U.S. v. Edwards

• Decision Date: 06 December 1985
• Docket Number: No. 84-5968,84-5968
• Citation: 777 F.2d 644
• Parties: -833, 86-1 USTC P 9110 UNITED STATES of America, Plaintiff-Appellee, v. Norman C. EDWARDS, Jr., Robert H. Bolden, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 644

777 F.2d 644

57 A.F.T.R.2d 86-833, 86-1 USTC P 9110

UNITED STATES of America, Plaintiff-Appellee, v. Norman C. EDWARDS, Jr., Robert H. Bolden, Jr., Defendants-Appellants.

No. 84-5968.

United States Court of Appeals, Eleventh Circuit.

Dec. 6, 1985.

D. Robert Silber, Harry Hipler, Ft. Lauderdale, Fla., for defendants-appellants.

Sky E. Smith, Smith & Gellman, Miami, Fla., for Bolden.

Caroline Heck, Asst. U.S. Atty., Miami, Fla., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Robert E. Lindsay, Donald W. Searles, Tax Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before FAY and JOHNSON, Circuit Judges, and HOFFMAN, ^* District Judge.

WALTER E. HOFFMAN, District Judge:

A four-count indictment on March 2, 1984, charged defendants Norman C. Edwards, Jr. and Robert H. Bolden, Jr. with conspiracy to import and to possess with intent to distribute marijuana, in violation of 18 U.S.C. Sec. 2, and 21 U.S.C. Secs. 841(a)(1), 846, 952(a), 960, and 963. Upon the government's motion, this indictment was immediately sealed.

On March 22, 1984, a superseding indictment realleged the four counts of the original indictment and added numerous tax-related counts. Counts VII and VIII charged Bolden with violations of 26 U.S.C. Sec. 7201, attempting to evade and defeat income taxes due the United States. Counts IX, X and XI charged Edwards with violations of 26 U.S.C. Sec. 7206(1), willfully subscribing tax returns which he did not believe to be true and correct. Upon the government's motion, the superseding indictment was also sealed. Bolden and Edwards were arrested on March 22, 1984.

The district court affirmed and adopted the recommendations of the magistrate that the defendants' various motions to dismiss be denied. On October 4, 1984, Edwards entered into a plea agreement with the government, pleading guilty to one drug and one tax count in exchange for the government's dismissing the remaining counts at the time of sentencing. Subject to the court's permission and pursuant to Fed.R.Cr.P. 11(a)(2), the parties agreed that Edwards could appeal the court's denial of his motion to dismiss. On October 9, 1984, Bolden entered into a similar plea agreement, likewise preserving his right to appeal the denial of his motion to dismiss.

The district court accepted Edwards' and Bolden's conditional guilty pleas. On December 13, 1984, Bolden was sentenced to 48 months of imprisonment followed by a two-year special parole term and a fine of $15,000 on the drug charge. On the tax charge, Bolden is placed on five years probation to be served upon completion of his sentence. Additionally, Bolden must pay a fine of $10,000 and perform 400 hours of community service annually during his probation period. ¹ The court sentenced Edwards to 30 months of imprisonment on the drug charge, followed by a two-year special parole term. Upon completion of the drug sentence, Edwards is placed on probation for three years on the tax count, must pay a $5,000 fine, and must perform 400 hours of community service annually during the probation period. ²

We affirm the judgments of conviction, based upon the conditional pleas of guilty in these cases which have been consolidated for appellate purposes.

DISCUSSION

Sealed Indictment

Defendants assert that Counts I through IV found in the first indictment and realleged in the second indictment should be dismissed as time barred by 18 U.S.C. Sec. 3282. ³ When the grand jury returned the first indictment on March 2, 1984, four days remained before the five-year deadline expired on the drug charges. ⁴ The superseding indictment, returned March 22, 1984, was brought sixteen days after the expiration of the five-year statute of limitations as to the drug counts; the tax counts have a six-year limitation. The original indictment was clearly timely filed. In general, a statute of limitations is tolled by the timely filing of an indictment. United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976).

Furthermore, the government may properly request the sealing of an indictment for a period beyond the statute of limitations. An indictment sealed pursuant to Fed.R.Cr.P. 6(e)(4) ⁵ is timely even though the defendant is not arrested and the indictment is not made public until after the end of the statutory limitations period. United States v. Muse, 633 F.2d 1041 (2d Cir.1980) (en banc ), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981); United States v. Michael, 180 F.2d 55 (3d Cir.1949), cert. denied, sub nom., United States v. Knight, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950). Therefore, the government's actions in requesting the sealing of the original indictment are consistent with those contemplated under the aegis of Fed.R.Cr.P. 6(e)(4).

Defendants also assert that the government's reasons for seeking to seal the original indictment were improper. Both Edwards and Bolden maintain that an indictment may not be sealed for the government's convenience and contend that the government's actions deprived them of due process. See United States v. Watson, 599 F.2d 1149, 1155 (2d Cir.1979), modified sub nom. United States v. Muse, 633 F.2d 1041 (2d Cir.1980) (en banc ), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981) (government may not request the sealing of an indictment for more than a reasonable time after statute of limitations has expired). Edwards argues that the government had no legitimate prosecutorial need to seal the original indictment and asserts that Counts I through IV consequently should be dismissed. In support of this argument, Edwards relies upon a narrow interpretation of Fed.R.Cr.P. 6(e)(4), that the only valid reasons for sealing an indictment are to locate and to gain custody over defendant. See, e.g., Watson, 599 F.2d at 1155; United States v. Cosolito, 488 F.Supp. 531 (D.Mass.1980); United States v. Sherwood, 38 F.R.D. 14, 20 (D.Conn.1964). We do not accept this limiting interpretation of the Federal Rules of Criminal Procedure.

Prosecutorial Purpose

A recent decision of the Second Circuit addresses precisely the issue raised in this appeal: what reasons justify the sealing of an indictment. In United States v. Southland, 760 F.2d 1366 (2d Cir.1985), Judge Friendly provides an analytical and historical perspective to Fed.R.Cr.P. 6(e)(4). Southland cites an opinion by Judge Maris written only three years after the Criminal Rules were adopted:

Criminal Procedure Rule 6(e) authorizes indictments to be kept secret during the time required to take the defendant into custody. If such secrecy may lawfully be imposed in that situation we see nothing unlawful in the court imposing secrecy in other circumstances which in the exercise of a sound discretion it finds call for such action.

United States v. Michael, 180 F.2d 55, 57 (3d Cir.1949), cert. denied sub nom. United States v. Knight, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950). Judge Friendly concludes that the Michael court would scarcely have made the statement if the taking of custody had been the sole objective of Fed.R.Cr.P. 6(e)(4). Southland, 760 F.2d at 1379.

Southland continues its historical analysis by delving into the practice of the courts at the time the Rule was written and concludes that courts then ordered an indictment to be sealed, "[W]here the public interest requires it, or for other sufficient reason," ⁶ or "for sound reasons of policy." ⁷ Southland, 760 F.2d at 1379, 1380. Judge Friendly also explains that the Federal Rules of Criminal Procedure were not meant to be exhaustive. Therefore, that the Rule omits an enumeration of the reasons for which an indictment may be sealed is not to be read as a restriction on those reasons. In sum, reasons other than taking defendants into custody validly support the sealing of an indictment.

Magistrate's Decision

In the present case, we must decide whether the prosecutorial needs and objectives justified the sealing of the indictment. Again, the words of Judge Friendly are instructive:

This is a point on which great deference should be accorded to the discretion of the magistrate, at least in the absence of any evidence of substantial prejudice to the defendant. The Government should be able, except in the most extraordinary cases, to rely on that decision rather than risk dismissal of an indictment, the sealing of which it might have been willing to forego, because an appellate court sees things differently, after the expenditure of vast resources at a trial and at a time when reindictment is by hypothesis impossible.

Southland, 760 F.2d at 1380. Defendants argue at length that the colloquy which transpired between the magistrate and the government counsel regarding the need to seal the indictment is reflective of an improper purpose, i.e., a purpose other than the need to take the defendant into custody. In fact, the record shows that the magistrate does suggest that an appropriate procedure would have been to have arrested the defendants on the original indictment and later to have superseded that indictment with a second which added the tax counts. The tax counts are subject to a six-year statute of limitations and, unlike the drug counts, were not threatened by a time bar, on March 2, 1984.

If, as Edwards argues, the magistrate recognized that the government's only reason for filing the original indictment was to toll the running of the statute of limitations, the magistrate nonetheless granted the government's motion to seal the indictment. We align ourselves with the Second Circuit in according great deference to the discretion of the magistrate. Tolling the statute of limitations on charges of conspiracy to import with intent to distribute thousands of pounds of marijuana is arguably required by the public interest and supported by sound reasons of policy. We uphold the...