U.S. v. Titterington

• Decision Date: 06 July 2004
• Docket Number: No. 03-5829.,03-5829.
• Citation: 374 F.3d 453
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard TITTERINGTON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

374 F.3d 453

UNITED STATES of America, Plaintiff-Appellant, v. Richard TITTERINGTON, et al., Defendants-Appellees.

No. 03-5829.

United States Court of Appeals, Sixth Circuit.

Argued April 20, 2004.

Decided and Filed July 6, 2004.

Rehearing En Banc Denied September 9, 2004.

Dan L. Newsom (argued and briefed), Assistant United States Attorney, Memphis, TN, for Appellant.

Robert W. Ritchie (argued and briefed), Wade V. Davies, Stephen Ross Johnson (briefed), Ritchie, Fels & Dillard, Knoxville, TN, Richard M. Carter (briefed), Martin, Tate, Morrow & Marston, Memphis, TN, Richard M. Steingard (briefed), Los Angeles, CA, Glen G. Reid, Jr. (briefed), Wyatt, Tarrant & Combs, Memphis, TN, Kemper B. Durand (briefed), Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, TN, William D. Massey, Lorna S. McClusky (briefed), Massey & McCluskey, Memphis, TN, for Appellees.

Before BOGGS, Chief Judge; DAVID A. NELSON and SUTTON, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J., joined. NELSON, J. (p. 460), delivered a separate opinion concurring in the judgment and in the opinion of the court.

SUTTON, Circuit Judge.

As this case comes to the court, all agree that a federal indictment need not specifically state that the charged offenses occurred within the pertinent statute-of-limitations period; it suffices that the indictment alleges facts establishing that the offense occurred within the limitations period. What happens, however, when the Government obtains permission to toll the limitations period? Must the Government in that setting specifically allege that the limitations period has been tolled or otherwise allege that the indictment covers offenses that occurred within the extended limitations period? The district court said yes; we say no. Contrary to the views of the district court, we conclude that the statute of limitations is an affirmative defense that the Government need not specifically plead in a criminal indictment. We therefore reverse the district court's judgment in favor of the defendants and remand the case for further proceedings.

I.

In January 1996, the FBI began an investigation of the defendants in this case — Richard Titterington, Geoffrey Feldman, Sherrie-Lee Doreen Cave, Robert Murray Bohn, Stacy Layne Beavers and Michael Elliot Cole — regarding their involvement with a Barbados-based entity known as IDM. According to the United States, the defendants and IDM ran an international lottery operation, which defrauded United States citizens of more than $100 million. Believing that IDM's Bridgetown, Barbados headquarters held evidence of this criminal conduct, the Office of International Affairs of the Department of Justice obtained a warrant from the Barbados government in June 1996 to search IDM's headquarters. Barbados authorities, assisted by the FBI, executed the warrant on July 12, 1996, seizing approximately 140 boxes of evidence that were "significant to the ... on-going FBI investigation." JA 498.

After the search, IDM officials challenged the validity of the warrant. A local Barbados court ordered that the evidence remain in Barbados pending a hearing as well as any appeal, then placed the evidence under seal, which in this instance meant locking the 140 boxes of evidence in a jail cell. The evidence remained in the jail cell at the time the district court entered judgment in this case, and it remains there today.

Claiming that the evidence it needed to prosecute these defendants was itself in prison, the United States filed an ex parte motion in federal district court on December 9, 1998, to toll the limitations period for these alleged criminal offenses. Under the mail fraud, RICO and anti-smuggling statutes, a five-year limitations period generally governs criminal allegations under these provisions. See 18 U.S.C. § 3282(a). But a separate federal statute permits the Government "before return of an indictment" to file an application "indicating that evidence of an offense is in a foreign country" and requesting that the limitations period be extended. Id. § 3292(a)(1). Under this second statute, if "the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears... that such evidence is ... in such foreign country," the court must "suspend the running of the statute of limitations" until "the foreign court or authority takes final action on the request," but for no longer than three years. Id. § 3292(a)(1), (b) & (c)(1). As the Barbados court appeared nowhere near taking "final action" in the evidentiary matter, the district court granted the motion to suspend the statute of limitations for up to three years.

On May 8, 2002, a federal grand jury returned an 89-count indictment against the six defendants involved in this appeal and 11 other co-defendants who remain outside United States jurisdiction and for whom extradition requests have been lodged with various countries. The indictment charged the defendants with violations of 18 U.S.C. § 1962(c) (substantive RICO), 18 U.S.C. § 1962(d) (RICO conspiracy) and 18 U.S.C. § 1341 (mail fraud). In addition, the indictment charged that one of the defendants, Feldman, violated 18 U.S.C. § 545 (smuggling).

Defendants moved to dismiss the indictment, arguing that an indictment must allege that an offense occurred within the applicable statute-of-limitations period. The district court (through the same judge who granted the Government's tolling motion) granted the defendants' motion to dismiss. "[T]o be facially sufficient," the court noted, an indictment must "contain each essential element of each offense charged," must "provide notice to the defendant of the charges against him" and must provide "information sufficient to protect the defendant against double jeopardy." JA 500-01. At the same time, the court added, an indictment need not "negate defensive matters ... nor ... anticipate affirmative defenses." JA 501. Recognizing that one might naturally think of the statute of limitations as a "defense" that falls outside of the pleading requirements for a facially valid indictment, the district court nonetheless concluded that "the statute of limitations cannot be construed as a mere affirmative defense or defensive matter" because in this Circuit the statute-of-limitations argument may be made for the first time on appeal. See United States v. Crossley, 224 F.3d 847, 858 (6th Cir.2000). Construing the statute of limitations as a "jurisdictional bar" and finding no allegation in the indictment that the crimes occurred within the limitations period or that the limitations period had been tolled, the court held that it lacked "jurisdiction over this matter" and that "the indictment must be dismissed." JA 501-02. The Government appealed.

II.

A.

The appropriate standard for reviewing a district court's decision whether to dismiss an indictment is not entirely clear. As the parties observe, we have treated the issue differently at different times, in some cases describing our task as abuse-of-discretion review, in other cases describing our task as de-novo review. Compare, e.g., United States v. DeZarn, 157 F.3d 1042, 1046 (6th Cir.1998) (de novo), with United States v. Middleton, 246 F.3d 825, 841 (6th Cir.2001) (abuse of discretion). In this case, as in many cases involving an allegedly flawed indictment and as the parties themselves here agree, the distinction does not make a difference, as an error of law compels a reversal under either standard of review. See United States v. Taylor, 286 F.3d 303, 305 (6th Cir.2002) ("[A]n erroneous legal determination is always an abuse of discretion.").

B.

In federal court, a criminal defendant "shall [not] be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," U.S. Const. amend. V, and the defendant "shall enjoy the right ... to be informed of the nature and cause of the accusation," U.S. Const. amend. VI. Consistent with these constitutional commands, Rule 7(c)(1) of the Federal Rules of Criminal Procedure says that an "indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." An indictment complies with all of these requirements, the Supreme Court has held, if it (1) "contains the elements of the offense charged," (2) "fairly informs a defendant of the charge against which he must defend" and (3) "enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

While an indictment must satisfy these three notice-related requirements, "[i]t has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses." United States v. Sisson, 399 U.S. 267, 288, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). "[A]n indictment ... founded on a general provision defining the elements of an offense ... need not negative the matter of an exception made by a proviso or other distinct clause.... [I]t is incumbent on one who relies on such an exception to set it up and establish it." McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301 (1922); see Evans v. United States, 153 U.S. 584, 590, 14 S.Ct. 934, 38 L.Ed. 830 (1894) ("Neither in criminal nor in civil pleading is [the Government] required to anticipate or negative a defense.").

In addition to giving general guidance that the elements of a criminal charge must be in the indictment while allegations negating the elements of an affirmative defense need not be, the Supreme Court has held that a statute-of-limitations claim falls on the affirmative-defense side of the line. In United States v. Cook, 17 Wall. 168, 84 U.S. 168, 21 L.Ed. 538 (1872), a grand jury indicted a paymaster in the Army under an act of Congress making it a crime...