                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-1999

USA v. Stansfield
Precedential or Non-Precedential:

Docket 98-7233




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Filed March 16, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No.: 98-7233

UNITED STATES OF AMERICA

v.

MERRITT G. STANSFIELD,
       Appellant.

Appeal from the United States District Court
For the Middle District of Pennsylvania
D.C. No.: 94-cr-00138-1
District Judge: Honorable James F. McClure, Jr.

Argued: January 27, 1999

Before: BECKER, Chief Judge, SCIRICA, ROSENN,
Circuit Judges

(Filed March 16, 1999)

       Thomas C. Carroll (Argued)
       Carroll & Cedrone
       6th & Chestnut Streets
       Public Ledger Building, Suite 940
       Philadelphia, PA 19106
       Counsel for Appellant

       Theodore B. Smith, III (Argued)
       Office of the United States Attorney
       Federal Building
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108
       Counsel for Appellee
OPINION OF THE COURT

ROSENN, Circuit Judge.

The primary issue on this appeal pertains to a retrial of
a defendant on certain counts deadlocked by a prior jury
without resubmission of those counts to a grand jury. The
question presented is novel and complex, although
prosecution of criminal cases by indictment even precedes
the adoption of the federal constitution. The genesis of the
appeal is a motion by the prosecution, following a prior jury
trial, to dismiss several counts of the indictment on which
the jury had deadlocked and proceed to sentence on the
counts on which it had convicted.

A grand jury in the United States District Court for the
Middle District of Pennsylvania initially indicted the
defendant, Merritt G. Stansfield, Jr., on eleven counts and
a separate count of money laundering forfeiture. Thefirst
four of the eleven counts charged mail fraud. Count V
charged using fire to commit mail fraud and one count of
arson. Counts VI through X charged money laundering.
Count XI charged tampering with a witness. The defendant
pled not guilty. He was tried to a jury and convicted on
certain counts but the jury deadlocked on the others.

The Government moved to dismiss the deadlocked counts
"without prejudice to their refiling" in the event any court
ordered a new trial on the counts resulting in conviction.
Defendant's counsel concurred and the trial court granted
the motion. On appeal, this court affirmed the defendant's
convictions on all counts but reversed the defendant's
conviction for witness tampering. See United States v.
Stansfield, 101 F.3d 909 (3d Cir. 1996) (Stansfield I). On
remand, the District Court directed the prosecutor to notify
the court and defense "as to what counts, if any, he wishes
to re-try." The Government gave notice that it intended to
retry the defendant on both the remanded count and the
deadlocked counts that had been dismissed. The defendant
stood trial a second time and a jury convicted him on all
counts.1 The defendant timely appealed. We will affirm the
_________________________________________________________________

1. The District Court had subject matter jurisdiction pursuant to 18
U.S.C. S 3231 and this court has appellate jurisdiction pursuant to 28
U.S.C. S 1291.

                               2
conviction on all counts except the conviction for Count V
(arson) which we reverse.

I.

The underlying facts of this case were previously
recounted at considerable length by this court in Stansfield
I, 101 F.3d at 910-912. We summarize those stated there
as are pertinent to this appeal. In 1990 Stansfield's home
was destroyed by fire. His insurer, Erie Insurance Company
(Erie), agreed to reimburse Stansfield for the replacement
cost of the insured destroyed items, as well as the cost from
the loss of the use of his house. In May of 1992, Stansfield
sent Erie a list of insured items he claimed were lost in the
fire, some of which were later found intact at other
locations. Erie and state law enforcement officials began an
investigation of the fire and determined that arson caused
it. Stansfield was never conclusively found to be the
arsonist. Erie investigators and Pennsylvania State Police
spoke with Dwight Hoffman, a friend of Stansfield's.
Hoffman was quite knowledgeable about Stansfield's home
and its contents; he had stored many of Stansfield's
personal effects in his home prior to the fire.

State troopers also communicated with Jack Love, whom
Stansfield had solicited to burn his home. Stansfield
threatened to kill Love if he told anyone of the solicitation.
Love informed Stansfield in May 1993 that law enforcement
officials had contacted him about the fire. That September,
Erie referred the matter to federal postal inspectors. The
Postal Inspector presented the case to the United States
Attorney's Office, which requested that the Postal
Inspection Service continue the investigation.

On October 7, 1993, Stansfield entered Dwight Hoffman's
home uninvited. Hoffman's parents, Eugene and Joyce,
were present but Dwight Hoffman was not. When asked
what he was doing there, Stansfield replied that he was
"sick and tired of [Dwight] running down[Stansfield's]
name and ruining [his] business." Stansfield struck the
Hoffmans, knocking them to the floor. He repeatedly kicked
Eugene Hoffman in the head and body. When Eugene
Hoffman attempted to get up, Stansfield knocked him down

                                3
again, kicking him in the head until Hoffman became
partially unconscious. Stansfield took both the Hoffmans to
the basement. There he bound their hands and feet. When
Eugene Hoffman tried to free himself, Stansfield kicked him
in the head several more times.

Stansfield then went upstairs, returning shortly with a
shotgun and shells. He loaded the gun and waited for
Dwight Hoffman to arrive. When Dwight Hoffman appeared,
Stansfield escorted him to the basement, hit him in the
mouth with the butt of the shotgun, and ordered him to sit
next to his parents. Stansfield then placed the shotgun on
the throat of Dwight Hoffman and stated, "I'm going to ask
you some questions, and I want the truth, because the gun
is loaded, the safety is off, and my finger is on the trigger,
is that clear?"

Stansfield first inquired why Dwight Hoffman had sent
the cops after him about his house, or why Dwight had
"called the police about his fire." At some point Dwight
Hoffman lunged for the gun. It went off, firing a shot
between Dwight Hoffman's neck and Joyce Hoffman's head.
A struggle ensued. Eventually Dwight and Eugene Hoffman
were able to subdue Stansfield until a police officer arrived.

The jury convicted the defendant on Counts I, II, III, VI,
VII, and XI. The jury deadlocked as to Counts IV, V, VIII,
IX, and X and a mistrial was declared as to these counts.
As to Count XII, the defendant waived his right to a jury
trial and the District Court returned a special verdict of
forfeiture.

A few days after the jury returned its verdict, the District
Court ordered the scheduling of jury selection and retrial
on the deadlocked counts. The Court also directed the
Government to file notice as to whether it intended to retry
or otherwise dispose of those counts. Complying with the
Court's directive, the Government filed a notice and motion
seeking the dismissal of Counts IV, V, VIII, IX, and X,
"without prejudice to their refiling in the event a new trial
is ordered by this or any other Court on any count of
conviction." After conferring with defendant, defense
counsel filed an amended certificate of concurrence.2
_________________________________________________________________

2. Rules 7.1 and 7.2 of the Rules of Court of the United States District
Court for the Middle District of Pennsylvania required that pretrial and

                                4
Thereafter, the District Court ordered the dismissal of the
counts "without prejudice to their re-filing in the event a
new trial is ordered by this or any other court."

On appeal, this court affirmed the judgment of conviction
as to Counts I, II, III, VI and VII, but reversed and
remanded as to Count XI, the witness tampering count. See
Stansfield, 101 F.2d 909. On remand, the District Court
ordered counsel for the Government to file a notice, with a
certificate of concurrence or nonconcurrence attached, as
to what counts, if any, he wished to retry. The Government
complied with the District Court's order, giving notice that
it would retry the defendant on all outstanding counts
(Counts IV, V, VII, IX, and XI). Defense counselfiled an
"omnibus pretrial motion" that included, among other
things, an objection to the Government's election to retry all
pending counts on the grounds that the deadlocked counts
had not been resubmitted to a grand jury, that
reprosecution of Count V was barred by the statute of
limitations, and that retrial of the other deadlocked counts
was barred by the Speedy Trial Act.

The District Court denied the omnibus motion stating
that it understood the dismissal merely to reflect that the
deadlocked counts were set aside pending the resolution of
the defendant's post trial motions, appeals or collateral
challenges to the judgment of conviction and sentence, and
that the Government always intended to retry the defendant
on the deadlocked counts. Defense counsel also filed
another motion seeking an order directing the Government
to specify a procedure for the refiling of Counts IV, V, VIII,
IX and X, and objecting to the defendant's retrial on the
dismissed counts on the basis that the Court lacked
jurisdiction. The Court denied the motion on the ground
that the Government's notice of record of its intent to retry
_________________________________________________________________

post-trial motions, with certain exceptions not applicable in this
instance, "shall contain a certification by counsel from the movant that
he or she has sought concurrence in the motion from each party, and
that it has been either given or denied." Compliance with these rules is
generally enforced strictly, and the Clerk of the District Court will
normally not accept a motion, other than a permissible ex parte motion,
without a certificate of concurrence or non-concurrence attached.

                               5
the defendant was sufficient for the reinstatement of the
dismissed counts. The Court, at the same time, denied
Stansfield's motion for an order directing the Government
to specify a procedure for refiling of the previously
dismissed counts. The defendant again was tried to a jury
and convicted on all counts.

II.

On appeal, the defendant first contests the meaning of
the term "re-filing" as used in the Government's motion to
dismiss on the deadlocked counts. The motion stated in
pertinent part:

        WHEREFORE, the government respectfully petitions
       the Court to enter an Order dismissing Counts IV, V,
       VIII, IX and X, without prejudice to their re-filing in the
       event a new trial is ordered by this or any other Court.

The Court's order of dismissal tracked the exact language
used in the Government's motion. The defendant argues
that, regardless of whether the procedure is termed"re-
filing" or "reinstatement," the Government did nothing to
revive the dismissed counts: "After removal, no motion for
reinstatement was ever filed, nor were the counts re-
submitted to the grand jury or re-filed in any way." At oral
argument, counsel for the defendant vigorously asserted
that "the Government did nothing to either resubmit to the
grand jury or reinstate by motion to the court." He asserted
that the Government cannot merely proceed to trial on the
dismissed counts and that the defendant is entitled to have
the conviction on such counts vacated. However, he
recognized that the trial court can reinstate the dismissed
counts for prosecution. We believe this is what the court
proceeded to do.

Following this court's decision in Stansfield I vacating the
defendant's conviction for witness tampering and
remanding for a new trial, the District Court structured a
procedural mechanism which effectively reinstated the
deadlocked counts and duly placed them in position for
prosecution. The trial judge ordered:

        1. Counsel for the Government shall notify the
       court and opposing counsel as to what counts, if any,

                                6
       he wishes to retry, with said notification to befiled with
       the court on or before March 10, 1997. A certificate of
       concurrence or nonconcurrence of defense counsel
       shall be attached to the notice.

        2. If defendant does not concur in the proposed
       course of action, he shall file his response on or before
       March 17, 1997.

        3. If the Government fails to notify the court of its
       intentions on or before March 10, 1997, it shall be
       deemed to have waived any right which may exist to
       retry any of the counts set forth in the indictment, and
       the court will proceed to schedule resentencing.

        4. In the event of a retrial, jury selection will be
       held April 1, 1997, ... . Presentation of the case to the
       jury will not commence before April 15, 1997.

The Government complied with the District Court's order,
notifying the defendant and the Court that it intended to
retry the defendant on the remanded and deadlocked
counts. Thus, the trial court did take affirmative action to
reinstate prosecution and specifically provided in its order
that if the defendant did not concur in the proposed course
of action, "he shall file his response on or before March 17,
1997." The defendant did not interpose any objection or
make any response. He did not challenge the procedure
that the District Court had set in place for reinstatement of
the indictments and retrial. He raised no objection to the
Court's explicit order that jury selection would be held on
April 1, 1997. The defendant and his trial counsel were well
aware that he was to be retried on the deadlocked counts
in the original indictment.

The Government strenuously argues that the deadlocked
counts were properly reinstated following the remand of
Count XI for trial. The only purpose in dismissing the
counts subject to the reservation was to permit sentencing
and the entry of a final appealable judgment on the
convicted counts. In the event the Court of Appeals
affirmed on those counts, there would be no retrial: if not,
the Government reserved the right to reinstate and retry on
the deadlocked counts. The Government notes that this
was the understanding of the District Court and the Court

                               7
of Appeals, that the latter characterized the arrangement as
a dismissal of the deadlocked counts "subject to
reinstatement should any portion of the conviction be
vacated." Stansfield I, 101 F.3d at 913. The Government
observes that neither on the first appeal nor in the opinion
of this court disposing of it, did anyone characterize the
agreement as a dismissal subject to re-indictment.

The defense, on the other hand, argues just as
strenuously that the deadlocked indictments were
dismissed absolutely. We do not so view the court's order or
the Government's motion to dismiss. The motion for
dismissal specifically requested that the counts dismissed
be "without prejudice to their re-filing in the event a new
trial is ordered by this or any other court." The prosecution
is allowed considerable discretion in managing its cases
and docket and it reserved the right to retry the deadlocked
counts in the event a new trial was granted. The defendant
concurred, made no objection, or any response in
opposition. The Government's reservation of the right to
retry was not predicated upon re-indictment. The court's
order approved and incorporated the reservation. Although
the term "re-filing" in the Government's motion may have
been imprecise, especially in the context of the
circumstances when made, the motion, nonetheless, shows
that its purpose was to provide the Government with a
deferred option to retry the dismissed indictments in the
event the defendant succeeded in obtaining a new trial on
any of the counts on which he was convicted. Nothing in
the motion suggests that the counts were to be resubmitted
to a grand jury before another trial.

The trial judge explained what occurred and what he
meant by the order of dismissal.

        It was the court's understanding that this agreement
       simply meant that no-retrial of the remaining counts
       would occur absent a re-trial, for whatever reason, of
       the counts as to which there was a verdict. Whether
       termed "refiling," "reactivation," or"reinstatement," this
       court was under the impression that the effect of the
       dismissal was that these counts were simply set aside
       pending resolution of Stansfield's post-trial motions,
       appeals or collateral challenges to the judgment of

                               8
       conviction and sentence; should any of these
       challenges be resolved in Stansfield's favor, the counts
       as to which there was a mistrial would be pursued in
       a second trial. The Government's brief reflects this
       view, of course, and we believe the language of the
       motion, order and amended certificate of concurrence
       all support this interpretation.

(7/23/97 Order at 4-6) Thus, the District Court believed, as
did the Government, that the deadlocked counts retained
sufficient vitality to permit their trial, either immediately or
in the future, without resubmission to a grand jury if a
retrial were ordered. When first indicted, they had been
returned by a grand jury in open court, filed and docketed
in the clerk's office, and the filings noted on the face of the
indictment; a resubmission could achieve nothing more.

Accordingly, we conclude that when the Government gave
notice to the defendant and the Court that it intended, inter
alia, to retry the deadlocked counts, that notice served as
the functional equivalent of reinstating the qualifiedly
dismissed counts. The defendant points to no prejudice by
this procedure. He had notice from the prosecution of the
specific charges on which he was to be retried; they had
been found by a grand jury, they had never been dismissed
absolutely, and he still could plead the judgment in bar of
further prosecution for the same offense.

The defendant asserts that he believed by concurring
with the Government's request to refile without prejudice
that he was not waiving any rights he may have had to
resubmission of the indictment to a grand jury. However,
the defendant had no right at the time he concurred to
have the deadlocked indictments resubmitted to a grand
jury; the Government could have proceeded to trial on
those counts promptly without submitting them to another
grand jury. We fail to see how that deferment required a
resubmission to a grand jury. An indictment is an
accusation only, and its purpose is to identify the
defendant's alleged offense, United States v. Glaziou, 402
F.2d 8, 15 (2d Cir. 1968), and fully inform the accused "of
the nature of the charges so as to enable him to prepare
any defense he might have." Zuziak v. United States, 119
F.2d 140, 141 (9th Cir. 1941); Mitchell v. United States, 143

                               9
F.2d 953 (10th Cir. 1944). It also enables him to plead the
judgment, if any, in bar of further prosecutions for the
same offense. United States v. Behrman, 258 U.S. 280, 288
(1922); Mitchell, 143 F.2d at 953.

The court's order permitting a retrial without
resubmission of the deadlocked indictments to a grand jury
in no way prejudiced the defendant. First, it opened up the
possibility that he might never be retried by the
Government and definitely avoided the reality of being
retried immediately, a right that the Government clearly
possessed. Second, the rights the defendant enjoyed once
the grand jury returned an indictment against him were
limited primarily to a speedy trial and the right to be fully
informed of the nature of the charges so as to prepare his
defense and the right to plead his conviction, if any, on
those counts to bar further prosecutions. These rights were
fully preserved and were in no way affected by the
concurrence or the Government's dismissal of the
deadlocked counts. The defendant attempts to structure his
claim on the inept use of the word "refiling." In the context
it was used it could only have meant reinstatement of the
indictment on the court docket. The Government
accomplished the reinstatement when it gave notice to the
Court, and a copy to the defendant, that it would retry the
defendant on Counts IV, V, VIII, IX and X, the deadlocked
counts, and Count XI, remanded by the Court of Appeals.

The United States Supreme Court long ago attempted to
avoid reversal of a criminal conviction on the basis of mere
technicalities. See Kotteakos v. United States , 328 U.S. 750
(1946). In Kotteakos, the Court observed that the effort to
revise the Federal Rules of Criminal Procedure had, as its
ultimate goal, " `not [to] be technical, where technicality
does not really hurt the party whose rights in the trial and
in its outcome the technicality affects.... [Rather,] the party
seeking a new trial [has] the burden of showing that any
technical errors that he may complain of have affected his
substantial rights, otherwise they are to be disregarded.' "
328 U.S. at 760 (quoting H.R. Rep. No. 913, 65th Cong., 3d
Sess., 1.). The defendant has failed to show that his
substantial rights have been adversely affected. To the
contrary, as evidenced by defense counsel's amended

                               10
concurrence, he was well aware that he would be retried on
the deadlocked counts. His rights afforded under the Fifth
Amendment were in no way impaired for he is not required
to answer for a crime "unless on presentment or indictment
of a grand jury." He was indicted, and now he has had a
second trial on that indictment after adequate notice and
time to prepare. We conclude that Counts IV, V, VIII, IX,
and X were appropriately reinstated by the Government
following this court's remand for trial of Count XI.

III.

The defendant also contends that the statute of
limitations barred the Government from retrying him on
Count V because more than five years had elapsed when
the Government elected to retry him.

The general federal statute of limitations applies in this
instance. It provides that, except as otherwise expressly
provided by law, no person shall be prosecuted for any non-
capital offense unless the indictment is found within five
years next after such offense has been committed. 18
U.S.C. S 3282. Even though the defendant was well aware
that the Government intended to retry him on the
deadlocked counts, "the statute of limitations incorporates
an `irrebuttable presumption' that, beyond the period of
limitation, `a defendant's right to a fair trial would be
prejudiced.' " United States v. Midgley , 142 F.3d 174, 177
(3d Cir. 1998)(quoting in part United States v. Marion, 404
U.S. 307, 322 (1971)). Here, unquestionably, the
Government failed to satisfy the five year period.3
_________________________________________________________________

3. The charged offense occurred on December 12, 1990. He was indicted
on June 14, 1994, three years and one hundred and seventy-five days
later. As of June 13, 1995, the statute of limitations began to run again
when the indictment was dismissed. The government did not give notice
that it intended to retry Count V until March 6, 1997, one year and two
hundred and sixty-three days after the dismissal. The one year and two
hundred and sixty-three day period plus the three years and one
hundred and seventy-five day period combined totals five years and
seventy-three days. Hence, it is unquestionable that the five year statute
of limitation period was breached.

                                11
The Government argues that the June 13, 1995 dismissal
"was part of a bargained-for exchange, from which both
sides expected to benefit." The Government claims that it
would not have moved for the dismissal of Count V without
the defendant's agreement that he could be retried in the
event of a retrial. The fundament of the Government's
position is that the defendant "unequivocally agreed" that
he could be retried on all the dismissed counts if this court
remanded any or all of the counts of conviction for retrial;
that the defendant and Government entered into a
"bargained for exchange."

There was no agreement, however, between the parties.
The defendant never agreed that the Government could
retry him on all counts. In particular, the defendant never
agreed to waive the statute of limitations as to the arson
charges, notwithstanding the Government's bold assertion
that "[D]efendant's unqualified agreement to retrial ...
amounted to a de facto waiver of the statute of limitations."
The Government's reliance on the defendant's concurrence
in the motion to dismiss the deadlocked counts as an
"unjustified agreement for retrial" is misplaced. The
concurrence did not rise to the level of an unequivocal
agreement; it merely complied with a local court rule.4 The
Rule carries no comment or history explaining its purpose.
As we analyze it, however, the Rule is a procedural
mechanism to expedite the business of the court.
Compliance with it provides notice to the non-movant party
of the proposed motion with an opportunity to acquiesce,
by concurrence, object, except or otherwise respond. 5 The
Government cites U.S. v. Salimo, 81 F.3d 1453, 1460-62
(9th Cir. 1996), cert. denied, ___ U.S. ___; 117 S. Ct. 436
(1996), for the proposition that there is no principled basis
for treating this dismissal of the deadlocked counts
_________________________________________________________________

4. For the applicable court rule, see note 2, supra.

5. Appended to the government's June 5, 1997 Notice and Motion for
Dismissal of Counts was the defendant's certificate of concurrence,
wherein the defendant stated that he "concur[s] in the government's
request to dismiss Counts IV, V, VIII, IX, and X without prejudice to
their right to refile these counts in the event that a new trial is
ordered
by Your Honorable Court or by any other Court on Counts I, II, III, VI,
VII, or XI." (SA11)

                               12
differently than the dismissal of counts subject to
reinstatement as part of a plea agreement. The Government
also relies on Ricketts v. Adamson, 483 U.S. 1, (1987),
where the defendant, charged with first degree murder, was
permitted to plead guilty to a lesser charge after trial
commenced, pursuant to a plea agreement. The plea
agreement provided for automatic reinstatement of the
original charge if he breached the agreement. The
defendant subsequently breached the plea agreement, and
the first degree murder charge was reinstated; after a trial,
the court sentenced the defendant to death. The Supreme
Court held that reinstatement of the first degree murder
charge was not improper.

We do not believe that Salimo or Adamson are applicable.
They both involve plea agreements, the breach of which
nullified the plea agreement and permitted automatic
reinstatement of the dismissed counts. As the Supreme
Court reasoned in Ricketts, "[t]he terms of the agreement
could not be clearer; in the event of respondent's breach
occasioned by a refusal to testify, the parties would be
returned to the status quo ante, in which case respondent
would have no double jeopardy defense to waive." Id. at 9-
10. Here, the Government reasserts in its supplemental
letter brief to us that "both parties bargained for and
received substantial benefit under the agreed-upon
dismissal of the mistried counts in the instant case." As we
have stated, the concurrence under the Local Rule of Court
never amounted to an agreement, particularly a bargained-
for agreement giving the defendant "substantial rights." As
we see it, it gave the defendant nothing more than a
possibility that the delay might lead to no subsequent trial,
a possibility which never eventuated.

In no way can we see how the concurrence can be
construed to rise to the level of an agreement or a
bargained-for exchange. There is nothing of record to even
suggest that the defendant ever bargained for the dismissal
of the deadlocked counts, that the defendant reneged on
any bargain it made with the Government, or that
defendant explicitly or implicitly waived the statute of
limitations as to the arson charge. The Government relies
on Midgley, 142 F.3d at 178, for its argument that the

                               13
statute of limitations was tolled; the case is inapposite.6 The
defendant at no time misled the Government or prevented
it from asserting its rights.

The Government also argues that none of the policy
concerns underlying the statute of limitations exist here. It
asserts that the defendant was not exposed to an indefinite
suspension of prosecution that impaired his constitutional
rights or prolonged his anxiety and concern over the
pending charges. It argues that "the procedure agreed to
was not an indefinite suspension of prosecution but a finite
one `limited by the time it took this court to dispose of
defendant's first appeal.' " Moreover, it contends that
equitable tolling of the statute of limitations should apply
because the defendant purportedly agreed that he could be
retried on all of the dismissed counts. For reasons stated
above, we do not agree. Thus, until the deadlocked
indictments were reinstated, the statute continued to run.

Accordingly, the defendant's conviction on Count V,
arson, will be reversed.

IV.

The defendant also contends that the presence of the
arson charge (Count V) kept him from testifying with
respect to his defense on witness tampering (Count XI). He
asserts: "Count XI is the fulcrum count in this indictment."

The defendant's argument lacks substance because it is
clear that "[t]here is the high probability" that the arson
and fraud evidence would have been admitted because the
Government "was entitled to some latitude in proving its
witness tampering count to demonstrate its theory that
Stansfield had acted out of the concern of exposure for the
arson and fraud." The defendant points to no evidence to
_________________________________________________________________

6. In Midgley, this court stated that criminal statutes of limitations may
be subject to tolling, suspension, and waiver where (1) the defendant has
actively misled the plaintiff, (2) if the plaintiff has `in some
extraordinary
way' been prevented from asserting his rights, or (3) if the plaintiff has
timely asserted his rights mistakenly in the wrong forum. Id. at 179
(quoting Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 753 (3d
Cir. 1983)).

                               14
suggest that, having been convicted of three counts of mail
fraud based on the arson, he would have abandoned his
right to testify in defense of the "fulcrum count" on witness
tampering out of fear of incriminating himself on the related
charge of arson. As the Government observes, the
defendant has not even proffered that if he succeeds in
obtaining a remand he will testify under oath that he would
have testified in defense of Count XI but for the fear of
being convicted on the arson count. Moreover, we agree
with the Government's observation that "[i]t defies common
sense to suggest that defendant would have been dissuaded
from testifying in his own defense on the `fulcrum' count by
a fear of self-incrimination on the duplicative count of
arson, which had no effect on defendant's Sentencing
Guideline calculation." Nonetheless, he seeks shelter in our
decision in United States v. Pelullo, 105 F.3d 117, 124-126
(3d Cir. 1997).

His understanding of this court's decision in Pelullo,
however, is misplaced. In Pelullo, the burden was on the
Government to prove that prior testimony compelled by a
Brady violation was not the "fruit of the poisonous tree." In
this case, the Government was not guilty of any violation in
presenting its case, especially a constitutional violation. In
essence, the defendant's complaint is that he should have
had a severance of the arson count. To obtain a severance,
the defendant must make a convincing showing that he has
important testimony to give on one count and a strong
reason to refrain from testifying on another. United States
v. Reicherter, 647 F.2d 397, 400-41 (3d Cir. 1981). The
defendant here made no effort to make such showing. He
never moved to sever the arson count from trial on the
other counts. This suggests that at trial the defendant had
no concern about incriminating himself in the arson count
by testifying in his defense on the witness tampering count.
At his second trial, acquittal on the "fulcrum count" of
witness tampering was paramount for him because of the
effect of its conviction on the Sentencing Guideline
calculation.

Accordingly, we see no merit to the defendant's request
for remand to the District Court for a hearing to determine
whether he would have testified at the earlier trial in the
absence of the arson charge. The request will be denied.

                               15
V.

Finally, we turn to the defendant's argument that the
District Court's jury instructions completely stripped the
witness tampering statute of the required federal mens rea
element.7 He contends that this court's decision in
Stansfield I and the subsequent decision in United States v.
Bell, 113 F.3d 1345 (1997), created uncertainty as to the
Government's burden under Section 1512. The defendant
asserts that he is entitled to a new trial because"there is
utterly no evidence in this record that [he] knew of any
pending investigation or had the slightest intimation that it
was either a federal offense that was under investigation or
that federal law enforcement officers would ever be involved
in the investigation at a subsequent time."

To convict under Section 1512(a)(1)(C), this court held in
Stansfield I:

       [T]he Government must prove: (1) the defendant killed
       or attempted to kill a person; (2) the defendant was
       motivated by a desire to prevent the communication
       between any person and law enforcement authorities
       concerning the commission or possible commission of
       an offense; (3) the offense was actually a federal
       offense; and (4) the defendant believed that the person
_________________________________________________________________

7. Witness tampering is codified under 18 U.S.C. S 1512. That section
provides in pertinent part:

        (C) Whoever intentionally harasses another person and thereby
       hinders, ... prevents or dissuades any person from--

         (1) attending or testifying in an official proceeding;

         (2) reporting to a law enforcement officer or judge of the United
       States of information relating to the commission or possible
       commission of a Federal offense ...;

         (3) arresting or seeking the arrest of another person in
       connection with a Federal offense;

         (4) causing a criminal prosecution ...

       or attempts to do so, shall be fined under this title or imprisoned
       not more than one year, or both.

18 U.S.C. S 1512(a)(1)(C).

                                16
       in (2) above might communicate with the federal
       authorities. The last element may be inferred by the
       jury from the fact that the offenses were federal in
       nature, plus appropriate evidence.

101 F.3d at 918 (emphasis in original). We directed the
District Court on remand to instruct the jury that before it
could find Stansfield guilty of violating Section 1512(a)(1)(c)
it must also find, in addition to the other elements of the
offense, "both that he was motivated by a belief that the
victim might communicate with federal authorities
concerning the commission or possible commission of an
offense, and that the offense in question is in fact a federal
offense. Given appropriate evidence, if the juryfinds the
latter fact to exist, it may find the former to exist as well."
101 F.3d at 922.

Shortly thereafter, in Bell, we observed that, under the
statutes's clear command, the Government need not prove
any "state of mind" on the part of the defendant with
respect to the federal character of the proceeding or officer,
18 U.S.C. S 1512(f). Therefore, we did not read the fourth
element as requiring proof that "the defendant believed the
victim might communicate with law enforcement officers
whom the defendant knew or believed to be federal officers.
Rather, we read this sentence as recognizing that what the
statute mandates is proof that the officers with whom the
defendant believed the victim might communicate would in
fact be federal officers." 113 F.3d at 1349 (emphasis in
original; footnote omitted).

We, therefore, concluded:

       [T]he law of this circuit after Stansfield is that the
       Government must prove that at least one of the law-
       enforcement-officer communications which the
       Defendant sought to prevent would have been with a
       federal officer, but that the Government is not obligated
       to prove that the Defendant knew or intended anything
       with respect to this federal involvement.

Id. (emphasis added).

The District Court in this trial carefully followed this
court's direction and instructed the jury that the

                               17
Government is required to prove each of the following
elements beyond a reasonable doubt before it couldfind the
Defendant guilty of tampering with a witness.

       One, that the Defendant attempted to kill a person.
       Two, that the Defendant was motivated by a desire to
       prevent the communication between a witness and law
       enforcement authorities concerning the commission or
       possible commission of an offense. Three, that the
       offense was actually a federal offense. And four, that
       the Defendant believed that the witness might
       communicate with the federal authorities.

(emphasis added). The Court then elaborated on each of the
four elements, including a statement that the Government
need not prove that the defendant believed Dwight E.
Hoffman might communicate with some particular federal
officer or with an agent involved in a particular federal
investigation or that the defendant knew or believed that
the law enforcement officers were federal.8
_________________________________________________________________

8. The elaboration included the following:

        The second and third elements relate to the nature of the offense
       or offenses which are the subject of potential communication to law
       enforcement authorities. The offenses must be federal offenses.
That
       is the Government must prove beyond a reasonable doubt that
       Dwight E. Hoffman might have communicated to law enforcement
       authorities information concerning a federal offense and that the
       Defendant was motivated by a desire to prevent that
       communication. The Government need not prove that such motive
       was the sole motive for Defendant's actions, but the Government
       must prove that it was a substantial motivating factor ... .

        In fact, there need not be an ongoing federal investigation or
even
       any intent on the part of federal authorities to investigate. Nor
must
       the Government prove that the Defendant knew or believed that the
       offense was a federal offense. Although, you may consider the fact
       that the offense is a federal offense in determining whether there
       might be communication with federal authorities.

        The purpose of the killing must be to prevent communication with
       a law enforcement officer when the communication relates to an
       offense which is a federal offense, and the law enforcement officer
       with whom Dwight E. Hoffman might communicate is actually a
       federal law enforcement officer.

(A1352-53)
18
In this instance, the District Court's instructions were
consistent with our statement of the law in Stansfield I and
Bell. Moreover, it is evident that the defendant is under the
misperception that in order to convict the Government
must specifically establish his state of mind.9 As we stated
in Stansfield I and later clarified in Bell, the fourth element
may be "inferred from the fact that the offense was federal
in nature, plus additional appropriate evidence." It is
undisputed that the offenses were federal in nature, and as
we mention below, there was additional appropriate
evidence.

Accordingly, we conclude that the District Court's
instructions were consistent with Stansfield I and Bell.

This, however, does not dispose of the remainder of
defendant's argument, because he further claims that the
evidence presented lacks the "additional appropriate
evidence." He asserts that there is no evidence that he
knew of any pending investigation or that federal officers
would ever be involved. The latter element has no relevancy
to the statute or charge and warrants no discussion. In its
argument before this court in the instant case, the
Government represents that the evidence in this trial
closely paralleled the evidence presented in Stansfield I.
There, we concluded the underlying offenses clearly were
federal offenses and that evidence sufficiently supported a
conviction under 18 U.S.C. S 1512(a)(1)(C). We stated:

       The evidence reflected that Hoffman had already
       cooperated several times with state authorities and
       with Erie. Stansfield had knowledge of Hoffman's past
       cooperation and was aware that some investigation,
       though not necessarily a federal one, was underway.
_________________________________________________________________

9. 18 U.S.C. S 1512(f) provides:

"In a prosecution for an offense under this section, no state of mind
need be proved with respect to the circumstances

         1) that the official proceeding before a judge[or court] ... is
before
         a judge or court of the United States ... or

         2) that ... law enforcement officer is an officer or employee of
the
         Federal Government or a person authorized to act on behalf of
         the Federal Government ... ."

                                 19
       Moreover, though it is unclear whether Stansfield was
       aware of it, the evidence also showed that federal
       authorities had begun an investigation approximately
       one month prior to the conduct in question. Given that
       Stansfield violated several federal laws and based on
       the actions he took thereafter, a jury could reasonably
       find beyond a reasonable doubt that the attack was
       motivated, at least in part, by Stansfield's belief that
       Hoffman might cooperate with federal authorities.

Stansfield I, 101 F.3d at 919.

We have carefully reviewed the record in this trial and we
are satisfied that it supports our previous conclusion that
the underlying offenses were federal and that the evidence
adequately supported a conviction under the witness
tampering statute.

Erie commenced an investigation into the cause of
burning of the defendant's home shortly after thefire in
December 1990, although Erie did make payments over a
period of time on account of the policy. Richard McGee, a
senior investigator for Erie and a former federal postal
inspector, met with the defendant shortly after thefire and
took a statement from him. In May 1991 he examined
Stansfield under oath in the office of defendant's attorney,
Leslie Fields, but thereafter the investigation lay dormant
for much of the next eighteen months. It intensified,
however, when McGee received an anonymous phone call in
November 1992 that the damage to defendant's home was
caused by fire and that the defendant was the arsonist.
McGee communicated this information to the Pennsylvania
State Police, with whom he kept in contact through his
investigation, and the police officers separately conducted
interviews and an investigation.

McGee called on Dwight Hoffman's place of business,
where he identified himself to the employees, and where
Dee Hoffman was also employed. He interrogated Dwight
Hoffman separately and at a secret rendezvous because of
Hoffman's great fear of physical violence should the
defendant learn of his cooperation with the investigation.
On April 18, 1993, State Trooper Woodcock appeared at the
Hoffmans' place of business and left a message for Dwight

                                 20
Hoffman to call him. On September 10, 1993, shortly before
defendant's assault of the Hoffmans, McGee referred all of
his files and notes of the investigation to his former
colleague, John Holland, United States Postal Inspector, for
federal investigation in light of the evidence McGee had
uncovered of potential federal violations of law, including
mail fraud. Several weeks later, the defendant entered
Dwight Hoffman's home and assaulted him and his
parents. Stansfield's first inquiry of Dwight revealed his
knowledge of and concern for the criminal investigation for
he asked: "Why did you send the cops after me about the
fire at my house?" By this time, Stansfield had unlawfully
received the seven checks aggregating $377,544, the
subjects of the federal mail fraud counts. We believe this
evidence provided the jury with a sufficient basis on which
to infer that the defendant knew when he viciously
assaulted the Hoffmans that he was under criminal
investigation, that the offenses were federal, and that they
or one of them had communicated or might communicate
with the federal authorities.

VI.

Accordingly, we will affirm the judgment of conviction on
all counts except the arson count. As to Count V, the
conviction and sentence is reversed and the judgment of
sentencing on all counts will be vacated and the case
remanded to the District Court for appropriate
resentencing.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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