United States v. Stansfield ( 1999 )


Menu:
  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-16-1999
    USA v. Stansfield
    Precedential or Non-Precedential:
    Docket 98-7233
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
    Recommended Citation
    "USA v. Stansfield" (1999). 1999 Decisions. Paper 64.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/64
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    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"re-
    filing" or "reinstatement," the Government did nothing to
    revive the dismissed counts: "After removal, no motion for
    reinstatement was ever filed, nor were the counts re-
    submitted 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 non-
    capital 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 bargained-
    for 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