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D ock e t 98-7233

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. e du/thir dc ir c uit_1999/64Filed 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 AppelleeOPINION OF THE COURT

ROSENN, Circuit Judge.

The primary issue on this appeal pertains to a retr ial of a defendant on certain counts deadlocked by a prior jury without resubmission of those counts to a grand jur y. The question presented is novel and complex, although prosecution of criminal cases by indictment even pr ecedes the adoption of the federal constitution. The genes is 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 fo r the Middle District of Pennsylvania initially indicted the defendant, Merritt G. Stansfield, Jr., on eleven co unts and a separate count of money laundering forfeiture. Th efirst four of the eleven counts charged mail fraud. Count V charged using fire to commit mail fraud and one cou nt of arson. Counts VI through X charged money laundering

. Count XI charged tampering with a witness. The defe ndant pled not guilty. He was tried to a jury and convict ed on certain counts but the jury deadlocked on the other s.

The Government moved to dismiss the deadlocked coun ts "without prejudice to their refiling" in the event any court ordered a new trial on the counts resulting in conv iction. Defendant's counsel concurred and the trial court g ranted the motion. On appeal, this court affirmed the defe ndant's
convictions on all counts but reversed the defendan t'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, h e wishes to re-try." The Government gave notice that it inte nded to retry the defendant on both the remanded count and the
deadlocked counts that had been dismissed. The defe ndant stood trial a second time and a jury convicted him on all counts.1 The defendant timely appealed. We will aff irm the

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

2conviction 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 S tansfield I, 101 F.3d at 910-912. We summarize those stated t here 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 repl acement cost of the insured destroyed items, as well as the cost from the loss of the use of his house. In May of 1992, S tansfield
sent Erie a list of insured items he claimed were l ost in the fire, some of which were later found intact at othe r 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 t he 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, wh om Stansfield had solicited to burn his home. Stansfie ld threatened to kill Love if he told anyone of the so licitation. Love informed Stansfield in May 1993 that law enfor cement
officials had contacted him about the fire. That Se ptember, Erie referred the matter to federal postal inspecto rs. The Postal Inspector presented the case to the United S tates Attorney's Office, which requested that the Postal Inspection Service continue the investigation.

On October 7, 1993, Stansfield entered Dwight Hoffm an'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

3again, kicking him in the head until Hoffman became

partially unconscious. Stansfield took both the Hof fmans to
the basement. There he bound their hands and feet. When Eugene Hoffman tried to free himself, Stansfield ki cked him
in the head several more times.

Stansfield then went upstairs, returning shortly wi th a shotgun and shells. He loaded the gun and waited fo r Dwight Hoffman to arrive. When Dwight Hoffman appea red, 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 sho tgun on the throat of Dwight Hoffman and stated, "I'm going to ask you some questions, and I want the truth, because t he gun is loaded, the safety is off, and my finger is on t he trigger,
is that clear?"

Stansfield first inquired why Dwight Hoffman had se nt the cops after him about his house, or why Dwight h ad "called the police about his fire." At some point D wight Hoffman lunged for the gun. It went off, firing a s hot between Dwight Hoffman's neck and Joyce Hoffman's h ead. A struggle ensued. Eventually Dwight and Eugene Hof fman were able to subdue Stansfield until a police offic er arrived.

The jury convicted the defendant on Counts I, II, I II, VI, VII, and XI. The jury deadlocked as to Counts IV, V , VIII, IX, and X and a mistrial was declared as to these c ounts. As to Count XII, the defendant waived his right to a jury trial and the District Court returned a special ver dict 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 t he
Government to file notice as to whether it intended to retry or otherwise dispose of those counts. Complying wit h the Court's directive, the Government filed a notice an d motion seeking the dismissal of Counts IV, V, VIII, IX, an d 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, defen se counsel filed an amended certificate of concurrence .2

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2. Rules 7.1 and 7.2 of the Rules of Court of the U nited States District Court for the Middle District of Pennsylvania requi red that pretrial and

4Thereafter, the District Court ordered the dismissa l 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 conv iction as to Counts I, II, III, VI and VII, but reversed a nd remanded as to Count XI, the witness tampering coun t. See Stansfield, 101 F.2d 909. On remand, the District C ourt
ordered counsel for the Government to file a notice , with a
certificate of concurrence or nonconcurrence attach ed, as to what counts, if any, he wished to retry. The Gov ernment complied with the District Court's order, giving no tice that it would retry the defendant on all outstanding cou nts (Counts IV, V, VII, IX, and XI). Defense counselfil ed an "omnibus pretrial motion" that included, among othe r things, an objection to the Government's election t o retry all pending counts on the grounds that the deadlocked c ounts 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 deadlock ed counts was barred by the Speedy Trial Act.

The District Court denied the omnibus motion statin g that it understood the dismissal merely to reflect that the deadlocked counts were set aside pending the resolu tion of the defendant's post trial motions, appeals or coll ateral challenges to the judgment of conviction and senten ce, and that the Government always intended to retry the de fendant
on the deadlocked counts. Defense counsel also file d another motion seeking an order directing the Gover nment to specify a procedure for the refiling of Counts I V, 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 gr ound
that the Government's notice of record of its inten t to retry

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post-trial motions, with certain exceptions not app licable 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." Complianc e with these rules is generally enforced strictly, and the Clerk of the D istrict Court will normally not accept a motion, other than a permissi ble ex parte motion,
without a certificate of concurrence or non-concurr ence attached.

5the defendant was sufficient for the reinstatement of the

dismissed counts. The Court, at the same time, deni ed Stansfield's motion for an order directing the Gove rnment to specify a procedure for refiling of the previous ly 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 mo tion to
dismiss on the deadlocked counts. The motion stated in pertinent part:

WHEREFORE, the government respectfully peti tions the Court to enter an Order dismissing Count s IV, V, VIII, IX and X, without prejudice to their r e-filing in the event a new trial is ordered by this or any other Court.

The Court's order of dismissal tracked the exact la nguage used in the Government's motion. The defendant argu es that, regardless of whether the procedure is termed "refiling" or "reinstatement," the Government did noth ing to revive the dismissed counts: "After removal, no mot ion for reinstatement was ever filed, nor were the counts r esubmitted to the grand jury or re-filed in any way. " At oral argument, counsel for the defendant vigorously asse rted 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 d ismissed counts for prosecution. We believe this is what the court proceeded to do.

Following this court's decision in Stansfield I vac ating the defendant's conviction for witness tampering and remanding for a new trial, the District Court struc tured a procedural mechanism which effectively reinstated t he 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,

6he wishes to retry, with said notification t o befiled with

the court on or before March 10, 1997. A cer tificate of

concurrence or nonconcurrence of defense cou nsel
shall be attached to the notice.

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

3. If the Government fails to notify the co urt of its intentions on or before March 10, 1997, it s hall be deemed to have waived any right which may ex ist to retry any of the counts set forth in the ind ictment, and the court will proceed to schedule resentenc ing.

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

.

The Government complied with the District Court's o rder, notifying the defendant and the Court that it inten ded 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 propose d course of action, "he shall file his response on or before March 17, 1997." The defendant did not interpose any objectio n or make any response. He did not challenge the procedu re that the District Court had set in place for reinst atement 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 c ounts in the original indictment.

The Government strenuously argues that the deadlock ed counts were properly reinstated following the reman d of Count XI for trial. The only purpose in dismissing the counts subject to the reservation was to permit sen tencing 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 th is was the understanding of the District Court and the Court

7of Appeals, that the latter characterized the arran gement 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 Govern ment observes that neither on the first appeal nor in th e opinion of this court disposing of it, did anyone character ize 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 di smissed be "without prejudice to their re-filing in the eve nt a new trial is ordered by this or any other court." The p rosecution is allowed considerable discretion in managing its cases and docket and it reserved the right to retry the d eadlocked counts in the event a new trial was granted. The de fendant concurred, made no objection, or any response in opposition. The Government's reservation of the rig ht to retry was not predicated upon re-indictment. The co urt's order approved and incorporated the reservation. Al though 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, s hows 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 tr ial on any of the counts on which he was convicted. Nothin g in the motion suggests that the counts were to be resu bmitted 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 remainin g 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"reinst atement," this court was under the impression that the effe ct of the dismissal was that these counts were simply set aside pending resolution of Stansfield's post-tria l motions, appeals or collateral challenges to the judg ment of

8conviction and sentence; should any of these

challenges be resolved in Stansfield's favor , the counts as to which there was a mistrial would be pu rsued in
a second trial. The Government's brief refle cts this view, of course, and we believe the language of the motion, order and amended certificate of con currence all support this interpretation.

(7/23/97 Order at 4-6) Thus, the District Court bel ieved, as did the Government, that the deadlocked counts reta ined sufficient vitality to permit their trial, either i mmediately 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 d ocketed in the clerk's office, and the filings noted on the face of the indictment; a resubmission could achieve nothing mo re.

Accordingly, we conclude that when the Government g ave notice to the defendant and the Court that it inten ded, inter alia, to retry the deadlocked counts, that notice s erved as the functional equivalent of reinstating the qualif iedly dismissed counts. The defendant points to no prejud ice by this procedure. He had notice from the prosecution of the specific charges on which he was to be retried; the y had been found by a grand jury, they had never been dis missed absolutely, and he still could plead the judgment i n bar of further prosecution for the same offense.

The defendant asserts that he believed by concurrin g with the Government's request to refile without pre judice that he was not waiving any rights he may have had to resubmission of the indictment to a grand jury. How ever, the defendant had no right at the time he concurred to have the deadlocked indictments resubmitted to a gr and jury; the Government could have proceeded to trial on those counts promptly without submitting them to an other grand jury. We fail to see how that deferment requi red 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. Glazi ou, 402 F.2d 8, 15 (2d Cir. 1968), and fully inform the acc used "of the nature of the charges so as to enable him to pr epare any defense he might have." Zuziak v. United States , 119 F.2d 140, 141 (9th Cir. 1941); Mitchell v. United S tates, 143

9F.2d 953 (10th Cir. 1944). It also enables him to p lead the

judgment, if any, in bar of further prosecutions fo r the same offense. United States v. Behrman, 258 U.S. 28 0, 288 (1922); Mitchell, 143 F.2d at 953.

The court's order permitting a retrial without resubmission of the deadlocked indictments to a gra nd jury in no way prejudiced the defendant. First, it opene d up the possibility that he might never be retried by the Government and definitely avoided the reality of be ing retried immediately, a right that the Government cl early possessed. Second, the rights the defendant enjoyed once the grand jury returned an indictment against him w ere limited primarily to a speedy trial and the right t o be fully informed of the nature of the charges so as to prep are his defense and the right to plead his conviction, if a ny, on those counts to bar further prosecutions. These rig hts 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 struct ure his claim on the inept use of the word "refiling." In t he 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 r etry the defendant on Counts IV, V, VIII, IX and X, the dead locked counts, and Count XI, remanded by the Court of Appe als.

The United States Supreme Court long ago attempted to
avoid reversal of a criminal conviction on the basi s of mere technicalities. See Kotteakos v. United States , 32 8 U.S. 750 (1946). In Kotteakos, the Court observed that the e ffort to revise the Federal Rules of Criminal Procedure had, as its ultimate goal, " `not [to] be technical, where tech nicality 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 tha t any technical errors that he may complain of have affec ted his substantial rights, otherwise they are to be disreg arded.' " 328 U.S. at 760 (quoting H.R. Rep. No. 913, 65th Co ng., 3d Sess., 1.). The defendant has failed to show that h is substantial rights have been adversely affected. To the contrary, as evidenced by defense counsel's amended

10concurrence, he was well aware that he would be ret ried on

the deadlocked counts. His rights afforded under th e Fifth Amendment were in no way impaired for he is not req uired to answer for a crime "unless on presentment or ind ictment of a grand jury." He was indicted, and now he has h ad a second trial on that indictment after adequate noti ce and time to prepare. We conclude that Counts IV, V, VII I, IX, and X were appropriately reinstated by the Governme nt 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 wh en the Government elected to retry him.

The general federal statute of limitations applies in this instance. It provides that, except as otherwise exp ressly provided by law, no person shall be prosecuted for any noncapital offense unless the indictment is found with in five years next after such offense has been committed. 1 8 U.S.C. S 3282. Even though the defendant was well a ware that the Government intended to retry him on the deadlocked counts, "the statute of limitations inco rporates an `irrebuttable presumption' that, beyond the peri od of limitation, `a defendant's right to a fair trial wo uld be prejudiced.' " United States v. Midgley , 142 F.3d 174, 177 (3d Cir. 1998)(quoting in part United States v. Mar ion, 404 U.S. 307, 322 (1971)). Here, unquestionably, the Government failed to satisfy the five year period.3

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3. The charged offense occurred on December 12, 199 0. He was indicted on June 14, 1994, three years and one hundred and s eventy-five days later. As of June 13, 1995, the statute of limitati ons began to run again when the indictment was dismissed. The government d id not give notice that it intended to retry Count V until March 6, 19 97, one year and two hundred and sixty-three days after the dismissal. T he one year and two hundred and sixty-three day period plus the three y ears and one hundred and seventy-five day period combined totals five years and seventy-three days. Hence, it is unquestionable tha t the five year statute of limitation period was breached.

11The Government argues that the June 13, 1995 dismis sal

"was part of a bargained-for exchange, from which b oth sides expected to benefit." The Government claims t hat it
would not have moved for the dismissal of Count V w ithout 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 agree d" 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 partie s. The defendant never agreed that the Government coul d retry him on all counts. In particular, the defenda nt never agreed to waive the statute of limitations as to th e arson charges, notwithstanding the Government's bold asse rtion that "[D]efendant's unqualified agreement to retria l ...
amounted to a de facto waiver of the statute of lim itations."
The Government's reliance on the defendant's concur rence in the motion to dismiss the deadlocked counts as a n "unjustified agreement for retrial" is misplaced. T he concurrence did not rise to the level of an unequiv ocal agreement; it merely complied with a local court ru le.4 The Rule carries no comment or history explaining its p urpose. 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-movan t party of the proposed motion with an opportunity to acqui esce, 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 princi pled basis for treating this dismissal of the deadlocked count s

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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 wi thout prejudice to their right to refile these counts in the event tha t a new trial is

ordered by Your Honorable Court or by any other Court on Co unts I, II, III, VI, VII, or XI." (SA11)

12differently than the dismissal of counts subject to

reinstatement as part of a plea agreement. The Gove rnment also relies on Ricketts v. Adamson, 483 U.S. 1, (19 87), where the defendant, charged with first degree murd er, 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 t he original charge if he breached the agreement. The defendant subsequently breached the plea agreement, and the first degree murder charge was reinstated; afte r a trial, the court sentenced the defendant to death. The Sup reme Court held that reinstatement of the first degree m urder charge was not improper.

We do not believe that Salimo or Adamson are applic able. They both involve plea agreements, the breach of wh ich nullified the plea agreement and permitted automati c reinstatement of the dismissed counts. As the Supre me Court reasoned in Ricketts, "[t]he terms of the agr eement could not be clearer; in the event of respondent's breach occasioned by a refusal to testify, the parties wou ld be returned to the status quo ante, in which case resp ondent would have no double jeopardy defense to waive." Id . at 9- 10. Here, the Government reasserts in its supplemen tal 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 cas e." As we have stated, the concurrence under the Local Rule o f Court never amounted to an agreement, particularly a barg ainedfor agreement giving the defendant "substantial rig hts." As we see it, it gave the defendant nothing more than a possibility that the delay might lead to no subsequ ent 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 d ismissal of the deadlocked counts, that the defendant renege d on any bargain it made with the Government, or that defendant explicitly or implicitly waived the statu te of limitations as to the arson charge. The Government relies on Midgley, 142 F.3d at 178, for its argument that the

13statute of limitations was tolled; the case is inap posite.6 The

defendant at no time misled the Government or preve nted it from asserting its rights.

The Government also argues that none of the policy concerns underlying the statute of limitations exis t here. It asserts that the defendant was not exposed to an in definite suspension of prosecution that impaired his constit utional rights or prolonged his anxiety and concern over th e pending charges. It argues that "the procedure agre ed to was not an indefinite suspension of prosecution but a finite one `limited by the time it took this court to disp ose of defendant's first appeal.' " Moreover, it contends that equitable tolling of the statute of limitations sho uld apply because the defendant purportedly agreed that he co uld 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 th e arson charge (Count V) kept him from testifying wit h respect to his defense on witness tampering (Count XI). He
asserts: "Count XI is the fulcrum count in this ind ictment."

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

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6. In Midgley, this court stated that criminal stat utes 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)).

14suggest that, having been convicted of three counts of mail

fraud based on the arson, he would have abandoned h is right to testify in defense of the "fulcrum count" on witness tampering out of fear of incriminating himself on t he related charge of arson. As the Government observes, the defendant has not even proffered that if he succeed s in obtaining a remand he will testify under oath that he would
have testified in defense of Count XI but for the f ear of being convicted on the arson count. Moreover, we ag ree with the Government's observation that "[i]t defies common sense to suggest that defendant would have been dis suaded from testifying in his own defense on the `fulcrum' count by a fear of self-incrimination on the duplicative cou nt of arson, which had no effect on defendant's Sentencin g Guideline calculation." Nonetheless, he seeks shelt er 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 Pelul lo, however, is misplaced. In Pelullo, the burden was o n 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 vio lation in presenting its case, especially a constitutional vi olation. In essence, the defendant's complaint is that he shoul d have
had a severance of the arson count. To obtain a sev erance, the defendant must make a convincing showing that h e has important testimony to give on one count and a stro ng reason to refrain from testifying on another. Unite d 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 defen dant had no concern about incriminating himself in the arson count by testifying in his defense on the witness tamperi ng count. At his second trial, acquittal on the "fulcrum coun t" of witness tampering was paramount for him because of the effect of its conviction on the Sentencing Guidelin e calculation.

Accordingly, we see no merit to the defendant's req uest for remand to the District Court for a hearing to d etermine
whether he would have testified at the earlier tria l in the absence of the arson charge. The request will be de nied.

15V.

Finally, we turn to the defendant's argument that t he District Court's jury instructions completely strip ped the witness tampering statute of the required federal m ens 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 defenda nt
asserts that he is entitled to a new trial because" there is utterly no evidence in this record that [he] knew o f any pending investigation or had the slightest intimati on that it
was either a federal offense that was under investi gation 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 defenda nt killed or attempted to kill a person; (2) the defen dant was motivated by a desire to prevent the communi cation between any person and law enforcement autho rities concerning the commission or possible commis sion of an offense; (3) the offense was actually a f ederal 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 perso n 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 commis sion or possible commission of a Federal offense ...;

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

(4) causing a criminal prosecution ...

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

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

16in (2) above might communicate with the fede ral

authorities. The last element may be inferre d by the jury from the fact that the offenses were fe deral 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 1 512(a)(1)(c) it must also find, in addition to the other element s of the offense, "both that he was motivated by a belief th at the victim might communicate with federal authorities concerning the commission or possible commission of an offense, and that the offense in question is in fac t a federal offense. Given appropriate evidence, if the juryfin ds the latter fact to exist, it may find the former to exi st as well."
101 F.3d at 922.

Shortly thereafter, in Bell, we observed that, unde r the statutes's clear command, the Government need not p rove any "state of mind" on the part of the defendant wi th 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 beli eved the victim might communicate with law enforcement offic ers whom the defendant knew or believed to be federal o fficers. Rather, we read this sentence as recognizing that w hat the statute mandates is proof that the officers with wh om the defendant believed the victim might communicate wou ld in fact be federal officers." 113 F.3d at 1349 (emphas is in original; footnote omitted).

We, therefore, concluded:

[T]he law of this circuit after Stansfield i s that the Government must prove that at least one of t he 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

17Government is required to prove each of the followi ng

elements beyond a reasonable doubt before it couldf ind 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 d esire to prevent the communication between a witness and law enforcement authorities concerning the commi ssion or possible commission of an offense. Three, th at the offense was actually a federal offense. And four, that the Defendant believed that the witness migh t
communicate with the federal authorities.

(emphasis added). The Court then elaborated on each of the four elements, including a statement that the Gover nment need not prove that the defendant believed Dwight E

. Hoffman might communicate with some particular fede ral officer or with an agent involved in a particular f ederal investigation or that the defendant knew or believe d 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 potenti al communication to law
enforcement authorities. The offenses must b e federal offenses.

That is the Government must prove beyond a reason able 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 preve nt 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 motivat ing factor ... .

In fact, there need not be an ongoing feder al investigation or

even any intent on the part of federal authoritie s 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 det ermining whether there might be communication with federal authorit ies.

The purpose of the killing must be to preve nt communication with
a law enforcement officer when the communica tion relates to an offense which is a federal offense, and the law enforcement officer with whom Dwight E. Hoffman might communicat e is actually a
federal law enforcement officer.

(A1352-53)18In this instance, the District Court's instructions were

consistent with our statement of the law in Stansfi eld I and Bell. Moreover, it is evident that the defendant is under the misperception that in order to convict the Governme nt must specifically establish his state of mind.9 As we stated in Stansfield I and later clarified in Bell, the fo urth element may be "inferred from the fact that the offense was federal in nature, plus additional appropriate evidence." I t 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 tha t the evidence presented lacks the "additional appropriat e evidence." He asserts that there is no evidence tha t he knew of any pending investigation or that federal o fficers
would ever be involved. The latter element has no r elevancy 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 tri al closely paralleled the evidence presented in Stansf ield I. There, we concluded the underlying offenses clearly were federal offenses and that evidence sufficiently sup ported a conviction under 18 U.S.C. S 1512(a)(1)(C). We stat ed:

The evidence reflected that Hoffman had alre ady cooperated several times with state authorit ies and with Erie. Stansfield had knowledge of Hoffm an's past cooperation and was aware that some investig ation, though not necessarily a federal one, was un derway.

___________________________________________________ ______________

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 jud ge[or court] ... is

before a judge or court of the United States ... or

2) that ... law enforcement officer is an of ficer or employee of

the Federal Government or a person authorized to act on behalf of

the Federal Government ... ."

19Moreover, though it is unclear whether Stans field was

aware of it, the evidence also showed that f ederal authorities had begun an investigation appro ximately 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 atta ck was motivated, at least in part, by Stansfield's belief that Hoffman might cooperate with federal authori ties.

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 conclus ion that the underlying offenses were federal and that the e vidence 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 thefi re in December 1990, although Erie did make payments over a period of time on account of the policy. Richard Mc Gee, a senior investigator for Erie and a former federal p ostal inspector, met with the defendant shortly after the fire 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 intensifie d, however, when McGee received an anonymous phone cal l in November 1992 that the damage to defendant's home w as caused by fire and that the defendant was the arson ist. McGee communicated this information to the Pennsylv ania State Police, with whom he kept in contact through his investigation, and the police officers separately c onducted interviews and an investigation.

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

20Hoffman 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 for mer colleague, John Holland, United States Postal Inspe ctor, for federal investigation in light of the evidence McGe e had uncovered of potential federal violations of law, i ncluding mail fraud. Several weeks later, the defendant ente red Dwight Hoffman's home and assaulted him and his parents. Stansfield's first inquiry of Dwight revea led his knowledge of and concern for the criminal investiga tion for he asked: "Why did you send the cops after me about the fire at my house?" By this time, Stansfield had unl awfully received the seven checks aggregating $377,544, the subjects of the federal mail fraud counts. We belie ve 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 communicat e with the federal authorities.

VI.

Accordingly, we will affirm the judgment of convict ion on all counts except the arson count. As to Count V, t he conviction and sentence is reversed and the judgmen t of sentencing on all counts will be vacated and the ca se 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