United States v. Daniel James Fowlie , 24 F.3d 1070 ( 1994 )

Opinion by Judge WILLIAM A. NORRIS; Concurrency by Judge FARRIS; Dissent by Judge REINHARDT.

WILLIAM A. NORRIS, Circuit Judge:

In an opinion filed May 2,1994, we vacated Fowlie’s conviction on count 2 and affirmed his convictions on counts 1, 12-14 and 20. See United States v. Fowlie, 24 F.3d 1059 (9th Cir.1994). We now affirm his convictions on counts 4-7, 9, 21, 22, 25 and 26.

Fowlie contends that his prosecution for counts 4-7, 9, 21, 22, 25 and 26 is barred by the statute of limitations because the offenses occurred more than five years before the date of the indictment. The statute provides that “no person shall be prosecuted ... unless the indictment is found or the information is instituted within five years after such offense shall have been committed.” 18 U.S.C. § 3282. However, Congress has added an exception that “[n]o statute of limitation shall extend to any person fleeing from justice.” 18 U.S.C. § 3290. The district court ruled that the indictment was timely because Fowlie was “fleeing from justice” within the meaning of § 3290 during the period he was in Mexico. We agree. Judge Farris and I write separately because we have reached the same result but for different reasons.

The district court made the following findings of fact: (1) Fowlie left Rancho Del Rio a few days prior to the search on March 1, 1985; (2) he was expected to return; (3) defendant did not return to Rancho Del Rio but went instead to Mexico; (4) sometime in March, 1985, he summoned James Ellis and Ivan Summers to meet him in Rosarita Beach, Mexico; (5) the meeting took place on March 27, 1985; (6) he asked Ellis, a family friend, to fix up the ranch and requested that Ellis transport various belongings to Mexico, including his airstream trailer and boat; (7) during a separate meeting with Ivan Summers at Rosarita Beach, Fowlie told Summers that Rancho Del Rio had been raided by the police; and (8) at a subsequent meeting in Cabo San Lucas in October, 1985, Fowlie told Summers that he would never return to the United States. The district court concluded on these facts that Fowlie was “fleeing from justice” within the meaning of § 3290.¹

Although we accept the district court’s findings of fact as not clearly erroneous, we review the ultimate “fleeing from justice” question de novo because legal concepts that require us to exercise judgment dominate the mix of fact and law. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In order to prove flight under § 3290, the government must show by a preponderance of the evidence that Fowlie acted with an intent to avoid prosecution. United States v. Gonsalves, 675 F.2d 1050, 1054 (9th Cir.1982) (standard of proof is preponderance of the evidence); United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir.1976) (“fleeing from justice” requires some “volitional act” coupled with intent). In this ease the record leaves no doubt that Fowlie had the requisite intent to avoid prosecution. When he left his ranch in California before it was raided, he intended to return, but after learning of the raid, decided to abandon the ranch as his place of residence. He changed his residence to Rosarita Beach, Mexico, and moved his business there.² On this record, it is clear that in moving his residence and his business to Mexico, he acted with the intent to avoid prosecution in California.

It is not so clear that Fowlie’s failure to return from Mexico, coupled with his change of residence and place of business, satisfies the conduct element of § 3290. I conclude, however, that Fowlie’s case is controlled by our holding in United States v. Wazney. After learning of the warrant for his arrest, Wazney failed to return to his home and disappeared into the surrounding metropolitan area of Los Angeles. We held that even though Wazney had not left the jurisdiction, he was “fleeing from justice” because “[i]t is enough that an accused leaves his usual place of abode and conceals himself for the purpose' of avoiding arrest or prosecution.” Wazney, 529 F.2d at 1289. We explained that “[i]n modern large and heavily populated districts it is almost as easy to avoid arrest or prosecution by concealing oneself within the district as by fleeing the district.” Id.

Like Wazney, Fowlie did not return to his home after learning that he was wanted for arrest. I recognize that unlike Wazney, Fowlie did not conceal himself by disappearing into a large metropolitan area. Rosarita Beach is' a small community just south of Tijuana, and there is no evidence that he went out of his way to conceal his presence there. He did, however, take affirmative steps to avoid arrest and prosecution by changing his residence to Mexico and moving his business there. I believe that if Waz-ney’s conduct in failing to return to his home and concealing' himself in Los Angeles is sufficient to satisfy the conduct prong of the flight test, we must hold that Fowlie’s conduct in failing to return to his ranch and moving his residence and his business to Mexico is also sufficient.³ Both Wazney and Fowlie took significant affirmative steps to avoid prosecution.⁴

In sum, I find no meaningful basis for distinguishing this ease from Wazney. Waz-ney was held to be fleeing from justice for not returning home and disappearing into the surrounding metropolitan area; Fowlie did not return home, remained in Mexico after hearing the news of the raid, and moved his residence and business to Mexico with the intent to avoid prosecution. On these facts, I believe that Fowlie was “fleeing from justice” within the meaning of § 8290 from March 27, 1985 to June 14,1987. I conclude, therefore, that § 3290 did not bar the government from prosecuting Fowlie for the crimes alleged in counts 4-7, 9, 21, 22, 25 and 26.⁵

1 . In concluding that Fowlie had engaged in flight, the district court in part relied on the "constructive flight" doctrine developed in United States v. Catino, 735 F.2d 718 (2d Cir.1984) and Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir. 1976). Because I conclude that this case is controlled by Ninth Circuit precedent, I see no reason to address the Second Circuit’s "constructive flight” doctrine.

2 . Because the record does not tell us whether Fowlie learned of the raid before or after he went to Mexico, I give him the benefit of the doubt by assuming he first learned of the raid after he arrived in Mexico.

3 . The record contains no evidence that the government unreasonably delayed extradition proceedings after learning that Fowlie was living in Rosarita Beach.

4 . United States v. Durcan, 539 F.2d 29 (9th Cir. 1976) is inapposite. In Durcan we held only that the government failed to prove the accused had the requisite intent to avoid prosecution when he travelled from Florida to Canada. Durcan, 539 F.2d at 31-32. We did not hold that travelling from Florida to Canada did not satisfy the conduct requirement of 18 U.S.C. § 921(a)(15) or § 3290.

5 . I agree with Judge Reinhardt that Fowlie's act of contesting extradition did not constitute "flight.” See Reinhardt, J., dissenting, Part II.