United States v. Elliott, Alfred , 467 F.3d 688 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4623
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFRED ELLIOTT,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 CR 1097—Harry D. Leinenweber, Judge.
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SUBMITTED OCTOBER 11, 2006—DECIDED NOVEMBER 2, 2006
____________
Before COFFEY, EASTERBROOK, and MANION, Circuit
Judges.
EASTERBROOK, Circuit Judge. While he was a partner
at Schiff, Hardin & Waite in Chicago, Alfred Elliott used
clients’ confidential information for his own benefit in
securities transactions. Eventually he was convicted on 70
counts of securities fraud, mail fraud, tax evasion, and
operating a racketeering enterprise. His sentence was
five years’ imprisonment plus fines and forfeitures of
about $700,000. On October 11, 1989, when he was sched-
uled to report to prison (a minimum-security camp
in Oxford, Wisconsin), he phoned his lawyer to say that
he was on his way from Chicago. He was on his way,
2 No. 05-4623
all right—but he was in Las Vegas en route to San Diego,
not Oxford. He did not appear at the prison, and his lawyer
lost contact with him. His appeal was dismissed under the
fugitive disentitlement doctrine.
Fifteen years later, the FBI tracked him to Arizona,
where he was living under the name L. David Cohn, which
he had appropriated from a cousin and used to obtain a
driver’s license and other credentials. When the agents
came to arrest him, he calmly claimed to be David Cohn,
denied knowing any Alfred Elliott, and denied recognizing
his own photograph. The agents were not fooled by that
ploy or another: Elliott’s claim that he was on his way to an
urgent medical appointment for a life-threatening condition.
A phone call revealed that the appointment was for a
routine checkup.
In custody at last on his 1989 conviction, Elliott was
indicted on the new charge of failing to report as directed to
serve that sentence. 18 U.S.C. §3146(a)(2). His principal
defense was that the indictment returned in 2004 came
ten years too late, for the statute of limitations is five years
from the crime’s commission. 18 U.S.C. §3282. The district
judge rejected that defense, a jury found Elliott guilty, and
the court sentenced him to 21 months’ imprisonment, which
will begin in 2009 after his 60-month sentence ends.
(Meanwhile the process of collecting the fines and forfei-
tures from assets that Elliott has hidden is under way. See
United States v. Elliott, 2005 U.S. App. LEXIS 19095 (7th
Cir. Sept. 1, 2005) (unpublished order).) His appeal presents
three issues worth discussion; others have been considered
but are insubstantial.
1. The district court concluded that failure to report for
imprisonment is a continuing offense, so that the statute of
limitations did not commence until Elliott’s capture. He was
indicted nine months later, well within the period of
limitations. Many courts of appeals treat the §3146(a) crime
No. 05-4623 3
as a continuing offense that lasts until the convict finally
reports to prison or is captured. See, e.g., United States v.
Lopez, 961 F.2d 1058, 1059-60 (2d Cir. 1992); United States
v. Green, 305 F.3d 422, 432-33 (6th Cir. 2002); United States
v. Camacho, 340 F.3d 794, 796-97 (9th Cir. 2003); United
States v. Martinez, 890 F.2d 1088, 1091 (10th Cir. 1989).
Elliott insists that our decision in United States v. Knorr,
942 F.2d 1217, 1223 (7th Cir. 1991), is to the contrary
because it remarks that the §3146(a) offense is “complete”
as soon as the appointment for surrender is missed. He
misunderstands what that expression means. The point of
Knorr was that someone who fails to report on time has
committed all of the elements that very hour; the length of
delay is not an element of the crime. All continuing offenses
work the same way. Someone commits the crime of conspir-
acy by agreeing to commit a future crime (and, for some
conspiracy statutes, by committing an overt act); he may be
prosecuted even if he repents ere the clock strikes midnight.
The offense nonetheless continues (for limitations purposes)
until he withdraws or is captured. Likewise the crime of
escape, complete when the prisoner leaves custody, contin-
ues until he turns himself in or is nabbed. See United States
v. Bailey, 444 U.S. 394, 413 (1980).
Unfortunately, Knorr also stated that failure to appear “is
not a continuing offense.” 942 F.2d at 1223. The language
is dictum, for it did not play any role in the disposition. The
opinion did not cite any authority, did not recognize that
other circuits have held that this offense is “continuing,” did
not address the bearing of decisions such as Bailey, and did
not explain why failure to appear should be treated differ-
ently for this purpose from the crime of escape. As far as we
can tell, none of these issues had been briefed by the parties
in Knorr. That judicial comments lacking the benefit of an
adversarial presentation are more likely to be uninformed
is a principal reason why dicta are not binding, and we now
disavow this portion of Knorr.
4 No. 05-4623
Not that it matters whether §3146(a)(2) is a continuing
offense. Another statute, 18 U.S.C. §3290, provides that
“[n]o statute of limitations shall extend to any person
fleeing from justice.” Elliott became a fugitive, and thus was
covered by this rule, as soon as he failed to report for
custody. See Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th
Cir.), rehearing denied, 384 F.3d 916 (2004). Section 3290
has exactly the same effect as calling §3146(a) a continuing
offense: the period of limitations does not begin to run until
the fugitive has been apprehended. So Elliott’s indictment
was timely.
2. Before trial, the prosecutor filed a motion asking the
district judge to exclude evidence about the state of Elliott’s
health in 1989. The United States anticipated, from
arguments that Elliott had made since his apprehension in
2004, that he would argue that he had been too confused by
complications of diabetes and other ailments to report for
prison in 1989. The judge granted this motion, and properly
so. If Elliott had wanted to argue that illness made it
impossible for him to report on October 11, 1989, or that he
was temporarily befuddled as a result of his diabetes and
therefore did not appreciate the need to report, then the
evidence would have been relevant. Impossibility and
failure to appreciate the obligation to report are legitimate
defenses. But such defenses last no longer than the condi-
tion that makes reporting impracticable: “It is an affirma-
tive defense to a prosecution under this section that
uncontrollable circumstances prevented the person from
appearing or surrendering, and that the person did not con-
tribute to the creation of such circumstances in reckless
disregard of the requirement to appear or surrender, and
that the person appeared or surrendered as soon as such
circumstances ceased to exist.” 18 U.S.C. §3146(c). Elliott
has never argued that he surrendered “as soon as such
circumstances ceased to exist.” He moved to Arizona, used
his wits to obtain bogus identification papers and con-
No. 05-4623 5
ceal his real identity, ran a successful real-estate business,
and never surrendered. He was neither unable to travel
(how did he get to Arizona?) nor mentally incompetent
for more than 5,000 days running. His mental and
physical condition on October 11, 1989, therefore were
not relevant to the charge.
3. When considering what sentence to impose, the district
court started with the range under the Sentenc-
ing Guidelines. In calculating Elliott’s offense level, the
judge added two levels for obstruction of justice. See
U.S.S.G. §3C1.1. The obstruction was Elliott’s effort to
persuade the FBI either that he was “Cohn” or that he must
be allowed to visit his doctor (and thus have another chance
to flee). In escape cases, deceit is a standard part of the
criminal conduct, so an obstruction enhancement
is unnecessary: the Guidelines include this conduct as
part of the normal range, and an enhancement would
be double counting. That’s why Application Note 7 provides
that using an alias does not justify an enhancement for
the offense of failure to appear (along with other, similar
crimes). Application Note 2 to U.S.S.G. §2J1.6, the guideline
covering Elliott’s crime, is to the same effect.
Application Note 7 has its own proviso: an enhancement
remains appropriate “if significant further obstruction
occurred during the investigation, prosecution, or sen-
tencing of the obstruction offense itself (e.g., if the defen-
dant threatened a witness during the course of the prosecu-
tion for the obstruction offense).” There is a similar proviso
in Application Note 2 to §2J1.6. The prosecutor contends
that Elliott’s effort to throw the FBI off the scent is a
“significant further obstruction,” but it is hard to
call Elliott’s feeble efforts “significant.” He stuck with the
alias he had been using for more than a decade. The agents
knew perfectly well that “L. David Cohn” was Elliott. His
lies had no more effect than if he had started yodeling,
6 No. 05-4623
hoping that the agents would leave to avoid the assault on
their aesthetic sensibilities.
Quite apart from Application Notes 2 and 7, giving a false
name to an arresting officer is not obstruction of justice
unless the lie “actually resulted in a significant hindrance
to the investigation.” U.S.S.G. §3C1.1 Application Note 5(a);
see United States v. Garcia, 69 F.3d 810, 815 n.6 (7th Cir.
1995). Elliott told other lies; for example, he committed
perjury during a deposition taken in some civil litigation to
which he was a party in Arizona. But these had nothing to
do with the federal offense.
Because the district judge miscalculated the Guideline
range, which he used as a starting point, the error may
have affected Elliott’s sentence, and we must remand. This
does not imply, however, that a sentence of 21 months is
unreasonably high; to the contrary, it strikes us as unrea-
sonably low, and United States v. Booker, 543 U.S. 220
(2005), gives the district court ample authority to impose an
appropriate sentence on remand. See also, e.g., United
States v. Bullion, No. 06-1523 (7th Cir. Oct. 19, 2006).
Guideline 2J1.6 does not take into account the duration
of the flight from justice. How long the fugitive remains on
the lam is vital to assessing the deterrent effect of a
sentence, so 18 U.S.C. §3553(a)(2)(B), which comes to the
fore after Booker, requires the district court to give this
subject close attention. If Elliott had been caught by the end
of October 1989, then tacking 21 months on to his 60-month
sentence might well have provided appropriate deterrence
and desert. But he remained at liberty for almost 15 years,
which substantially eroded the deterrent force of his 60-
month sentence. Instead of serving five years, with cer-
tainty, starting in 1989, Elliott converted his sentence to
five years starting in 2004—with a substantial chance that
it would never start at all. Time served in future years must
be discounted to present value. As a deterrent, a 50%
No. 05-4623 7
chance of serving five years starting 15 years from now
must have less than 25% the punch of five years, with
certainty, starting right now. This represents only a modest
discount (about 5% per annum); many people discount the
future even more steeply.
Having evaded 75% of the deterrent value of his five-year
sentence, what did Elliott receive in return? Why, an extra
21 months starting in 20 years (the 15 years of freedom
during the escape, plus the 5 years of his prin-
cipal sentence). And of course he would serve time for
failing to report in 1989 only if caught later, and only if he
survived long enough. Thus the expected value of the
additional sentence—21 months starting in 20 years, but
only if caught—must be discounted even more steeply
than the 75% we calculated for the principal sentence.
Make it an 80% discount: a 50% probability of serving
an extra 21 months, starting 20 years from now, has the
same disutility as a threat of 4 months with certainty
starting now. The net effect is that, by taking flight, Elliott
cut the cost of his 60-month sentence to the (1989) equiva-
lent of 15 months, at the price of a (1989) equivalent of
4 extra months. Who wouldn’t trade a 60-month sentence
for a 19-month sentence (15 + 4 months in 1989-equivalent
terms)? No wonder Elliott absconded.
Doubtless fugitive status carries a price of its own:
uncertainty hangs over the fugitive’s head, and activities
that draw attention to oneself must be avoided. But Elliott
would have been excluded from many activities (such as the
practice of law) by his conviction, independent of his
fugitive status. Time as a fugitive must be superior (in the
felon’s eyes) to serving the sentence, or the felon would turn
himself in. So the gain from postponing (or avoiding) time
in prison is not offset by the fact that the fugitive cannot
lead a full life. Thus the law’s deterrent and retributive
effect can be maintained, in the event of prolonged fugitive
status, only by substantial incremental penalties. Even
8 No. 05-4623
imposing the statutory maximum of 10 years for Elliott’s
failure-to-report offense would not bring the law’s deterrent
power in 2004 up to what it would have been had Elliott
reported as required in 1989. (We deem the maximum to be
10 years under §3146(b)(1) (A)(i) rather than 5 years under
§3146(b)(1)(A)(ii), because the cap depends on the statutory
maximum for the underlying crime rather than the actual
sentence imposed for that offense. Elliott’s statutory
maximum for his fraud, tax, and RICO convictions exceeded
300 years.)
Under Booker the district judge, not the appellate tribu-
nal, is principally responsible for selecting a reasonable
sentence. But defendants often suppose that Booker means
“lower sentences” rather than “sentences selected with
greater discretion from the statutory range.” Booker does
not require lower sentences; nor does a conclusion that the
district court erred in calculating the Guideline range. More
discretion can produce higher sentences as well as lower
ones. Whether this is one of the cases in which the sentence
should rise is for the district court in the first instance.
Elliott’s conviction is affirmed. His sentence is vacated,
and the case is remanded for further proceedings consistent
with this opinion.
No. 05-4623 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-2-06