Rather, it must shown that the defendant " absented himself from the jurisdiction with the intent to avoid prosecution." United States v. Fonseca-Machado, 53 F.3d 1242, 1244 (11th Cir.1995); see, e.g.,Ross v. U.S. Marshal for the Eastern Dist. of Oklahoma, 168 F.3d 1190 (10th Cir.1999); United States v. Rivera-Ventura, 72 F.3d 277 (2nd Cir.1995); United States v. Marshall, 856 F.2d 896 (7th Cir.1988); United States v. Duff, 931 F.Supp. 1306 (E.D.Va.1996). The critical element of proof is knowledge of a pending charge.

Id. at 296; see also United States v. Gonsalves, 675 F.2d 1050, 1052 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982) ("prosecution must `prove that the accused concealed himself with the intent to avoid arrest or prosecution."'); United States v. Duff, 931 F. Supp. 1306, 1311 (E.D.Va. 1996) ("the burden of proof is on the Government to prove the Defendant's intent in order to trigger the tolling exception to the statute of limitations."). This Court notes that most cases addressing the burden of proof under section 3290 have required proof by a fair preponderance of the evidence.

Further, whether count one is time-barred is a question of fact about which counsel may seek a jury instruction. United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994); United States v. Duff, 931 F. Supp. 1306, 1312 (E.D. Va. 1996). Accordingly, the Court will deny without prejudice Blythe's alternative motion to dismiss count one.