PHILLIP RAE MORGAN, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7634

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in holding
that, under 18 U.S.C. 3290, the statute of limitations applicable to
the instant federal indictment for a bank robbery charge was tolled
during the time that petitioner was "fleeing from justice" on
unrelated state charges.

   1. On December 14, 1989, a grand jury sitting in the United States
District Court for the District of Colorado returned a two-count
indictment charging petitioner with robbery of a federally insured
bank, in violation of 18 U.S.C. 2113(a), and possession of a firearm
by a previously convicted felon, in violation of 18 U.S.C. App.
1202(a)(1) (1982).

   Petitioner moved to dismiss the bank robbery count on the ground
that the indictment was returned five years and two weeks after the
commission of the charged offense on November 30, 1984, and, hence,
after the five-year statute of limitations had expired.  /1/ See 18
U.S.C. 3282.  In response, the government asserted that the statute of
limitations had been tolled for eight and one-half months during the
period following the commission of the bank robbery due to
petitioner's status as a fugitive from justice with respect to an
unrelated state offense.  The government offered uncontroverted
evidence showing that, on January 20, 1982, petitioner escaped from a
Massachusetts state correctional facility, where he was incarcerated
while awaiting trial on state robbery and firearms charges;  that he
remained at large until August 15, 1985, when he was arrested pursuant
to a federal warrant for unlawful flight to avoid prosecution;  and
that the bank robbery giving rise to the instant charges occurred
during the period of his fugitivity.

   The district court granted petitioner's motion and dismissed the
bank robbery count as time-barred.  Because the instant indictment was
returned after the five-year period set forth in 18 U.S.C. 3282, the
court found that it violated the statute of limitations, irrespective
of petitioner's status as a state fugitive at the time he committed
the bank robbery.

   The court of appeals reversed and reinstated the bank robbery
count.  The court noted that the federal tolling statute, 18 U.S.C.
3290, provides that "(n)o statute of limitations shall extend to any
person fleeing from justice." In the court's view, "(t)he plain
language of the tolling statue * * * indicates that (petitioner's)
status as a fugitive from Massachusetts tolled the statute of
limitations for his subsequent federal crime." Pet. App. 5.  The court
accordingly concluded, id. at 10:

         Whether an individual is a fugitive from federal or state
      justice, his apprehension for subsequent unrelated federal
      crimes is necessarily hampered by his flight from justice.
      Therefore, the fact that (petitioner) was fleeing prosecution
      from unrelated state crimes offers him no assistance in his
      attempt to take advantage of the federal statute of limitations.
       (Petitioner) was fleeing justice -- be it state or federal --
      and thereby triggered the tolling provision of Section 3290;  he
      cannot now have the privilege of the federal statute of
      limitations.

The court noted that its conclusion that the federal tolling statute
applies in the circumstances of this case is supported by this Court's
holding in Streep v. United States, 160 U.S. 128 (1895) (federal
statute of limitations tolled by a defendant's flight from a related
state prosection).  Pet. App. 9-10.

   Judge Logan dissented.  In his view, Section 3290 means only that
"no statute of limitations runs with respect to the crime from which
the individual is fleeing." Pet. App. 12.  Because petitioner was
fleeing from state charges, but not the federal bank robbery charges,
Judge Logan would have held that the tolling statute was not
triggered.  Id. at 13.

   2. Petitioner contends (Pet. 5-8) that the court of appeals erred
in holding that the statute of limitations was tolled during the time
that petitioner remained a fugitive with respect to state charges.
Whatever the merits of petitioner's contention, it is not ripe for
review by this Court.  Brotherhood of Locomotive Firemen v. Bangor &
A.R.R., 389 U.S. 327, 328 (1967).  In ruling that the statute of
limitations was tolled, the court of appeals returned petitioner to
the position that he would have been in had the district court denied
his motion to dismiss the indictment.  If petitioner is acquitted
following a trial on the merits, his statute of limitations claim will
be moot.  If, on the other hand, petitioner is convicted and his
conviction is affirmed on appeal, he will then be able to present his
statute of limitations claim to this Court, together with any other
claim he may have, in a petition for a writ of certiorari seeking
review of a final judgment against him.  Accordingly, review by this
Court of the court of appeals' decision would be premature at this
time.  /2/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   KENNETH W. STARR

      Solicitor General

   MAY 1991

   /1/ Petitioner did not move to dismiss the firearms charge.  He has
since pleaded guilty to the count.

   /2/ Because this case is interlocutory, we are not responding on
the merits to the question presented by the petition.  We will file a
response on the merits if the Court requests.