U.S. v. Hill

• Decision Date: 29 January 2002
• Docket Number: No. 00-30023.,00-30023.
• Citation: 279 F.3d 731
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patricia King HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.3d 731

UNITED STATES of America, Plaintiff-Appellee, v. Patricia King HILL, Defendant-Appellant.

No. 00-30023.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2001.

Filed January 29, 2002.

COPYRIGHT MATERIAL OMITTED

Ephraim Margolin, Law Offices of Ephraim Margolin, San Francisco, California, for the defendant-appellant.

Christopher L. Cardani, Assistant United States Attorney, Eugene, Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CR-99-60010-1-HO.

Before: T.G. NELSON, GRABER, and RAWLINSON, Circuit Judges.

T.G. NELSON, Circuit Judge.

This appeal presents three questions: (1) whether it is constitutional to prosecute a wife for harboring her fugitive husband or for being an accessory after the fact to his crime; (2) whether the federal proscription against harboring a fugitive confers jurisdiction even if the harboring occurs outside the United States; and (3) whether an accessory indictment that fails to specify the principal's crime is legally sufficient. Because we hold that the answer to the first two questions is "yes" and the answer to the third question is "no," we affirm Patricia King Hill's harboring conviction but reverse her accessory conviction.

I FACTS AND PROCEDURAL HISTORY

This case arises from one man's efforts to avoid paying more than $100,000 in past-due child support. In 1979, Charlie Hill (Charlie) divorced his wife, Victoria, in New Mexico. As part of the divorce decree, Charlie acknowledged that he was the father of two children born of the union and agreed to pay Victoria $450 per month for their support. Despite this agreement, he has made no voluntary support payments since 1979.

In November 1993, Charlie married the defendant/ appellant, Patricia King Hill (Hill), an attorney and business-woman of substantial means. The Hills lived in France and Luxembourg before settling on a ranch in Umpqua, Oregon. In 1995, just two years into their marriage, Charlie's unpaid obligation caught up with the couple when the IRS garnished part of their joint tax refund because of Charlie's child support arrears.

In 1997, Victoria filed suit in New Mexico to collect the child support that Charlie owed her. When Charlie failed to appear and respond to that state's order to show cause, the court found him in contempt. In December 1997, Hill witnessed Charlie's arrest on this contempt warrant. Indeed, Hill posted Charlie's bail and then retained counsel to defend the suit brought by Victoria, which by then had yielded a $177,000 default judgment against Charlie.

In May 1998, two Department of Health & Human Services investigators attempted to interview Charlie at the Oregon ranch concerning his failure to pay child support. While there, the investigators informed both Charlie and Hill that the matter was now being investigated as a potential violation of federal criminal law.

Charlie fled to Mexico soon after the investigators' visit. Before doing so, he told a ranch hand, in Hill's presence, that he was fleeing because of the child support charges. Shortly thereafter, Hill listed her Oregon ranch for sale and began looking for similar property in Mexico. The couple located property in June, and Hill purchased it in August 1998.

Hill subsequently invested $300,000 in improving the Mexican ranch property, where Charlie lives and works. In addition, between May and December 1998, Hill wired money to Charlie in Mexico and transferred money from her personal account to the couple's joint account so that Charlie would have something to withdraw.

On October 15, 1998, a federal judge in Oregon signed a criminal complaint charging Charlie with a misdemeanor violation of 18 U.S.C. § 228 (Child Support Recovery Act). An arrest warrant issued the same day. A week later, on October 23, 1998, a federal agent who did not know that Charlie had fled to Mexico returned to the Hills' Oregon ranch in order to arrest him. The agent did not apprise Hill of the outstanding warrant, and she refused to divulge Charlie's location.

In December 1998, agents again visited Hill at her Oregon ranch, and she again refused to divulge her husband's whereabouts. By this time, however, she had been informed that there was a misdemeanor warrant for Charlie's arrest. Agents served Hill with a subpoena commanding her to appear before a grand jury on December 17, 1998.

The night before her scheduled appearance, Hill met with Steve Kimball, one of her former ranch hands, at a local restaurant. During that meeting, Hill asked Kimball if he would drive a truck and trailer to a destination that she would name later if she and her husband paid all of his expenses. Kimball agreed.

When she appeared the next morning before the grand jury, Hill refused to answer questions, invoking both her right against self-incrimination and the privilege not to testify against one's spouse. As soon as she finished, she flew to Chicago and then to Mexico, where she joined Charlie.

Later that same day, the grand jury indicted Charlie for felony violation of the Deadbeat Parents Punishment Act of 1998 and a felony warrant was issued for his arrest. By the time federal agents tried to notify Hill of this, however, she was gone. Accordingly, they notified four other people: Hill's business attorney in Chicago, her criminal defense attorney in Eugene, Steven Kimball, and Vicki Powell, who looked after the house for the Hills. All were requested to inform Hill of Charlie's felony indictment and the warrant for his arrest at their first opportunity. Vicki Powell later testified that she did so during the first or second week of 1999.

Sometime in the first few days of January 1999, Charlie contacted Kimball and told him that Hill wanted him to drive the couple's truck, trailer, pets and belongings to the Mexican border. Hill later called her business partner in Illinois and asked him to send a $2,000 cashier's check to Kimball in Oregon. When Kimball received the check via Federal Express on January 5, 1999, he notified the federal agents with whom he was then cooperating. A few days later, on January 11, 1999, a federal judge in Oregon signed a criminal complaint charging Hill with being an accessory after the fact, and a warrant issued for her arrest as well.

Sometime after January 5, 1999, but, according to Vicki Powell, after she had informed Hill of the felony warrant for Charlie's arrest, Kimball embarked on his trip to Mexico.¹ Along the way, Kimball had second thoughts about cooperating with the Government. Accordingly, while talking by phone with Charlie, who had flown with Hill from Morelia, Mexico, to Hermosillo, Mexico, to meet him at the border, Kimball told Charlie that federal agents were following him. At that point, Hill took over the negotiations with Kimball and tried to persuade him to deliver the truck, trailer, and belongings to one of the Hills' associates and to fly back to Oregon using a ticket they would purchase on his behalf. The associate refused to become involved, however, so Kimball turned the truck around and drove back to Oregon pursuant to law enforcement's advice. While the Hills were waiting for Kimball to deliver their belongings and were negotiating with him, a deputy U.S. marshal spoke with Hill and entreated her to come across the border and retrieve her pets and belongings. Hill declined, saying she could not drive such a large truck.

On January 25, 1999, Hill flew from Mexico to the Cayman Islands to look into setting up a bank account that would be safe from U.S. Government forfeiture. Two days later, police arrested Hill when her return flight made a stopover in Miami. There she spent five days in jail before disclosing the address of her ranch in Mexico and being released.

After Hill waived her right to a jury trial, the district court convicted her of both of the charged counts: harboring a fugitive² and being an accessory after the fact.³ She was sentenced to three years of probation, no fine, no time in custody, and was told that the court would look favorably upon a motion to terminate her probation should Charlie return to face the charges against him.

As of July 21, 2000, Charlie remained at large in Mexico.⁴ Hill appeals her convictions.

II ANALYSIS

A. Hill's Constitutional Challenge

Hill first argues that the harboring and accessory statutes are unconstitutional as applied to her because they criminalize conduct in which she is entitled to engage under the First and Fifth Amendments to the Constitution. Specifically, Hill alleges that the statutes impermissibly infringe upon her rights of association, marriage, privacy, and due process. We find no merit in Hill's constitutional challenge, which we review de novo.⁵

Hill relies on Griswold v. Connecticut.⁶ In Griswold, the Supreme Court stated that the marriage relationship lies "within the zone of privacy created by several fundamental constitutional guarantees."⁷ Accordingly, courts must "examine carefully the importance of the governmental interests advanced and the extent to which they are served"⁸ by laws "that operate[] directly on an intimate relation of husband and wife,"⁹ or laws that "slic[e] deeply into the family"¹⁰ because "`freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause.'"¹¹ From this unassailable general proposition, Hill proceeds directly to the conclusion that the harboring and accessory statutes unconstitutionally intrude upon her marriage. This leap of logic is unwarranted.

The mere fact that a statute affects the marriage relationship does not mean that the statute runs afoul of Griswold. The problems in Griswold were that the anti-contraceptive statute operated "directly on an intimate relation"¹² of the marriage and sought "to achieve its goals by means having a maximum destructive...