U.S. v. Morgan

• Decision Date: 10 January 1991
• Docket Number: No. 90-1054,90-1054
• Citation: 922 F.2d 1495
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Phillip Rae MORGAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1495

922 F.2d 1495

59 USLW 2478

UNITED STATES of America, Plaintiff-Appellant, v. Phillip Rae MORGAN, Defendant-Appellee.

No. 90-1054.

United States Court of Appeals Tenth Circuit.

Jan. 10, 1991.

Joseph Mackey, Asst. U.S. Atty., D. of Colorado, and Robert J. Erickson, Dept. of Justice, Washington, D.C. (Michael J. Norton, U.S. Atty., D. of Colorado, with them on brief), Washington, D.C., for plaintiff-appellant.

Charles Szekely, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, with him on brief), Denver, Colo., for defendant-appellee.

Before LOGAN, EBEL, Circuit Judges, and RUSSELL, ^* District Judge.

EBEL, Circuit Judge.

The government appeals the dismissal of appellee's federal indictment which the district court held was returned outside the five-year statute of limitations for non-capital crimes. In this appeal we consider the issue whether a fugitive from state justice who subsequently commits an unrelated federal offense is precluded from invoking the federal statute of limitations on the subsequent crime because his flight from state justice tolled the statute of limitations. In the lower court, appellee successfully argued that because his federal crime was committed more than five years before his indictment, the statute of limitations provided by 18 U.S.C. Sec. 3282 (1988) had run. In opposition, the government claimed that the statute of limitations was tolled by 18 U.S.C. Sec. 3290 (1988), which withholds any statute of limitations from an individual "fleeing from justice." Because we conclude that appellee was a fugitive from justice and, therefore, there has been a sufficient tolling of the statute of limitations to preclude the limitations period from having run, we reverse and remand.

I. FACTS

The facts necessary to decide this case are not in dispute. On January 20, 1982, appellee was charged in Massachusetts with armed robbery, assault with a dangerous weapon, and unlawful possession of a gun. Before trial, appellee escaped. Eventually, Massachusetts enforcement authorities determined that appellee had fled their jurisdiction. On February 21, 1984, upon application by the Middlesex County District Attorney's Office, the United States magistrate issued an unlawful flight to avoid prosecution warrant. While a fugitive, appellee assumed the alias of "David White." Under this alias, sometime towards the end of 1984, he and his family fled New England, eventually settling in Boulder County, Colorado.

While living under the name David White, on November 30, 1984, appellee allegedly committed a federal crime by robbing the World Savings and Loan in Boulder. During appellee's nine months in Boulder County, he obtained housing under the name David White and purchased an automobile which was registered under that alias. Although changing residences once, appellee lived continuously in Boulder County under the David White alias.

On August 15, 1985, pursuant to the warrant, authorities arrested appellee in Boulder County for the Massachusetts robbery. Appellee was returned to that state, where he was eventually convicted. By 1987, through analysis of fingerprints left at the scene of the Boulder savings and loan robbery, police began to believe that the perpetrator of that crime was Phillip Rae Morgan, the real name of appellee. The federal investigation began to focus on appellee who was now in a Massachusetts jail under the name Morgan. In November of 1989, appellee was returned to Colorado to face charges in connection with the Boulder savings and loan robbery. On December 14, 1989--exactly five years and two weeks after the Boulder bank robbery--an indictment was returned against appellee charging robbery of the Boulder savings and loan.

Appellee thereafter moved to dismiss the indictment, claiming that it was barred by 18 U.S.C. Sec. 3282, which reads:

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

The government contested appellee's motion, claiming that 18 U.S.C. Sec. 3290 tolled the statute of limitations. That statute reads: "No statute of limitations shall extend to any person fleeing from justice." The government claimed that because appellee was a fugitive from Massachusetts, the statute of limitations on the Boulder bank robbery should be tolled until appellee's arrest for the Massachusetts crime on August 15, 1985.

II. DISCUSSION

There are two issues that we must address in this case. First, we are required to decide whether the tolling provision of 18 U.S.C. Sec. 3290 applies when the crime at issue occurred after defendant became a fugitive from another crime and after defendant had created a new identity under which he lived openly in the jurisdiction where he allegedly committed the subsequent crime. Additionally, we must decide whether the federal tolling provision should be applied when the defendant was a fugitive from an unrelated state crime. Because these are questions of statutory interpretation, we employ the de novo standard of review.

A. Whether Appellee's Preexisting Status as a Fugitive Tolled the Statute

As in any case of statutory interpretation, we begin with the plain language of the law. If the statutory language is clear, this will ordinarily end the analysis. "When, as in this case, the statute is unambiguous and free of irrational result, that language controls." Glenpool Util. Servs. Auth. v. Creek County Rural Water Dist. No. 2, 861 F.2d 1211, 1214 (10th Cir.1988), cert. denied, 490 U.S. 1067, 109 S.Ct. 2068 In this case the language of the statute is clear and its terms are all inclusive: "No statute of limitations shall extend to any person fleeing from justice." ¹ 18 U.S.C. Sec. 3290 (emphasis added). There is no dispute that appellee was a person fleeing from the justice of Massachusetts. The plain words of the tolling statute, therefore, would indicate that appellee's status as a fugitive from Massachusetts tolled the statute of limitations for his subsequent federal crime in Colorado.

                104 L.Ed.2d 633.    See also Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir.1986) ("It is a well established law of statutory construction that, absent ambiguity or irrational result, the literal language of a statute controls.")
                

We see good reasons to conclude that Congress apparently meant what it said. First, a fugitive typically employs methods which make detection by any law enforcement authorities much more difficult. He can be expected to avoid detection not only of the specific law enforcement authorities seeking him, but also of law enforcement authorities in general since it is widely, and correctly, assumed that law enforcement authorities generally act in cooperation with each other. Congress could easily have believed that when an individual is fleeing from justice, the statute of limitations should be tolled for all subsequent federal crimes committed while he is a fugitive because his fugitive status will not only make it more difficult to apprehend him for the specific crime for which he is fleeing but it will also necessarily impede the investigation of any subsequent crime he may commit.

In this case, for instance, the appellee's use of an alias, coupled with his flight across the country and his change of residence within Boulder County, may have increased the difficulty of matching the fingerprints found at the savings and loan with those listed on file under appellee's real name. Once the fingerprints identified the suspect as Morgan, the defendant's true name, the federal authorities had somehow to determine that Morgan was White, and they had to locate him under circumstances where appellee was deliberately making himself difficult to find. In fact, the federal authorities were able to apprehend appellee only after his fugitive status had been terminated through his apprehension and eventual incarceration by the Massachusetts authorities under his real name.

The second reason Congress may have intended such broad and inclusive tolling language was its desire not to reward or encourage fugitives. A statute of limitations is not a constitutional right. Congress may set reasonable conditions for when an accused can take advantage of it. We can readily appreciate that Congress may have enacted the tolling provision because of a belief that a person fleeing from justice should forfeit the privilege of a statute of limitations.

We find support for our conclusions in the opinions of other courts which have read the tolling statute in a similar manner. For instance, in United States v. Gonsalves, 675 F.2d 1050 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982), the Ninth Circuit reversed the district court which had found "that fleeing from justice in one federal jurisdiction does not toll the statute of limitations on unrelated charges in a different jurisdiction." Id. at 1052. The court was "unable to reconcile the district court's restrictive reading of Sec. 3290 with the statute's unqualified language...." Id. Most importantly, the Ninth Circuit concluded that "the congressional policies underlying the criminal limitations statute and the 'fleeing from justice' exception to it are harmonized by interpreting Sec. 3290 to deny the benefits In this case the defendant, by buying and registering an automobile and acquiring residences under an alias, furthered the effectiveness of his assumed identity and thereby confounded his apprehension. Contrary to the appellee's position, we do not agree that these acts, occurring as they did in the same jurisdiction as where the savings and loan was robbed, should have assisted the federal authorities in their search for appellee. Rather, because the police were looking for Phillip Rae Morgan, the defendant's flight...