U.S. v. Williams

• Decision Date: 21 July 1982
• Docket Number: No. 81-5151,81-5151
• Citation: 684 F.2d 296
• Parties: 10 Fed. R. Evid. Serv. 1355 UNITED STATES of America, Appellee, v. Stephen Jerome WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 296

684 F.2d 296

10 Fed. R. Evid. Serv. 1355

UNITED STATES of America, Appellee, v. Stephen Jerome WILLIAMS, Appellant.

No. 81-5151.

United States Court of Appeals Fourth Circuit.

Argued Jan. 7, 1982.

Decided July 21, 1982.

^* Henry W. Jones, Jr., Raleigh, N. C., for appellant.

James L. Blackburn, Former U. S. Atty., Raleigh, N. C. (Samuel T. Currin, U. S. Atty., Wallace W. Dixon, Asst. U. S. Atty., Edmond W. Caldwell, Jr., Third Year Law Student, Raleigh, N. C., on brief), for appellee.

Before WIDENER, HALL and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge.

Defendant Stephen Jerome Williams appeals his conviction by a jury of the crime of second degree murder. He was indicted for murder in the first degree under 18 U.S.C. § 1111(a), which is an offense punishable by death, 18 U.S.C. § 1111(b).

Williams was sentenced to 30 years imprisonment. He is currently serving a 45 year sentence for an unrelated state-imposed criminal conviction.

Defendant Williams originally sought reversal on three grounds: (a) that there was not sufficient credible evidence to support conviction; (b) that defendant was denied due process by prosecutorial delay; and (c) that the trial court erred in allowing the government to expand cross examination of the defendant to include prior acts of misconduct relating to one Julia Boo.

After reviewing the briefs and joint appendix, this court advised the attorneys prior to argument to be prepared to address the problem presented by the five year statute of limitations ¹ for noncapital offenses and the interpretation of this statute found in Askins v. United States, 251 F.2d 909 (D.C.Cir.1958).

We find no merit to the first three exceptions, and also find that Askins can be distinguished and does not control the present case. Therefore, we affirm.

I

On February 16, 1975, a young female soldier, Kathleen Dandois, was residing in a mobile home in Fairlane Acres Trailer Park, Fayetteville, North Carolina, near the Fort Bragg military reservation. At approximately 11:00 p. m. on that date she left her trailer to walk to a nearby convenience store to purchase some cigarettes and other items. She never returned to her mobile home and her partially decomposed body was discovered in a secluded area on the military reservation on February 19, 1975. Examination of the body showed that she had been stabbed some 29 times and apparently had been sexually assaulted.

The Criminal Investigation Detachment (CID) immediately began investigation, but in spite of its efforts and the efforts of the Federal Bureau of Investigation (FBI), the murder remained a mystery until March 1978 when a "born again" religious conversion resulted in a confession by William Joseph Facey. In his initial statement to the FBI, Facey stated that he and a friend (he did not identify the friend in the first statement) had been riding in a white Vega automobile and were going to his friend's trailer in Fairlane Acres Trailer Park. When they passed the convenience store they noticed a white female coming out and, after talking with her for a few moments, his friend grabbed the female and put her in the back seat of the car. They drove to an isolated area on the Fort Bragg military reservation and his friend ² took Kathleen Dandois out of the car and raped her. Facey then raped Dandois and stabbed her repeatedly. Facey then advised defendant Williams that he (Facey) had felt the woman's pulse, and finding none, thought she was dead. Williams then drove the Vega automobile over her body to insure that she was dead. Facey picked up the body and carried it further into the woods. Her clothes were gathered and thrown away along with the knife.

Facey later identified a photograph of the deceased woman as the person sexually assaulted and killed by himself and Williams. In a later interview in April 1978 he identified Stephen Jerome Williams as the man who had been with him on the night of February 16, 1975 and had raped and assisted in the murder of Kathleen Dandois.

Shortly after this second statement by Facey, the FBI interviewed Williams and he then denied and has subsequently denied any connection with the rape or murder. There were additional interviews with Williams in June and September of 1980. The indictment was returned February 2, 1981 charging Facey and Williams with first degree murder, and aiding and abetting one another in violation of 18 U.S.C. §§ 1111 and 2. The trial was conducted in May 1981 and resulted in a verdict of guilty as to defendant Williams of the lesser included offense of second degree murder. Facey had entered a guilty plea prior to trial and testified for the prosecution.

Defendant's attorney submitted to the court a request to charge on the lesser included offense of murder in the second degree. The court gave the charge and this is the crime of which defendant was convicted. At the time this charge was requested defense counsel did not mention the limitation found in 18 U.S.C. § 3282 or that a guilty verdict on the lesser included offense might be time barred.

II

The statute of limitations set forth in 18 U.S.C. § 3282 is not jurisdictional. It is an affirmative defense that may be waived. United States v. Wild, 551 F.2d 418 (D.C.Cir.1977) cert. denied 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977); United States v. Akmakjian, 647 F.2d 12 (9th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 505, 70 L.Ed.2d 380 (1981); United States v. Doyle, 348 F.2d 715 (2nd Cir.), cert. denied 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); United States v. Waldin, 253 F.2d 551, 558 (3rd Cir.), cert. denied 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958); United States v. Franklin, 188 F.2d 182 (7th Cir. 1955); Capone v. Aderhold, 65 F.2d 130 (5th Cir. 1933); United States v. Levine, 658 F.2d 113 (3rd Cir. 1981).

Askins v. United States, supra, is also from the D. C. Circuit and held that a defendant charged with first degree murder but convicted of second degree murder may not be lawfully sentenced more than three years ³ after the offense because of the time constraints of § 3282. Askins was indicted for first degree murder in 1939 and was found by a jury to be of unsound mind. He was committed to a hospital and the indictment was nol-prossed. In 1954 he was released from the hospital and reindicted for the same crime. The jury convicted him of second degree murder. On the original appeal, 231 F.2d 741 (D.C.Cir.1956), the issue of the statute of limitations was not raised. However, this question was presented by a § 2255 petition the following year. This petition was denied by the district court but granted by the Court of Appeals, 251 F.2d 909 (D.C.Cir.1958).

In neither Askins I nor Askins II is the question of waiver of the statute of limitations addressed. An examination of Askins I reveals that it was the United States that asked for the instruction on the lesser included offense. Askins was indicted on the charge of first degree murder. ⁴ His defense was insanity. The decision reflects at page 741:

After the jury had been fully instructed on all elements of the case, a bench colloquy occurred. The government then requested that the jury be instructed as to the elements of murder in the second degree. With much misgiving, as the transcript discloses, the trial judge decided "out of an abundance of caution" to grant the government's request.

Obviously there could be no claim of waiver by Askins because it appears he was content with his insanity defense. It was the government that did not wish to run the risk of an all or nothing verdict on the charge of first degree murder.

In the present case Williams received the charge he requested, and he was convicted of the lesser included offense contained therein. Murder in the first degree is a capital offense for which there is no statute of limitations. If the court had not given the requested lesser included offense charge, Williams would have been in the unenviable position of facing a verdict of guilty or not guilty on a capital offense. The requested charge was certainly in Williams' best interest under the circumstances. He requested the charge, did not object to the charge, was convicted under the charge and, in all probability, benefited from the charge. He cannot now complain of the result and his actions obviously constitute a waiver of the time limitation contained in § 3282. In Wild the defendant signed a statement waiving the statute of limitations in an effort to prevent being indicted during the completion of the plea negotiations with the government. When these negotiations broke down, defendant was indicted, but the statute had run. The district court found the statute to be a bar, but the Court of Appeals concluded that the statute of limitations was not a jurisdictional bar to prosecution but was a waivable defense and the actions of the defendant had waived the statute.

Although there is a split of authority among the circuits on the issue of whether the statute of limitations is jurisdictional or whether it is an affirmative defense that may be waived, the Sixth Circuit and the Tenth Circuit are the only two which have concluded that the statute of limitations is a jurisdictional bar which may be raised at any time by a criminal defendant. Benes v. United States, 276 F.2d 99 (6th Cir. 1960) and Waters v. United States, 328 F.2d 739 (10th Cir. 1964). For decisions of the Second, Third, Fourth, Fifth, Seventh, Ninth and D. C. Circuits see page five hereof.

In Vance v. Hedrick, 659 F.2d 447 (4th Cir. 1981), Judge Haynsworth wrote:

Most federal courts that have considered the question have held that time bars to the prosecution or trial of criminal cases, as of civil cases, are affirmative defenses which may be waived. Page 452.

In Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193 (1917), the Court held that "(t)he statute of limitations is a defense and must be asserted on the trial by...