1997 U.S. App. LEXIS 22427, *; 80 A.F.T.R.2d (RIA) 6062

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BERNARD LAZAR HOFFMAN, a/k/a Tony Alamo, Defendant-Appellant.

Case No. 94-6289

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

1997 U.S. App. LEXIS 22427; 80 A.F.T.R.2d (RIA) 6062

August 19, 1997, Filed

NOTICE:  [*1]  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

SUBSEQUENT HISTORY: Reported in Table Case Format at: 124 F.3d 200, 1997 U.S. App. LEXIS 30670.

PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE. 93-20103. McCalla. 10-3-94.

DISPOSITION: AFFIRMED.

COUNSEL: For UNITED STATES OF AMERICA, Plaintiff - Appellee: Robert E. Lindsay, Alan Hechtkopf, Karen M. Quesnel, Gregory V. Davis, Jeffrey Kupfer, U.S. Department of Justice, Washington, DC.

For BERNIE LAZAR HOFFMAN, Defendant - Appellant: Susan G. James, Montgomery, AL.

JUDGES: BEFORE: KEITH, BATCHELDER, and DAUGHTREY, Circuit Judges.

OPINION: PER CURIAM. The appellant/defendant, Bernard Lazar Hoffman (a.k.a. Tony Alamo) appeals his convictions for violating 26 U.S.C. §§ 7206(1) and 7203. Defendant argues: (1) that the district court erred in holding that defendant's flight on an unrelated charge tolled the statute of limitations; and (2) the district court erred in denying defendant's motion for a new trial and/or judgment of acquittal  [*2]  based on ineffective assistance of counsel. For the reasons that follow, we reject defendant's assignments of error and AFFIRM the judgments of the district court.

I. BACKGROUND

The State of California brought child-abuse charges against defendant Bernard Lazar Hoffman and issued a warrant for his arrest on April 25, 1989. Because the defendant did not appear before the court, and the authorities were unable to find him to execute the arrest warrant, on June 28, 1989, the FBI filed a federal complaint charging defendant with unlawful flight to avoid prosecution. A federal warrant was issued that same day pursuant to 18 U.S.C. § 1073. Testimony provided by Special Agent Mark Wilson indicated that on October 7, 1989, defendant called the Los Angeles FBI office and spoke to Wilson. The defendant said that he was somewhere in Florida, that he knew of the charges in California and wanted to turn himself in, but that he was not guilty of the child-abuse charges. Agent Wilson told the defendant that he was at least guilty of the unlawful flight to avoid prosecution charge, for which he should surrender. Agent Wilson also reminded the defendant that he could turn himself in  [*3]  at any FBI office.

Defendant did not surrender and was arrested in Florida on July 5, 1991. Based on Agent Wilson's credible testimony, the magistrate judge and the district court found that the defendant was knowingly fleeing from both the California child-abuse charges and the federal unlawful flight charge from October 7, 1989, until he was arrested on July 5, 1991. Defendant was brought to California to stand trial on the child-abuse charges. The State of California later dismissed the charges against defendant.

Defendant was indicted in the instant case on April 19, 1993, 21 months after his arrest and return to California on the prior unrelated state charges. Defendant was charged with one count of violating 26 U.S.C. § 7206(1), filing a false income tax return on August 15, 1986, and three counts of violating 26 U.S.C. § 7203, failure to file a tax return for calendar years 1986, 1987 and 1988. Defendant moved to dismiss the counts for filing a false return in 1986 (count one) and failing to file a return for the 1986 calendar year (count two), claiming that these two offenses were time-barred because he was indicted 254 days after the six-year statute of limitations had  [*4]  expired. The court referred the motion to Magistrate Judge Brown, who recommended that count one, filing a false 1986 tax return, be dropped. The district court rejected this recommendation, finding that defendant's "flight" from the state child-abuse charge in California (a federal offense itself) from October 7, 1989, until July 5, 1991, tolled the statute of limitations for the federal tax offense pursuant to 18 U.S.C. § 3290. The magistrate judge recommended that count two not be dismissed. The district court adopted this portion of the magistrate judge's report and recommendation, which the parties do not challenge. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The information on count two of the indictment was initially filed on April 13, 1993. It was repeated in the superseding indictment filed April 19, 1993. Count two was filed within the statute of limitations because the indictment charged the defendant with failure to file income tax by April 15, 1987, for the year of 1986. Hence, the statute of limitations began to run on April 15, 1987, and the April 13, 1993, filing of the indictment as to count two was within the six-year statute of limitations.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  [*5] 

After a three-week trial, defendant was found guilty on all counts. He was sentenced to seventy-two months in prison and fined $ 210,000. Defendant filed a motion for a new trial and/or judgment of acquittal based on ineffective assistance of counsel and the running of the statute of limitations on the charge of filing a fraudulent tax return on August 15, 1986. The district court held a hearing on the ineffective assistance of counsel claim and denied defendant's motion for a new trial. Defendant filed a timely appeal.

II. DISCUSSION

A. Defendant's flight and tolling of the statute of limitations.

Defendant contends that count one of the indictment was time-barred, since it was returned more than six years after the date of his offense. See 26 U.S.C. § 6531 (5) (the limitations period applicable to offenses described in 26 U.S.C. § 7206(1) is six years). He claims that 18 U.S.C. § 3290 applies only when the defendant is willfully fleeing from prosecution for the same offense charged in the indictment under consideration or when a defendant's flight from an unrelated charge impedes the prosecution of the charge under consideration.

The government concedes that  [*6]  count 1 was filed six years and 254 days after the offense was committed. However, it contends that from October 7, 1989, until July 5, 1991, the defendant was "fleeing from justice" and that pursuant to 18 U.S.C. § 3290, the statute of limitations was tolled during the 21 month period, resulting in the indictment being returned within the limitations period. In short, the government claims that willful flight from prosecution of any crime, state or federal, triggers the application of § 3290 and tolls the running of the statute of limitations as to any other federal offense.

The district court determined that the statute of limitations was tolled according to 18 U.S.C. § 3290 which provides, "No statute of limitations shall extend to any person fleeing from justice." Because the district court's interpretation of 18 U.S.C. § 3290 is a question of law, we review it de novo. Nixon v. Kent County, 76 F.3d 1381, 1386 (6th Cir. 1986).

In the early case of Streep v. United States, 160 U.S. 128, 40 L. Ed. 365, 16 S. Ct. 244 (1895), the Supreme Court interpreted the predecessor statute to § 3290 (R.S. § 1045). Streep involved a defendant who was charged in a New York state  [*7]  indictment for devising a scheme to sell counterfeit obligations and securities of the United States. He subsequently fled the country and remained a fugitive. A federal indictment, brought against him on the same charge, appeared to be barred by the statute of limitations. The Supreme Court held that it was proper to exclude from the statute of limitations period on the federal charge the time that the defendant was a fugitive on the state charge. Streep, 160 U.S. at 135. The Court stated:

It is unnecessary, for the purposes of the present case, to undertake to give an exhaustive definition of these words ["to any person fleeing from justice"]; for 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 limitation, at least when prosecuted for that offense in a court of the United States.

. . . .

[R.S. § 1045] speaks generally of 'fleeing from justice,' without restriction either to the justice of the state, or to the justice of the United States. A person fleeing from the justice of his country is not supposed to have in mind the  [*8]  object of avoiding the process of a particular court, or the question of whether he is amenable to the justice of the nation or the state, or of both.

Id. at 133-34. Clearly the Court held that a defendant's flight from a state charge tolls the running of the limitations period on a federal charge arising from the same occurrence. What is left to be resolved in this circuit is whether the limitations period on a federal charge is tolled by defendant's flight from an unrelated state or federal charge.

Several of our sister circuits have interpreted § 3290 and Streep as holding that a defendant who flees from justice in one federal jurisdiction loses the benefit of the statute of limitations for all charges, even unrelated federal charges, in all federal jurisdictions. See United States v. Catino, 735 F.2d 718, 721 (2d Cir. 1984) (holding that the limitations period on the defendant's bail-jumping offense in the Southern District of New York was tolled while he was a fugitive from a drug charge in the Eastern District of New York); United States v. Gonsalves, 675 F.2d 1050, 1052 (9th Cir. 1982) (holding that a defendant's flight from a federal indictment returned  [*9]  against defendant in Las Vegas tolled the limitation period on an unrelated federal indictment returned against him in San Diego). n2 King v. United States, 144 F.2d 729, 731 (8th Cir. 1944) (holding that statute of limitations was tolled because the defendant was a fugitive from a prior arrest order in another federal district and it was immaterial that defendant was attempting to escape justice in the federal court in Texas or the federal court in Arkansas, or both).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The Gonsalves court explained:

We are unable to reconcile the district court's restrictive reading of § 3290 with the statute's unqualified language that "no" statute of limitations shall extend to "any" person fleeing from justice. Moreover, we believe the congressional policies underlying the criminal limitations statute and the "fleeing from justice" exception to it are harmonized by interpreting § 3290 to deny the benefits of all statutes of limitations to a person fleeing from justice in any federal jurisdiction.

Gonsalves, 675 F.2d at 1052.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  [*10] 

In United States v. Morgan, 922 F.2d 1495 (10th Cir. 1991), the Tenth Circuit broadened the scope of "fleeing from justice" and applied it to an unrelated state charge. The court held that a defendant's flight from a Massachusetts robbery charge tolled the statute of limitations for a federal bank robbery charge in Colorado. The court initially noted that "§ 3290 should be interpreted as plainly as it was written." Id. at 1498. It then stated:

The language of the Court's holding in Streep, and the statute itself, is clear and inclusive. Whether an individual is a fugitive from federal or state justice, his apprehension for subsequent unrelated federal crimes is necessarily hampered by his flight from justice. Therefore, the fact that [the defendant] was fleeing prosecution from unrelated state crimes offers him no assistance in his attempt to take advantage of the federal statute of limitations. [The defendant] was fleeing justice -- be it state or federal -- and thereby triggered the tolling provision of § 3290; he cannot now have the privilege of the federal statute of limitations.

Id. at 1499.

We are persuaded by the rationale of the Tenth  [*11]  Circuit in Morgan. The language in 18 U.S.C. § 3290 is broad and clear. It denies the benefit of all federal statutes of limitations to any person "fleeing from justice." As the district court accurately concluded, the courts have consistently interpreted § 3290 and its predecessor statute as written, without adding an additional requirement that the defendant flee from the prosecution of the same offense charged in the indictment. Nor does the statute differentiate between the justice of the federal courts and the justice of the state courts. We hold that the statute of limitations was tolled during the time the defendant knowingly refused to turn himself in to the proper authorities on the California charge; therefore, the defendant's conviction was not barred by the statute of limitations.

In an attempt to distinguish the above cases from the present case, the defendant makes several arguments in his brief which are unavailing. First, the defendant contends that the majority of the circuit courts have held that in order to find an accused is 'fleeing from justice' as contemplated in 18 U.S.C. § 3290, it is necessary to show the defendant acted with intent to avoid arrest  [*12]  or prosecution for the crime for which the government contends the statute of limitations has been tolled. Defendant cites Brouse v. United States, 68 F.2d 294 (1st Cir. 1922); Jhirad v. Ferrandina, 486 F.2d 442 (2d Cir. 1973); Ferebee v. United States, 295 F. 850 (4th Cir. 1924); Donnell v. United States, 229 F.2d 560 (5th Cir. 1956); and United States v. Wazney, 529 F.2d 1287 (9th Cir. 1976), to support his theory. Having reviewed the cases cited by the defendant, we find that the defendant is being disingenuous with this court. The cited cases stand for the proposition that "fleeing from justice" requires intent to avoid arrest or prosecution rather than mere absence from the jurisdiction. They do not stand for the proposition, as defendant suggests, that intent to avoid arrest or prosecution must be shown for the crime in which tolling is sought.

Next, the defendant contends that this case is distinguishable on its facts because it involved a flight from a state charge after a federal tax offense rather than a subsequent crime committed by a fugitive after a state charge as in Morgan. Therefore, he asserts that the limitations period for an antecedent federal  [*13]  crime cannot be tolled by his flight from a subsequent state charge. This argument is unsupported and illogical. The statute simply denies the defendant the benefit of the federal statute of limitations during that time that he was "fleeing from justice." As the district court found, the defendant fled for 21 months after his federal tax offense, therefore, the statute of limitations tolled during this time.

The defendant also argues that § 3290 permits the tolling of the statute of limitations on a federal offense only when the defendant is fleeing another federal offense. The defendant ignores the fact that traveling in interstate or foreign commerce to avoid prosecution is also a federal offense under 18 U.S.C. § 1073. Additionally, the statute simply does not require the federal government to demonstrate that the defendant was fleeing its authority rather than the authority of a state. It simply requires that the government show that he was "fleeing from justice." Because the government demonstrated that the defendant was knowingly "fleeing from justice" from October 7, 1989, to July 5, 1991, the statute of limitations was properly tolled during this time and does not barr the  [*14]  defendant's conviction.

B. Ineffective assistance of counsel claim.

On July 11, 1994, defendant filed a motion for a new trial/and or acquittal, again raising the statute of limitations defense and claiming ineffective assistance of counsel. The district court held an evidentiary hearing on the claims of ineffective assistance of counsel. After finding that the defendant's motion was untimely, the district court nonetheless considered the merits of the motion and denied it.

The defendant first claims that the district erred in concluding that, because it was not filed within seven days of the verdict as required by FED. R. CRIM. P. 33, the motion for a new trial was untimely. The government concedes, and the district court's docket shows, that the district court did grant defendant 30 days, until July 8, 1994, to file post-trial motions. Nonetheless, according to the docket, the motion was filed July 11 and not July 8. The defendant contends that the July 11 motion is timely, because it was faxed to the district court on July 8. He claims that it was the district court's practice to accept court pleadings via facsimile and that the court deemed them filed upon receipt.  [*15]  The defendant has not provided us with evidence supporting his theory of the allegedly appropriately faxed-filed motion, other than his own statements. Indeed, defendant's representation is contrary to the certificate of service on the motion, which plainly states that the motion was served by first-class U.S. mail on July 8, 1994. We note, however, that July 8, 1994, was a Friday, and if the motion was in fact faxed to the court, it might have been timely. Out of an abundance of caution, therefore, we will review the merits of the ineffective assistance of counsel claim. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Ordinarily we do not review on direct appeal claims of ineffective assistance of counsel. However, this case presents the unusual circumstance in which the record in this regard is fully developed and adequate for review. See, e.g., United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995), cert. denied, 133 L. Ed. 2d 886, 116 S. Ct. 965 (1996).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

After carefully reviewing the record and applicable law, we agree with the district  [*16]  court's conclusion that the defendant waived his right to conflict-free representation and that his counsel did not render ineffective assistance of counsel. The district court carefully analyzed the parties' contentions in its published opinion, and the defendant has offered no new arguments to this court. See United States v. Hoffman, 926 F. Supp. 659 (W.D. Tenn. 1996). Therefore, any further discussion of this issue would be duplicative and serve no useful purpose. Accordingly, for the reasons stated by the district court, we affirm the order denying defendant's motion for a new trial.

III. CONCLUSION

For the foregoing reasons, we AFFIRM defendant's conviction and the order denying his motion for a new trial.