PHILLIP RAE MORGAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-7634 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Memorandum For The United States In Opposition Petitioner contends that the court of appeals erred in holding that, under 18 U.S.C. 3290, the statute of limitations applicable to the instant federal indictment for a bank robbery charge was tolled during the time that petitioner was "fleeing from justice" on unrelated state charges. 1. On December 14, 1989, a grand jury sitting in the United States District Court for the District of Colorado returned a two-count indictment charging petitioner with robbery of a federally insured bank, in violation of 18 U.S.C. 2113(a), and possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. App. 1202(a)(1) (1982). Petitioner moved to dismiss the bank robbery count on the ground that the indictment was returned five years and two weeks after the commission of the charged offense on November 30, 1984, and, hence, after the five-year statute of limitations had expired. /1/ See 18 U.S.C. 3282. In response, the government asserted that the statute of limitations had been tolled for eight and one-half months during the period following the commission of the bank robbery due to petitioner's status as a fugitive from justice with respect to an unrelated state offense. The government offered uncontroverted evidence showing that, on January 20, 1982, petitioner escaped from a Massachusetts state correctional facility, where he was incarcerated while awaiting trial on state robbery and firearms charges; that he remained at large until August 15, 1985, when he was arrested pursuant to a federal warrant for unlawful flight to avoid prosecution; and that the bank robbery giving rise to the instant charges occurred during the period of his fugitivity. The district court granted petitioner's motion and dismissed the bank robbery count as time-barred. Because the instant indictment was returned after the five-year period set forth in 18 U.S.C. 3282, the court found that it violated the statute of limitations, irrespective of petitioner's status as a state fugitive at the time he committed the bank robbery. The court of appeals reversed and reinstated the bank robbery count. The court noted that the federal tolling statute, 18 U.S.C. 3290, provides that "(n)o statute of limitations shall extend to any person fleeing from justice." In the court's view, "(t)he plain language of the tolling statue * * * indicates that (petitioner's) status as a fugitive from Massachusetts tolled the statute of limitations for his subsequent federal crime." Pet. App. 5. The court accordingly concluded, id. at 10: 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 (petitioner) was fleeing prosecution from unrelated state crimes offers him no assistance in his attempt to take advantage of the federal statute of limitations. (Petitioner) was fleeing justice -- be it state or federal -- and thereby triggered the tolling provision of Section 3290; he cannot now have the privilege of the federal statute of limitations. The court noted that its conclusion that the federal tolling statute applies in the circumstances of this case is supported by this Court's holding in Streep v. United States, 160 U.S. 128 (1895) (federal statute of limitations tolled by a defendant's flight from a related state prosection). Pet. App. 9-10. Judge Logan dissented. In his view, Section 3290 means only that "no statute of limitations runs with respect to the crime from which the individual is fleeing." Pet. App. 12. Because petitioner was fleeing from state charges, but not the federal bank robbery charges, Judge Logan would have held that the tolling statute was not triggered. Id. at 13. 2. Petitioner contends (Pet. 5-8) that the court of appeals erred in holding that the statute of limitations was tolled during the time that petitioner remained a fugitive with respect to state charges. Whatever the merits of petitioner's contention, it is not ripe for review by this Court. Brotherhood of Locomotive Firemen v. Bangor & A.R.R., 389 U.S. 327, 328 (1967). In ruling that the statute of limitations was tolled, the court of appeals returned petitioner to the position that he would have been in had the district court denied his motion to dismiss the indictment. If petitioner is acquitted following a trial on the merits, his statute of limitations claim will be moot. If, on the other hand, petitioner is convicted and his conviction is affirmed on appeal, he will then be able to present his statute of limitations claim to this Court, together with any other claim he may have, in a petition for a writ of certiorari seeking review of a final judgment against him. Accordingly, review by this Court of the court of appeals' decision would be premature at this time. /2/ It is therefore respectfully submitted that the petition for a writ of certiorari should be denied. KENNETH W. STARR Solicitor General MAY 1991 /1/ Petitioner did not move to dismiss the firearms charge. He has since pleaded guilty to the count. /2/ Because this case is interlocutory, we are not responding on the merits to the question presented by the petition. We will file a response on the merits if the Court requests.