United States v. Flood
2011 U.S. App. LEXIS 6789
| 10th Cir. | 2011Background
- Flood was convicted by a jury in the District of Utah of making false or misleading statements to auditors, securities fraud, perjury, and conspiracy to commit securities fraud in connection with ClearOne's revenue recognition.
- Before charges, Flood signed a Statute of Limitations Tolling and Extension Agreement tolling potential federal charges arising from ClearOne activities until July 26, 2007.
- Indictment charging Flood was filed on July 25, 2007, within the tolling period; superseding indictments followed, and Flood and Strohm were tried together.
- Flood argued the S/L Agreement was an invalid waiver of the statute of limitations and that Counts V and VI were time-barred.
- Flood also claimed ineffective assistance of counsel due to an alleged actual conflict of interest from ClearOne paying her legal fees.
- The district court denied both post-trial motions; Flood appealed seeking dismissal based on the statute of limitations and vacatur based on ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of statute of limitations validity | Flood asserts no valid waiver due to lack of open-court execution and lack of identified rights. | United States contends the S/L Agreement validly waived tolling and extended the period. | S/L Agreement constituted a valid waiver; no open-court requirement or rights-identification needed. |
| Ineffective assistance of counsel on direct appeal | Flood contends trial counsel labored under actual conflicts of interest due to fee arrangement affecting representation. | Government argues movant untimely or that no actual conflict existed or affected representation. | Affirm denial of the motion to vacate; remand to allow collateral §2255, record underdevelopment precludes direct-review merits. |
Key Cases Cited
- United States v. Cooper, 956 F.2d 960 (10th Cir. 1992) (express waiver of statute of limitations enforceable)
- United States v. Leyva-Matos, 618 F.3d 1213 (10th Cir. 2010) (de novo review of waivers; appellate rights in plea agreements)
- United States v. Wild, 551 F.2d 418 (D.C. Cir. 1977) (written waivers of statute of limitations without open-court requirement)
- United States v. Meeker, 701 F.2d 685 (7th Cir. 1983) (short-term waivers of limitations after counsel consultation)
- United States v. Gallup, 812 F.2d 1271 (10th Cir. 1987) (statute of limitations as an affirmative defense that can be waived)
- United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995) (ineffective assistance claims generally raised in collateral proceedings)
- United States v. Rodriguez-Rivera, 518 F.3d 1208 (10th Cir. 2008) (limited direct-appeal consideration of ineffective assistance where record is developed)
- United States v. Hamilton, 510 F.3d 1209 (10th Cir. 2007) (limited direct-appeal consideration of ineffective assistance with developed record)