U.S. v. Fowlie, 91-50383

Decision Date13 June 1994
Docket NumberNo. 91-50383,91-50383
Citation24 F.3d 1070
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Daniel James FOWLIE, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

William J. Kopeny, James D. Riddet, and Cherif Bassiouni, Santa Ana, CA, for defendant-appellant.

Patrick W. McLaughlin and Jonathan S. Shapiro, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FARRIS, NORRIS, and REINHARDT, Circuit Judges.

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. Sec. 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. Sec. 3290. The district court ruled that the indictment was timely because Fowlie was "fleeing from justice" within the meaning of Sec. 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 Sec. 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 Sec. 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 case 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 Sec. 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 Wazney'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 case from Wazney. Wazney 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 Sec. 3290 from March 27, 1985 to June 14, 1987. I conclude, therefore, that Sec. 3290 did not bar the government from prosecuting Fowlie for the crimes alleged in counts 4-7, 9, 21, 22, 25 and 26. 5

FARRIS, Circuit Judge, concurring:

Judge Norris and Judge Reinhardt focus on the extent to which Fowlie actively hid himself from the police. I write separately to emphasize my view that the government did not need to provide factual evidence of "affirmative steps" that Fowlie took to hide himself. The government met its burden of proving flight by showing that Fowlie knew he was wanted by the authorities and intentionally thwarted arrest by remaining abroad.

The statute of limitations ensures that one accused of a crime has an adequate opportunity to gather exculpatory evidence. The theory is that the best opportunity to do so occurs while the tracks are fresh. One who has notice but fails to come forward to defend cannot be heard to complain that the tracks have faded. The pivotal issue is notice and a timely opportunity to defend. A defendant with notice cannot by deliberately absenting himself thwart the process. Time stops until the accused makes "a good faith effort to surrender." United States v. Gonsalves, 675 F.2d 1050, 1055 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982).

We consistently have held that to meet its burden of proving that the accused fled or concealed himself with the intent to avoid arrest or prosecution, "the prosecution need only prove that the defendant knew that he was wanted by the police and that he failed to submit to arrest." United States v. Ballesteros-Cordova, 586 F.2d 1321, 1323 (9th Cir.1978); Gonsalves, 675 F.2d at 1052; United States v. Wazney, 529 F.2d 1287, 1289 (9th Cir.1976). The statute of limitations is not tolled "for unintentional delays, such, for example, as one caused by an open move to a new residence where the accused is readily accessible to careful law enforcement officers." Wazney, 529 F.2d at 1289. We have given defendants who remained abroad the benefit of the statute of limitations when they have established through their actions and statements that despite their failure to return, they never intended to avoid arrest or prosecution. See, e.g., Caplan v. Vokes, 649 F.2d 1336, 1341-42 (9th Cir.1981); United States v. Durcan, 539 F.2d 29, 31-32 (9th Cir.1976).

In contrast to the defendants in Caplan and Durcan, Fowlie's actions and statements are sufficient to establish that he remained in Mexico with the intent of avoiding arrest or prosecution. After learning of the raid, Fowlie moved his personal belongings and business to Mexico and stated his intent never to return to the United States. The timing and nature of these facts are significant.

REINHARDT, Circuit Judge, dissenting from the affirmance of the convictions on counts 4-7, 9, 21, 22, 25 and 26:

I disagree with Judge Farris' and Judge Norris' conclusion that the statute of limitations was tolled during Fowlie's time in Mexico. In my view, Fowlie's decision to remain abroad--and any actions he may have taken in order to facilitate that decision--cannot be construed as "fleeing from justice" within the meaning of 18 U.S.C. Sec. 3290. I cannot imagine a more direct rejection of the plain meaning of "fleeing" than holding that it applies to remaining, or staying put. My colleagues simply disregard the clear language of Sec. 3290 and adopt a construction of that section that is the precise opposite of that intended by Congress.

Although Judge Norris purports to express no opinion regarding the "constructive flight" doctrine adopted by the Second Circuit and Judge Farris is strangely silent on the issue, their...

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