U.S. v. O'Bryant
| Decision Date | 10 June 1993 |
| Docket Number | No. 91-2132,91-2132 |
| Citation | 998 F.2d 21 |
| Parties | UNITED STATES of America, Appellee, v. David S. O'BRYANT, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Frank J. McGee, for defendant, appellant.
Carole S. Schwartz, Sp. Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and James B. Farmer, Asst. U.S. Atty., were on brief, for the U.S.
Before SELYA, CYR and BOUDIN, Circuit Judges.
This appeal raises an interesting question: Do charges brought in a superseding indictment relate back to the filing date of the original indictment for limitations purposes? In this case, where the later indictment contained charges against the defendant virtually identical to those contained in the earlier indictment, we answer the question affirmatively. And, we uphold the judgment below.
Inasmuch as the jury found the defendant guilty, we present the facts in the light most hospitable to the prosecution's case, consistent with record support.
In 1985, the Boston police department assigned defendant-appellant David S. O'Bryant, a police officer, to monitor a suspected illegal gambling operation. O'Bryant turned double agent, accepting regular payments from the bookmakers. On February 28, 1990, a federal grand jury indicted him for conspiring to obstruct law enforcement with the intent to facilitate illegal gambling activity. See 18 U.S.C. § 1511 (1988). After one of appellant's codefendants began cooperating with law enforcement authorities, the grand jury returned a superseding indictment. The superseding indictment, handed up on December 18, 1990, contained essentially the same charge against O'Bryant but revised certain language in the charges proffered against his sole remaining codefendant, Stephen Puleo.
Following a seventeen-day trial, the jury convicted both men. Subsequent to imposition of sentence, O'Bryant appealed.
Appellant's flagship claim is that, because there was no credible evidence of his participation in the conspiracy after October 1985, the statute of limitations had run by the time the superseding indictment surfaced. See 18 U.S.C. § 3282 (1988) (). 1 The claim founders.
It is well settled that bringing an indictment tolls the statute of limitations on the charges set forth in that indictment. See United States v. Sears, Roebuck & Co., 785 F.2d 777, 778-79 (9th Cir.) (collecting cases), cert. denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986); United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976). Although this court has not heretofore spoken directly to the subject, we hold today that a superseding indictment which supplants a timely-filed indictment, still pending, is itself to be regarded as timely vis-a-vis a given defendant so long as it neither materially broadens nor substantially amends the charges against the defendant. Accord United States v. Lash, 937 F.2d 1077, 1081 (6th Cir.), cert. denied, --- U.S. ----, ----, 112 S.Ct. 397, 943, 116 L.Ed.2d 347, 117 L.Ed.2d 113 (1991); United States v. Pacheco, 912 F.2d 297, 305 (9th Cir.1990); United States v. Schmick, 904 F.2d 936, 940 (5th Cir.1990), cert. denied, 498 U.S. 1067, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991); United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir.), cert. denied, 498 U.S. 896, 111 S.Ct. 246, 112 L.Ed.2d 205 (1990); United States v. Jones, 816 F.2d 1483, 1487 (10th Cir.1987); United States v. Gengo, 808 F.2d 1, 3 (2d Cir.1986); United States v. Friedman, 649 F.2d 199, 203-04 (3d Cir.1981); The rule which we adopt today is consistent with the general policy underlying statutes of limitations in the criminal law. The Supreme Court has described such statutes as designed "to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). That policy, in turn, is grounded in concepts of due process. A timely indictment serves notice on named defendants by apprising them "that they will be called to account for their activities and should prepare a defense." Grady, 544 F.2d at 601; accord Lash, 937 F.2d at 1082; Schmick, 904 F.2d at 940. When charges are brought within the limitations period and continue to pend, restatement of those charges at a subsequent date, without expanding or meaningfully altering them, does not put a defendant at an unfair disadvantage.
but see United States v. Peloquin, 810 F.2d 911, 913 (9th Cir.1987). In other words, the superseding indictment relates back to the filing date of the original indictment so long as a strong chain of continuity links the earlier and later charges
Viewed against this backdrop, appellant's claim cannot prosper. He does not gainsay either the timeliness of the original indictment or that it was still velivolant when the superseding indictment emerged. The fate of his argument, then, necessarily turns on whether the later indictment materially broadened or amended the charges limned in the earlier indictment.
A comparative analysis must start with the language and structure of the two indictments. Although the indictments featured multiple counts, appellant was charged only in the fourth count of each. We reproduce the two versions of count four in the appendix. Their similarity is readily apparent. We, therefore, embellish with a bare minimum of editorial comment what is obvious from the face of the bills.
Just as notice-related concerns underlie the construction of statutes of limitations in the criminal law context, such concerns also comprise the touchstone for determining when a superseding indictment materially broadens or substantially amends earlier charges. See Lash, 937 F.2d at 1081-82; Schmick, 904 F.2d at 940; Gengo, 808 F.2d at 3. Here, the initial indictment informed appellant in no uncertain terms that he would have to account for essentially the same conduct with which he was ultimately charged in the superseding indictment. Insofar as the two versions of count four pertain to O'Bryant, 2 they each charge the same conspiracy, with the same objects, in violation of the same statute.
In point of fact, there are only two arguably significant differences between the indictments as they relate to appellant. First, the superseding indictment trims a year from count four's front end, pegging the onset of the charged conspiracy in 1985, not 1984. This revision reduces, rather than enlarges, the scope of the conspiracy. It is common ground--and common sense--that a limiting amendment to a charge, without some other, more deleterious modification, will not necessitate a new statute-of-limitations computation. Certainly, the narrowing that occurred here does not break the chain of continuity.
Second, the superseding indictment contains slightly more detail in terms of overt acts. However, none of this subsidiary detail represents a material broadening or substantial amendment of the charges already pending against appellant. For example, the original indictment alleges as an overt act that Baharoian gave a cohort, Pope, an envelope for delivery to appellant; the superseding indictment particularizes this assertion by making clear that this was a payoff, by fixing a more precise date ("August of 1985" in lieu of "1984 or 1985"), and by We need not hammer the point. Because the only differences between the indictments as they affect appellant are differences which neither materially broaden nor substantially amend the charges against him, the superseding indictment relates back to the filing date of the original indictment for limitations purposes. Stated another way, the first indictment put appellant on fair notice anent the conduct for which he must answer and, therefore, tolled the statute of limitations for the strikingly similar charges contained in the superseding indictment. Accordingly, appellant's statute-of-limitations defense fails. 3
fleshing out the ossature of corruption. When a superseding indictment does no more than specify the exact mechanics of a defendant's participation in a previously charged offense, it does not represent a material broadening or substantial amendment of the original indictment. See, e.g., Lash, 937 F.2d at 1082 (holding that, where both indictments "described the same conspiracy ... during the same time frame," the superseding indictment related back for limitations purposes despite a newly emergent "allegation of additional underlying details in [the] superseding indictment"); Schmick, 904 F.2d at 941 (concluding that a superseding indictment related back even though it contained "additional underlying details"); Friedman, 649 F.2d at 204 (similar)
Appellant advances a second, essentially unrelated, assignment of error. He contends that the district court abused its discretion in refusing to grant his severance motion. 4 We reject this contention.
We start this segment of our analysis at ground zero. As a rule, persons who are indicted together should be tried together. See Zafiro v. United States, --- U.S. ----, ----, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). This practice helps both to prevent inconsistent verdicts and to conserve resources (judicial and prosecutorial). Thus, when multiple defendants are named in a single indictment, a defendant who seeks a separate trial can ordinarily succeed in obtaining one only by making a strong showing of evident prejudice. See United States v. Martinez, 922 F.2d 914, 922 (1st Cir.1991); United States v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990). The hurdle is intentionally high; recent Supreme Court precedent...
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