United States v. Daniel James Fowlie

Opinion by Judge WILLIAM A. NORRIS; Concurrency by Judge FARRIS; Dissent by Judge REINHARDT.

In an opinion filed May 2,1994, we vacated Fowlie’s conviction on count 2 and affirmed his convictions on counts 1, 12-14 and 20. See United States v. Fowlie, 24 F.3d 1059 (9th Cir.1994). We now affirm his convictions on counts 4-7, 9, 21, 22, 25 and 26.

Fowlie contends that his prosecution for counts 4-7, 9, 21, 22, 25 and 26 is barred by the statute of limitations because the offenses occurred more than five years before the date of the indictment. The statute provides that “no person shall be prosecuted ... unless the indictment is found or the information is instituted within five years after such offense shall have been committed.” 18 U.S.C. § 3282 . However, Congress has added an exception that “[n]o statute of limitation shall extend to any person fleeing from justice.” 18 U.S.C. § 3290 . The district court ruled that the indictment was timely because Fowlie was “fleeing from justice” within the meaning of § 3290 during the period he was in Mexico. We agree. Judge Farris and I write separately because we have reached the same result but for different reasons.

The district court…

dissenting from the affirmance of the convictions on counts 4-7, 9, 21, 22, 25 and 26:

I disagree with Judge Farris’ and Judge Norris’ conclusion that the statute of limitations was tolled during Fowlie’s time in Mexico. In my view, Fowlie’s decision to remain abroad — and any actions he may have taken in order to. facilitate that decision — cannot be construed as “fleeing from justice” within the meaning of 18 U.S.C. § 3290 . I cannot imagine a more direct rejection of the plain meaning of “fleeing” than holding that it applies to remaining, or staying put. My colleagues simply disregard the clear language of § 3290 and adopt a construction of that section that is the precise opposite of that intended by Congress.

Although Judge Norris purports to express no opinion regarding the “constructive flight” doctrine adopted by the Second Cir- *1074 euit, and Judge Farris is strangely silent on the issue, their opinions could well establish that doctrine as the law of this circuit, contrary to all of our past precedent. While Judge Farris simply echoes the Second Circuit’s reasoning and Judge Norris emphasizes Fowlie’s purported “affirmative steps” of changing his residence and…

concurring:

Judge Norris and Judge Reinhardt focus on the extent to which Fowlie actively hid himself from the police. I write separately to emphasize my view that the government did not need to provide factual evidence of “affirmative steps” that Fowlie took to hide himself. The government met its burden of proving flight by showing that Fowlie knew he was wanted by the authorities and intentionally thwarted arrest by remaining abroad.

The statute of limitations ensures that one 'accused of a crime has an adequate opportunity to gather exculpatory evidence. The theory is that the best opportunity to do so occurs while the tracks are fresh. One who has notice but fails to come forward to defend cannot be heard to complain that the tracks have faded. The pivotal issue is notice and a timely opportunity to defend. A defendant with notice cannot by deliberately absenting himself thwart the process. Time stops until the accused makes “a good faith effort to surrender.” United States v. Gonsalves, 675 F.2d 1050, 1055 (9th Cir.), cert. denied, 459 U.S. 837 , 103 S.Ct. 83 , 74 L.Ed.2d 78 (1982).

We consistently have held that to meet its burden of proving that the accused fled or…

24 F.3d 1070 UNITED STATES of America, Plaintiff-Appellee, v. Daniel James FOWLIE, Defendant-Appellant. No. 91-50383. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 6, 1993. Decided June 13, 1994. William J. Kopeny, James D. Riddet, and Cherif Bassiouni, Santa Ana, CA, for defendant-appellant. Patrick W. McLaughlin and Jonathan S. Shapiro, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: FARRIS, NORRIS, and REINHARDT, Circuit Judges. Opinion by Judge WILLIAM A. NORRIS; Concurrency by Judge FARRIS; Dissent by Judge REINHARDT. WILLIAM A. NORRIS, Circuit Judge: 1 In an opinion filed May 2, 1994, we vacated Fowlie's conviction on count 2 and affirmed his convictions on counts 1, 12-14 and 20. See United States v. Fowlie, 24 F.3d 1059 (9th Cir.1994). We now affirm his convictions on counts 4-7, 9, 21, 22, 25 and 26. 2 Fowlie contends that his prosecution for counts 4-7, 9, 21, 22, 25 and 26 is barred by the statute of limitations because the offenses occurred more than five years before the date of the indictment. The statute provides that "no person shall…