US v. Anthony Brown

Filing 920100326

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4092

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY CHARLES BROWN, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:99-cr-70105-jlk-1)

Submitted:

March 10, 2010

Decided:

March 26, 2010

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Remanded by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Fay F. Spence, First Assistant Federal Public Defender, Roanoke, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Craig J. Jacobsen, Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: On July 27, 1999, a state court in Danville, Virginia, charged Anthony Charles Brown with transporting one ounce or more of cocaine into Virginia with the intent to distribute. After his release on $50,000 bond, Brown failed to appear for a hearing on September 14, 1999, and a warrant was issued for his arrest. On November 18, 1999, a federal grand jury sitting in

Roanoke, Virginia, indicted Brown on one count of knowingly and intentionally five grams possessing of cocaine with intent in to distribute of more 21 than

base,

violation

U.S.C.

§ 841(a)(1).

An arrest warrant for Brown was issued the next

day, and remained in effect until Brown was apprehended in New York over eight years later, on March 5, 2008. Following Brown's apprehension, the federal grand jury issued a superseding indictment charging him with knowingly and intentionally fifty grams possessing of cocaine with intent in to distribute of more 21 than

base,

violation

U.S.C.

§ 841(a)(1) and (b)(1)(A) (2006). superseding statute of indictment limitations, as see

Brown moved to dismiss the the five year federal and

violating 18

U.S.C.

§ 3282(a)

(2006),

because it broadened the charges against Brown by increasing the amount of cocaine base attributed to him. Following an Two

evidentiary hearing, the district court denied the motion.

days later, Brown pled guilty to Count One in the superseding 2

indictment

without

the

benefit

of

a

plea

agreement.

The

district court sentenced Brown to 188 months imprisonment, and Brown noted a timely appeal. On appeal, Brown raises several challenges, the first of which is that the district court should have granted his motion to dismiss the indictment as time-barred. This court

reviews de novo a motion to dismiss an indictment as time-barred when the motion is based upon a question of law, rather than on the existence of the facts contained in the indictment. United

States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir. 1993). The statute of limitations for non-capital crimes is five years. See 18 U.S.C. § 3282(a). Brown's offense occurred

in 1999, and the superseding indictment against him was filed in 2008, more than five the years after the offense. that this Before the

district

court,

Government

argued

superseding

indictment was nonetheless timely because (1) it related back to the original 1999 indictment and (2) the statute of limitations was tolled because Brown was a fugitive from justice. The district court, in denying the motion to dismiss, concluded that the original indictment related back to the 1999 indictment because "[t]he superseding indictment was based on the exact same facts as the original November 18, 1999

indictment," and left Brown "fairly alerted to the subsequent 3

charges against him and the time period at issue."

(JA 208).

In so concluding, the district court stated that it "need not express an opinion as to whether [Brown's] (JA 209). fugitive status

tolled the statute of limitations."

On appeal, the Government has abandoned the argument that the superseding indictment related back to the 1999

indictment.

See Edwards v. City of Goldsboro, 178 F.3d 231, 241

n.6 (4th Cir. 1999) (noting that issue not properly raised in opening brief is abandoned); see also United States v. Brooks, 524 F.3d 549, 556 & n.11 (4th Cir. 2008) (same). Instead, the

Government argues only that Brown's fugitive status tolled the limitations provides, person period under of 18 U.S.C. § 3290 shall (2006), extend which to any the

"[n]o

statute from

limitations To

fleeing

justice."

invoke

this

statute,

Government must prove, by preponderance of the evidence, that the defendant fled "with the intent to avoid arrest or

prosecution."

United States v. Marshall, 856 F.2d 896, 900 (7th

Cir. 1988); see also United States v. Gonsalves, 675 F.2d 1050, 1052 (9th Cir. 1982) (same). Brown's question of fact. States 1995); v. intent in leaving the jurisdiction is a

Marshall, 856 F.2d at 900; see also United 53 F.3d at 1242, 1243-44 The (11th Cir. court

Fonseca-Machado, 675

Gonsalves,

F.2d

1052.

district

expressly declined to make that factual finding below, ruling 4

only

that

the

superseding

indictment

related

back

to

the

original 1999 indictment.

Accordingly, we remand this case to

the district court for the limited purpose of permitting that court to determine, in the first instance, whether § 3290

applies in this case.

The record, as supplemented, will then be

returned to this court for further proceedings. REMANDED

5