This matter was referred to the undersigned Magistrate Judge by the 1

Honorable Federico A. Moreno for a Report and Recommendation [D.E. 123], pursuant

to 28 U.S.C. § 636(b)(1) and S.D. Fla. Mag.J.R. 4. A second motion to dismiss, on

speedy trial grounds, was also referred to the undersigned. [D.E. 121, 123]. In light

of the conclusions reached in this Report and Recommendation, we do not reach the

merits of that motion.

These include the government’s Response in opposition to Defendant’s 2

motion [D.E. 127]; Defendant’s Reply [D.E. 129]; the government’s Memorandum of

Law on Supplemental Authority [D.E. 144]; Defendant’s Supplemental Authority in

support of her motion [D.E. 145]; Defendant’s filing of the Affidavit of Michael J. Rosen,

Esq. [D.E. 146]; Defendant’s Amended Response to the government’s supplemental

authority [D.E. 151]; and the government’s filing of the Danish Extradition Order [D.E.

152]. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 00-899-CR-MORENO/TORRES

UNITED STATES OF AMERICA,

Plaintiff,

v. 

CAMILLA BROE,

Defendant.

___________________________________/

REPORT AND RECOMMENDATION ON DEFENDANT’S 

MOTION TO DISMISS COUNTS 4 - 14 OF THE SECOND

SUPERSEDING INDICTMENT AS TIME-BARRED

This matter is before the Court on Defendant Camilla Broe’s (“Defendant”)

Motion to Dismiss Counts 4 - 14 of the Second Superseding Indictment as Time-Barred

Under 18 U.S.C. § 3282 [D.E. 117]. Evidentiary hearings were held on December 1 1

and 11, 2009. Having carefully considered Defendant’s motion and the related filings,2

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 1 of 40
the testimony of the witnesses adduced at the hearings and the evidence admitted

therein, the arguments of counsel, and the entire record, the Court reluctantly

recommends that Defendant’s motion to dismiss the indictment be Granted. 

We note that reluctance given the time and effort that went into this case,

starting in about 2005, to convince Danish authorities to live up to the spirit and letter

of an extradition treaty despite the past practice of not extraditing Danish nationals.

It took much time and effort to achieve that correct result under the law. And once

that was accomplished, it took additional time and effort by Danish officials to

overcome objections to extradition lodged by the Defendant in Denmark. As a

consequence, it is well known and has been widely reported that this Defendant is the

first Danish national extradited under its extradition treaty with the United States.

The pending recommendation to dismiss this indictment, we respectfully submit,

also flows from our judicial system’s obligation to follow the law. It results from the

government’s inaction long prior to 2005 – while the statute of limitations in this case

was running under federal law. And it results from the fact that the government now,

six years after the expiration of that limitations period, has failed to satisfy its burden

to invoke a statutory exception that applies to the pending charges. Despite the

persuasive and admirable efforts of the government’s counsel now charged with that

difficult task, the government has not shown that the limitations period was tolled,

starting in 2001, when this Danish national left the country to return to her homeland

while the investigation underlying the case was pending. The government had to show

that she did so with the intent of fleeing prosecution. The government could not

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 2 of 40
overcome the fact, however, that the record shows that during the time she was

supposedly fleeing prosecution, her lawyer was constantly communicating with the

government to arrive at an agreed-upon outcome to the charges, providing information

to the government at its request, and offering to have the government have direct

communication with the Defendant if the government were satisfied with that

information. The government was apparently not satisfied. But it never advised

Defendant of that fact and never asked for a direct communication. The government

indeed sat on the case for over two years prior to obtaining an indictment on charges

that were indictable, by the government’s own admission, as early as October 2000.

The government’s inaction, which had nothing to do with the fact that the Defendant

was longer in the country, led to the filing of an indictment one month after the

limitations period on these particular charges expired.

Faced with this record, and given the credibility findings that we make following

the evidentiary hearing, we conclude that we have no choice but to apply the untolled

limitations period prescribed by Congress to the pending charges, which requires that

the case be dismissed. As Danish officials have now learned, following the law is not

easy in the face of political expediency. It is hard. It is equally hard to make this

recommendation now. But the harm that results from leaving a foreign national and

admitted drug smuggler unprosecuted are far outweighed by us ignoring the faithful

and impartial application of our own federal law to a defendant whose case is squarely

governed by it. 

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 3 of 40
Although the three conspiracy counts with which Defendant was 3

originally charged remain in the Second Superceding Indictment, the government

cannot and will not prosecute Defendant for conspiracy pursuant to the Rule of

Specialty. [D.E. 99]. Denmark’s extradition of the Defendant was limited to the

substantive counts of the superseding indictment because Denmark does not recognize

criminal conspiracy offenses.

I. FACTUAL FINDINGS

A. Procedural Background

This case began with the government investigating the importation of ecstasy

tablets into the United States from Europe. The original Indictment in the case was

filed on October 24, 2000 and charged Fernando Luminati-Tonelli with one count of

conspiracy to possess with intent to distribute ecstasy. [D.E. 1]. 

On March 21, 2003, a Superceding Indictment was filed against LuminatiTonelli and three (3) co-defendants, including Defendant Broe, a Danish national.

[D.E. 8]. The Superceding Indictment charged Defendant with conspiracy to import

ecstasy, conspiracy to possess with intent to distribute ecstasy, and conspiracy to

commit money laundering. The Indictment alleged that each of these conspiracies

occurred between January 1995 and October 2000. A warrant was issued for

Defendant’s arrest on the same date the Superceding Indictment was filed. [D.E. 10].

Nearly six and one half years later, on September 3, 2009, a Second Superseding

Indictment was filed against Defendant that included the same conspiracy charges set

forth in the Superceding Indictment as well as adding eleven (11) new substantive

drug counts against her. [D.E. 101]. These new charges cover nine separate 3

importations of approximately 85,000 ecstasy tablets into Miami from Amsterdam

between June 30, 1997 and February 22, 1998. The government alleges that

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 4 of 40
Defendant managed and utilized couriers to carry the drugs from Amsterdam to

Miami. More specifically, the government alleges in relevant part that Defendant and

co-Defendant Fernando Luminati-Tonelli paid couriers to fly to Amsterdam where one

or both of them met the couriers and strapped ecstasy tablets to the couriers’ bodies;

that the couriers then flew back to Miami and went to Defendant’s condominium; and

that there, Defendant or another co-Defendant took the tablets from the couriers.

Defendant, who moved from the United States to Denmark sometime between

May and July 2001, was arrested in Denmark in December 2007 pursuant to an

extradition request by the United States. She challenged the Danish authorities’

decision to approve her extradition [D.E. 152] but eventually lost in the Danish courts.

She was extradited to the United States on September 4, 2009. She is the first Danish

national extradited from Denmark to the United States.

B. Summary of DEA Investigation Relating to Defendant

Special Agent (“SA”) Joseph Kilmer of the United States Drug Enforcement

Agency (“DEA”) first became aware in late 1998 or early 1999 that someone named

“Camilla” who matched Defendant’s description was working with Luminati-Tonelli

to import ecstasy tablets into the United States. It was not until the summer of 2000,

however, that SA Kilmer was able to make a positive identification of Defendant. He

learned her identity and that she was living in an apartment in Miami paid for by her

boyfriend, Luminati-Tonelli.

Between the summer of 2000 and October 2000, the government’s investigation

of the drug smuggling ring continued as the government tried to determine the scope

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 5 of 40
SA Kilmer explained the reason Luminati-Tonelli was indicted at this 4

time was because agents had been looking for him and finally “got a fix” on him in

Thailand. However, by the time the indictment was returned and a provisional arrest

warrant obtained, Luminati-Tonelli had already been arrested for crimes committed

in another country. He was eventually tried, convicted, and sentenced in France.

Luminati-Tonelli was eventually brought to the U.S. in 2004 or 2005, at which time

he agreed to cooperate with authorities. Defendant had already been indicted by then.

of the operation and who was involved. By September 2000, SA Kilmer believed the

government had enough evidence to indict Defendant for her participation in 1997 and

1998 in the trafficking organization. 

On October 24, 2000, the government indicted Luminati-Tonelli on one count of

conspiracy to possess with intent to distribute ecstasy. Defendant was not indicted, 4

and the government continued to investigate the importation ring through March 2003.

 SA Kilmer conceded that probable cause existed by that point to arrest the Defendant

as well. In any event, new arrests were being made every few months, resulting in

additional evidence about the scope of the conspiracy. However, SA Kilmer was not

able to articulate what evidence was gained after the fall of 2000 that related to the

government’s case against Defendant. He acknowledged that the last date on which

they had evidence establishing probable cause of Defendant’s drug smuggling activities

was February 1998. All parties agree that, under federal law, the limitations period

for those substantive offenses would have expired in February 2003.

Yet, not until March 21, 2003, did the government go to the Grand Jury for the

return of a Superseding Indictment that named Defendant and three others, including

Luminati-Tonelli, which charged them with three conspiracy counts connected with

importing ecstasy into the United States.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 6 of 40
C. Government’s Communications with Defendant or her Attorney

On January 24, 2001, well after probable cause existed to charge this Defendant,

SA Kilmer first approached her and told her that she was the target of a drug

investigation, and advised her to obtain an attorney. The next day, Defendant and

Attorney Waldman met with SA Kilmer and Assistant United States Attorney

(“AUSA”) David Weinstein regarding her involvement in the ecstasy importation

operation. The AUSA and SA told Defendant they knew she was one of the primary

players in an organization that was bringing ecstasy tablets into the United States

through the use of couriers; that her boyfriend Luminati-Tonelli was supplying the

drugs from the Netherlands; and that Defendant was actively involved in recruiting

couriers and in obtaining the tablets back in the United States.

The government hoped through this meeting to gain information from Defendant

and obtain her cooperation in the investigation. Defendant had two conditions for

cooperating: that she not go to jail and that she not be deported to Denmark. The

government did not agree to these pre-conditions and the meeting ended shortly

thereafter. 

Within a week, Defendant retained criminal defense attorney Michael Rosen.

On February 2, 2001, Rosen met with AUSA Weinstein and SA Kilmer about the case.

The government told Rosen about Defendant’s participation in the ecstasy importation

scheme and described her as someone who was not at the top of the organization but

not at the bottom, either. Weinstein may have referred to Defendant as LuminatiTonelli’s “right hand” in the operation. They discussed how they might resolve the

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 7 of 40
case, including a negotiated plea and Defendant’s cooperation with the government,

and the possibility of her wearing a wire was mentioned.

Thus began a series of communications between Rosen and the government

about the possibility of Defendant’s cooperation and resolution of the case. See

Defendant’s Comp. Ex. 1. On February 8, 2001, Rosen spoke with Weinstein by phone.

Rosen raised the possibility of immunity for Defendant in exchange for her cooperation.

Soon thereafter, Rosen was told the government would not agree to transactional

immunity but the topics of indirect immunity and the use of a wire were discussed. 

On March 28, 2001, Rosen sent Weinstein a facsimile letter, noting the lack of

response to his earlier call and asking for feedback about the case. Some time

thereafter, or at least by July 2001, Defendant decided to return to Denmark. She

informed her lawyer during a conference with counsel conducted on May 9, 2001 of her

decision to return to Denmark. 

On September 24, 2001, Rosen returned Weinstein’s phone call. Weinstein

asked about a “rumor” he had heard that Defendant had left the country. Rosen

responded that he would not answer questions about conversations with his client.

Their conversation also covered, among other subjects, the possibility of a proffer. 

In mid-October 2001, Rosen had a phone conversation with SA Kilmer during

which they discussed a possible plea offer for Defendant as well as her cooperation in

the case including the use of a wire.

On November 5, 2001, Rosen met with Weinstein and discussed a proffer letter

whereby the government would submit written questions to Defendant. Although she

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 8 of 40
would provide the substance of the answers, Rosen would answer the questions in

writing himself so as to protect his client. 

On November 13, 2001, the government sent Rosen a letter containing ten (10)

questions to ask Defendant regarding her involvement in and knowledge of the ecstasy

importation operation. 

On December 4, 2001, Rosen wrote to Weinstein to confirm his understanding

of a conversation they had had one day earlier regarding the terms of the attorney

proffer letter. Rosen closed his letter by noting that if the government were satisfied

with the proffer of information, he and Weinstein would discuss a resolution of the

matter before any direct communication was had with Defendant. 

On December 6, 2001, Weinstein confirmed in writing the terms of the attorney

proffer letter. The AUSA concluded his letter by stating that once he had received the

proffer information, he would contact Rosen to discuss a resolution of the matter and

then set up a meeting with Defendant. 

On December 17, 2001, pursuant to the agreement with the government, Rosen

provided written answers to the government’s questions. He anticipated that the

questions and answers would be the beginning of the process, and that follow-up

questions and a debriefing with Defendant would come after the government had

reviewed the answers.

Rosen never received a response to the December 17th proffer letter. On

December 28, 2001, Rosen wrote to Weinstein asking for an update on the status of the

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 9 of 40
case. He noted a phone message he had left for the AUSA a few days earlier that had

not yet been returned.

On February 2, 2002, Rosen sent another letter to Weinstein, again noting the

lack of any response whatsoever to the proffer letter as well as Weinstein’s failure to

return his many phone messages. 

No further communications took place between the government and Rosen or

Defendant for the next year and a half. In August or September 2003, Rosen saw

Weinstein in the elevator of the courthouse. Rosen asked what had become of

Defendant’s case. Weinstein responded to the effect that it had “died on the vine” or

“it’s not happening.” Rosen took this to mean that the case against Defendant had run

its course. He thereafter communicated this statement to Defendant. 

Unbeknownst to Rosen or Defendant, the government had determined that the

answers provided on December 17, 2001, while fairly truthful, were also incomplete.

Based on other evidence the government already had, SA Kilmer believed the answers

omitted certain information and minimized Defendant’s role in the ecstasy importation

ring. Also unknown to Rosen or Defendant, when Rosen ran into Weinstein in the

courthouse elevator in August or September 2003, Defendant had already been

indicted. 

Between the date of the indictment in March 2003 and the date of Defendant’s

arrest in December 2007, the government made no attempt whatsoever to contact

either Defendant or her attorney about the charges against her. Both Defendant and

Rosen learned about the Superceding Indictment following her arrest.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 10 of 40
Rosen testified that he did not recall any other details of the conversation 5

with Defendant about her departure, and he did not recall whether he ever knew when

exactly she left. 

SA Kilmer did not communicate directly with the Danish authorities. 6

That was the responsibility of the attachés in the DEA country office, who then related

relevant information to Kilmer.

D. Defendant’s Departure from the United States, and the

Government’s Efforts to Bring Her Back

From 1985 through 2001, Defendant lived continuously in the United States.

On May 9, 2001, some four months after the initial meeting with the government,

Defendant met with attorneys Rosen and Waldman and told them she was leaving the

United States. See Defendant’s Ex. 2; D.E. 146-1 at ¶ 3. Two and a half months later, 5

on July 20, 2001, she registered her address in Denmark with the Danish authorities.

SA Kilmer first learned that Defendant was no longer living in the United States

in early 2002. In January 2003, the DEA country office contacted Danish officials

about Defendant’s address in Denmark. In early 2004, SA Kilmer was advised that

she was living near the U.S. Embassy in Copenhagen. SA Kilmer testified that

Defendant’s specific location in Denmark was not of major importance to the

government, at least not until there was an indictment and arrest warrant for her. 

 Prior to Defendant’s indictment on March 21, 2003, SA Kilmer spoke with his

counterparts in the DEA country office in Copenhagen, Denmark, about extraditing her

to the United States. He was advised that Denmark would not extradite Defendant,

6

a Danish national, to the United States. SA Kilmer verified this point with the DEA

country office again at the time of Defendant’s indictment. 

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 11 of 40
The government’s early plans to bring Defendant back to the United States

involved the DEA country office monitoring her travel to see if she would leave

Denmark. If so, they might be able to arrest her in that country. Yet, the government

for some reason did not consider calling Defendant’s attorney back and demanding her

return to the United States. Clearly, of course, had they done so and Defendant

refused, a strong piece of evidence of intentional flight would have been in this record.

That evidence is missing.

Approximately a week after the indictment was returned, SA Kilmer applied for

an Interpol “Red Notice.” It was issued on April 17, 2003. The Red Notice notified all

member states of Interpol that they should stop and detain Defendant if she were

found in their country, based on the outstanding arrest warrant in the United States.

As late as June 2004, the DEA country office was still advising SA Kilmer that

Denmark would not extradite Defendant. 

In mid-2005, SA Kilmer requested that the Red Notice be renewed.

In December 2005, SA Kilmer spoke with two people at the United States

Department of Justice’s (“DOJ”) Office of International Affairs (“OIA”) about

Denmark’s extradition policy. He had been advised by the DEA agents in Copenhagen

that the extradition treaty with Denmark had been changed (through the U.S.-

Denmark Bilateral Protocol), and they thought this might provide an avenue for

Defendant’s extradition to the United States. 

SA Kilmer spoke first with a paralegal in the OIA. After speaking with people

at the Department of State, the paralegal advised SA Kilmer that nothing had changed

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 12 of 40
in terms of Denmark’s policy on extradition and she did not hold out much hope that

Defendant’s extradition could be accomplished.

SA Kilmer also spoke with Amy Olsen, an attorney in the OIA, on December 16,

2005. Olsen stated it was her firm understanding, based on conversations with people

at the State Department who helped draft the Protocol, that extradition still was not

possible. 

In April 2006, the DEA country attaché told SA Kilmer that extradition might

be more of a possibility than in the past. 

From June through November 2006, the government began devising a plan to

lure Defendant out of Denmark to a country like France that would permit her

extradition to the United States. The plan was to use one of the last defendants

arrested in this case to make contact with Defendant. Preliminarily, agents made a

series of recorded calls between the confidential source and Defendant. The plan

needed approval from the Danish government as well as the U.S. government,

however, so the DEA country attaché met with Danish officials about the matter. A

senior member of the Danish National Police told the attaché that Denmark would not

approve the plan. The attaché advised that he would raise the issue to a higher level

within the U.S. Embassy. 

In November 2006, the request to approve the plan to lure Defendant out of

Denmark was made a higher level. SA Kilmer ultimately was advised that the Danish

Ministry of Justice would not approve the plan. The Danes indicated a willingness,

however, to accept the case against Defendant for prosecution in Denmark. 

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 13 of 40
SA Kilmer noted that shortly after he became press secretary, AUSA 7

Weinstein was promoted to a supervisory position in the U.S. Attorney’s Office and he,

too, worked the case “on the side.” 

Thereafter, the DOJ and DEA asked the OIA to set up a meeting with the

Danes. The meeting was held in January 2007 and included several high-ranking

Danish officials. SA Kilmer and the AUSA who had taken over the case from David

Weinstein were in attendance. The Danish officials were receptive and indicated it

was possible though not likely that Defendant’s extradition would be allowed. They

invited the U.S. to formally request extradition, and alternatively to request that the

case be prosecuted in Denmark. 

At that point, SA Kilmer began drafting the paperwork necessary for an

extradition package. The package was completed then reviewed in the summer of

2007, and officially submitted to Denmark in August 2007.

Defendant was arrested in Denmark in December 2007. She fought extradition

but lost. She was extradited to the United States on September 4, 2009. One day

earlier, on September 3, 2009, the Second Superseding Indictment was filed which

charged Defendant with 11 new substantive drug offenses.

One fact that is indirectly related to the investigation and prosecution of

Defendant involves SA Kilmer’s job responsibilities during some of the period at issue

here. In March 2001, SA Kilmer became DEA press secretary for the Miami Field

office. This was the sole case he retained when he was promoted to the new position.

From that point through the end of 2004 or beginning of 2005 (when he left the press

secretary position), he worked this case “on the side.” During this period, he testified 7

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 14 of 40
that he did not feel any urgency to push the case forward because he knew the four

main targets were outside the country. In terms of time spent on the case, SA Kilmer

said his first priority was the press secretary job, but he insisted he spent as much time

as needed on the case. And after September 11, 2001, he said he had plenty of time to

work on this case because the demands of his press secretary position lessened

considerably. Though we readily conclude that SA Kilmer is a generally credible and

honorable law enforcement officer doing his duty as best he can, we find that his

testimony in this regard is not convincing. His involvement in other matters and

duties, unrelated to this case, clearly had more to do with the case standing still than

anything else. In other words, we find that the decision not to file these charges prior

to the expiration of the limitations period was not related to the Defendant’s absence

from the jurisdiction, but had everything to do with the agent or the AUSA’s

obligations on other matters, especially given that so much work had already been

successfully done on the case as a whole. 

Strong evidence of this conclusion also flows from the fact that, once SA Kilmer

resumed his normal duties in February 2005, he ramped up his work on this case. By

then, of course, the limitations period had already long expired.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 15 of 40
This section provides: 8

Except as otherwise expressly provided by law, no person shall be

prosecuted, tried, or punished for any offense, not capital, unless the

indictment is found or the information is instituted within five years next

after such offense shall have been committed.

18 U.S.C. § 3282(a).

This provision states that “[n]o statute of limitations shall extend to any 9

person fleeing from justice.” 18 U.S.C. § 3290. 

II. ANALYSIS

Defendant has moved to dismiss Counts 4 - 14 of the Second Superceding

Indictment as time-barred under the applicable five-year statute of limitations, 18

U.S.C. § 3282. As previously noted, these counts charge Defendant with substantive 8

drug offenses occurring between June 30, 1997 and February 22, 1998. The Second

Superceding Indictment was filed on March 23, 2003, five years and one month after

the last-occurring of these offenses. Thus, the government is barred from prosecuting

Defendant for these charges unless, as the government claims, she fled the jurisdiction

in 2001, thereby tolling the statute of limitations under 18 U.S.C. § 3290 until her 9

return to the United States in September 2009.

Whether Defendant was “fleeing from justice” so as to toll the statute of

limitations is a question of fact for our determination. United States v. FonsecaMachado, 53 F.3d 1242, 1243 (11th Cir. 1995). In our circuit, “[m]ere absence from the

jurisdiction in which a crime occurred does not render a suspect a fugitive from justice;

he must be found to have absented himself from the jurisdiction with the intent to avoid

prosecution.” Id. at 1243-44 (emphasis added); see also Streep v. United States, 160 U.S.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 16 of 40
128, 133 (1895) (“it is quite clear that any person who takes himself out of the

jurisdiction, with the intention of avoiding being brought to justice for a particular

offense, can have no benefit of the limitation”); Donnell v. United States, 229 F.2d 560,

565 (5th Cir. 1956) (following Streep; in determining whether to toll the statute of

limitations, “the purpose and intent of [the defendant’s] absence is an important matter

to be inquired into” by the factfinder); United States v. Nabepanha, 200 F.R.D. 480, 482-

82 (S.D. Fla. 2001) (citing Fonseca-Machado and holding that both absence and intent

are required to find a defendant is a fugitive from justice; defendant’s failure to

surrender to authorities once he learned of charges against him allowed court to infer

his intent to avoid arrest). 

The government bears the burden of proving, by a preponderance of the evidence,

that Defendant was fleeing from justice and with the intent to do so. See, e.g., United

States v. Florez, 447 F.3d 145, 149 (2d Cir. 2006); United States v. Greever, 134 F.3d

777, 781 (6th Cir. 1998); United States v. Marshall, 856 F.2d 896, 900 (7th Cir. 1988);

United States v. Fowlie, 24 F.3d 1070, 1072 (9th Cir. 1994).

Preliminarily, we recognize that the statute of limitations may be tolled even

though formal proceedings had not yet commenced against Defendant such as by the

filing of an indictment against her or issuance of a warrant for her arrest. As the

Supreme Court explained in Streep: 

In order to constitute a fleeing from justice, it is not necessary that the

course of justice should have been put in operation by the presentment of

an indictment by a grand jury, or by the filing of an information by the

attorney for the government, or by the making of a complaint before a

magistrate. It is sufficient that there is a flight with the intention of

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 17 of 40
avoiding being prosecuted, whether a prosecution has or has not been

actually begun. 

160 U.S. at 133. 

The issue here is whether the government has shown, by a preponderance of the

evidence, that Defendant left the United States with the intent to avoid prosecution.

Defendant did not testify in our proceeding and there are no statements attributable

to her from other sources, so there is no direct evidence of what she intended when she

returned to Denmark in 2001. The government asks us to infer the requisite intent

from circumstantial evidence in the record. The essential facts are not in dispute, but

the parties disagree about the inferences that may be drawn from those facts. After

careful consideration of the evidence in the record and the well-reasoned arguments

made on both sides, we conclude that the government has not met its burden of showing

by a preponderance of the evidence that Defendant intended to avoid prosecution when

she returned to Denmark. The inference of intentional flight is equally matched by the

circumstances in this record that show the absence of intentional flight. Faced with

that equipoise, we cannot find that the government has met its burden. Especially

where that burden could have so easily been shown by the government’s timely demand

for a meeting or her return to the jurisdiction prior to the expiration of the limitations

period. This would have and could have been done given the Defendant’s repeated

requests for further communication from the government. That did not occur. 

Clearly, of course, the government has no obligation to respond in these

circumstances. There prosecutorial decisions and judgments are theirs to make. Their

only obligation under those circumstances was to timely charge her as required by

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 18 of 40
federal law. Otherwise, the government’s burden was to lay the clear factual

framework for intentional flight sufficient to toll that limitations period, which would

have been easily accomplished with one telephone call. Their failure to do so is what

gives rise to the problem we now face six years and a whole drawn out extradition

process later. That is regrettable; but it is one of the government’s own making.

A. The Competing Inferences from the Record

The following is a summary of the facts that the government claims support an

inference that Defendant intended to avoid arrest or prosecution when she left the

United States.

Defendant had resided in the United States for sixteen (16) years when SA

Kilmer approached her on January 2001 and advised that she was targeted for

indictment in an ecstasy drug trafficking organization. The next day, she and her

attorney met with the AUSA and SA Kilmer and were presented with evidence of her

involvement in the operation. The government offered her an opportunity to cooperate.

 Defendant agreed but conditioned her cooperation on two things: that she not receive

jail time and that she not be deported to Denmark. The government refused to agree

to either condition and advised that she faced jail time. Within a week, Defendant’s

newly-hired defense attorney, Michael Rosen, met with AUSA Weinstein and SA

Kilmer. Rosen was told that Defendant was Fernando-Luminati-Tonelli’s “right hand”

and, based on a conservative assessment, she faced a potential sentencing guideline

range of 70 to 78 months if convicted.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 19 of 40
We are unwilling to impute to Defendant the knowledge that in 2001, she 10

understood that she could not be extradited to the United States under the extradition

treaty then in effect. There is simply no evidence to support that suggestion.

For the next eleven months, Mr. Rosen negotiated with the government about

Defendant’s cooperation in this case. The negotiations culminated in an agreement in

November and December 2001 in which defense counsel agreed to answer certain

questions posed to Defendant by the government, in an effort to facilitate Defendant’s

cooperation. And that is what happened: Defendant provided answers to Mr. Rosen,

who in turn provided written answers via attorney-proffer to the government on

December 17, 2001. 

Meanwhile, at some point between May 9, 2001 and July 20, 2001, while the

lawyers were negotiating, Defendant left the United States for Denmark. She told her 10

attorney of her impending departure but the government did not learn until early 2002

that she no longer lived here. Despite her long-term residency in this country,

Defendant never once returned until she was extradited in September 2009.

The government contends that the aforementioned facts show, by a

preponderance of the evidence, that Defendant fled to Denmark with the intent to avoid

arrest or prosecution. In particular, the government urges us to examine Defendant’s

stated conditions for cooperating – no jail time and no deportation to Denmark –

alongside the government’s immediate rejection of these conditions, as providing a

motivation for her to flee and an explanation for why she returned to Denmark after

explicitly stating that she did not want to go back. The government also urges us to

juxtapose Defendant’s 16-year residency in the United States with her failure to return

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 20 of 40
after leaving in 2001. Finally, the government suggests that Defendant’s decision to

proceed through attorney proffer (a request, the government notes, that was made after

July 20, 2001) was suspiciously convenient in that it allowed her to remain in Denmark

and prolonged the government’s ability to discover her whereabouts. It is the

government’s position that these facts, “read in context and not in mere isolation” [D.E.

144 at 3], support a finding that Defendant fled with the intent to avoid arrest or

prosecution. 

Defendant, however, more persuasively shows that the record supports the

opposite, innocent inference. She is a Danish national and returned to Denmark to be

with her family and child. She knew she was the target of an investigation and likely

would go to jail. She continued her attempts to cooperate with the government. She

claims “a likely and reasonable inference is that she returned home to her family with

her child to begin to ease the transition for her eventual incarceration by having her

child with her family. She was thereafter lulled into a false sense of security that the

matter had passed without charges based on the comments of the [AUSA] to her

counsel.” [D.E. 145 at 6].

Our detailed and lengthy review of this record convinces us that Defendant did

not secretly leave the country; she told her lawyer she was leaving, and even the

government heard a rumor a few months later that she had left. For many months

after her departure, she continued the cooperation efforts begun prior to leaving, until

the government ceased communicating with her. There is no evidence that after that

first meeting in January 2001 she was ever asked to meet with the government again.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 21 of 40
In fact, the last few letters between Rosen and the prosecutor contemplate a

future in-person meeting between the government and Defendant. The AUSA

specifically indicated in December 2001 that, after reviewing the Defendant’s formal

proffer through counsel, that he would contact counsel to discuss a resolution of the

matter and schedule a meeting with the Defendant. And this intent was communicated

even though the same AUSA had an indication that Defendant was at that point living

back in Denmark. Defendant and her counsel were aware of the government’s position

in this regard when they prepared and submitted that proffer letter. This took place

at precisely the time that the government now contends Defendant was in a state of

flight from the jurisdiction with the intent to avoid prosecution. The government’s

actions in December 2001 simply belie the government’s position now that the

inferences to be drawn from this record evidence intentional flight. 

Although the contemplated meeting never took place, there is little evidence to

show Defendant would not have appeared had she simply been asked by the

government and her counsel to do so in response to Defendant’s proffer letter.

Defendant was not under any compunction or order to remain in the United States, and

she was never asked to return or told she was wanted by authorities prior to her arrest

in 2007. In fact, in the fall of 2003, she was led to believe from statements made by the

prosecutor to her lawyer that the case against her had run its course. And although

Defendant did not return to the United States until her extradition, there is no evidence

in this record that she intentionally avoided doing so prior to the time that the statute

of limitations expired.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 22 of 40
B. Application of Section 3290 Precedent

We find that it would be wholly and unjustly speculative to infer the requisite

intent based on this record. Our extensive review of cases applying § 3290 in varying

contexts supports that conclusion. In United States v. Pryor, 19 Fed. Appx. 234, 237

(6th Cir. 2001), there was no direct evidence in the record that the defendant knew he

was wanted by authorities. The Sixth Circuit refused to infer that the defendant was

aware he was wanted in order to then infer that he had concealed himself with the

intent to avoid prosecution. Id. The court held: 

pure speculation is necessary in order to infer from the evidence presented

that the defendant was aware that he was wanted by law enforcement

authorities. One could speculate that the defendant moved out of his

residence and did not return to his storage unit because he was concealing

himself in order to avoid prosecution. On the other hand, evidence

demonstrates that Pryor continued to use his own name during the time

in which he is alleged to have been concealing his whereabouts. Moreover,

it is simply not uncommon at this day and age for people to move a couple

of times in five or so years. In short, the government has failed to prove

by a preponderance of the evidence that the defendant concealed himself

with the intent to avoid prosecution.

Id. 

Of course here Defendant knew she was the target of a criminal investigation,

unlike the defendant in Pryor. That is why she retained a criminal defense lawyer and

why that lawyer was trying to negotiate with the government. For that reason the

principle is the same. We would have to rely on unsupported inferences to justify the

conclusion, under the totality of the circumstances here, that Defendant left the United

States for Denmark in 2001 specifically to avoid arrest or prosecution. This is

purportedly the case even though during that same time she is communicating, albeit

indirectly, facts to the government that supported at least part of the government’s case.

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 23 of 40
This is purportedly evidence of ongoing flight even though she is offering at this point

to wear a wire or further the government’s case in some way that would mitigate

against her own criminal liability. We, however, are unwilling to reach the inferences

the government seeks to draw in light of this record. See, e.g., United States v.

Janamadula, No. 04 CR 166-3, 2006 WL 59399, *2 - *3 (N.D. Ill. Jan. 10, 2006) (finding

insufficient evidence of intent during a particular period of time where the government

had sufficient evidence to indict the defendant but elected not to because it was still in

mid-investigation and because it believed the defendant was out of the country and any

effort to reach him by mail or phone would have been fruitless; although the defendant

traveled extensively, there was no evidence that he could not have been reached, he

traveled with his “green card” and later his U.S. passport, and when summoned to a

deposition in his bankruptcy court he appeared); United States v. Sotelo-Salgado, 201

F.Supp.2d 957, 964-66 (S.D. Iowa 2002); United States v. Garcia-Moreno, 626 F. Supp.

2d 826, 835-36 (W.D. Tenn. 2009).

We acknowledge that the primary focus when ascertaining intent for purposes

of § 3290 tolling is on the defendant’s conduct, not on what the government did or did

not do. See, e.g., Pryor, 19 Fed. Appx. 234, 237. The government need not prove that

law enforcement officers took reasonable steps to locate a defendant. See Greever, 134

F.3d at 780 n.1. However, “the nature and the extent of the efforts of government

agents to locate the defendant is one factor to consider in determining whether it is

reasonable to infer from the agent’s failure to locate the defendant that the defendant

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 24 of 40
was acting with the intent to avoid arrest or prosecution.” Id. See also Florez, 447 F.3d

at 152 (quoting Greever, 134 F.3d at 780 n.1)). 

Sometimes, the government’s actions are not relevant at all. For instance, in

Fonseca-Machado, 53 F.3d at 1244, the Eleventh Circuit looked only at the defendant’s

conduct when it concluding that he fled from the United States with the intent to avoid

prosecution. The court determined that the defendant’s act of ordering the pilot of the

plane he had just hijacked to fly to Cuba was sufficient evidence of his intent to avoid

prosecution for the crime of air piracy. Id. Although an arrest warrant was issued at

the time, there is no evidence the government made any effort to bring the defendant

to trial until he was picked up trying to enter this country illegally, by raft, thirteen (13)

years later, at which point he was quickly indicted. Id. at 1243. Given the nature of

the crime and the blatant evidence of intent to flee justice, and the fact that the

defendant fled to a country with which the United States did not have normalized

relations, the focus was properly on the defendant’s actions. 

Here, though, we find the government’s efforts to bring Defendant to trial are

relevant. The government knew that Defendant was living in Denmark by early 2002

at the latest. A request to Danish authorities regarding her whereabouts was not made

for a year, until early 2003, because it was not important to the government to locate

her. It would not be reasonable, then, to infer from the government’s lack of knowledge

of Defendant’s whereabouts that she intended to avoid arrest or prosecution. 

By contrast, the cases the government cites in support of its burden are not

particularly helpful to our analysis because in each instance there is some act by the

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 25 of 40
defendant, some evidence on which to base an inference that the defendant intended to

avoid arrest or prosecution. In ours there is none.

For instance, in Florez, 447 F.3d at 153, the Second Circuit affirmed the trial

court’s finding, based on the totality of the circumstances, that the defendant fled the

district with the intent to avoid arrest and prosecution. In that case, immediately after

learning that his brother (and co-defendant) had been arrested, the defendant failed to

return to his workplace of twelve (12) years, and he ceased residing in the apartment

they had shared. Id. at 152-53. The fact that he told co-workers that his brother was

in trouble, coupled with evidence that the defendant and his brother were joint

participants in a large-scale drug trafficking organization, allowed the trial court to

infer that the defendant was aware that officers would seek to arrest him, too. Id. at

152. Other evidence showed that the defendant moved to his native Colombia for a few

years. Id. at 153. Upon his return to New York, he asked a female acquaintance if he

could list her Queens address – where he had never lived – as his residence on a New

York driver’s license application, and he used her bank account – rather than that of the

relatives or the friends with whom he was actually residing – to conduct financial

transactions. Id. He even paid her for the use of her account. Id. 

The defendant’s failure to return to his long-time job and his disappearance from

all known New York locations after his brother’s arrest; his use of a false address to

secure a driver’s license; his use of an acquaintance’s bank account and his payment for

that privilege; and his hasty departure from the bank when the teller tried to confirm

his identification documents, all supported the trial court’s finding that the defendant

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 26 of 40
intended to conceal his true whereabouts and avoid any inquiry that might draw official

attention to himself and possibly lead to his arrest. Id. 

Furthermore, and quite significantly, the Second Circuit concluded that the

government’s prolonged inability to locate the defendant despite numerous efforts over

a five-year period supported the trial court’s finding that the defendant intended to

avoid arrest and prosecution. Id. at 154 (citing Greever, 134 F.3d at 780 n.1 (observing

that where the government’s reasonable efforts to locate the defendant were

unsuccessful, the court may infer that the defendant was acting with the intent to avoid

arrest or prosecution)). 

Florez is thus quite distinguishable from our case but actually highlights our

conclusion that the government has failed in its burden here. Defendant, like the

defendant in Florez, left her longstanding residence and returned to her home country.

But the similarity ends there. In our case, unlike in Florez, there is no evidence that

Defendant had a steady job or permanent residence from which she suddenly departed.

She remained in the United States for at least a few months after learning about the

investigation against her. She cooperated with the government (through her lawyer),

both before and after moving to Denmark, including providing answers to questions

(through an attorney proffer) that implicated her (perhaps minimally) in the criminal

conduct at issue in this case. She told her lawyer that she planned to leave the country

and she registered her address upon arrival in Denmark. She lived there openly, and

traveled out of Denmark a few times using her true identity. We do not think the

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 27 of 40
evidence in this case is sufficient to reasonably permit the inference that Defendant

acted with the intent to avoid arrest or prosecution.

The decisions in United States v. Wazney, 529 F.2d 1287 (9th Cir. 1976), Brouse

v. United States, 68 F.2d 294, 296 (1st Cir. 1933), and Jhirad v. Ferrandina, 536 F.2d

478, 482 (2d Cir. 1976), are similarly distinguishable in that various facts in each case

demonstrate the requisite intent to avoid arrest or prosecution, especially when you look

to see what actions the government took to locate and timely prosecute those defendants

juxtaposed against the actions in this record.

In Wazney, authorities were unable to locate the defendant despite an extensive

investigation into his whereabouts. 529 F.2d at 1289. The defendant admitted he knew

there was an outstanding warrant for his arrest yet he continued to conceal himself.

Id. Rather than surrender, he had an attorney negotiate on his behalf with state

officials until a satisfactory settlement of the state charges against him could be

reached. Id. The Ninth Circuit found these actions clearly demonstrated the

defendant’s intent to avoid arrest or prosecution. Id. “This knowledge by [the

defendant] that he was wanted by the police, coupled with his failure to submit to

arrest, is enough to establish the requisite specific intent to avoid arrest or prosecution.”

Id.

In Brouse, the First Circuit affirmed the trial court’s determination that the

defendant fled with an intent to avoid prosecution based on the fact that “[t]here was

a striking change in defendant’s habits as to his customary places of resort, beginning

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 28 of 40
The decision in Jhirad is also distinguishable in that it deals with

11

“constructive flight,” a notion that has not explicitly been adopted in our circuit for

tolling under § 3290 but in any event is not relevant here. 

almost immediately after the completion of the crime. It stands wholly unexplained.”

 68 F.2d at 296. 

In Jhirad, the Second Circuit affirmed the lower court’s determination that the

defendant may not have had the intent to avoid prosecution when he left his home

country, but he developed such intent a month or so later. 536 F.2d at 483-84. The

defendant knew of the impending criminal investigation against him before he left India

for a conference in Brussels; he sold a majority of his law library and other personal

effects before leaving; he “adjourned” his private law practice for several months; and

he stayed away from India longer than he typically did when attending similar

conferences. Id. at 481-83.11

Here, while the government need not demonstrate that Defendant concealed

herself in Denmark in order to satisfy its burden of proof, there must be some evidence

on which to base an inference of intent beyond the government’s conclusory supposition.

Supposition is usually not enough for a court to find that a party has met its burden of

showing another’s intent. We see no reason why this case should require a different

outcome.

The government then cites the following cases for the proposition that proof of

acts of concealment are not necessary to prove a defendant’s intent to avoid prosecution.

That is a correct statement of the law, but again, the cited cases reflect some evidence

that supported a conclusion that the defendant was “fleeing justice.” 

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 29 of 40
In Man-Seok Choe v. Torres, 525 F.3d 733 (9th Cir. 2008), the court found that

the defendant committed a “volitional act” of concealment when he clandestinely left

Korea after he was stopped at the airport in that country and prevented from boarding

a plane; his passport was confiscated and he was questioned on two occasions by Korean

authorities regarding criminal activity; and he left Korea without his passport and

without informing the Korean government of his departure. 525 F.3d at 741. The

defendant’s “secret flight from Korea was a ‘significant affirmative step[] to avoid

prosecution.’” Id. (internal citation omitted). 

The defendant in In the Matter of Extradition of Sven Ulf Ingemar Assarsson, 687

F.2d 1157 (8th Cir. 1982), did not attempt to conceal himself after moving from Sweden

to the United States, but other evidence existed from which the trial court could infer

he intended to avoid arrest or prosecution at the time of his departure. That evidence

showed that the Swedish government sought the defendant’s arrest for the commission

of various crimes, and while the Swedish court did not arrest himm, it imposed certain

travel restrictions and reporting requirements on him. Id. at 1158. The defendant first

violated his reporting requirements and then the travel restrictions when he left

Sweden. Id. The court inferred from this evidence that the defendant knew he was

wanted by authorities (given the criminal investigation, the reporting and travel

restrictions imposed by the Swedish court, and his violation of the court order) and his

subsequent failure to submit to arrest. Id. at 1161-62. 

Similarly, there was no act of concealment by the defendant in In the Matter of

Extradition of Ferdinand Gino Lang, 905 F. Supp. 1385 (C.D. Cal. 1995), after he

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 30 of 40
arrived in the United States, but his conduct prior to departing Switzerland was

sufficient to show he left his home country with the intent to avoid arrest or

prosecution. The defendant was interviewed by Swiss authorities, confessed to criminal

activity, and was released on his own recognizance without having been charged with

a crime. Id. at 1389, 1402. Six months later, he told Swiss authorities he was visiting

the Netherlands but instead came to the United States and never returned. Id. at 1389.

At the time he left Switzerland, he was told he would be expected at another interview

that was scheduled for the following month. Id. He did not return for the interview.

Id. On these facts, the court concluded that the defendant’s actions prior to arriving in

the United States evinced an intent to avoid arrest or prosecution. Id. at 1402. 

Finally, in Fowlie, 24 F.3d at 1071-72, the defendant left his ranch in California

a few days before it was raided by police, intending to return, but after learning of the

raid, decided to abandon it as a home. He moved to Mexico, moved his business there,

and after being informed of the raid, told a friend that he would never return to the

United States. Id. The Ninth Circuit affirmed the trial court’s conclusion that the

government had shown by a preponderance of the evidence that the defendant acted

with the intent to avoid prosecution in California. Id. at 1072. 

One case cited by the government is more persuasive and merits discussion. In

Ross v. United States, 168 F.3d 1190, 1192 (10th Cir. 1999), the defendant, then a

citizen of the Republic of Ireland, established an investment company in 1976 and over

a several year period, solicited millions of dollars from investors, primarily in Northern

Ireland. The company went into liquidation in June 1984, but investigators later

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 31 of 40
determined it was insolvent by mid-1982. Id. In October 1983, the defendant moved

his residence to the United States but returned to Northern Ireland twice, in December

1983 and February 1984, to solicit additional funds and reassure investors. Id. In

1985, authorities in Northern Ireland commenced an investigation into the affairs of the

company and, after concluding that the defendant had engaged in fraudulent

transactions between December 1983 and March 1984, issued a warrant for his arrest.

Id. at 1193. 

The defendant challenged his extradition to Northern Ireland, claiming that the

statute of limitations had expired, but the trial court held the statute was tolled because

the defendant had the requisite intent to avoid arrest or prosecution when he moved to

the United States. Id. The Tenth Circuit found the record supported the trial court’s

conclusion even though, at the time the defendant moved, Northern Ireland officials had

not commenced an investigation or charged him with a crime, and the conduct with

which he was charged occurred after his move. Id. at 1193-94. The Court explained:

We believe the record supports the district court’s conclusion. By October

1983, the investigatory record indicates Mr. Ross was aware of the

International Investment’s ongoing fraudulent scheme-he knew

International Investment used investors’ money to make multiple

unsecured loans for his benefit and to pay interest to previous investors.

Mr. Ross also likely knew International Investment was insolvent or

rapidly approaching insolvency, and that International Investment would

soon have to submit to a full audit to maintain its Gibraltar banking

license, thereby revealing the fraudulent scheme. Based on this evidence,

it was not clearly erroneous for the district court to infer Mr. Ross’ intent

to flee arrest or prosecution.

The fact that Northern Ireland had not yet initiated its investigation does

not change this conclusion. An accused may form the requisite intent even

though prosecution has not actually begun. . . . In other words, an intent

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 32 of 40
to avoid an anticipated arrest or prosecution is sufficient to toll the

statute.

We likewise reject Mr. Ross’ argument that he did not have the intent to

avoid prosecution because the charged conduct occurred after he moved.

A prosecutor’s decision as to which charges to file is a matter of discretion

and involves consideration of many factors.

Id. at 1194 (internal citations omitted). The court concluded that the defendant’s

awareness “of the potential criminality of his conduct and its imminent discovery in

October 1983” formed “a sufficient basis from which to infer [the defendant’s] intent to

avoid an anticipated prosecution.” Id. at 1195. 

The government points out that in our case, unlike in Ross, Defendant knew she

was under investigation and that her conditions of cooperation – no jail time or

deportation – had been rejected. The government claims that this knowledge, combined

with her subsequent departure to the very country she had not wanted to be deported

to, reveals her intent to flee justice. We decline to so speculate. From her perspective,

simply because the government’s very initial response to her efforts to cooperate did not

include a precondition of no jail time or deportation does not mean that, through

additional negotiation through her lawyer, the government’s position would not have

evolved. The government here seems to take the view that the topic was no longer

worth discussing, and that any efforts at cooperation after that initial point are

irrelevant. But why would that be the case in the normal course? It is equally plausible

to find that Defendant’s counsel hoped he would change the government’s mind after

showing the government the extent of her full knowledge and intent to cooperate. Or,

at best, counsel and Defendant could have hoped that any jail time would have been

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 33 of 40
minimized through her cooperation. Why that possibility is automatically foreclosed

is bewildering to us given our collective experience of how pleas and sentences are

negotiated all the time. Thus, we do not agree with the government that all her efforts

at trying to establish a framework for cooperation and leniency during the time that she

was allegedly fleeing prosecution should be ignored.

To the contrary. We find that the circumstantial evidence here does not

reasonably support the inference that Defendant intended to avoid arrest or

prosecution. The government has not met its burden of proof, minimal though it is.

Without the requisite intent, tolling under § 3290 does not apply and dismissal of the

charges against Defendant is warranted.

We recognize that dismissal of an indictment in any case is a serious matter and

perhaps even more so here, where Defendant has through her attorney acknowledged

her participation in an extensive drug trafficking organization, and tremendous

amounts of time, effort, and resources have been expended in getting to this point in the

case. But we find additional support for our recommendation when we consider the

purposes of the statute of limitations and its tolling provision.

The Supreme Court has explained that the statute of limitations is meant

to limit exposure to criminal prosecution to a certain fixed period of time

following the occurrence of those acts the legislature has decided to punish

by criminal sanctions. Such a limitation is designed to protect individuals

from having to defend themselves against charges when the basic facts

may have become obscured by the passage of time and to minimize the

danger of official punishment because of acts in the far-distant past. Such

a time limit may also have the salutary effect of encouraging law

enforcement officials promptly to investigate suspected criminal activity.

For these reasons and others, we have stated before the principle that

criminal limitations statutes are to be liberally interpreted in favor of

repose[.] 

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 34 of 40
Toussie v. United States, 397 U.S. 112, 114-15 (1970) (internal citations omitted). See

also United States v. Marion, 404 U.S. 307, 323 (statutes of limitations “represent

legislative assessments of relative interests of the State and the defendant in

administering and receiving justice; they ‘are made for the repose of society and the

protection of those who may (during the limitation) . . . have lost their means of

defence.”). 

Thus, the statute of limitations and the tolling provision are designed by the

lawmaking branch of government to balance competing interests. Marshall, 856 F.2d

at 899. They “allow the government sufficient time to investigate and prosecute

criminal conduct, while shielding the defendant from the burden and jeopardy of

confronting distant offenses.” Id. at 899-900; see also United States v. Gonsalves, 675

F.2d 1050, 1052 (9th Cir. 1982); United States v. Di Santillo, 615 F.2d 128, 135 (3rd Cir.

1980). 

Congress has determined that when a defendant purposely delays the prosecution

of his criminal case by “fleeing from justice,” “the balance tips in favor of the

government’s need to investigate the crime, and the accused should be denied the

benefits of the statute of limitations.” Gonsalves, 675 F.2d at 1052 (when an accused

knowingly conceals himself, even diligent investigators may be thwarted from

uncovering facts essential to the prosecution). The statute of limitations is tolled where

the defendant impedes the discovery and prosecution of his case because “his right to

avoid prosecution for distant offenses is diminished while the government’s need for

additional discovery time is strengthened.” Marshall, 856 F.2d at 900. 

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 35 of 40
If the statute of limitations is tolled by a defendant’s flight because “the failure

to prosecute is attributable to the unacceptable conduct of the defendant, Wazney, 529

F.2d at 1289, it would be unfair and undermine the purpose of § 3290 “if the accused

were held responsible for delays which are attributable to the actions, or more

accurately, the inaction, of law enforcement.” Sotelo-Salgado, 201 F.Supp.2d at 965.

Yet, and most significantly here, “[t]here is insufficient justification [] for disregarding

the defendant’s right of repose[,]” for instance, when he openly leaves the jurisdiction

but remains accessible to discovery and prosecution without the intent to avoid arrest

or prosecution. Marshall, 856 F.2d at 900. 

In Sotelo-Salgado, for instance, the court found that the government knew about

the defendant’s crime for over seven years but did virtually nothing to bring him to

justice. Id. at 966. It could have taken the defendant into custody in November 1994,

when an INS agent had probable cause to believe he was an illegal alien. Id. at 965-66.

But:

[v]irtually no attempt was ever made by law enforcement to

administratively or criminally arrest, indict, or otherwise bring the

Defendant into custody. For reasons having nothing to do with Defendant

himself, the Government elected not to pursue the case administratively

or criminally. In fact, the record indicates that the Defendant’s known

address was valid for at least five months after the I.N.S. referred the case

for prosecution, if not for longer. Indeed, in over seven years, the best

efforts to locate the Defendant are reflected by one line in a memorandum

indicating that Defendant’s known address was no longer valid. What, if

any, followup investigation ws ever conducted is questionable.

Id. at 966. 

Under those facts, the district court refused to toll the statute of limitations even

though the government presented evidence that between the defendant’s detection and

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 36 of 40
arrest seven years later, he was twice arrested and on both occasions provided a false

name to authorities. Id. at 964. The court saw no evidence that the defendant’s use of

a false name hindered the INS from locating him, and some evidence that even if his

true name had been given, the INS would not have been aware of his whereabouts. Id.

at 964. The court did not deem unsubstantiated evidence of the use of a false name on

two occasions sufficient to support a finding that the defendant intended to conceal

himself by a preponderance of the evidence. Id. at 966. 

Moreover, the court concluded that tolling the statute of limitations on those facts

would be fundamentally unfair and undermine the purpose of both the limitations and

tolling statutes. Id. The court held:

Statutes of limitations are statutes of repose “designed principally to

protect individuals from having to defend themselves against charges

supported by facts that are remote in time[.]” Accordingly, this Court is

guided by the rule that “criminal limitations statutes are to be liberally

interpreted in favor of repose.” This construction would be severely

undermined were the Court to allow the Government, who knew of

Defendant's crime for over seven years, to do virtually nothing to bring the

accused to justice, but then gain the benefit of section 3290 merely because

the accused used false names on two known occasions.

Id. (internal citations omitted).

We think it would be fundamentally unfair and undermine the purposes of these

statutes if the limitations period were tolled in this case. The government essentially

sat on its hands while the clock ticked down. It spent several years collecting additional

evidence in the ecstasy importation case, which clearly was its prerogative to do

(although we note that it does not appear what if any additional evidence was collected

that was helpful to the case against Defendant). A court may not tell the government

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 37 of 40
how to run its cases, but there are certain rules by which the government as well as the

defense must abide. The statute of limitations is one such important rule essential to

the orderly administration of justice and due process.

There is no basis to apply the tolling provision here because nothing Defendant

did affected the government’s ability to collect evidence in this case, indict her, or

otherwise bring her to trial within the proscribed number of years. The record evidence

shows that rather than hindering the investigation while in Denmark, she cooperated

with the government, that is, until it ceased responding to the defense. That Defendant

may not have been as forthcoming in responding to the government’s written questions

as she could or should have been is of no moment.

The government, on the other hand, did little to ensure that the five-year

limitations period was met. According to SA Kilmer, Defendant was indictable in

September of 2000, yet the Superceding Indictment was not filed until March 2003.

That was only one month after the five-year limitations period expired. There is no

evidence showing why the government could not have indicted Defendant in February

rather than in March. Again, it is not our role to tell the government when it should

indict, but there are consequences for failing, without adequate justification, to satisfy

the statute. The failure to indict Defendant in a timely fashion is attributable solely

to the conduct of the government, and justification has not been shown.

It is well-established that criminal statutes of limitation are to be liberally

construed in favor of the defendant. Marion, 404 U.S. at 322 n.14; United States v.

Gilbert, 136 F.3d 1451, 1453 (11th Cir. 1998) (criminal statutes of limitation “are to be

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 38 of 40
liberally interpreted in favor of repose”). We find insufficient evidence under the unique

circumstances in this case to justify disregarding Defendant’s right of repose. 

For the foregoing reasons, we conclude that Defendant was not “fleeing from

justice” for purposes of § 3290 when she left the United States for Denmark in 2001.

Accordingly, § 3290 does not apply to toll the five-year statute of limitations. That

makes the filing of the Superceding Indictment against Defendant on March 21, 2003,

untimely. Thus, we are forced to recommend that Defendant’s motion to dismiss based

on the argument that the Superceding Indictment is time-barred should be granted. 

III. CONCLUSION

Based on the foregoing, it is hereby RECOMMENDED that

1. Defendant Camilla Broe’s Motion to Dismiss Counts 4 - 14 of the Second

Superseding Indictment as Time-Barred Under 18 U.S.C. § 3282 [D.E. 117] be

GRANTED.

2. Defendant Camilla Broe’s Amended Motion to Dismiss the Second

Superceding Indictment for Violation of her Sixth Amendment Right to a Speedy Trial

[D.E. 121] be DENIED as moot.

Pursuant to Local Magistrate Rule 4(b), the parties have five (5) business days

from the date of this Report and Recommendation to serve and file written objections,

if any, with the Honorable Federico A. Moreno, United States District Judge. Failure

to timely file objections shall bar the parties from a de novo determination by the

District Judge of an issue covered in the report and bar the parties from attacking on

appeal the factual findings contained herein. R.T.C. v. Hallmark Builders, Inc., 996

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 39 of 40
F.2d 1144, 1149 (11th Cir. 1993); LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988);

Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. Unit B 1982) (en banc); 28 U.S.C. §

636(b)(1).

DONE AND SUBMITTED in Chambers at Miami, Florida, this 5th day of

January, 2010. 

 

EDWIN G. TORRES

United States Magistrate Judge

Case 1:00-cr-00899-FAM Document 162 Entered on FLSD Docket 01/05/2010 Page 40 of 40