no unearned benefit exists and by

imposing punishment rather than denying advantage.

No Benefit: As explained, equity and the no-profit

maxim apply when wrongdoers gain unfair benefit. So

the no-profit maxim may well be invoked when

discussing traditional fugitive tolling in the custodial

setting because custodial defendants gain measurable

benefits through flight. See Anderson, 263 U.S. at

196–97. Prison escapees stop serving their sentences,

while parolees, who remain “in legal effect

imprisonment” and “bound to remain under the

control of his parole supervisor,” interrupt lawful

custody and avoid completing their terms. Id.; see also

Escoe v. Zerbst, 295 U.S. 490, 492 (1935) (explaining

15

that probation and parole were considered nothing

more than an “act of grace”).

Supervised release, however, operates through a

different architecture that eliminates comparable

benefits. It is “a form of postconfinement monitoring”

that permits “conditional liberty” rather than

temporal custody that can be interrupted. Mont v.

United States, 587 U.S. 514, 523 (2019). And it is

designed “to assist individuals in their transition to

community life” and “fulfill rehabilitative ends,

distinct from those served by incarceration.” Johnson

v. United States, 529 U.S. 694, 709 (2000). In contrast

to parole, supervised release “wasn’t introduced to

replace a portion of the defendant’s prison term, [but]

only to encourage rehabilitation after the completion

of his prison term.” United States v. Haymond, 588

U.S. 634, 652 (2019) (plurality).

“Unlike a sentence of imprisonment, a sentence of

supervised release imposes restraints contemplated

by the law that a defendant must follow no matter

where he is physically located.” Talley, 83 F.4th at

1302 (cleaned up). Congressional design thus binds

the supervisee to all conditions regardless of location

or compliance, leaving no custodial time to evade and

foreclosing the type of sentence-shortening advantage

that traditional fugitive tolling prevents.

Fair enough, absconding supervisees might seem to

gain some advantage by evading reporting

requirements and day-to-day monitoring. But this

apparent benefit is illusory. The supervisee remains

subject to legal consequences for any such evasion

throughout the authorized supervision term. Put

another way, while absconders may temporarily avoid

16

monitoring, this comes at the cost of triggering other

legal sanctions that render fugitive tolling both

unnecessary and inequitable.

Specifically, when defendants violate supervision

conditions, the court may continue supervision by

extending the term or modifying its conditions, or it

may revoke the offender’s term of supervision. See 18

U.S.C. § 3583(e)(2). And when revocation happens,

the court may send the defendant to prison for “all or

part of the term of supervised release authorized for

the offense that resulted in such term of supervised

release without credit for time previously served on

postrelease supervision.” Id. § 3583(e)(3). 10

As a result, “an offender who flees supervision in

violation of his supervision conditions will not evade

his sentence or otherwise benefit from his

misconduct.” Talley, 83 F.4th at 1302–03. “Instead,

that violation grants the sentencing court authority to

revoke the absconder’s supervised release and

resentence him to a term of imprisonment.” Id. at

1303. Therefore, far from providing an advantage,

absconding triggers the same consequences as any

other violation subject to revocation, making any

apparent benefit illusory.

Consider Petitioner’s case, where her 2018

abscondment provided no benefit comparable to

custodial escape. She remained continuously subject

to all supervision conditions throughout the flight

period, with abscondment itself constituting a Grade

10 The Federal Rules require hearings before modification,

ensuring due process while maintaining continuous

accountability. See id.; Fed. R. Crim. P. 32.1(c).

17

C violation sufficient for revocation. Her flight

eliminated no legal obligations, avoided no

consequences, and shortened no supervision term. It

simply triggered violation procedures that could

result in imprisonment as allowed by her original

judgment.

Congress reinforced this framework by providing

mechanisms to address post-expiration revocation

through 18 U.S.C. § 3583(i), which lets courts

adjudicate matters arising before expiration for “any

period reasonably necessary.” As for concerns about

evading accountability in the waning days of

supervision, empirical evidence confirms the absence

of any such strategic advantage. For example,

Sentencing Commission data shows violations

typically occur within the first 22 months of

supervision, contradicting any theory of strategic lateterm manipulation. See USSC, Federal Probation and

Supervised Release Violations (July 28, 2020). 11 Even

in the rare instances of late-term violations, amicus’s

research identifies no empirical or anecdotal support

for the type of strategic advantage that traditional law

fugitive tolling addresses. 12 The statutory incentive

11 See id. at 4 (providing that supervisees who violated their

conditions of supervision typically did so within the first two

years), https://tinyurl.com/yu78bwmt.

12 Moreover, having surveyed defense attorneys representing

supervised releasees across federal districts nationwide, amicus

can confirm that abscondment categorically fails to benefit

supervisees. Defense counsel report that absconders face

cascading consequences: employment termination due to

inability to report to work, loss of housing assistance, severed

family relationships, and complete disruption of rehabilitative

programming. Far from gaining advantage, absconders

invariably find themselves in worse circumstances: homeless,

18

structure forecloses this manipulation because

successful supervisees may petition for early

termination, while violators face revocation and reimprisonment. See § 3583(e).

In short, absconding from supervised release

provides no unearned benefit to deny. The

government’s theory thus fails at the threshold: the

no-profit maxim cannot apply where no profit is

gained.

Added punishment: Beyond operating where no

benefit exists, the government’s theory inverts the noprofit maxim and equity’s character by imposing

additional punishment rather than preventing

advantage.

First, the government’s theory extends supervised

release terms beyond their scheduled end dates. This

effectively adds years to the originally imposed

sentences, which is textbook added punishment.

Traditional fugitive tolling in custodial contexts

ensures defendants serve the correct sentence term by

pausing the clock during flight. For example, when a

prisoner escapes for two years, those two years are

added back to ensure the whole sentence is served as

imposed. See Talley, 83 F.4th at 1303 (“[T]he fugitive

tolling doctrine…is meant to ensure that an original

sentence is served, not to increase a sentence’s

length.”).

The government’s theory operates differently: it

extends supervision beyond what a sentencing court

unemployed, and isolated from support systems essential for

successful reintegration.

19

originally imposed with no intervening judicial

proceeding. A straightforward example proves the

point.

Suppose a court sentences a defendant to a term of

imprisonment followed by three years on supervised

release. 13 Suppose further the defendant absconds

during year two and remains missing until year six.

The government’s theory keeps the defendant under

supervision for the entire four-year flight when the

supervised release term was allegedly tolled. This

effectively stretches the original three-year term into

six years—adding three extra years beyond what the

court imposed—all by operation of the fugitive tolling

doctrine. That increases the sentence. See § 3583(a)

(providing that supervised release is a part of a

sentence). And that is added punishment.

Second, the government’s theory allows for actions

after the scheduled supervision end dates to support

revocation and can increase Guidelines ranges under

U.S.S.G. § 7B1.1(a). Under this approach, while

abscondment is only a Grade C violation, courts can

rely on post-expiration conduct that qualifies as

Grade A or Grade B violations. See id. The

government’s theory thus transforms tolling from an

equity principle designed to deny unearned benefits

into a punitive device that inflates punishment

through temporal extension of the supervised release

13 In fiscal year 2024, courts imposed average supervision

terms of 47 months. In nearly sixty percent of cases the court

imposed three years to less than five years of supervised release.

See USSC, Quick Facts – Supervised Release (FY 2024),

https://tinyurl.com/rmf5dz4b. The median term of supervision

was 36 months. See USSC, Supervised Release Toolkit: Research

and Data, https://tinyurl.com/yhwwnn9x.

20

term

combined

calculations.

with

enhanced

Guidelines

This Court has emphasized that Guidelines ranges

exert a “critical anchoring effect” in sentencing

determinations, serving as a “meaningful benchmark”

that influences both “the initial determination of a

sentence and through the process of appellate review.”

Molina-Martinez v. United States, 578 U.S. 189, 198–

99 (2016); Rosales-Mireles v. United States, 585 U.S.

129, 133 (2018). This anchoring effect means that

higher Guidelines ranges typically result in greater

punishment than would otherwise be imposed. The

government’s theory produces this punitive

consequence. Yet equity forbids this. 14

In the end, the government’s theory creates a type of

Schrodinger’s supervision, whereby defendants exist

in a dual state of being subject to supervision

conditions for violation purposes while exempt from

those same conditions for tolling purposes, depending

on whether the government seeks enhanced

punishment or an extended end-of-supervision term. 15

14

To be clear, district courts may consider post-violation

conduct when imposing revocation sentences, which leaves

defendants in the same position as any other supervised release

violator. See § 3583(e); see also Talley, 83 F.4th at 1303 (noting

that the “district court could have imposed the same

consequence…without resorting to fugitive tolling…”). The

problem with the government’s theory is that it impermissibly

bootstraps post-expiration conduct to enhance Guidelines ranges

while simultaneously extending supervision terms through

tolling.

15 Cf. United States v. Juan-Manuel, 222 F.3d 480, 487 (8th

Cir. 2000) (“a supervised release order cannot simultaneously be

suspended and actively in effect.”).

21

In this way, its rule violates equity’s core principle by

trying to have it both ways, creating unearned

prosecutorial

benefits

through

punishment

mechanisms that equity prohibits. 16

II.

The Government’s Theory Contravenes

Core Doctrines of Criminal Law.

On top of departing from centuries-old equity

principles, the government’s theory runs headlong

against core protections that have governed criminal

law since the founding. By inverting equity and the

no-profit maxim from a shield into a sword, the

government’s theory undermines due process and

mens rea requirements, violates finality and double

jeopardy, and raises serious Sixth Amendment and

separation of powers concerns, all conflicting with the

measured restraint equity was meant to secure.

A. Due Process

American criminal law rests on bedrock principles:

no one may be punished without fair notice of

prohibited conduct, and no one may be punished

without proof of a culpable mental state. Morissette v.

United States, 342 U.S. 246, 251–52 (1952). The voidfor-vagueness doctrine enforces these principles by

requiring that criminal laws “define the criminal

16 The result also runs counter to Esteras v. United States, 145

S. Ct. 2031 (2025), in which this Court recently emphasized that

supervised release serves rehabilitative rather than retributive

purposes and that revocation proceedings may not consider

backward-looking punishment reasons. See id. at 2040-41. By

using tolling to allow revocation based on post-supervision

conduct, the government’s theory further strips supervised

release of its rehabilitative function and shifts it towards a

punishment tool.

22

offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and

[that they] do not encourage arbitrary and

discriminatory enforcement.” Kolender v. Lawson, 461

U.S. 352, 357 (1983). There is also a “longstanding

presumption, traceable to the common law, that

Congress intends to require a defendant to possess a

culpable mental state regarding each of the statutory

elements that criminalize otherwise innocent

conduct.” Rehaif v. United States, 588 U.S. 225, 229

(2019).

The government’s theory violates these principles in

two interrelated ways: defendants cannot know what

conduct triggers absconding, and they cannot know

when their supervision ends. Together, these failings

produce the standardless, arbitrary punishment our

criminal system was designed to prevent.

First, the government’s theory runs up against basic

due process requirements of notice and knowledge,

thus inviting arbitrary enforcement.

In the custodial setting, fugitivity is easy to

understand. Streep, for example, explains that one

who flees “with the intention of avoiding being

prosecuted” is a fugitive. 160 U.S. at 133. Statutory

definitions reinforce this understanding: fugitives

“move or travel” to avoid prosecution, 18 U.S.C.

§ 1073; “flee from any State,” § 921(a)(15); or “flee

from justice,” § 3290.

Supervised release is different. It is served in the

community under “conditional liberty” aimed at

reintegration, not physical restraint. Mont, 587 U.S.

at 523. Unsurprisingly then, § 3583 does not use the

23

words “fugitive,” “absconding,” or “fleeing,” let alone

define them. Common law likewise offers no

comparison to supervised release’s community-based

conditional liberty.

The lack of defined terms and disconnect from the

common law creates an acute notice problem and

invites arbitrary enforcement. Because supervision is

not necessarily associated with physical confinement,

conduct later reclassified as “absconding” often

consists of ordinary condition violations: missing

appointments, failing to disclose associations, or

leaving the jurisdiction. Defendants understand these

acts can lead to revocation, but they do not necessarily

have a basis to believe the same conduct could extend

their supervision indefinitely.

The nature of supervision conditions compounds the

uncertainty. Congress mandates only a handful of

required conditions: not committing another crime,

making restitution (if ordered), and refraining from

unlawful possession of controlled substances. See

§ 3583(d). All others are discretionary, such as

association limits, financial disclosure requirements,

or location restrictions. And as the Sentencing

Commission’s 2025 amendments emphasize, courts

are encouraged to take an individualized approach to

setting conditions, stressing that conditions “should

be imposed only when warranted by an individualized

assessment” and that even “standard” conditions

“may be modified, omitted, or expanded” as

appropriate. 17

17 See USSC, Reader‑Friendly Version of Final 2025

Amendments to the Sentencing Guidelines (Apr. 30, 2025),

https://tinyurl.com/26ycpzzj.

24

Because discretionary conditions vary widely,

identical conduct can yield vastly different legal

consequences. One supervisee might be considered

absconding for being near a prohibited location;

another, without that restriction, faces no

consequence. Failing to disclose a financial interest,

speaking to a restricted associate, temporarily leaving

the state (especially near a state line or border), or

missing a single check-in could all be recharacterized

as evasion. For many defendants, however, such acts

are either permitted or addressed through ordinary

violation procedures. Furthermore, probation officers

have “broad discretion in choosing how strictly to

enforce particular conditions and how to respond to

violations.” Fiona Doherty, Indeterminate Sentencing

Returns: The Invention of Supervised Release, 88

N.Y.U. L. Rev. 958, 1014 (2013). Layering this

discretion over undefined “fugitive” standards

produces precisely the arbitrary enforcement

Kolender forbids.

The ambiguity deepens when constructive flight

concepts enter the picture. At common law, there were

two categories: (1) traditional fugitives—people who

flee the jurisdiction; and (2) constructive-flight

fugitives—people who refuse to submit to the court’s

jurisdiction. United States v. Bescond, 24 F.4th 759,

771–72 (2d Cir. 2021); United States v. Vladimirovich,

No. 24-2038-CR, 2025 WL 2101184, at *5 (2d Cir. July

28, 2025).

Terms like “evading” or “concealment” sound

concrete in the custodial setting, but prove elusive

when applied to supervision. For example, does failing

to report a temporary move count? What about

25

leaving the state for a day when one lives near a

border? Or how about hiding a line of credit or a social

media account? These questions lack clear answers in

the supervised-release context.

The problem emerges not so much when defendants

disappear or abandon jurisdictions completely, but in

common situations involving missed appointments or

temporary absences. In amicus’s experience, most

cases involve defendants who miss several reporting

sessions due to work demands, family emergencies, or

transportation difficulties, particularly as supervision

terms near the end. With individualized conditions,

evading monitoring or constructive concealment can

mean hiding information that other defendants may

simply fail to disclose. But under the government’s

theory, any of these routine compliance failures,

which statutory design addresses through established

violation procedures, become vehicles for indefinite

supervision extensions through fugitive tolling.

The uncertainty worsens when supervisees cannot

tell whether their term has ended. 18 Exit interview

practices illustrate the problem. Some districts

conduct formal exit interviews near the end of

supervision, marking the term’s conclusion. Others do

not, relying instead on informal signals or no contact.

18 While Mont acknowledged that uncertainty about time

credited during pretrial detention “matters little,” the Court’s

analysis rested on a tolling mechanism built into the statutory

framework itself, providing notice through established legal

processes. See Mont, 587 U.S. at 526–27.

Here, however, uncertainty exists because courts can apply

tolling based on undefined administrative determinations that

lack statutory guidance or procedural safeguards.

26

In some offices, reduced communication in the final

months is an accepted sign of successful reintegration;

in others, it is treated as evasion. Absent statutory

standards, such administrative variability means

that identical conduct may end supervision in one

jurisdiction but extend it indefinitely in another.

Practices vary a lot among districts and even among

probation officers within the same district. Some

officers interpret reduced reporting near the end of

supervision as acceptable or routine; others see it as

defiance. Two identically situated supervisees may

receive opposite designations, with one declared free

and the other retroactively branded a fugitive.

Take two defendants sentenced to identical threeyear terms with the same standard conditions. Both

stop reporting six months before their scheduled end

dates and move for employment opportunities.

•

Person A develops good rapport with his

probation officer, who recognizes stable

employment as proof of reintegration. Reduced

contact follows local practice where continued

monitoring fades. No fugitive finding is made;

when Person A commits a new offense a few

months later, he faces only new charges.

•

Person B engages in identical conduct but has

an officer who treats the reduced contact as

defiance. That officer considers him to have

“absconded,” tolling his supervision. A few

months after his scheduled end date, Person B

faces new charges and revocation.

This disparate enforcement is particularly troubling

because it operates through administrative

27

determinations by probation officers, not judicial or

jury findings. A defendant’s liberty turns on whether

their particular probation officer characterizes missed

appointments as non-compliance or absconding, with

no statutory guidance to constrain this discretion.

Differences like these can emerge between districts or

even within the same district based on individual

probation practices. As a result, under the

government’s theory, a defendant who reasonably

believes his term has ended can have ordinary, lawful

conduct recharacterized as a violation, converting

innocent acts into revocable offenses or aggravating

factors under the Guidelines. Cf. Rehaif, 588 U.S. at

233 (describing knowledge as essential in “separating

innocent from wrongful conduct”).

B. Double Jeopardy

The government’s theory also raises double jeopardy

concerns. The primary purpose of the Double

Jeopardy Clause “was to protect the integrity of a final

judgment.” United States v. Scott, 437 U.S. 82, 92

(1978). Hence, under long-established law, once a

sentence has been imposed and fully entered, a court

cannot later increase the punishment. As United

States v. Benz, 282 U.S. 304 (1931), explains, while a

court may amend a sentence to mitigate punishment

during the term in which it was imposed, it may not

increase the sentence without violating the Fifth

Amendment’s Double Jeopardy Clause. See id. at 306–

07; see also Ex parte Lange, 85 U.S. 163, 176 (1873)

(once a defendant has “fully suffered” the punishment

allowed by law, “the power of the court to punish

further was gone”).

28

The issue here is not that absconding cannot be

punished. It can. Congress also created a complete

statutory process for modifying, extending, or

revoking supervision (see § 3583(e)(2)–(3), (i)), each of

which carries its own statutory and rule-based

protections.

The government’s theory, however, bypasses this

process. Its rule increases punishment based on postsentencing conduct without using the framework

Congress provided.

Consider the example from Part I.D., supra: a

defendant receives a three-year term of supervision,

absconds in year two, and is found in year six. Under

the government’s theory, the three-year term imposed

by the sentencing court becomes a six-year one, not

through a statutory revocation framework, but by

operation of fugitive tolling. This effectively changes

the judgment the sentencing judge originally imposed.

By analogy, suppose that a court imposed a five-year

prison sentence that became final, and the defendant

subsequently escaped. If the court were to increase

the sentence to six years, that change would present

a clear double jeopardy problem. The same logic

applies to supervised release because supervised

release is “a part of the sentence.” § 3583(a).

Thus, whether a prison sentence or a term of

supervised release, applying fugitive tolling to extend

a sentence that the court has already imposed and

finalized imposes additional punishment for the same

offense. This raises serious double jeopardy concerns.

29

C. Sixth Amendment

Finally, the government’s theory implicates both the

Sixth Amendment and core separation-of-powers

principles.

The Sixth Amendment requires jury findings for

any fact (other than a prior conviction) that increases

punishment beyond the statutory maximum.

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Haymond applied this principle to supervised release,

recognizing that “an accused’s final sentence includes

any supervised release sentence he may receive” and

that “supervised release punishments arise from and

are ‘treat[ed] ... as part of the penalty for the initial

offense.’” 588 U.S. at 648.

Congress set clear limits on supervised release. For

a Class A or Class B felony, not more than five years;

for a Class C or Class D felony, not more than three

years; and for a Class E felony, or for a misdemeanor

(other than a petty offense), not more than one year.

See § 3583(b). Congress reinforced these temporal

constraints in § 3583(h), which provides that even

when supervised release is revoked and reimposed

following imprisonment, “the length of such a term of

supervised release shall not exceed the term of

supervised release authorized by statute for the

offense that resulted in the original term of supervised

release, less any term of imprisonment that was

imposed upon revocation of supervised release.”

§ 3583(h).

The government’s theory circumvents these

constitutional and legislative constraints through a

layered administrative process that erodes the jury’s

30

role. Probation officers first determine fugitive status

through administrative assessment, then courts apply

tolling based on that determination, extending

supervision terms that can later support enhanced

Guidelines ranges and longer imprisonment. This

multi-step expansion of punishment—first through

executive determination of fugitive status, then

through judicial application of tolling, finally through

enhanced sentencing based on post-expiration

conduct—removes the jury even further from the

punishment enhancement process than the statutes

this Court scrutinized in Haymond. The result

extends the supervised release term imposed in the

original judgment well beyond what the sentencing

court authorized and what Congress permitted.

The practical effect risks violating both

constitutional protections and legislative design: a

defendant sentenced to the five-year maximum for a

Class A felony could find supervision extended to ten,

fifteen, or twenty years based only on non-jury

fugitive findings. This extension operates without the

procedural safeguards Congress required and

effectively usurps legislative authority by allowing

the executive and judiciary together to impose

punishment that the legislature never authorized.

To be clear, nothing here suggests that courts cannot

punish absconding conduct under the existing

statutory framework, that a jury is required for every

fugitive determination, or that revocation is

unavailable for violations involving leaving the

jurisdiction or failing to report. The concern is when

undefined, preponderance-based fugitive findings

extend the supervision imposed in the original

31

judgment well beyond Congress’s statutory limits—

sometimes by decades—not through any statutory

processes or judicial proceeding, but by operation of

the government’s novel supervised-release fugitive

tolling. That type of tolling effectively usurps

legislative authority and raises serious Sixth

Amendment and separation of powers concerns.

***

These problems flow directly from the government’s

misuse of equity principles. By transforming

protective equity doctrines into punitive tools, the

government’s theory not only betrays centuries of

common law but also undermines key safeguards that

constrain criminal punishment. This Court should

reject that attempt to invent a novel tolling doctrine

under the guise of equity, as it undermines the very

common-law principles the government claims to

invoke.

32

CONCLUSION

For all the reasons and those in Petitioner’s brief,

amicus urges this Court to rule in Petitioner’s favor.

Respectfully submitted,

Adeel M. Bashir*

Eleventh Circuit Vice

Chair

NACDL Amicus Curiae

Committee

400 N. Tampa Street

Suite 2660

Tampa, FL 33602

adeel_bashir@fd.org

703-835-3929

Counsel for Amicus Curiae

August 21, 2025

*Counsel of Record