U.S. v. Marshall, 87-2746

• Decision Date: 15 September 1988
• Docket Number: No. 87-2746,87-2746
• Citation: 856 F.2d 896
• Parties: 26 Fed. R. Evid. Serv. 1032 UNITED STATES of America, Plaintiff-Appellee, v. Joseph MARSHALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 896

856 F.2d 896

26 Fed. R. Evid. Serv. 1032

UNITED STATES of America, Plaintiff-Appellee, v. Joseph MARSHALL, Defendant-Appellant.

No. 87-2746.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 1988.

Decided Sept. 2, 1988.

As Amended Sept. 15, 1988.

Jerome Rotenberg, Rosenfeld, Rotenberg, Schwartzman, Hafron & Shapiro, Chicago, Ill., for defendant-appellant.

Laurie N. Feldman, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, POSNER, and FLAUM, Circuit Judges.

BAUER, Chief Judge.

The defendant-appellant, Joseph Marshall, appeals the district court's refusal to dismiss his three-count indictment for receiving, concealing, and retaining United States Savings Bonds in violation of 18 U.S.C. Secs. 371, 641, 2314, and 2312. ¹ We affirm.

I.

A.

On October 20, 1983, Marshall was charged by complaint with the 1979 receipt of stolen United States Savings Bonds in Chicago, Illinois. Despite the FBI's efforts to locate Marshall, he remained at large until his surrender on October 28, 1985. He was indicted on November 26, 1985, and moved to dismiss the charges, alleging that the government failed to bring his indictment within the applicable five-year statute of limitations. See 18 U.S.C. Sec. 3282. ² Following a two-day hearing, Judge Williams denied the defendant's motion, holding that the limitations period was tolled from February, 1984, until the time of Marshall's surrender because he had been a "fugitive from justice" during that period within the meaning of 18 U.S.C. Sec. 3290 (the "tolling statute"). ³

Judge Williams concluded that Marshall fled Illinois with the intent to avoid prosecution because he failed to surrender to authorities after learning of his arrest warrant. Marshall denies that he was ever aware of the charges against him. The United States, however, contends that Marshall's mere absence from Illinois, regardless of his intent, is sufficient to toll the statute of limitations under section 3290.

B.

We have not addressed previously the question whether section 3290's pronouncement that "[n]o statute of limitations shall extend to any person fleeing from justice" requires a showing that the defendant intended to avoid arrest or prosecution. Both the District of Columbia and the Eighth Circuits have held that mere absence from the jurisdiction in which the crime occurred, regardless of intent, is sufficient to toll the statute of limitations. See Matter of Assarsson, 687 F.2d 1157 (8th Cir.1982) (citing King v. United States, 144 F.2d 729 (8th Cir.1944), cert. denied, 324 U.S. 854, 65 S.Ct. 711, 89 L.Ed. 1413 (1945)); McGowen v. United States, 105 F.2d 791 (D.C.Cir.), cert. denied, 308 U.S. 552, 60 S.Ct. 98, 84 L.Ed. 464 (1939). The First, Second, Fifth, and Ninth Circuits have held that intent to avoid arrest or prosecution must be proved before section 3290 applies and the statute of limitations is tolled. United States v. Wazney, 529 F.2d 1287 (9th Cir.1976); Jhirad v. Ferrandina, 486 F.2d 442 (2d Cir.1973); Donnell v. United States, 229 F.2d 560 (5th Cir.1956); Brouse v. United States, 68 F.2d 294 (1st Cir.1933).

The genesis of these divergent views is a single, turn-of-the-century Supreme Court case, Streep v. United States, 160 U.S. 128, 16 S.Ct. 244, 40 L.Ed. 365 (1895). There, the defendant, Streep, committed a criminal offense indictable under both state and federal law. Although a timely state indictment was returned against Streep, no federal indictment was brought until after the expiration of the federal statute of limitations. When Streep moved to dismiss the federal charges as untimely, the government produced evidence that Streep had fled to Europe upon learning of his state indictment, but before his federal indictment was returned.

Streep countered with two separate contentions. First, he maintained that the federal statute of limitations could not be tolled if he fled with the intent to avoid only separate state charges. In rejecting Streep's distinction, the Court noted that,

it is quite clear that any person who takes himself out of the jurisdiction, with the intention of avoiding being brought to justice for a particular offense, can have no benefit of the [statute of] limitation[s]....

Id. at 133, 16 S.Ct. at 246 (emphasis added). And that,

in order to constitute "fleeing from justice," within the meaning of section 1045 of the Revised Statutes [now section 3290], it is not necessary that there should be an intent to avoid the justice of the United States; but it is sufficient that there is an intent to avoid the justice of the State having criminal jurisdiction over the same territory and the same act.

Id. at 135, 16 S.Ct. at 247 (emphasis added). Thus, although the Court held that intent to avoid federal prosecution need not be established, it nevertheless acknowledged that, "the general intention of the defendant in leaving the jurisdiction is material and is an indispensable aspect in considering whether he was, while outside the jurisdiction, a fugitive from justice." Donnell, 229 F.2d at 562.

Streep contended next that, because he left for Europe before the initiation of any federal prosecution (i.e. indictment), he could not have "fled from justice" within the meaning of the tolling statute. The Court rejected Streep's argument and held that the tolling statute is applicable whenever "there is a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been actually begun." Id. 160 U.S. at 133, 16 S.Ct. at 246 (emphasis added). The Court stated that,

there can be no doubt that, in this respect, section 1045 [the tolling statute] must receive the same construction that has been given to section 5278 [the extradition statute] by this court, saying: "To be a fugitive from justice, in the sense of the act of Congress regulating the subject under consideration, it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another. Roberts v. Reilly, 116 U.S. 80, 97 [6 S.Ct. 291, 300, 29 L.Ed. 544 (1885) "

Id. at 134, 16 S.Ct. at 246.

The government makes much of the Court's statement that the tolling and extradition statutes "must receive the same construction." For the extradition statute has been held consistently to require only proof of absence from the indicting jurisdiction, regardless of the defendant's intent. See, e.g., Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161 (1906); Roberts v. Reilly, 116 U.S. 80, 94, 6 S.Ct. 291, 299, 29 L.Ed. 544 (1885); United States ex. rel. Jackson v. Meyering, 54 F.2d 621, 622 (7th Cir.1931); United States v. Steinberg, 478 F.Supp. 29, 32 (N.D.Ill.1979). The government argues that Streep equated the nonintent-based standard of the extradition statute with that of the tolling statute. See Donnell, 229 F.2d at 565 (Rives, J., dissenting).

Although, the Court's statement lends some support to the government's position, a careful review of the Court's entire opinion will not bear the weight of the government's contention. Taken in context, Streep merely indicates that just as flight before the initiation of prosecution requires extradition, so too does preindictment flight trigger the tolling statute. Streep does not implicate the extradition statute's nonintent-based standard under the tolling statute.

The validity of this statement is clear from the context in which the Court discussed the extradition statute. In support of its holding and immediately following its statement that the tolling statute is triggered by "flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been actually begun," id., 160 U.S. at 133, 16 S.Ct. at 246, the Court stated:

and there can be no doubt that, in this respect, section 1045 of the Revised Statutes [the tolling statute], must receive the same construction that has been given to section 5278 [the extradition statute]....

Id. at 134, 16 S.Ct. at 246 (emphasis added). The Court's reference to the extradition statute is modified by the phrase "in this respect." And that phrase clearly refers to flight before the initiation of prosecution and not the distinct question of whether intent to avoid prosecution need be shown under the tolling statute. For in the very next paragraph, the Court explicitly recognizes that intent to avoid prosecution is relevant and necessary in order to invoke the tolling statute, without any reference to the extradition statute. ⁴ Indeed, if the Court viewed intent as irrelevant under the tolling statute, it could have disposed of Streep's claim without any discussion of intent. It was undisputed that Streep was absent from the indicting jurisdiction during the running of the statute of limitations; that fact alone, under the government's reading of Streep, would have tolled the statute of limitations. Instead, however, the Court held that flight with the intent to avoid either state or federal prosecution is required to implicate the tolling statute.

Moreover, the government's reading of Streep is incompatible with the purpose of the tolling statute. The extradition provisions, unlike the tolling statute, are "in the nature of a treaty stipulation entered into for the purpose of securing a prompt and efficient administration of the criminal laws of the several states." Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 124, 51 L.Ed. 161 (1906). The phrase "fugitive from justice," as there contained, then, cannot be understood in a literal sense. Id. at 230, 27 S.Ct....