1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"USA v. Stansfield" (1999). 1999 Decisions. Paper 64.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/64
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"refiling" or "reinstatement," the Government did nothing to 

revive the dismissed counts: "After removal, no motion for 

reinstatement was ever filed, nor were the counts resubmitted 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 noncapital 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 bargainedfor 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 

 21