*2 him, MURNAGHAN, charges pending Before RUSSELL and ness TILLEY, Judges, and Circuit City in December of Judge for the Middle
States District
Carolina,
disorderly conduct. Two
sitting by
charged with
District of North
later,
on his own
days
he was released
designation.
921(a)(15)
in 18 U.S.C.
justice” is defined
December
date
a court
recognizance and
any
fled from
person who has
“any
of this
time
At the
set.
for a crime or
regard-
arrest,
was taken
no action
second
pro-
any
testimony in
giving
issued
warrant
bench
ing the
*3
clearly reflects that
The
ceeding.”
record
his
Manifesting
case.
earlier
in the
stayed away
purposefully
appellant
the
au-
for the
disdain
well documented
now
charges
facing the
York to avoid
from
ap-
the
judiciary,
thority of the
Appellant’s own tes-
against him.
pending
a
and
appear
failed
more
once
pellant
trial,
any doubt
removes
timony,
at
given
his
was issued
warrant
bench
second
pend-
the
he
of
or not
knew
whether
about
arrest.
to ap-
his failure
and whether
ing charges
arrest
appellant’s
the
warrants
These
that
this
find
deliberate. We
was
pear
20, 1989,when
until June
pending
remained
support the assertion
enough to
is
alone
City
York
appeared New
voluntarily
he
a
appellant was
the
that
government
the
made after
appearance This
court.
by the
defined
from
“fugitive
the Eastern
appellant
the
prosecuted,
he was
which
under
charges
the federal
Virginia on
of
District
here
prosecution
accordingly the
and
instant
rise to the
gave
that
proof.
of
its burden
met
February
Apparently, between
argument of
by the
unpersuaded
We are
purchased
appellant
the
May
and
requisite
the
to meet
appellant that
the
six firearms.
possession
his
into
and took
prosecution must show
of
the
burden
four
from
purchased
were
firearms
These
with the
left
York
appellant
the
that
Virginia.
dealers
but
separate
charges
facing
avoid
the
intent
comport
purchase
that each
In order
is
Admittedly, this assertion
against him.
of Alco-
Bureau
by the
forth
set
the rules
by the
rendered
by a decision
supported
Firearms,
appellant
the
hol,
and
Tobacco
v. Dur
See United
Circuit.
Ninth
Form
Bureau
signed
completed and
Cir.1976). In
Dur-
can,
a
he was not
that
certifying
falsely
to es
that
order
can,
held
“[i]n
from
‘fugitive
that
defendant]
tablish
[the
appel-
the
facts that
these
upon
It was
meaning of section
the
within
justice’
from
violating the Gun
of
convicted
lant was
requisite
indispensable
922(g)(2),an
Act.
Control
defen
proof was
[the
prosecution’s
charges
where
left
state
had
[the
dant]
II.
intent
pending] with the
were
against him
resolution
issue
dispositive
F.2d at 31.
The
prosecution.”
appellant
not the
or
whether
appeal is
this
appeal to us.
does
This formulation
being a fugitive
convicted
properly
those
prosecution
from
exempt
would
It
It
a firearm.*
possession
a
leave
reason
for some collateral
who
(1)he
the
contention
is the
them are
charges
in which
charges pending
unaware
return
not to
later decide
pending,
fed
could,
purposes
him
such
to face
not wish
they do
because
fugi
considered
not be
prosecution,
eral
logical distinction
find no
can
charges. We
(2)
government
the
justice, and
tive
leaves
person who
between
fled, in
he
evidence
to introduce
failed
who,
gone,
once
person
and the
accordingly
word, and
any sense
reason, to
same
for the
return
refuses
element
essential
an
logic that
this
It
is ab
he was convicted
for which
crimes
underde-
disagree with
to now
us
leads
unpersuaded.
We are
sent.
person
Any
Durcan.
ruling of
veloped
pending,
are
who, knowing that
appellant’s second
We address
pros-
jurisdiction
(1)
leaves
purposely
term
first.
contention
predicate
fugitive is a
*
as a
his status
because
fugitive from
appellant was
or not
Whether
prosecution is based.
this
upon which
dispositive
his arrest
time of
justice at the
charges.
I
pending criminal
As
those
answer
(2)
refuses
answer
ecution
accepting
as valid
appearance before
read the
way of
charges by
tribunal,
jus-
ais
circuit’s evaluation in United States
prosecuting
sister
necessary
(9th Cir.1976),
accused
Durcan,
tice. It is not
that, in order to establish namely, avoid- person’s departure, ing the status, introduced evidence must be tice Collegiate Dic- ance. See Webster’s flight or concealment. (1981) (defining “to flee” as tionary 344 evil”). danger In the away from or posi- “to run rejects Spillane’s majority panel The tales, might princess a fairy context of person is a that a tion. It holds avoid the clutches a castle to pending “flee” from knows of justice if he other sinister, ogre. On the ghastly and, departure though his even leaving hand, her tale tells of if the charges was asserting the from the state motivation, to her reference deliberately castle without proper benign, entirely “left,” “fled,” she she has not answer to the state to fails to return if she has mere- fortiori, A “departed.” Russell, writing for or Judge charges. not “fled from.” away, she has logical ly stayed reasons that there is no panel, person who leaves distinction between context, justice criminal In the i.e., flees, and prosecution, state to in order jurisdiction from a flees to return for the same refuses one who example, For prosecution. or detection reason. “flight Dictionary defines Law Black’s evading of the justice” ducks and That, opinion, “[t]he does my in voluntarily withdraw- justice the stat- course plain language with the drakes L.Ed.2d 385 arrest or in order to avoid ing self one’s fugi- (1987). prosecution of The fact that comprehends contin- “also detention” requires justice under tives from Law Dictio- § Black’s ued concealment.” added); for de- 1979) proof subjective motivation (emphasis ed. nary per- hold that parture compel us (“flee should at 575 see also id. possess- prosecuted purchasing or sons jurisdic- removing oneself from defined as fugitives from ing while pun- firearms avoid detection tion with intent to have should shown ishment). fled avoid a “fled” 18 U.S.C. usage the term case, subjective Spillane’s gun con- 921(a)(15) no different. is § although direct missing. is And act contemplates an element explicitly trol statute nearly im- of one’s intentions evidence undertaken departure or concealment adduce, sup- here avoiding prosecution possible purpose Spillane requires ports an inference my the statute a crime. “flee- of a man justice.” It is a case ing person left a proof that the state for York, who, in New being arrested after avoiding purpose of his New to the state from failed to return with the interpretation is consistent That matter. No Jersey to resolve the residence 1073, a to 18 U.S.C. given construction concealment, trickery flight, at issue here statute not federal criminal it is true record. while And found Appearing the “Fu yet very analogous. the state of depart did chapter, 18 U.S.C. gitives from Justice” York, that he lived the record shows it unlawful for 1073 makes returned, quite merely Jersey in New commerce “to move in interstate *6 in that state. to his home unexceptionally, felony. have for a Courts prosecution” flight required either More prose require to that 1073 the construed § considering Spillane a concealment before prosecution avoidance of prove cution that justice. fugitive purpose” of the interstate “awas dominant reported cases Significantly, only the two person’s mere held that a travel and have interpret term that to the prosecution fol from the state of absence 921(a)(15),the justice” in 18 U.S.C. is not of a crime lowing his commission here, have reached results being a statute at issue crime proof of the sufficient States, my interpretation. with See, consistent e.g., Hett v. United fugitive. Durcan, 532 F.2d (9th Cir.1965) v. (person United States F.2d 763-64 353 (9th Cir.1976), sim- only if 31-32 circumstances 1073 of 18 U.S.C. can be convicted case, Ninth Circuit present ilar to the travel the of interstate a dominant motive question of wheth- denied, presented with the 384 was cert. prosecution), to avoid support to 358 er was sufficient evidence 16 L.Ed.2d there fugi- finding Owen, the that the defendant v. 89 F.2d Barrow Control justice under the Gun Cir.1937)(mere state of tive from (5th absence from Although the viola Act of 1968. proof of prosecution is not sufficient an ar- act); showed that Durcan had known fugitive felon Reis v. United tion of in the state of Marshal, F.Supp. 80-81 rest warrant the state had to in Florida and failed to return (E.D.Pa.1961) (evidence of defendant’s matter, had been no evidence crime is to resolve commission of travel after terstate fled from he either to show that that the introduced establish defendant insufficient to or otherwise to avoid Florida charging state with intent left the attempted to himself. conceal record was barren prosecution when the relating her to reasons any evidence fugitive classification Reasoning that the state). leaving the and did not encom- flight was directed at courts, to state’s return pass in a failure to pari materia should Statutes convic- reversed Durcan’s Circuit harmoniously. Fit Ninth terpreted Crawford the statute’s Gibbons, Inc., tion. Consistent Id. ting Co. v. J. T. a reason- stated, Here we have a statute with “An indis- language, clear that in the de- interpretation results able prosecution’s requisite of pensable criminal, nothing done having fendant left Florida had that Durcan proof was which, adopted by way, has been prosecu- to avoid arrest with the intent appeals. pan- two circuit courts of Yet added). In the (emphasis tion.” Id. at 31 opts interpretation alternative el for an Dur- the evidence Ninth Circuit’s criminal, ignoring his conduct that makes charges and pending can was aware lenity. rule of to answer to Florida to return failed him a enough make panel majority them was has said All that he knew of the deliberately failed rea- employed similar The Tenth Circuit flight, no for them —no return to answer Mittleider, v. soning in United States concealment, affirmative Mittleider, was sim- The evidence holding that evi- applied Durcan finding that support a ply insufficient classifi- support the defendant’s did dence Spillane was a de- as a cation —the Accordingly, respectfully I dissent. the U.S. AWOL from fendant had been lived under years and Army five for over during time. name
different concluded, sympa- despite
Tenth Circuit name, that the
thy due to the defendant’s sufficient activities was
evidence of covert
jury’s conclusion
support
MILLER, Plaintiff-Appellant,
Nathan
in order
the state
had left
defendant
cases are
Those
two
lan-
statute's
harmony with the
complete
Officer,
LEATHERS,
Emery
affirmatively that
it
be shown
guage: must
Defendant-Appellee,
was a dominant
avoidance
inter-
the defendant’s
motivation behind
*7
Services,
Legal
Prisoner
travel.
North Carolina
Assistance,
Inc.,
Inc.;
Legal
Carolina
wheth-
not clear on
statute is
Even if the
Curiae.
Amici
I think
required, as
flight is
er
No. 88-7651.
least,
ambiguous. As
is,
very
it is
at the
it
said, “[Wjhen
recently
Supreme
Court
Appeals,
Court
States
United
a crimi-
readings of
rational
there are two
Fourth Circuit.
other,
than
one harsher
nal
Feb.
1990.
Argued
only when Con-
the harsher
are to choose
definite lan-
in clear
spoken
Sept.
1990.
gress has
Decided
States, McNally v. United
guage.”
12, 1990.
Oct.
As Amended
2875, 2881-82,
350, 359-60, 107 S.Ct.
(1987).
principle of
“The
strict construction limits be es- determinate
mands some words of upon the actual
tablished based Campos-
the statute.” 293, 299,
Serrano, S.Ct. 404 U.S. (1971); see also 30 L.Ed.2d States, v. United
Williams L.Ed.2d 767 lenity to
(1982) (applying rule interpretations). to two susceptible