U.S. v. Del Percio

• Decision Date: 21 July 1989
• Docket Number: No. 87-1396,87-1396
• Citation: 870 F.2d 1090
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jude G. DEL PERCIO; Indiana and Michigan Electric Company, a corporation and American Electric Power Service Corporation, a corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1090

870 F.2d 1090

UNITED STATES of America, Plaintiff-Appellant, v. Jude G. DEL PERCIO; Indiana and Michigan Electric Company,

a corporation and American Electric Power Service

Corporation, a corporation, Defendants-Appellees.

No. 87-1396.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 7, 1987.

Decided March 22, 1989.

Rehearing Denied July 21, 1989.

John A. Smietanka (argued), U.S. Atty., Grand Rapids, Mich., Paula A. Wolff, Richard S. Shine, Stanley A. Rothstein, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Larry C. Willey, Grand Rapids, Mich., for Del Percio.

Dennis C. Kolenda, Grand Rapids, Mich., for Michigan Elec. Co., and American Elec. Power Service Corp. J. Patrick Hickey (argued), Gerald Charnoff, Thomas C. Hill, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for Hickey and Charnoff.

Before JONES and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

On September 10, 1987, the government filed a nine-count indictment against defendants-appellees Jude G. Del Percio ("Del Percio"), Indiana and Michigan Electric Company ("IMEC"), and American Electric Power Service Corporation ("AEPSC"). The indictment charged that the defendants violated 18 U.S.C. Sec. 1001 (1982), and certain provisions of the Atomic Energy Act, 42 U.S.C. Secs. 2131, 2272 and 2273(a) (1982), in connection with their failure to comply with certain fire safety regulations issued by the Nuclear Regulatory Commission ("NRC"). The district court dismissed all nine counts of the indictment as barred by the five-year statute of limitations contained in 18 U.S.C. Sec. 3282 (1982), 657 F.Supp. 849. For the reasons set forth below, we affirm the dismissal of eight of the nine counts, reverse as to the remaining count, and remand for further proceedings consistent with this opinion.

I.

In November of 1980, the NRC revised certain of its regulations dealing with fire protection standards at nuclear power facilities. The new regulations provided more strict safeguards against the loss of equipment necessary to maintain control over the nuclear reactor in the event of a fire. In addition to providing new fire protection standards, 10 C.F.R. Pt. 50 App.R, (1981) ("Appendix R"), the regulations mandated their implementation in accordance with a prescribed schedule. 10 C.F.R. Sec. 50.48 (1981). The regulations became effective February 17, 1981 and required that covered nuclear facilities submit to the NRC by March 19, 1981 plans and schedules for making the necessary plant modifications.

Since 1974, defendant-appellee IMEC has been licensed by the NRC to operate the two-unit Donald C. Cook nuclear power plant which is located in Bridgman, Michigan. At all times relevant to this case, defendant-appellee AEPSC provided technical and licensing support to IMEC, and defendant-appellee Del Percio was an engineer in AEPSC's Nuclear Safety and Licensing Section. Within AEPSC, Del Percio was assigned responsibility for preparing IMEC's plans and schedules for achieving compliance with Appendix R at the Cook facility. In March of 1986, after reviewing the matter, Del Percio prepared a letter and technical attachment which stated that no modifications were required at the Cook facility because the facility already was in compliance with Appendix R. The materials prepared by Del Percio were sent to the NRC on March 27, 1981.

In April of 1982, after seeking additional information from IMEC and AEPSC concerning safety standards at the Cook facility, NRC officials inspected the facility and found that it was not in compliance with Appendix R. Though allowing IMEC to continue to operate the facility under certain interim procedures pending compliance with Appendix R, the NRC later referred the matter to the Department of Justice for criminal investigation.

By the middle of 1984, a federal grand jury for the Western District of Michigan had begun hearing testimony regarding possible federal charges against IMEC, AEPSC and various individuals, including Del Percio. In March of 1986, with no indictment having been returned, the United States Attorney began to fear that the limitations period might expire with respect to certain charges he planned to bring against the targets of the investigation. The government therefore requested the individual and corporate targets to execute waivers extending the limitations period on certain charges for 90 days. Believing that further inquiry would result in no criminal charges being brought against them, the targets, upon advice of counsel, signed waivers extending the limitations period on any charges brought pursuant to 18 U.S.C Secs. 371 (conspiracy) and 1001 (false statements) until June 24, 1986.

During the initial 90-day extension period, the government conducted further interviews and decided not to prosecute five of the eight individual targets. However, as the new deadline approached, the government determined that it needed still more time for its investigation. The government therefore sought and obtained from the remaining targets a second set of waivers extending the limitations period on any conspiracy and false statements charges for an additional 90 days.

In mid-August of 1986, the government notified defense counsel that two more of the individuals under investigation would not be prosecuted, thus leaving Del Percio, IMEC and AEPSC as the only remaining targets. Although the defendants executed a third set of waivers extending the limitations period on the relevant charges until October 3, 1986, the government decided to proceed with the prosecution against them. On September 10, 1986, the grand jury returned the instant nine-count indictment.

Count One of the indictment charges the defendants with violating 18 U.S.C. Sec. 1001 based upon their submission to the NRC of the March 1981 letter in which it was falsely claimed that the Cook facility was in compliance with Appendix R. Counts Two, Three, Six and Seven charge violations of 42 U.S.C. Secs. 2131 and 2272 based upon defendants' failure to operate each of the Cook facility units in accordance with their NRC license conditions. Specifically, Counts Two and Three allege that defendants did not submit plans and schedules for compliance with Appendix R, thereby violating the statutory requirement that licensed plants comply with all NRC regulations. Similarly, Counts Six and Seven allege a violation of this same statutory requirement based upon defendants' failure to make the modifications necessary to bring the Cook facility into compliance with the regulations. Finally, Counts Four, Five, Eight, and Nine charge violations of 42 U.S.C. Sec. 2273(a) based upon defendants' failure to submit plans and schedules to the NRC and to make plant modifications, as required by Appendix R.

The district court, on March 20, 1987, dismissed all nine counts of the indictment as barred by the five-year statute of limitations applicable to non-capital federal offenses. As to Count One, the false statement charge, the court relied upon Benes v. United States, 276 F.2d 99 (6th Cir.1960), in holding that the statute of limitations was a non-waivable bar to the defendants' prosecution. Because the alleged false statements were made on March 27, 1981, more than five years prior to the time the indictment was returned, the court ruled that Count One was time barred. As to the remaining eight counts, the court rejected the government's argument that those counts properly alleged continuing violations of the relevant statutory provisions from March 19, 1981 until April 30, 1982. In the court's view, the offenses charged in Counts Two through Nine were completed, and the statute of limitations began to run, on March 19, 1981 when the Appendix R submissions were due to be filed. The court therefore ruled that the prosecution as to these counts was also time-barred under 18 U.S.C. Sec. 3282.

In this appeal, the government challenges the district court's dismissal of each of the nine counts of the indictment.

II.

The first issue that we address involves Count One, the false statement count, and whether the waivers executed by the defendants with respect to that count were effective to extend the five-year limitations period. As noted earlier, the district court relied upon our decision in Benes v. United States, 276 F.2d 99 (6th Cir.1960), in concluding that the waivers were not effective. We find Benes to be distinguishable from the instant case and therefore reverse the dismissal of Count One of the indictment.

In Benes, the defendant was charged with tax evasion. Prior to being indicted, however, the defendant filed a civil action in federal court seeking to restrain the government from presenting certain evidence to the grand jury. After the district court entered, then dissolved, an order restraining the government from presenting the challenged evidence, the parties agreed that the government would not present the evidence to the grand jury until this court had disposed of defendant's appeal. 276 F.2d at 108. When this court affirmed the district court's ruling, Benes v. Canary, 224 F.2d 470 (6th Cir.1955), the government presented the relevant evidence to the grand jury. The defendant subsequently was indicted and convicted for tax evasion.

On appeal, Benes argued that the five-year statute of limitations barred his prosecution with respect to certain counts of the indictment. The government, however, asserted that the limitations period was tolled while the civil appeal was pending, and that defendant's prosecution as to these counts was therefore not time-barred. We rejected the government's argument and concluded that the statute was not tolled on account of the parties' agreement to delay presentation of the evidence pending appeal. We stated:

[T]he general rule is ... that an indictment, found after the expiration of the time for beginning prosecution, is barred by the...