US v. Alfred Elliot, 05-4623.  While he was a partner at Schiff, Hardin & Waite in Chicago, Alfred Elliott used client’s confidential information for his own benefit in securities transactions. Eventually, in 1989, he was convicted on 70 counts of securities fraud, mail fraud, tax evasion, and operating a racketeering enterprise. His sentence was five years imprisonment plus fines and forfeitures of about $700,000.

Elliot did not appear at the prison to surrender, and his lawyer lost contact with him.  Fifteen years and an assumed name later, Elliot was arrested in Arizona.

His initial appeal was dismissed under the fugitive disentitlement doctrine.

After his arrest in 2004, Elliot was indicted for failing to report, 18 USC  3146 (a)(2).  His principal defense was that the indictment returned in 2004 came ten years too late, for the statute of limitations is five years from the crime’s commission. 18 U.S.C. §3282. The district judge rejected that defense, a jury found Elliott guilty, and the court sentenced him to 21 months imprisonment, which will begin in 2009 after his 60-month sentence ends.

Regarding the statute of limitations defense, the district court concluded that failure to report for imprisonment is a continuing offense, so that the statute of limitations did not commence until Elliott’s capture.  Someone who fails to report on time has committed all of the elements that very hour; the length of delay is not an element of the crime. All continuing offenses work the same way.

Further, 18 U.S.C. §3290, provides that "[n]o statute of limitations shall extend to any person fleeing from justice.”  Impossibility and failure to appreciate the obligation to report are legitimate defenses. But such defenses last no longer than the condition that makes reporting impracticable: "It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist." 18 U.S.C. §3146(c).

On a high note, the 7th Circuit finds that because the district judge miscalculated the Guideline range the error may have affected Elliott’s sentence, and the 7th Circuit must remand.

On a low note, the 7th Circuit finds that this remand does not imply that a sentence of 21 months is unreasonably high; to the contrary, it strikes us as unreasonably low, and United States v. Booker, 543 U.S. 220 (2005), gives the district court ample authority to impose an appropriate sentence on remand.

Conviction Affirmed.  Remanded for Re sentencing.

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