United States v. Phillip Rae Morgan , 922 F.2d 1495 ( 1991 )

LOGAN, Circuit Judge,

dissenting:

I cannot agree with the majority that the plain meaning of “no statute of limitations” in 18 U.S.C. § 3290 means with respect to any crime. A much more natural reading of § 3290 is that no statute of limitations runs with respect to the crime from which the individual is fleeing. Any other reading leads to absurd results.

For example, under the majority’s reasoning, apparently we would not distinguish between a man fleeing indictment for a political crime in South Africa or China, basketball coach Bobby Knight who was wanted in Puerto Rico for assault, and a savings and loan executive for whom Texas authorities have issued an arrest warrant. The statute of limitations would be tolled for any federal crime committed within the United States by such a person until he is apprehended and returned to the jurisdiction in which he is wanted. Under the majority’s reasoning, there is no apparent distinction between misdemeanors and felonies. Thus, if a person has an outstanding arrest warrant for traffic violations in another state, presumably no statute of limitations runs on any federal crime the individual commits where he now resides. Further, the majority infers that the individual need not have been identified and the subject of an indictment or arrest warrant to be a fugitive. Thus, arguably anyone who commits a violation of the federal or state income tax laws loses the benefit of the statute of limitations on any past or future federal crime, even before he has been identified as a wrongdoer. I simply cannot believe that was Congress’ intent.

Finally, the majority’s position seems to create due process problems for the courts. The Due Process Clause of the Fifth Amendment requires dismissal of an indictment if it is shown “that the pre-indictment delay ... caused substantial prejudice to [the accused’s] right[] to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971) (footnote omitted). Considering the evidence in the record that the government delayed indicting Morgan for more than four years after he ceased being a fugitive, there are serious questions concerning the government’s reason for the delay and whether Morgan was prejudiced by it.

In the instant case, I would hold that § 3290 did not toll the statute of limitations on the bank robbery charge against Morgan. First, regardless of his Massachusetts fugitive status, Morgan is not a fugitive from justice with respect to the Colorado bank robbery under any court’s interpretation of § 3290 or its predecessor statutes. If a fugitive is defined as one who knew he was being sought for the particular crime and removed himself from his usual place of abode with intent to conceal himself to avoid arrest, as most cases hold, see United States v. Marshall, 856 F.2d 896, 900 (7th Cir.1988); United States v. Singleton, 702 F.2d 1159, 1169-70 (D.C.Cir.1983); Jhirad v. Ferrandina, 536 F.2d 478, 483-84 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); United States v. Wazney, 529 F.2d 1287, 1288-89 (9th Cir.1976); Donnell v. United States, 229 F.2d 560, 564-65 (5th Cir.1956); Brouse v. United States, 68 F.2d 294, 295 (1st Cir.1933); Ferebee v. United States, 295 F. 850, 851 (4th Cir.1924); Greene v. United States, 154 F. 401, 411-12 (5th Cir.), cert. denied, 207 U.S. 596, 28 S.Ct. 261, 52 L.Ed. 357 (1907), Morgan does not qualify as to the Colorado robbery. The few cases that do not discuss or require an intent to avoid prosecution are those in which the fugitive is outside the jurisdiction, King v. United States, 144 F.2d 729, 731 (8th Cir.1944), cert. denied, 324 U.S. 854, 65 S.Ct. 711, 89 L.Ed. 1413 (1945); McGowen v. United States, 105 F.2d 791, 792 (D.C.Cir.), cert. denied, 308 U.S. 552, 60 S.Ct. 98, 84 L.Ed. 464 (1939); here, Morgan did not leave Colorado. I have not found a ease holding that a person was a fugitive when the police had not identified the individual as a suspect and the individual stayed within the jurisdiction, residing in the abode he occupied at the time of the crime. Thus, by no stretch of the imagination can Morgan be regarded as a fugitive “fleeing from justice” with respect to the Colorado bank robbery for which he has now been indicted.

Second, an interpretation that § 3290 tolls the statute of limitations for the Colorado bank robbery because of Morgan’s prior fugitive status from Massachusetts is at odds with the reasons behind adoption of statutes of limitations and extends the scope of § 3290 far beyond its current interpretations.

The underlying purpose of a statute of limitations is to “protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). All statutes of limitations provide “predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” Marion, 404 U.S. at 322, 92 S.Ct. at 464 (footnote omitted). Statutes of limitations “balance the government’s need for sufficient time to discover and investigate the crime against the defendant’s right to avoid perpetual jeopardy for offenses committed in the distant past.” United States v. DiSantillo, 615 F.2d 128, 135 (3d Cir.1980).

Criminal statutes of limitations, in particular, are to be liberally interpreted in favor of the defendant. Marion, 404 U.S. at 322 n. 14, 92 S.Ct. at 464 n. 14; Waters v. United States, 328 F.2d 739, 742 (10th Cir.1964). Therefore, tolling of statutes of limitations should be an exception narrowly construed for all the reasons that led to the enactment of statutes of limitations in the first place. In the case of § 3290, its enactment “reflects a Congressional determination that defendants should not gain advantages of statutory limitations by means of flight.” United States v. Mullins, 562 F.2d 999, 1000 (5th Cir.1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 496 (1978). Here I see no justification for tipping the balance in favor of the government by tolling the statute for the Colorado robbery. Morgan was arrested on August 15, 1985, pursuant to a Massachusetts unlawful flight warrant. Following his conviction on state charges, Morgan was incarcerated in Massachusetts before returning to Colorado to face the bank robbery charge. He was finally indicted for the Colorado bank robbery on December 14, 1989 — five years and two weeks after the crime was committed and four years and four months after he was identified by his real name and was no longer a fugitive. Under these facts, it cannot be said that Morgan’s fugitive status hindered the government’s investigation beyond that normally associated with any crime.

The majority relies on the assertion that Morgan’s use of an alias hindered his prosecution for the bank robbery because it made identification of his fingerprint found on the scene more difficult. The majority opinion notes, however, that the fingerprint was not connected to Morgan until 1987, nearly two years after he ceased to be a fugitive from Massachusetts. Even if the alias were to hinder prosecution, it would be so only because of the peculiar facts of this case, i.e., a fingerprint identified with the fugitive’s real name. Under most circumstances, if one who is using an alias commits a robbery and thereafter returns to the same abode he would more likely confuse investigators by resuming use of his real name than if he continues use of his alias. Moreover, every criminal hopes that he is not caught and takes some action to prevent detection. Surely Congress did not intend tolling of the statute of limitations whenever a criminal does something to make detection more difficult; tolling is the exception, not the rule.

It is true that the cases upon which the majority relies, United States v. Catino, 735 F.2d 718, 720-21 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984); United States v. Gonsalves, 675 F.2d 1050, 1052 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982); and Wazney, 529 F.2d at 1288, hold that fugitive status for one crime tolls the statute of limitations for other crimes. However, in each case there had been either an indictment or an arrest warrant issued identifying the defendants while they were fugitives. Catino, 735 F.2d at 718, 721; Gonsalves, 675 F.2d at 1051 n. 2; Wazney, 529 F.2d at 1288. In Streep v. United States, 160 U.S. 128, 16 S.Ct. 244, 40 L.Ed. 365 (1895), Streep fled the country to avoid state prosecution for the identical crime for which the federal government indicted him. The Court reasoned that “it is sufficient that there is an intent to avoid the justice of the state having criminal jurisdiction over the same territory and the same act.” Id. at 135, 16 S.Ct. at 247.

Streep and the cases cited by the majority stand for the proposition that when an individual is a fugitive from a state crime and, while he is still a fugitive, has an arrest warrant or indictment issued for a federal crime, he is impeding arrest or prosecution by remaining a fugitive. He has been identified and should be considered a fugitive for both crimes. So viewed, the exception is narrow and arguably is consistent with the purpose behind the statute of limitations and its tolling. The majority’s opinion goes far beyond this. Morgan was not the subject of an arrest warrant for the Colorado bank robbery nor an indictment until long after he ceased being a fugitive from Massachusetts justice. His fugitive status did not impede arrest or prosecution for the Colorado crime. Therefore, there is no justification for extending the scope of § 3290 to the case before us.

I would affirm the district court’s dismissal of the indictment.