U.S. v. Spillane, 89-5490

Decision Date23 October 1990
Docket NumberNo. 89-5490,89-5490
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard John SPILLANE, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Clarence Freeman Stanback, Jr., Arlington, Va., for defendant-appellant.

Marcus John Davis, Sp. Asst. U.S. Atty., argued (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before RUSSELL and MURNAGHAN, Circuit Judges, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.

PER CURIAM:

Following a trial by jury, the appellant, Richard John Spillane, was convicted on thirteen counts of violating the Gun Control Act of 1968. 18 U.S.C. Secs. 921 et seq. Specifically, the appellant was convicted on six counts of making false statements to a licensed dealer in firearms in connection with the purchase of six firearms, a violation of 18 U.S.C. Sec. 922(a)(6); and seven counts of receiving and possessing firearms shipped interstate while being a fugitive from justice, a violation of 18 U.S.C. Sec. 922(g)(2). Upon conviction, the appellant was sentenced pursuant to the federal sentencing guidelines to a term of 14 months imprisonment on each count, to be served concurrently, and a $1,000 fine. We affirm.

I.

The appellant's history of petty criminal offenses is well documented in the record. In September of 1985, he was arrested in New York City after he smashed the window of a car driven by a person he believed to be fleeing from the scene of an accident. Between September 1985 and May 1986 the criminal case against the appellant was continued at the request of the prosecution twelve times. Finally, Spillane was advised by the court that should he make restitution in the amount of $350, a plea of guilty to the reduced charge of disorderly conduct would be accepted. The case was then again continued until September 15, 1986, giving the appellant ample time to comply.

Unfortunately, the appellant failed to make restitution and he was again summoned to appear. This summons was sent to an address in Summit, New Jersey, given by the defendant as that of his home. Turning a relatively minor offense into one engendering a more serious magnitude, the appellant twice failed to appear and a bench warrant for his arrest was issued.

Apparently unimpressed by the seriousness of the charges pending against him, the appellant was again arrested in New York City in December of 1987, and charged with disorderly conduct. Two days later, he was released on his own recognizance and a court date of December 16, 1987, was set. At the time of this second arrest, no action was taken regarding the outstanding bench warrant issued in the earlier case. Manifesting again his now well documented disdain for the authority of the New York judiciary, the appellant once more failed to appear and a second bench warrant was issued for his arrest.

These warrants for the appellant's arrest remained pending until June 20, 1989, when he voluntarily appeared in New York City court. This appearance was made after the appellant was arrested in the Eastern District of Virginia on the federal charges that gave rise to the instant prosecution. Apparently, between February 20, 1989, and May 25, 1989, the appellant purchased and took into his possession six firearms. These firearms were purchased from four separate but licensed dealers in Virginia. In order that each purchase comport with the rules set forth by the Bureau of Alcohol, Tobacco and Firearms, the appellant completed and signed Bureau Form 4473, falsely certifying that he was not a fugitive from justice.

It was upon these facts that the appellant was convicted of violating the Gun Control Act.

II.

The dispositive issue for resolution of this appeal is whether or not the appellant was properly convicted of being a fugitive from justice in possession of a firearm. * It is the contention of the appellant that (1) he was unaware of the charges pending against him and could, for purposes of federal prosecution, not be considered a fugitive from justice, and (2) the government failed to introduce evidence that he fled, in any sense of the word, and accordingly evidence of an essential element of the crimes for which he was convicted is absent. We are unpersuaded.

We address the appellant's second contention first. The term "fugitive from justice" is defined in 18 U.S.C. Sec. 921(a)(15) as "any person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding." The record clearly reflects that the appellant purposefully stayed away from New York to avoid facing the charges pending against him. Appellant's own testimony, given at trial, removes any doubt about whether or not he knew of the pending charges and whether his failure to appear was deliberate. We find that this alone is enough to support the assertion by the government that the appellant was a "fugitive from justice" as defined by the statute under which he was prosecuted, and accordingly the prosecution has here met its burden of proof.

We are unpersuaded by the argument of the appellant that to meet the requisite burden of proof the prosecution must show that the appellant left New York with the intent to avoid facing the charges pending against him. Admittedly, this assertion is supported by a decision rendered by the Ninth Circuit. See United States v. Durcan, 539 F.2d 29 (9th Cir.1976). In Durcan, the court held that "[i]n order to establish that [the defendant] was a 'fugitive from justice' within the meaning of section 922(g)(2), an indispensable requisite of the prosecution's proof was that [the defendant] had left [the state where charges against him were pending] with the intent to avoid prosecution." 539 F.2d at 31.

This formulation does not appeal to us. It would exempt from prosecution those who for some collateral reason leave a state in which charges against them are pending, and later decide not to return because they do not wish to face such charges. We can find no logical distinction between the person who leaves to avoid prosecution and the person who, once gone, refuses to return for the same reason, to avoid prosecution. It is this logic that leads us to now disagree with the underdeveloped ruling of Durcan. Any person who, knowing that charges are pending, purposely (1) leaves the jurisdiction of prosecution and (2) refuses to answer those charges by way of appearance before the prosecuting tribunal, is a fugitive from justice. It is not necessary that the accused make a furtive exit from the prosecuting jurisdiction.

The appellant's well documented failure to answer the charges pending against him in New York City leads to no other conclusion than that he purposefully absented himself in hopes of avoiding prosecution. This we now hold is sufficient evidence of flight and accordingly the appellant was properly charged and convicted of being an 18 U.S.C. Sec. 922 fugitive from justice.

We are further unpersuaded by the appellant's contention that his lack of knowledge of the outstanding arrest warrants pending against him is proof that he did not knowingly violate the Gun Control Act when he certified on a gun purchase form that he was not a fugitive from justice. Certainly the appellant knew that as a consequence of arrest he must face the charges leveled against him. This is confirmed by the fact that on twelve separate occasions the appellant did appear in a New York Court to face charges stemming from his first arrest. The fact that he may not have been aware that his failure to appear led to the issuance of a warrant for his arrest is not an impediment to prosecution under Sec. 922, as the appellant's reckless disregard for the truth satisfies the scienter requirement of this statute. See United States v. Hester, 880 F.2d 799, 802 (4th Cir.1989).

These issues decided, we find no merit to any of the further arguments made by the appellant. Accordingly, the judgment of the district court is hereby

AFFIRMED.

MURNAGHAN, Circuit Judge, dissenting:

The panel majority holds that Spillane, who lived quite conspicuously and fled from nowhere, was a "fugitive from justice" under 18 U.S.C. Sec. 922(g)(2) (unlawful for fugitives to receive or possess firearms) because he failed to appear in New York to answer pending criminal charges. As I read the statute, and accepting as valid a sister circuit's evaluation in United States v. Durcan, 539 F.2d 29 (9th Cir.1976), a deliberate failure to appear is not enough--evidence either of flight from prosecution or of concealment must be introduced in order to classify a person as a fugitive from justice. Here there has been no showing of flight or concealment; perhaps twelve continuances at the request of the prosecutor suggests the opposite. Flight is a sine qua non of being a fugitive. Tempus fugit! Furthermore, even if the words of the statute were ambiguous as to their meaning, which they are not, the doctrine of lenity applies when one construes a criminal statute. In short, there is a difference between flight, necessarily involving two distinct points, i.e., where one starts and where one comes to rest, and staying away or failing to return, which well may involve but a single point.

The story of Richard John Spillane begins in Manhattan, where he was arrested for breaking the window of a motor vehicle, which, according to him, was prompted by the driver's attempt to leave the scene of an accident. After posting bail, he appeared in the New York court system on eleven different occasions--each time the prosecutor requested a continuance. During his twelfth appearance, the court reduced the charge against Spillane to disorderly conduct on the condition that Spillane make $350 restitution to the driver.

But restitution was not made and the New York...

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