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Absconding is continuing offense

What the court held

Case: U.S. v. Elliott, No. 05-4623

Issue: Is failure to report for prison a continuing offense?

Can the sentence be enhanced because the defendant used a false name?

Holding: Yes. The statute of limitations does not begin until the defendant is apprehended.

No. Deceit is inherent in the crime and already accounted for in the base offense level.

Because the failure to report to jail is a continuing offense, the statute of limitations does not begin to run until the defendant is apprehended.

In a wide-ranging opinion, the Seventh Circuit also limited the applicability of enhancements for obstruction of justice in such cases, and suggested that, the longer a defendant is on the lam, the harsher his sentence should be.

Alfred Elliott was a partner in the Chicago law firm of Schiff, Hardin & Waite; he was convicted of a number of crimes in federal court for using clients’ confidential information for his own benefit in securities transactions.

He was sentenced to 60 months imprisonment, and ordered to report to the prison in Oxford, Wisconsin, on Oct. 11, 1989, but he never appeared. Fifteen years later, he was arrested in Arizona, living under an assumed name. At the time of his recapture, he denied being Alfred Elliott, and gave his name as David Cohn.

Nine months after recapture, he was indicted for failing to report as directed to serve the sentence for the earlier crimes, in violation of 18 U.S.C. 3146(a)(2).

He moved to dismiss the indictment, raising the statute of limitations, but the district court denied the motion. At sentencing, the court found he had obstructed justice by denying his identity to the arresting officers, and enhanced his guideline range pursuant to U.S.S.G. 3C1.1. The court ultimately imposed a 21-month sentence, consecutive to his earlier sentence.

Elliott appealed, but the Seventh Circuit affirmed his conviction. However, it held the obstruction enhancement was improper, and vacated the sentence.

Limitations

The court affirmed that failure to report is a continuing offense.

The court noted that many courts of appeal have so held. In addition, in U.S. v. Bailey, 444 U.S. 394 (1980), the U.S. Supreme Court held that the crime of escape continues until apprehension.

The only complication to the issue was the Seventh Circuit’s statement in U.S. v. Knorr, 942 F.2d 1217, 1223 (7th Cir. 1991), stating that failure to appear is not a continuing offense.

However, the court dismissed that statement as nonbinding dicta, because it was not relevant to the disposition. In addition, the statement was not supported by any citation to authority, and the discussion failed to address either Bailey or the other circuit court opinions to the contrary.

The court further noted that 18 U.S.C. 3290 provides that no statute of limitations shall extend to any person fleeing from justice.

Accordingly, the court affirmed Elliott’s conviction, disavowing its earlier statement in Knorr, and holding that failure to report is a continuing offense, for which the statute of limitations did not begin to run until Elliott was arrested.

No Enhancement

Turning to Elliott’s sentence, however, the court concluded that it was error for the district court to add a two level enhancement for obstruction of justice under U.S.S.G. 3C1.1, based on his giving a false name to the agents who came to arrest him.

The court observed, “deceit is a standard part of the criminal conduct, so an obstruction enhancement is unnecessary: the Guidelines include this conduct as part of the normal range, and an enhancement would be double counting.”

In addition, Application Note 2 to U.S.S.G. 2J1.6 — the applicable guideline — states that such an enhancement is only appropriate, “if significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself…”

The court concluded that Elliott’s “feeble efforts” could not qualify as “significant,” reasoning, “He stuck with the alias he had been using for more than a decade. The agents knew perfectly well that ‘L. David Cohn’ was Elliott. His lies had no more effect than if he had started yodeling, hoping that the agents would leave to avoid the assault on their aesthetic sensibilities.”

Because the district judge miscalculated the guideline range, the court concluded it must vacate the sentence and remand.

Reasonableness

Unfortunately for Elliott, however, the court did not stop there.

Instead, the court opined, “This does not imply, however, that a sentence of 21 months is unreasonably high; to the contrary, it strikes us as unreasonably low…”

The court continued, “How long the fugitive remains on the lam is vital to assessing the deterrent effect of a sentence, so 18 U.S.C. 3553(a)(2)(B), which comes to the fore after Booker, requires the district court to give this subject close attention.”

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Case Analysis

Present Value

The court then went further, stating, “Time served in future years must be discounted to present value,” and then discussing methodology for valuing deterrence.

The court wrote, “As a deterrent, a 50% chance of serving five years starting 15 years from now must have less than 25% the punch of five years, with certainty, starting right now. This represents only a modest discount (about 5% per annum); many people discount the future even more steeply.”

The court found that Elliott had evaded 75 percent of the deterrent value of his sentence, in exchange for an extra 21 months starting in 20 years (the 15 years of freedom, plus the 5 years of the underlying sentence).

The court found even its 75 percent discount insufficient, calculating, “Make it an 80% discount: a 50% probability of serving an extra 21 months, starting 20 years from now, has the same disutility as a threat of 4 months with certainty starting now. The net effect is that, by taking flight, Elliott cut the cost of his 60-month sentence to the (1989) equivalent of 15 months, at the price of a (1989) equivalent of 4 extra months. Who wouldn’t trade a 60-month sentence for a 19-month sentence (15 + 4 months in 1989-equivalent terms)? No wonder Elliott absconded.”

Accordingly, although the court affirmed Elliott’s conviction, it vacated the sentence, and remanded the case to the district court.

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