872 F. 2d 431 - United States v. Ramirez-Fuentes

MEMORANDUM**

This is an appeal from a conviction for assault on a federal officer in violation of 18 U.S.C. Secs. 111 and 1114. The appellant contends that the evidence of his fugitive status was insufficient to justify tolling the five-year statute of limitations of 18 U.S.C. Sec. 3282, and that his subsequent indictment was invalid as untimely. We affirm.

In order to toll the running of the statute of limitations under 18 U.S.C. Sec. 3290, the prosecution need only prove that an accused knew he was wanted by the authorities and failed to submit to arrest. United States v. Ballesteros-Cordova, 586 F.2d 1321, 1323 (CA9 1978). (per curiam). The record shows that the appellant stole a border patrol agent's gun during detention, shot the agent three times, and fled across the border into Mexico. These actions demonstrate a clear intent to evade arrest and prosecution, and justified the tolling of the statute of limitations. The fact that the appellant subsequently (and surreptitiously) reentered the United States did not start the clock running again, since physical absence from the jurisdiction is not essential to toll the running of the limitations period. See United States v. Wazney, 529 F.2d 1287, 1289 (CA9 1976).

For the same reason, the appellant's alleged lack of knowledge of the charges filed against him is irrelevant to the issue at hand, since it was his flight, and not the existence of formal charges or the state of his subsequent knowledge about them, which stopped the running of the limitations period. See Henrique v. United States Marshal, 653 F.2d 1317, 1322 (CA9 1981), cert. denied, 455 U.S. 950 (1982). Because the applicable statute of limitations period was tolled from the time of the appellant's flight until his arrest in 1987, the superseding indictment was unaffected by what had occurred in the interim, i.e., the dismissal of the original indictment.

AFFIRMED.