United States v. Brow ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY CHARLES BROWN,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:99-cr-70105-jlk-1)
Submitted: March 10, 2010 Decided: March 26, 2010
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Remanded by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Craig J.
Jacobsen, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On July 27, 1999, a state court in Danville, Virginia,
charged Anthony Charles Brown with transporting one ounce or
more of cocaine into Virginia with the intent to distribute.
After his release on $50,000 bond, Brown failed to appear for a
hearing on September 14, 1999, and a warrant was issued for his
arrest. On November 18, 1999, a federal grand jury sitting in
Roanoke, Virginia, indicted Brown on one count of knowingly and
intentionally possessing with intent to distribute more than
five grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). An arrest warrant for Brown was issued the next
day, and remained in effect until Brown was apprehended in New
York over eight years later, on March 5, 2008.
Following Brown’s apprehension, the federal grand jury
issued a superseding indictment charging him with knowingly and
intentionally possessing with intent to distribute more than
fifty grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A) (2006). Brown moved to dismiss the
superseding indictment as violating the five year federal
statute of limitations, see 18 U.S.C. § 3282(a) (2006), and
because it broadened the charges against Brown by increasing the
amount of cocaine base attributed to him. Following an
evidentiary hearing, the district court denied the motion. Two
days later, Brown pled guilty to Count One in the superseding
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indictment without the benefit of a plea agreement. The
district court sentenced Brown to 188 months imprisonment, and
Brown noted a timely appeal.
On appeal, Brown raises several challenges, the first
of which is that the district court should have granted his
motion to dismiss the indictment as time-barred. This court
reviews de novo a motion to dismiss an indictment as time-barred
when the motion is based upon a question of law, rather than on
the existence of the facts contained in the indictment. United
States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,
1398 (4th Cir. 1993).
The statute of limitations for non-capital crimes is
five years. See 18 U.S.C. § 3282(a). Brown’s offense occurred
in 1999, and the superseding indictment against him was filed in
2008, more than five years after the offense. Before the
district court, the Government argued that this superseding
indictment was nonetheless timely because (1) it related back to
the original 1999 indictment and (2) the statute of limitations
was tolled because Brown was a fugitive from justice.
The district court, in denying the motion to dismiss,
concluded that the original indictment related back to the 1999
indictment because “[t]he superseding indictment was based on
the exact same facts as the original November 18, 1999
indictment,” and left Brown “fairly alerted to the subsequent
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charges against him and the time period at issue.” (JA 208).
In so concluding, the district court stated that it “need not
express an opinion as to whether [Brown’s] fugitive status
tolled the statute of limitations.” (JA 209).
On appeal, the Government has abandoned the argument
that the superseding indictment related back to the 1999
indictment. See Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999) (noting that issue not properly raised in
opening brief is abandoned); see also United States v. Brooks,
524 F.3d 549, 556 & n.11 (4th Cir. 2008) (same). Instead, the
Government argues only that Brown’s fugitive status tolled the
limitations period under 18 U.S.C. § 3290 (2006), which
provides, “[n]o statute of limitations shall extend to any
person fleeing from justice.” To invoke this statute, the
Government must prove, by preponderance of the evidence, that
the defendant fled “with the intent to avoid arrest or
prosecution.” United States v. Marshall, 856 F.2d 896, 900 (7th
Cir. 1988); see also United States v. Gonsalves, 675 F.2d 1050,
1052 (9th Cir. 1982) (same).
Brown’s intent in leaving the jurisdiction is a
question of fact. Marshall, 856 F.2d at 900; see also United
States v. Fonseca-Machado, 53 F.3d 1242, 1243-44 (11th Cir.
1995); Gonsalves, 675 F.2d at 1052. The district court
expressly declined to make that factual finding below, ruling
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only that the superseding indictment related back to the
original 1999 indictment. Accordingly, we remand this case to
the district court for the limited purpose of permitting that
court to determine, in the first instance, whether § 3290
applies in this case. The record, as supplemented, will then be
returned to this court for further proceedings.
REMANDED
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