513 F.3d 632 (6th Cir. 2008), 06-4473, United States v. Grenier

Docket Nº:06-4473.
Citation:513 F.3d 632
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Raymond L. GRENIER, and Delta Equity Services Corp., Defendants-Appellees.
Case Date:January 22, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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513 F.3d 632 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellant,

v.

Raymond L. GRENIER, and Delta Equity Services Corp., Defendants-Appellees.

No. 06-4473.

United States Court of Appeals, Sixth Circuit.

Jan. 22, 2008

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 06-00346-James S. Gwin, District Judge

Argued: Oct. 23, 2007.

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[Copyrighted Material Omitted]

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COUNSEL

ARGUED:

Justin J. Roberts, Assistant United States Attorney, Cleveland, Ohio, for Appellant.

Allison D. Burroughs, Nutter, McClennen & Fish, Boston, Massachusetts, for Appellees.

ON BRIEF:

Christian H. Stickan, Assistant United States Attorney, Cleveland, Ohio, for Appellant.

Allison D. Burroughs, Nutter, McClennen & Fish, Boston, Massachusetts, Robin E. Harvey, Baker & Hostetler, Cincinnati, Ohio, for Appellees.

Before: MERRITT and CLAY, Circuit Judges; COX, District Judge.[*]

OPINION

CLAY, Circuit Judge.

The government appeals from the district court's order dismissing on statute of limitations grounds the indictments of Defendants Raymond L. Grenier and Delta Equity Services Corp. for violation of 18 U.S.C. § 1001 and 18 U.S.C. § 2. For the reasons that follow, we AFFIRM the district court's dismissal of Defendants' indictments.

STATEMENT OF FACTS

A. Substantive Facts

Raymond Grenier and Delta Equity Services Corp. ("Delta") sold securities through licensed securities sales representatives and agents in various states. In 1997 the Securities and Exchange Commission ("SEC") began investigating Grenier's and Delta's lack of supervision of a group of Maryland and Ohio brokers who had defrauded investors and misappropriated money through the fraudulent offer and sale of unregistered securities. On July 10, 2001, after the SEC informed Defendants that it was preparing to take an enforcement action against them, Defendants, through counsel, faxed an 18-page "Wells submission"1 letter to the SEC. This letter included a settlement proposal. On the same day, the original letter was mailed by overnight courier, and the SEC received it on July 11, 2001. The mailed document included an additional page, a notarized waiver dated July 10, 2001 and signed by Raymond Grenier as president of Delta and individually. On February 21, 2002, the SEC censured and fined both Grenier and Delta and imposed other sanctions upon them.

B. Procedural History

In an indictment filed on July 11, 2006, a federal grand jury alleged that from 1997 through on or about July 13, 2001, Grenier and Delta had knowingly and wilfully concealed and covered up a material fact regarding securities violations by means of tricks, schemes, and devices and had knowingly and willfully made a false writing, specifically a letter, to the SEC that contained fraudulent material statements.

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The indictment set forth ten allegedly false and fraudulent statements included in the document sent to the SEC. The indictment alleged that these statements minimized Defendants' knowledge and responsibility for securities violations. Defendants were charged with violating 18 U.S.C. § 1001 and 18 U.S.C. § 2.

Defendants filed a joint motion to dismiss the indictment, pursuant to Fed. R. Crim. P. 12(b)(2), on the ground that the indictment was returned one day outside of the five-year statute of limitations because the alleged false statements were contained in the Wells submission sent to the SEC on July 10, 2001. The government opposed the motion and argued that Defendants' crime was not complete until July 11, 2001 because the SEC lacked jurisdiction over the settlement proposal until July 11, 2001 when it received the signed authorization that was required by SEC regulations. After conducting a hearing, the district court entered an order granting the motion to dismiss on September 5, 2006. The government filed a motion for reconsideration, which was denied. The government filed a notice of appeal of the denial of the motion for reconsideration on October 23, 2006.

DISCUSSION

A. Preservation of the Issue

Defendants claim that the only issue before us is whether the district court abused its discretion in denying the government's motion for reconsideration since the government appealed only the order denying reconsideration. (Def.'s Br. 11.) However, Defendants' argument is meritless since this Circuit's precedent clearly establishes that "a notice of appeal that names only a post-judgment decision may extend to the judgment itself if it can be reasonably inferred from the notice of appeal that the intent of the appellant was to appeal from the final judgment and it also appears that the appellee has not been misled." Harris v. United States, 170 F.3d 607, 608 (6th Cir. 1999) (internal quotation marks omitted) (quoting Peabody Coal Co. v. Local Union Nos. 1734, 1508 and 1548, 484 F.2d 78, 81 (6th Cir. 1973)). Accord Sanabria v. United States, 437 U.S. 54, 68 n. 21, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Caudill v. Hollan, 431 F.3d 900, 905-06 (6th Cir. 2005).

Although the language of Harris suggests that the underlying basis for an appeal must be apparent from the notice of appeal, courts have relied upon briefs and other subsequent filings to infer the intent of the appellant. Sanabria, 437 U.S. at 68 n. 21, 98 S.Ct. 2170; Boburka v. Adcock, 979 F.2d 424, 426 (6th Cir. 1992).2 In this case, we may review issues relating to the district court's grant of Defendants' motion to dismiss because the government's brief put Defendants on notice that the appeal regarded not only the order denying reconsideration but also the order granting Defendants' motion to dismiss.

B. Standard of Review

The standard of review to be applied for a motion to dismiss an indictment is somewhat unclear. United States v. Titterington, 374 F.3d 453, 456 (6th Cir. 2004). When reviewing a district court's disposition of a motion to dismiss an indictment based on findings of fact, we have

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generally applied either an abuse of discretion standard or a clear error standard. United States v. Butler, 297 F.3d 505, 512 (6th Cir. 2002) (reviewing a motion to dismiss based on a factual determination for clear error); United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001) (noting that the court has used both a clear error and an abuse of discretion standard to evaluate the dismissal of indictments based on findings of prosecutorial vindictiveness). When reviewing the district court's legal conclusions in the motion to dismiss context, we have generally undertaken de novo review. United States v. Philp, 460 F.3d 729, 732 (6th Cir. 2006) (reviewing de novo denial of motion to dismiss on legal grounds); United States v. Martinez-Rocha, 337 F.3d 566, 569 (6th Cir. 2003) (noting that the Sixth Circuit reviews a denial of a motion to dismiss involving questions of law de novo); In re Ford, 987 F.2d 334, 339 (6th Cir. 1992) (reviewing de novo denial of a motion to dismiss on the ground of double jeopardy).

However, we have not always been consistent in determining the standard of review to apply to district court dispositions of motions to dismiss. Compare, e.g., United States v. Wright, 260 F.3d 568, 570 (6th Cir. 2001) (reviewing de novo disposition of motion to dismiss indictment based on the government's failure to preserve exculpatory evidence), with United States v. Cody, 498 F.3d 582, 589 (6th Cir. 2007) (reviewing for clear error disposition of motion to dismiss indictment based on the government's failure to preserve exculpatory evidence). We have consistently reviewed motions to dismiss indictments on statute of limitations grounds de novo, although we have adopted different rationales for this practice. See United States v. Watford, 468 F.3d 891, 908 (6th Cir. 2006); United States v. Grenoble, 413 F.3d 569, 572 (6th Cir. 2005); United States v. Del Percio, 870 F.2d 1090 (6th Cir. 1989). Therefore, de novo review is appropriate in this case.

C. Analysis

Defendants were prosecuted under 18 U.S.C. § 1001 and 18 U.S.C. § 2. The crime of making false statements to the federal government is defined in 18 U.S.C. § 1001, which imposes criminal liability for a person who in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.

18 U.S.C. § 1001(a) (2000). Any person who causes someone else to commit a federal offense is punishable as a principal under 18 U.S.C. § 2. The applicable statute of limitations for prosecutions brought under 18 U.S.C. § 1001 is five years. 18 U.S.C. § 3282 (2000). The statute of limitations begins to run when a crime is complete, that is, when each element of the crime charged has occurred. United States v. Lutz, 154 F.3d 581, 586 (6th Cir. 1998).

The government presents a variety of rationales for finding the indictment of Defendants timely. The government's argument rests on claims that (1) two separable offenses were committed by the...

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