*1 his indictment motion erria’s
that basis.
III. CONCLUSION reasons, we AFFIRM foregoing
For the conviction.
Garcia-Eehaverria’s America, STATES
UNITED
Plaintiff-Appellant, TITTERINGTON, al., et
Richard
Defendants-Appellees.
No. 03-5829. Appeals, States Court
Sixth Circuit.
Argued 2004. April July 2004. and Filed
Decided Sept. En
Rehearing Banc Denied *2 alleges
dictment facts establishing that the offense occurred within the pe- limitations however, happens, riod. What when the Government permission obtains to toll the period? limitations Must the Government setting specifically allege that the has been tolled or other- allege wise that the indictment covers of- fenses that occurred within extended period? The district court said yes; say Contrary we no. to the views of court, the district we conclude limitations is affirmative de- (argued briefed), Dan L. Newsom fense spe- Government need not Attorney, Assistant United States Mem- cifically a criminal indictment. TN, phis, Appellant. We therefore reverse district court’s judgment in favor of the defendants and (argued briefed), Robert W. Ritchie remand the case proceedings. for further Davies, Stephen Wade V. Ross Johnson (briefed), Ritchie, Dillard, Fels & Knox- I.
ville, TN, (briefed), M. Richard Carter Martin, Tate, Marston, Morrow & Mem- January FBI an in- began TN, phis, (briefed), M. Steingard Richard vestigation of the defendants this case— CA, Reid, Angeles, Los Glen G. Jr. Feldman, Titterington, Geoffrey Richard (briefed), Combs, Wyatt, Tarrant & Mem- Cave, Sherrie-Lee Doreen Murray Robert TN, phis, B. Kemper (briefed), Durand Bohn, Stacy Layne Beavers and Michael Thomason, Hendrix, Harvey, Johnson & Elliot regarding their involvement Cole— Mitchell, TN, Memphis, D. William Mas- with entity a Barbados-based known as (briefed), sey, McClusky Loma Massey S. IDM. According to TN, & McCluskey, Memphis, for Appel- and IDM ran an international lees. lottery operation, which defrauded States citizens of than more million. $100 BOGGS, Before Judge; Chief DAVID Believing Bridgetown, that IDM’s Barba- SUTTON, A. NELSON and Circuit dos headquarters held evidence of this Judges. conduct, criminal Office Internation- al Department Affairs of Justice SUTTON, J.,- opinion delivered the obtained a warrant from the Barbados court, BOGGS, C.J., joined. in which government in June 1996 to search IDM’s NELSON, 460), J. (p. separate delivered headquarters. authorities, Barbados as- opinion concurring FBI, sisted by the executed the warrant opinion of.the court. on July approximately seizing SUTTON, Judge. Circuit boxes of “significant evidence that were on-going the ... investigation.” FBI JA court, As this case comes to agree that a federal indictment need not specifically state that the charged search, offenses After the IDM chal- officials pertinent occurred within the lenged statute-of- validity warrant. A local period; it suffices that the in- Barbados court ordered the evidence charged hearing as ment the defendants with viola- pending in Barbados remain 1962(c) (substantive § evi- placed then of 18 any appeal, tions U.S.C. well (RICO seal, 1962(d) in this RICO), § instance con- dence U.S.C. (mail fraud). of evidence locking the 140 boxes meant § 18 U.S.C. spiracy) and *3 in the jail The evidence remained a cell. addition, charged that the indictment en- time the district court jail cell at the defendants, Feldman, one violated case, and it remains this tered § (smuggling). 18 U.S.C. today.
there
to
Defendants moved
dismiss the indict-
to
it needed
Claiming that
evidence
ment, arguing that an indictment must
was itself
these defendants
prosecute
that an offense
within the
allege
occurred
parte
an ex
States filed
prison, the United
applicable
period.
statute-of-limitations
court on Decem-
motion in federal district
(through
judge
The district court
the same
9, 1998,
period
to toll the limitations
ber
granted
tolling
mo-
who
Government’s
alleged
these
criminal offenses. Under
for
tion)
to
granted the defendants’ motion
fraud,
anti-smuggling
and
the mail
RICO
sufficient,”
facially
be
dismiss. “[T]o
statutes,
period gen-
five-year limitations
noted,
must
court
an indictment
“contain
governs
allegations
criminal
erally
essential element of each offense
each
3282(a).
§
provisions.
these
See 18 U.S.C.
charged,”
“provide
de-
must
notice
separate
permits the
But a
federal statute
charges
him” and
against
fendant
of an indict-
“before return
Government
provide
sufficient
must
“information
“indicating that
application
ment” to file an
jeop-
protect
against
double
in a
coun-
foreign
of an offense is
evidence
time,
ardy.” JA 500-01. At the same
the limitations
try”
requesting
and
that
added, an indictment need not “ne-
court
3292(a)(1).
§
be
Id.
Un-
period
extended.
nor
antici-
gate defensive matters ...
...
statute,
this
if “the court finds
der
second
affirmative
JA 501.
pate
defenses.”
evidence that an
by preponderance
naturally
one
think
Recognizing
might
that
has
made for such
request
official
been
limitations,
of the statute of
as
“defense”
appears
reasonably
and that
evidence
pleading require-
falls
that
outside
for-
evidence is ...
such
such
indictment,
facially
for
ments
valid
eign country,”
“suspend
the court must
court nonetheless concluded
until
district
running of the statute of limitations”
authority
final
cannot be con-
court or
takes
“the statute
foreign
“the
request,”
longer
for
or
action on the
but
no
as a mere affirmative defense
strued
(b)
3292(a)(1),
years.
§
&
than three
Id.
in this
matter” because
Circuit
defensive
(c)(1).
court appeared
As the Barbados
argument may be
statute-of-limitations
taking “final
nowhere near
action”
appeal.
first
See
made
time
matter,
court
evidentiary
the district
Crossley,
States
United
suspend
motion
the statute
granted the
(6th Cir.2000). Construing
up
years.
of limitations for
to three
“jurisdictional
bar”
of limitations as
finding
allegation
in the indictment
8, 2002,
grand jury
May
a federal
On
the limitations
the crimes occurred within
against
returned an 89-count indictment
period had
the limitations
appeal
the six defendants involved
tolled,
that it lacked
the court held
been
other co-defendants who remain
matter”
“jurisdiction over this
jurisdiction and for
outside
States
must
dismissed.” JA
“the indictment
been
requests
extradition
have
whom
appealed.
The Government
lodged
countries. The indict-
501-02.
with various
II.
must defend” and
“enables him to
acquittal
or conviction in bar of future
A.
prosecutions for the same
Ham
offense.”
ling v. United
appropriate
The
standard for re
(1974).
2887, 41
L.Ed.2d 590
district
viewing a
court’s decision whether
entirely
an indictment
is not
satisfy
an indictment must
While
observe,
parties
clear.
have
As
we
three
requirements,
these
notice-related
differently
treated the issue
at different
thought
has never been
that an indict
“[i]t
times,
describing
some cases
our task
ment,
sufficient,
in order to be
need antici
review, in
abuse-of-discretion
other cases
pate affirmative defenses.”
*4
our
describing
task as de-novo review.
Sisson,
267, 288,
2117,
v.
399 U.S.
90 S.Ct.
DeZarn,
Compare, e.g.,
(1970).
explained, “but on appears because it its an indictment challenges raise Defendants several the that it not found within [limi- face was conclusion, unconvincing. this At oral proceeding period ... as such a tations] argument, claimed that is Cook right of the deprive prosecutor the would a relic and has no pleading of common-law evidence, may as the case reply give the Federal of application to modern Rules justice be, from that defendant fled the say But to that Cook Criminal Procedure. exception the the limita- [to and was within spoke it “de- does not control because of at Nor period].” Id. 179-80. would tions murrers,” and “special pleas” “evidence ... if the apply “different rule statute [ ] a using general under the issue” instead of any excep- not limitations did contain of of Federal terminology the up-to-date tion,” continued, time is because Court linguistic credit to gives Rules too much 180; at the offense. Id. not an element of stability too credit to the trends and little Police, Biddinger also v. Comm’r see terms antiquated All of these law. 128, 135, 38 S.Ct. L.Ed. 193 analogues, just as have course modern (“The is a de- statute terminology one to have today’s apt day is by asserted on the trial fense must be case, In this analogues of its own. future cases.”). defendant in criminal pretrial alleging a motion a example, for Fed- later, under the century remains “defect indictment” than a Cook More 12(b)(3)(B), Rules, eral see Fed.R.Crim.P. the outcome of this good governs law and Cook, case, equivalent of a “de- represents the modern In this as dispute. pleadings both serve not con- murrer” because defining the offenses does statute limitations, validity facial of the indictment. attack the but “another tain statute Ponto, Cook, 454 F.2d that See United States v. does. As Congress” act of Cir.1971) (7th (“In 1946, the Federal period, act forth other sets And, abolished in Rules of Criminal Procedure exception. contains an as which as a Cook, procedures such not use of common law may a court dismiss indict- plea in and sub- its demurrer and abatement just appears it on face “because motion to dis- place in their stituted [limita-. that it was not found within 12.”). Supreme under Rule Be mention Cook miss the indictment Court’s deci- alleging say and a sion. it cause a demurrer motion Nor does that “jurisdictional.” perform defect in the indictment the same limitations is function, holding— core Cook’s essential Although says Crossley that the of limitations concerns an may statute of limitations raised (which affirmative need not be defense every on appeal, first time not issue (which pled), not an element of the offense may be raised for first time on continuing pled) currency must be —has appeal jurisdictional. Term, Just this the Federal See United Rules. the Supreme highlighted Court the flaw in (2d Parrino, 284, 287 reasoning. Ryan, Kontrick J.) 12(a) Cir.1953) (“Rule (L.Hand, abol 443, -, U.S. except pleadings ished all defensive ‘not (2004), L.Ed.2d 867 observed Court guilty,’ ... provided ‘defenses just generally litigant “[a] because been heretofore could have raised’ may subject-matter raise a court’s lack of by only by demurrer ‘shall be raised mo jurisdiction any at time the same civil that, tion to dismiss.’ From that it follows action, initially highest appel- even at the question since the decided in United States instance,” just late because “a debtor by not Cook could be raised demurrer [ ] may objection challenge creditor’s to a may practice, under the it old now be discharge untimely any as at time and, so, by raised if motion proceedings, even initially appeal,” by plea must be raised of ‘not does not mean the rules governing ”). guilty.’ objection of a timeliness creditor’s import provisions “have the same gov- *6 that, argue The defendants next erning subject-matter jurisdiction.” A says, matter what Cook this Circuit has subject-mat- “critical difference” between of determined that statute limitations jurisdiction ter timing and the rules at § in 18 is not contained U.S.C. 3282 mere Kontrick, issue in explained, the Court ly “jurisdictional,” defensive but is which that expanded the former “cannot be to supports ruling. the district court’s As account parties’ litigation for conduct” and observe, correctly United the latter can be. Id. at 916. Courts (6th 847, Crossley, States v. 224 F.3d 858 occasionally “have more than used the Cir.2000), an explicit held “absent ‘jurisdictional’ term emphatic describe waiver, the statute of limitations [under noted, time prescriptions,” the Court but § presents prosecution 3282] bar to the label be confounding” “can because may appeal.” be raised the first time on such prescriptions do not generally affect Relying Crossley echoing on the dis personal subject-matter jurisdiction. or trict Crossley, court’s reliance on defen omitted); Id. at 915 (quotation citation argue dants that the — Scarborough Principi, see also v. U.S. jurisdictional must because defendant - -, -, 124 S.Ct. may appeal, raise it for the first time on L.Ed.2d-,-(2004). which in turn means that the Government must the statute of limitations In challenging the district court’s order “juris to vest the district with court jurisdiction indictment, over this criminal diction” over the indictment. the defendants make a similar mistake. Crossley does not this support string subject-matter jurisdic of The federal courts’ say anything inferences. It does not tion prosecutions about to hear federal criminal contain, what 3231, an indictment must § let alone comes from 18 U.S.C.
459
jury instructions on a
quest
courts of the United
time-barred
district
grants “[t]he
original jurisdiction
giving
jury
... of
offense
avoid
lesser
States
against
all-or-nothing-at-all
the laws
the United
choice.
Spaziano
offenses
See
jurisdictional problem— Florida,
447,
A
454-57,
true
States.”
v.
468
104 S.Ct.
U.S.
prosecutes
the Federal Government
say,
3154,
(suggesting
82
340
L.Ed.2d
for a non-federal crime—cannot
defendant
capital
has a
process
defendant
due
by the
con
parties’
or altered
be waived
jury
right to a
instruction
a time-barred
mail
during
proceeding.
As
duct
long
lesser
included offense so
he
fraud,
smuggling are “offenses
RICO and
for that
waives
States,” however,
against
United
offense).
explains why
All of
the fed
jurisdic
grants
§
the district courts
3231
appeals
eral courts
have addressed
mat
power to hear
case—no
tion—the
uniformly agree
this issue
that the statute
elapsed
much time
between
ter how
an affirmative de
provides
the criminal indict
criminal conduct and
may
that the
See
fense
waive.
and no matter what
Government
Soriano-Hernandez, 310
United States v.
ultimately proves
prove.
or fails
See
(8th
1099,
Cir.2002);
F.3d
1103-04
United
229,
Rayborn, 312 F.3d
States v.
United
(11th
1306,
Najjar,
F.3d
States v.
283
1309
(6th Cir.2002)
inter
(holding that the
231
Cir.2002); Acevedo-Ramos
v. United
requirement of the federal
state-commerce
(1st
States,
Cir.1992);
305,
961
307
F.2d
jurisdictional
arson statute “is
960,
Cooper, 956 F.2d
United States v.
subject-mat
court’s
affects a
sense
(10th Cir.1992);
Arky, 938
United States v.
i.e., a court’s constitutional
jurisdiction,
ter
(5th
579,
Cir.1991);
F.2d
581-82
case”);
adjudicate
statutory power to
(9th
DeTar,
1110,
F.2d
378,
164 F.3d
Hugi v. United
Karlin,
Cir.1987);
v.
United States
Cir.1999)
(7th
(“Subject-matter jurisdiction
(3d
90,
Cir.1986);
F.2d
92-93
every
prosecution
federal criminal
(7th
Meeker,
685,
v.
701 F.2d
States
687-88
§
there
from 18
comes
U.S.C.
Walsh,
Cir.1983);
United States
Article III permits
no doubt that
can be
(2d
Cir.1983); United
855-56
assign
prose
federal criminal
Congress
Williams,
299-300
*7
to federal courts. That’s the be
cutions
Wild,
(4th Cir.1982);
551
States v.
‘jurisdictional’
and the end of
ginning
(D.C.Cir.1977).
418,
421-25
inquiry.”).
defendants
Crossley
Had
said what the
jurisdic-
the statute of limitations
Were
subject-matter
lacks
claim it said—a court
claim,
that defendants
tional
sense
if
not
jurisdiction
the indictment does
moreover,
explicitly
an
could not
individual
Crossley
limitations —
protection,
its
see United States
waive
the Su
longer
good
would
law. As
630,
1781,
Cotton,
122
S.Ct.
Cotton,
“de
recently held
preme Court
(2002) (“subject-matter
L.Ed.2d
860
deprive
do
in an
not
fects
indictment
jurisdiction ....
can never be forfeited
adjudicate a case”
power
of its
to
court
waived”),
itself
a de-
Crossley
says
which
“jurisdictional.”
are
and thus
not
U.S..
many
can do and which
defendants
fendant
630-31, 122
1781.
at
example:
defen-
to do. For
some
desire
Crossley say that because
Neither does
lesser
plead guilty to
time-barred
dants
with the statute
failing
prove compliance
period
with a
limitation
offense
shorter
prosecu-
“bar to
establishes
exchange
dropping
for the Government
tion,”
pleading the statute of
greater
longer
charges on a
offense with
(even
juris-
if
not
mandatory
it is
re- must be
period;
limitation
other defendants
dictional).
Jeopardy
The Double
the indictment
remand
Clause
the case for
proceedings
further
consistent
Ex
Clause also
with this
Post Facto
estab-
opinion.
prosecution.
lish a bar to criminal
Yet no
knowledge
case to
that in-
our
mandates
NELSON,
DAVID A.
Circuit Judge,
allege that
dictments must
the Govern-
concurring.
prosecute
previously
ment did not
the de-
I fully
concur in the
and in
fendant for the same offense or that the
Judge
opinion for
Sutton’s
the court. Per
completed
the crime after Con-
amiss, however,
haps it would not be
gress criminalized the conduct.
If these
question
me to add a word on the
of our
do not
constitutional defenses
alter the
review, given
standard of
the tension be
crimes,
normal
pleading
rules for
is hard
my
tween
unqualified assertion in United
why
statutory
understand
defense
Powell,
(6th
States v.
823 F.2d
should do so.
Cir.1987), that
review a
“[w]e
district
The Tenth
decision in
Circuit’s
court’s refusal
indictment
Gammill,
(1970),
For the foregoing we reverse
the district court’s dismissing