*

Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for

the Fifth Circuit, sitting by designation. 

 118 U.S.C. § 3282 provides:

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. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-4585.

UNITED STATES of America, Plaintiff-Appellee,

v.

Rafael Macario FONSECA-MACHADO, a/k/a Elvis Rafael FonsecaMachado, Defendant-Appellant.

June 7, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-335-CR-EBD), Edward B. Davis, Judge.

Before COX, Circuit Judge, HILL and GARZA*

, Senior Circuit Judges.

PER CURIAM:

Appellant Rafael Macario Fonseca-Machado appeals the district

court's refusal to dismiss his one-count indictment, returned July

13, 1993, for knowingly and willfully committing aircraft piracy by

use of force, violence, threats, and other forms of intimidation on

or about August 14, 1980, in violation of 49 U.S.C. § 1472(i) and

18 U.S.C. § 2, on the ground that it was barred by the statute of

limitations, 18 U.S.C. § 3282.1 The Government contends that the

statute was tolled, pursuant to 18 U.S.C. § 3290, because FonsecaMachado was a fugitive from justice during the thirteen year
 2

18 U.S.C. § 3290 states:

No statute of limitations shall extend to any

person fleeing from justice. 

 3The flight was carrying approximately 242 adults and

children. 

period.2 We agree.

I.

Fonseca-Machado arrived involuntarily in the United States

from Cuba in 1980 as part of the Mariel boat lift. After one month

in Miami, he learned his mother was ill. In order to return to

Cuba, he and a companion, using gasoline and cigarette lighters,

hijacked a National Airlines DC-10 flight bound for San Juan,

Puerto Rico from Miami and ordered the crew to fly the aircraft to

Cuba.3 Upon arrival in Havana, Fonseca-Machado was arrested by

Cuban authorities and spent the next five years in prison. After

his release from prison in 1985, Fonseca-Machado lived openly in

Cuba under his own name.

In June 1993, nearly thirteen years after the hijacking,

Fonseca-Machado and two companions undertook to travel from Cuba to

the United States by raft. They were rescued by a United States

Coast Guard cutter off Key West, Florida, and taken to the nearby

base. A records check revealed an outstanding FBI arrest warrant

for the 1980 hijacking offense. Fonseca-Machado was indicted

within thirty days.

II.

 The district court's determination that Fonseca-Machado was

a fugitive from justice tolling the statute of limitations is a

question of fact. Donnell v. United States, 229 F.2d 560, 562-65
 4

This theory, known as the doctrine of constructive flight,

has been used in other circuits for the purpose of tolling the

statute of limitations pursuant to § 3290. See United States v.

Catino, 735 F.2d 718 (2d Cir.), cert. denied, 469 U.S. 855, 105

S.Ct. 180, 83 L.Ed.2d 114 (1984); United States v. Gonsalves,

675 F.2d 1050 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct.

83, 74 L.Ed.2d 78 (1982). This court has applied the doctrine in

a non-§ 3290 context. See Schuster v. United States, 765 F.2d

1047, 1050 (11th Cir.1985). 

(5th Cir.1956). Mere absence from the jurisdiction in which a

crime occurred does not render the suspect a fugitive from justice;

he must be found to have absented himself from the jurisdiction

with the intent to avoid prosecution. Id.

Fonseca-Machado claims that he was not a fugitive from justice

because the Government cannot show that he intended at the time he

departed the United States to avoid prosecution. The Government

claims that a person who departs for a legitimate reason from the

jurisdiction in which his crime was committed but who later remains

outside that jurisdiction for the purpose of avoiding prosecution

is a fugitive from justice.4

III.

 The Government urges us to extend the doctrine of

constructive flight, for the purpose of tolling the statute of

limitations under § 3290, to this circuit. We decline to do so as

the facts in this case do not warrant such action. The record here

does not depict a case of constructive flight. It depicts actual

flight.

Once Fonseca-Machado, after committing the crime of air

piracy, gave direction to the National Airlines pilot to fly, not

to Puerto Rico or anywhere else within the United States'

jurisdiction, but to Cuba, he became a fugitive from justice. We
hold that his travel, in continuing to perpetrate the crime of air

piracy, constitutes, not constructive flight, but actual flight

with intent to avoid prosecution, sufficient enough to toll the

statute of limitations under § 3290.

IV.

For this reason, we affirm the district court's denial of

Fonseca-Machado's motion to dismiss the indictment pursuant to the

statute of limitations.

AFFIRMED.