                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3818
                                    ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Guillermo C. Gonzalez,                 *
                                       *
            Defendant - Appellant.     *
                                  ___________

                              Submitted: June 13, 2007
                                 Filed: July 30, 2007
                                  ___________

Before BYE, RILEY, and BENTON, Circuit Judges.
                            ___________

BYE, Circuit Judge.

       Guillermo C. Gonzalez was convicted of escape under 18 U.S.C. § 751 twenty
years after he walked away from a prison camp in Duluth, Minnesota, and fled to the
Dominican Republic. On appeal, Gonzalez challenges the district court’s1 refusal to
submit three proposed instructions to the jury regarding the application of the statute
of limitations under 18 U.S.C. § 3282. We affirm.




      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
       Gonzalez, born a Dominican citizen, became a naturalized United States citizen
between 1961 and 1962. In 1985, he was convicted of bank larceny in the Southern
District of New York. Prior to his conviction, while out on bond, he impermissibly
returned to the Dominican Republic. He was re-arrested and ultimately sentenced to
eight years of imprisonment—three years for his failure to appear and five years for
the underlying offense. On October 17, 1985, he began his sentence at the Federal
Correctional Institution in Danbury, Connecticut, and on June 1, 1986, was transferred
to the Federal Prison Camp in Duluth, Minnesota. On June 27, 1985, after learning
his mother was ill, he walked away from the camp and fled to the Dominican
Republic.

       Gonzalez testified, once back in the Dominican Republic, he contacted his
attorney, Morel Cerda. He claims Cerda “notified the American Embassy that [he]
was in the Dominican Republic, and that [he] wanted to have [his] case heard in the
Dominican Court,” because he had “lost all faith in the American justice system.”
According to Gonzalez, the embassy arranged a meeting between Cerda and two
unnamed FBI agents at his attorney’s office. While not present at the meeting,
Gonzalez testified he believed, after talking with Cerda about the meeting, he would
not be arrested so long as he stayed in the Dominican Republic.

       Over the next twenty years, Gonzalez, a Vietnam War veteran, returned
periodically to the United States to receive medical treatment at Veterans
Administration hospitals. During those trips, he used his name and naturalization
papers to cross the border into the United States. For a short period of time, he was
in Atlanta, Georgia, to receive medical treatment. In Atlanta, he obtained a job using
his name and Social Security number. In 2005, upon returning to the Dominican
Republic, he went to the American Embassy to enroll his children as United States
citizens. He was asked to return multiple times to fill out forms. During his final visit
to the embassy on November 2, 2005, nearly twenty years after his escape from
federal custody, he was arrested.

                                          -2-
       On November 10, 2005, Gonzalez was charged with escape in violation of 18
U.S.C. § 751. At trial, he sought three jury instructions supporting a statute of
limitations defense. The district court rejected these instructions, concluding
Gonzalez had submitted insufficient factual support for the defense. The jury returned
a guilty verdict, and on October 30, 2006, he was sentenced to one year and one day
imprisonment, to be served consecutively with the remainder of his previously
imposed sentences. On appeal, he argues the district court erred by failing to instruct
the jury on the scope of escape and the application of the five-year statute of
limitations under 18 U.S.C. § 3282.

                                            II

       “Whether there is sufficient evidence to support a decision to submit an
instruction to the jury is a question of law to be determined de novo by the court.”
United States v. Gamboa, 439 F.3d 796, 816 (8th Cir. 2006). “[T]he trial court has
broad discretion in choosing the form and language of jury instructions.” United
States v. Westbrook, 896 F.2d 330, 337 (8th Cir. 1990). A defendant, however, “has
a right to have an instruction read reflecting his or her theory of the case, provided that
the request is made in time and that the instruction is supported by the evidence and
correctly states the law.” Id. When an instruction concerns an available defense, the
defendant must show “an underlying evidentiary foundation as to each element of the
defense, regardless of how weak, inconsistent or dubious the evidence on a given
point may seem.” United States v. Kabat, 797 F.2d 580, 590-91 (8th Cir. 1986)
(internal quotation marks omitted). “We have never held, however, that a defense
must be submitted to the jury even when it cannot be said that a reasonable person
might conclude the evidence supports the defendant’s position.” Id. at 591 (internal
quotations marks omitted).

      Gonzalez argues, based on the evidence presented at trial, he was entitled to
have the jury instructed regarding the statute of limitations. We disagree. This case

                                           -3-
presents an issue of first impression for the court. We have never before determined
what constitutes sufficient evidence to support a statute of limitations instruction in
an escape case. Not surprisingly, there is very little case law on the crime of escape.
This is likely because, to prove a violation of 18 U.S.C. § 751(a), the government need
only show “an escapee knew his actions would result in his leaving physical
confinement without permission.” United States v. Bailey, 444 U.S. 394, 408 (1980).
There is even less case law regarding potential affirmative defenses to escape.2 As for
the statute of limitations, we have found no cases addressing the application of the
five-year statute of limitations under 18 U.S.C. § 3282 in escape cases. This is also
unsurprising as Congress has specifically indicated: “No statute of limitations shall
extend to any person fleeing from justice.” 18 U.S.C. § 3290; see also Bailey, 444
U.S. at 414 n.10 (citing § 3290 and noting “[b]ecause an escaped prisoner is, by
definition, a fugitive from justice, the statute of limitations normally applicable to
federal offenses would be tolled while he remained at large”). It is difficult to
envision a factual scenario where an escapee is not, as a matter of law, fleeing from
justice. For the reasons discussed below, even if an escapee could assert such a
defense, Gonzalez failed to submit sufficient evidence at trial to support the defense.

       Typically, “[a]n offense is committed when it is completed, that is, when each
element of that offense has occurred.” United States v. Yashar, 166 F.3d 873, 875
(7th Cir. 1999) (internal citation omitted). There is a recognized exception to this rule
for so-called continuing offenses. Id. “For those crimes, the statute of limitations
does not begin to run when all elements are first present, but rather begins when the
offense expires.” Id. at 875-76. The Supreme Court in Bailey unequivocally defined
escape as a continuing offense:



      2
        In Bailey, although the Supreme Court acknowledged an escapee might assert
a duress or necessity defense to escape, it also held this defense requires “a bona fide
effort to surrender or return to custody as soon as the claimed duress or necessity
[loses] its coercive force.” Bailey, 444 U.S. at 415.

                                          -4-
      [W]e think it clear beyond peradventure that escape from federal custody
      as defined in [18 U.S.C.] § 751(a) is a continuing offense and that an
      escapee can be held liable for failure to return to custody as well as for
      his initial departure. Given the continuing threat to society posed by an
      escaped prisoner, the nature of the crime involved is such that Congress
      must assuredly have intended that it be treated as a continuing one.

Id. at 413. The Bailey Court went on to dictate “the statute of limitations is tolled for
the period that the escapee remains at large.” Id. at 414. See also United States v.
Elliott, 467 F.3d 688, 690 (7th Cir. 2006) (“Likewise the crime of escape, complete
when the prisoner leaves custody, continues until he turns himself in or is nabbed.”).

       Here, Gonzalez argues he presented enough evidence to support his proposed
jury instructions on the statute of limitations. We disagree. Although Bailey concerns
a defendant’s assertion of a necessity or duress defense rather than a statute of
limitations defense, it is instructive. The Bailey Court explicitly included the failure
to return to custody as part of the escape offense, id. at 413, and noted the statute of
limitations is tolled while an escapee “remains at large.” Id. at 414. It would follow
that to end the crime of escape and trigger the statute of limitations, an escapee must
return to custody, or, at the very least, must make a bona fide attempt to surrender.3
See United States v. Gonsalves, 675 F.2d 1050, 1055 (9th Cir. 1982) (holding the




      3
        Gonzalez attempts to analogize the crime of escape with the continuing crime
of conspiracy. We have held the crime of conspiracy expires, and the statute of
limitations is triggered, if and when the conspirator withdraws from the conspiracy.
United States v. Grimmett, 236 F.3d 452, 453 (8th Cir. 2001). Even if we accept
Gonzalez’s analogy, however, his conduct does not meet the high standard for
withdrawal. We have held withdrawal from conspiracy requires distinct affirmative
action to defeat the conspiracy. Id. at 456. Here, Gonzalez did not affirmatively act
to terminate or defeat his escape. Unlike the conspirator who ostracizes her former
compatriots, goes to law enforcement, and fully confesses and cooperates, Gonzalez
never surrendered or put himself at risk of recapture.

                                          -5-
statute of limitations period under 18 U.S.C. § 3282 is not tolled when a fugitive “is
making a good faith effort to surrender”).

       At trial, Gonzalez testified, after he escaped and fled to the Dominican
Republic, his attorney notified the American Embassy about his presence in the
Dominican Republic, and further met with two unnamed FBI agents who allegedly
told the attorney that Gonzalez would not be arrested so long as he remained in the
Dominican Republic. Any issues of hearsay aside, we cannot conclude this
constitutes a bona fide attempt to surrender. Even if we assume Gonzalez’s testimony
is true, it establishes only that he contacted United States officials through an
intermediary. There is no evidence he personally met with officials to arrange his
surrender. Because he never presented himself to officials, he was never at any real
risk of recapture. One wonders what his response would have been had the FBI
agents directed him, via Cerda, to report to the American Embassy for extradition.
Furthermore, the Bailey Court cautioned “[v]ague and necessarily self-serving
statements of defendants or witnesses as to future good intentions or ambiguous
conduct” are insufficient to support a finding the defendant made a bona fide effort
to surrender. Bailey, 444 U.S. at 415. The testimony presented here seems precisely
of the type the Bailey Court cautioned against.

       Gonzalez also claims his several trips into United States to receive medical
treatment, because he presented his identification documents to border officials, also
constitute bona fide attempts to return to custody sufficient to trigger the statute of
limitations. We disagree and hold such trips are insufficient to constitute attempts to
surrender. There is no evidence he told border officials he was on the lam. In fact,
there is no evidence he told anyone he encountered in the United States about his
status. By his testimony, he engaged in no affirmative conduct other than presenting
his passport and papers to border officials. While Gonzalez successfully entered the
United States without arrest does not indicate he was attempting to surrender or had
any intent to return to federal custody.

                                         -6-
       On these facts, we conclude Gonzalez did not return to custody or make a bona
fide attempt to surrender. He presented no evidence he terminated his escape, thus
triggering the statute of limitations. As such, the district court was under no
obligation to submit to the jury his proposed instructions on the statute of limitations.

                                           III

      For the foregoing reasons, we affirm the district court.
                      ______________________________




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