The majority decision out of the 9th Circuit in  U.S. v. Wing is, I am terribly sorry to say, sound and not terribly exciting. It seems that Michelle Wing, during the time lag between having had her supervised release violated and returning to prison to serve the term imposed, went on a bit of a crime spree passing bad checks. 

She then went to prison and was restored to supervised release. The question was whether she could be violated as well for her crime spree.  The Court held she couldn’t, as it happened during that quirky period where the court’s supervisory control had concluded under her prior stint under supervisory release but before the next one commenced. 

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

Lest anyone forget, nothing precluded Wing from being prosecuted for the crimes themselves, so it’s not like Wing was getting away with anything.  It merely meant that the court couldn’t summarily punish her for violation of supervised release.  It happens.

And so Judge Richard Tallman blew a clot in dissent:

Our story begins in a courtroom. The camera zooms in on the defendant’s table, where a young woman wipes away her tears. The somnolent voice of the narrator, Rod Serling, intones:

Imagine it is June 6, 2008. The location, Missoula, Montana. This is Michelle Wing, a convicted felon who’s in trouble once again. She’s been lying to her probation officer. Routine lies the judge will punish in a routine manner: by revoking supervised release and sending her back to jail for a few short months.

What the judge doesn’t realize, however, is that his act is not merely one of revocation, but of liberation.

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

As the narration fades and Wing leaves the courtroom, the camera follows her. Mystified by her good fortune but happy to exploit it, Wing takes full advantage of the benevolent parameters of this unique parallel dimension. In the three weeks between July 3 and July 23, 2008, alone, she executes eight fraudulent financial transactions totaling $240,000. She spends $600 on toys at Toys “R” Us. She pays a $900 dental bill with a forged check. And, for good measure, she outfits her many fraudulently purchased cars with fraudulently purchased wheels and tires.

The camera soon returns to the courtroom, where Wing’s parole officer is seen pleading with the Montana district judge. The officer tells of Wing’s two-month crime spree. He asks the judge to revoke her supervised release. But the judge —who had thought Wing was still under his supervision—can only stand by helplessly. He cannot punish crimes executed outside his rational world of crime and punishment. He has no jurisdiction over . . . The Twilight Zone.

Perhaps we all have our own vision of the legal Twilight Zone, though I wouldn’t recommend that any criminal defense lawyer share his vision in his next brief by following in the path of Judge Tallman. 

The crux of the dissent’s issue is that one avenue of punishment is foreclosed to the court. Outrageous! Imagine a judge powerless to punish, and forced (how humiliating) to leave it to another judge to do the fun stuff.  Of course, the other judge would also be required to have the prosecution prove guilt first, but then he would be free to sentence at his leisure. 

Word out of the 9th Circuit is to keep a close eye on future decisions, where Judge Tallman will be channeling Love Boat for the majority in affirming an substantially over-guidelines sentence under “the bad guy deserves it” doctrine.