The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Defendant Ravi Yanamadula, a former head trader for John Dawson and Associates ("Dawson") is charged with participating in a scheme to defraud Dawson clients of roughly $8 million in assets. Yanamadula has moved to dismiss the indictment on the ground that the government failed to indict him within the five-year statute of limitations set forth in 18 U.S.C. § 3282. The government argues that Yanamadula fled the jurisdiction to avoid prosecution, thereby tolling the statute of limitations under 18 U.S.C. § 3290. I ruled that Yanamadula's statute of limitations defense was a matter to be determined before trial and conducted a hearing during which the government presented oral testimony and written evidence. Yanamadula had an opportunity to cross-examine the government's witnesses and present evidence, and both parties submitted written briefs after the hearing.
Section 3290 tolls the five-year statute of limitations for "any person fleeing from justice." 18 U.S.C. § 3290. The government shoulders the burden of establishing, by a preponderance of the evidence, Yanamadula's intent to avoid arrest or prosecution. See United States v. Marshall, 856 F.2d 896, 897 (7th Cir. 1988). An indictment is not required for the tolling statute to apply. See id. at 898-99 (citing Streep v. United States, 160 U.S. 128 (1895)).
The tolling statute reflects the congressional belief that where the defendant impedes the discovery and prosecution of his criminal conduct by 'fleeing from justice,' his right to avoid prosecution for distant offenses is diminished while the government's need for additional discovery time is strengthened.
Id. at 900 (citation omitted).
The government claims that Yanamadula's intent to flee is demonstrated by: 1) his travel abroad during the government's investigation and his failure to establish a clear residence or place of abode; 2) his failure to maintain contact with his civil and criminal attorneys; and 3) his perpetration of a lie that he was estranged from his wife, a lie intended to make it difficult for prosecutors to locate him during the statute of limitations period. Yanamadula claims that there is insufficient evidence of his alleged flight and suggests that the government bungled its investigation into his alleged crimes and now wishes to escape the statute of limitations by manufacturing evidence of flight.
Investigations and Litigation Related to Yanamadula's Trading at Dawson
In October 1998, the Securities and Exchange Commission ("SEC") began a wide-ranging investigation of unauthorized trading at Dawson by Yanamadula and others. Yanamadula was also the subject of a grand jury investigation, which commenced at roughly the same time. In January 2001, the SEC subpoenaed Yanamadula to testify in connection with its investigation. Yanamadula asserted his rights under the Fifth Amendment and refused to answer the SEC's questions or to produce documents.
Attorneys for the Securities Investors Protection Corporation ("SIPIC") subsequently brought suit in federal bankruptcy court on behalf of Dawson's creditors against Yanamadula, his wife Usha Nuthi, and other Dawson employees. Between 2001 and 2004, Yanamadula was represented in this litigation by attorney James McGurk. His wife was represented separately by attorney Chris Gair. On September 5, 2002, Yanamadula and McGurk appeared in Chicago for a deposition in the bankruptcy suit.*fn1 Yanamadula again invoked his Fifth Amendment rights and refused to testify during the proceeding.
A day before the deposition, SIPIC attorneys informed federal prosecutors that they expected Yanamadula to appear in Chicago. Prosecutors prepared a grand jury subpoena for testimony and document production and served the subpoena on Yanamadula when he appeared for the deposition on September 5. Yanamadula and his criminal attorney, Joseph Duffy, appeared later that day pursuant to the subpoena. Rather than testifying before the grand jury, Yanamadula met with Assistant United States Attorney William Hogan ("AUSA Hogan") and other government agents.
During the meeting, Hogan informed Yanamadula that he was a target of a grand jury investigation and would be indicted for his activities at Dawson. Government agents then presented Yanamadula with a two-hour summary of evidence implicating his role in the illegal trading, including evidence of his "fingerprints" on fraudulent trades and evidence that his February 1998 firing was a ruse.*fn2 During the meeting, Yanamadula refused to proffer any information or otherwise cooperate in the criminal investigation and he did not produce any documents in response to the subpoena after the meeting.
Dawson collapsed in late 1998. In July 1999, Yanamadula left Chicago to live with his wife (Nuthi) in Huntsville, Alabama. He initially moved to a residence on Willowick Trail in Owens Cross, Alabama. In 2001 he filed a change of address form with the Postal Service indicating a new residence on Eustis Drive in Huntsville. Yanamadula filed no other change of address forms between 2001 and 2004, but admits that in mid-2003 (in the critical months before the limitations period expired) he lived not at the Eustis address but with his wife's parents at a different Alabama address.
Yanamadula filed an affidavit professing to outline his extensive business travel between 1999 and 2004. Yanamadula left the country frequently, often to locations in India, Eastern Europe and Canada; his trips lasted from a few weeks to several months. The affidavit offers only vague details about his travel, and he did not provide airline tickets or other documents that would confirm the exact dates or purpose ...