U.S. v. Frank

• Decision Date: 28 July 1988
• Docket Number: No. 88-3268,Nos. 88-3220 and 88-3268,No. 88-3220,88-3268,88-3220,s. 88-3220 and 88-3268
• Citation: 864 F.2d 992
• Parties: UNITED STATES of America, Appellant/Cross Appelleev. Alan FRANK, a/k/a A. Roy, Appellee/Cross Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 992

864 F.2d 992

57 USLW 2309

UNITED STATES of America, Appellant/Cross Appellee No. 88-3268 v. Alan FRANK, a/k/a A. Roy, Appellee/Cross Appellant No. 88-3220.

Nos. 88-3220 and 88-3268.

United States Court of Appeals, Third Circuit.

Argued July 28, 1988.

Reargued (No. 88-3220): Sept. 30, 1988.

Decided Nov. 7, 1988.

Rehearing and Rehearing In Banc Denied Jan. 4, 1989.

W. Penn Hackney (Argued and Reargued), Pittsburgh, Pa., for Alan frank.

J. Alan Johnson, U.S. Atty., Constance M. Bowden (Argued and Reargued), Asst. U.S. Atty., Pittsburgh, Pa., John R. Bolton, Asst. Atty. Gen., Douglas Letter, Gregory Paul M. Bator (Argued), Andrew L. Frey, Kenneth S. Geller, Stephen G. Gilles, Mayer, Brown & Platt, John R. Steer, General Counsel, Donald A. Purdy, Jr., Deputy General Counsel, U.S. Sentencing Comm'n, Washington, D.C., for amicus curiae U.S. Sentencing Comm'n.

C. Sisk (Argued), Attorneys, Appellate Staff Civil Div., Dept. of Justice, Washington, D.C., for United States.

Before GIBBONS, Chief Judge, SEITZ and HUTCHINSON, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Chief Judge.

Alan Frank appeals from a judgment of sentence imposed following his conviction on a charge of interstate flight to avoid prosecution. He contends that the indictment should have been dismissed because the prosecution was not authorized in the manner required by 18 U.S.C. Sec. 1073. He also contends that the evidence is insufficient to sustain his conviction. Alternatively he contends that he is entitled to a new trial because the district court erred in denying his motions for the suppression of certain evidence and in refusing to give certain requested instructions. The United States appeals pursuant to 18 U.S.C. Sec. 3742(b)(1) from the judgment of sentence because the district court refused to apply the sentencing guidelines to this post-November 1, 1987 offense. We will affirm Frank's conviction, but will remand for resentencing.

FRANK'S APPEAL

I

In November 1986 Frank, a Pennsylvania attorney with federal court experience, was informed by Detective Donald Fox of the Allegheny County Police Department that it was possible that criminal charges with respect to forgery and theft of municipal bonds would be brought against him. Thereafter, Frank embarked on a cruise on his son's yacht. While he was gone, on January 5, 1987, Detective Fox filed a state criminal complaint charging Frank with theft and forgery. Fox obtained a warrant for Frank's arrest, but was unable to execute it because Frank was then in the Bahamas. On January 8, 1987, a federal criminal complaint was filed charging Frank with unlawful flight to avoid prosecution in violation of 18 U.S.C. Sec. 1073. A warrant for Frank's arrest was issued by the United States District Court for the Western District of Pennsylvania, and the Federal Bureau of Investigation began a search for him.

In the fall of 1987 Frank returned to Allegheny County, where on November 5 he was arrested at the Viking Motel by two FBI agents. On November 6, 1987, he was arraigned before a United States Magistrate on the interstate flight charge and he requested a preliminary examination. Frank was detained and eventually indicted and prosecuted on the interstate flight charge.

II

The statute for violation of which Frank was convicted provides in relevant part:

Whoever moves or travels in interstate or foreign commerce with intent ... to avoid prosecution ... shall be fined not more than $5,000 or imprisoned not more than five years, or both.

Violations of this section may be prosecuted ... only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated.

18 U.S.C. Sec. 1073 (1982). The first quoted paragraph is traceable to the Fugitive Felon Act of 1934. Pub.L. No. 233, 48 Stat. 782. See Barrow v. Owen, 89 F.2d 476 (5th Cir.1937). It was passed for the purpose of permitting the Federal Bureau of Investigation to participate in the apprehension of persons fleeing across state lines after committing designated offenses. The second paragraph was added by the Fugitive Felon Act of 1961, Pub.L. No. 87-368, 75 Stat. 795, which also broadened the first paragraph to include all felonies. Thus the relevant legislative history is that of the 1961 Act.

Consistent with the original purpose of the Act, which is to permit federal law enforcement officers to assist local law enforcement by apprehending fleeing felons, the second paragraph has never been construed to require consent from a high official of the Department of Justice for the filing of a charge, the issuance of an arrest warrant, or the arrest and detention of a fugitive. See United States v. Diaz, 351 F.Supp. 1050 (D.Conn.1972) (warrant may issue without Attorney General's approval); United States v. McCarthy, 249 F.Supp. 199 (E.D.N.Y.1966) (filing complaint and arrest valid without Attorney General's approval). Indeed, to construe section 1073 as requiring approval from the highest level of the Justice Department for a complaint, a warrant, or an arrest would serve to frustrate the federal law enforcement agencies by preventing them from going into action promptly, and it would set a premium on a quick get-away across state lines by the criminal. United States v. Bando, 244 F.2d 833, 843 (2d Cir.), cert. denied, 355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53 (1957). Therefore, as used in the second paragraph of section 1073, the term "prosecution" cannot refer to the filing of a complaint, authorized by Fed.R.Crim.P. 3, to the issuance of an arrest warrant, authorized by Fed.R.Crim.P. 4(a), to the execution of a warrant, authorized by Fed.R.Crim.P. 4(d)(3), to the initial appearance before a magistrate, required by Fed.R.Crim.P. 5(a), or to the preliminary examination required, unless waived, by Fed.R.Crim.P. 5.1. Likewise, because since 1934 the basic purpose of the statute has been to provide federal assistance in apprehending fugitives from state prosecution, on determining probable cause to believe that a violation of section 1073 has occurred, a magistrate must have the authority at least to detain a defendant until such time as he may be taken into state custody, without the approval of the highest levels of the Department of Justice.

At the Rule 5 and 5.1 hearing on November 6, 1987, Frank called to the Magistrate's attention the fact that no written approval of prosecution had been procured, and moved to dismiss the complaint. That motion was properly denied because, even absent such approval, the magistrate was authorized to determine probable cause and to detain Frank. At the same November 6, 1987 hearing the Assistant United States Attorney informed Frank and the magistrate that, in a telephone conversation that day, an Acting Assistant Attorney General in the Criminal Division of the Department of Justice had authorized the United States Attorney to proceed with prosecution. Thus Frank was put on notice that more federal proceedings were contemplated than merely finding probable cause and detaining him until he could be turned over to the Pennsylvania authorities.

The United States Attorney presented the section 1073 charge to a grand jury, which returned an indictment on December 3, 1987. At the time the indictment was returned, the United States Attorney still had not obtained any written approval from Washington for proceeding with prosecution. Written approval was received on December 24, 1987, in a letter signed by Acting Assistant Attorney General John C. Keeney. The letter also contains a typed reference to William F. Weld, Assistant Attorney General, Criminal Division, but Weld's signature does not appear (although the letter pre-dated Assistant Attorney General Weld's resignation by approximately three months).

The section 1073 offense is not one which can be tried before a magistrate. Accordingly, after the Rule 5.1 hearing, proceedings took place before a district judge. At a detention hearing on December 17, 1987, Frank asked the district judge to dismiss the indictment sua sponte. 26 Supplementary Appendix (SA). From the sequence of the colloquy at that hearing it appears that Frank relied upon the ground that there can be no flight to avoid prosecution until state charges are actually filed. The court denied the motion without prejudice, advising Frank to file a written motion to which the government could respond. Id. At that point, Frank mentioned the absence of written authority to prosecute as a ground for dismissal sua sponte, and contended that "I think it's not one of those where the motion need be filed." Id. He continued, "[I] asked for [written authority] earlier, asked for it a second time, Mr. Manning finally gave me the truth today, it was on its way. That's the same answer I heard before." Id. Directing Frank back to the issue of risk of flight, which was the subject of the detention hearing, the court refused to consider the motion. No written motion was ever filed on Frank's behalf with respect to the issue of approval of the prosecution.

The motion to dismiss because of the absence of written approval which was made to the magistrate in the Rule 5.1 hearing cannot be construed as a preservation of the approval issue, because it was made at a stage of the proceedings when such approval was not required and thus was properly denied. Nor was the approval issue properly preserved before the district judge. There is no basis on which Frank could assume that the district judge would consider the motion before the magistrate to have raised the issue for subsequent stages of the case. The only instance in which, prior to trial, Frank called the issue to the district judge's attention is Frank's reference to the absence of approval in the December 17, 1987 detention hearing. The colloquy from that hearing, quoted above, is quite unspecific. It clearly did not alert the court to the...