U.S.A. v. Garcia, s. 00-2346

• Decision Date: 08 June 2001
• Docket Number: Nos. 00-2346,00-2395,s. 00-2346
• Citation: 268 F.3d 407
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellant, v. Nicholas Garcia and John O'Valle, Jr., Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 407

268 F.3d 407 (6th Cir. 2001)

United States of America, Plaintiff-Appellant, v. Nicholas Garcia and John O'Valle, Jr., Defendants-Appellees.

Nos. 00-2346, 00-2395

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 8, 2001

Decided and Filed: October 10, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 92-20103. David M. Lawson, Victoria A. Roberts, District Judges. [Copyrighted Material Omitted] David J. Debold, ASSISTANT UNITED STATES ATTORNEY (argued and briefed),Office of the U.S. Attorney, Detroit, Michigan, for Appellant.

David C. Thomas (argued), Chicago, Illinois, Rodney J. O'Farrell, Saginaw, Michigan, for Appellees. David S. Steingold (briefed), DAVID S. STEINGOLD ASSOCIATES, Detroit, Michigan, for Nicholas A. Garcia.

Rodney J. O'Farrell (argued and briefed), Saginaw, Michigan, for John Ovalle, Jr.

Before: GUY, BATCHELDER, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court. GUY, J. (p. 15), delivered a separate concurring opinion. BATCHELDER, J., concurred in both the opinion of the court and the separate concurrence.

OPINION

KAREN NELSON MOORE, Circuit Judge.

The government appeals the district court's decision dismissing as beyond the relevant statute of limitations the fourth superseding indictment charging defendants-appellees Nicholas Garcia and John O'Valle, Jr. (collectively referred to as "defendants") with possessing with the intent to distribute one thousand or more kilograms of marijuana in violation of 21 U.S.C. 841(a)(1). Although the fourth superseding indictment was filed outside the applicable statute of limitations period, because the fourth superseding indictment did not materially broaden the indictment already pending against the defendants, the government was within its authority in filing it. Accordingly, we REVERSE the district court's decision.

I. BACKGROUND

Garcia and O'Valle, along with other co-defendants, are accused of conspiring to transport marijuana from Mexico to the United States. Pursuant to a police investigation in late November and early December 1992, officers uncovered three thousand pounds of marijuana in a search of a tractor trailer parked at a hotel in Birch Run, Michigan. Based on this investigation, on December 9, 1992, nine defendants, including Garcia and O'Valle, were indicted for conspiracy to possess with the intent "to distribute various quantities of marihuana[.]" Joint Appendix ("J.A.") at 131-32 (Original Indictment). Less than one week after the original indictment, the government gave the defendants written notice "that the evidence with respect to Count 1 of the Indictment [would] include drug quantities of 1,000 kilograms or more of marihuana and that such evidence could give rise to enhanced penalties pursuant to [21 U.S.C. 841(b)]." J.A. at 142 (Notice of Enhanced Penalty). The defendants both signed an acknowledgment of indictment form in which they recognized that, if convicted of the charges set forth in the indictment, they faced a maximum term of life imprisonment.

The grand jury returned a superseding indictment on March 24, 1993, which, aside from expanding by two months the alleged length of the drug conspiracy, was identical to the original. Garcia and O'Valle were then tried and convicted on this indictment. On appeal, we reversed and remanded the defendants' indictments and convictions on the grounds that the Eastern District of Michigan's grand and petit jury selection system violated both the Jury Selection and Service Act, 28 U.S.C. 861, et seq., and the equal protection component of the Fifth Amendment. See United States v. Ovalle, 136 F.3d 1092, 1109 (6th Cir. 1998) (hereinafter referred to as Ovalle I).

On May 6, 1998, following remand, a second superseding indictment was returned, in which those defendants whose cases had already been resolved were removed from the prior indictment.¹ Not ten days later, a third superseding indictment was filed, this time making several substantive changes to the second superseding indictment. In this indictment, it was alleged that the defendants' drug conspiracy began in 1987, rather than in September 1992, and further alleged that, in addition to marijuana, the defendants were also dealing in heroin and cocaine. The district court, pursuant to the defendants' motion, dismissed the third superseding indictment as improperly expanding the charges in the original indictment beyond the five-year period given the government under 18 U.S.C. 3282 to indict a defendant after the actionable offense is committed. The government did not appeal this dismissal. Thus the second superseding indictment remained in effect.

Finally, on August 23, 2000, following the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), a fourth superseding indictment was filed. Anticipating Apprendi's application to the federal drug statutes, the government, in the fourth superseding indictment, alleged new facts concerning the quantity of drugs involved in the conspiracy, as well as facts relating to Garcia's and O'Valle's prior felony convictions. Whereas the second superseding indictment charged defendants with conspiring "to possess with intent to distribute and to distribute various quantities of marihuana," J.A. at 161 (Second Superseding Indictment), the fourth superseding indictment charged defendants with conspiring "to possess with intent to distribute and to distribute various quantities totaling 1000 kilograms or more of marijuana[.]" J.A. at 86 (Fourth Superseding Indictment). Aside from the additional drug quantity and prior felony conviction information, the second and fourth superseding indictments were identical.

Following the issuance of this indictment, the defendants again filed a motion to dismiss the indictment as improperly expanding the charges against the defendants beyond 3282's five-year statute of limitations. The district court agreed, and dismissed the fourth superseding indictment. The government's appeal to this court followed.

II. ANALYSIS

This case poses the interesting question of whether the government can ever successfully reindict a defendant in order to comply with Apprendi if that superseding indictment is issued beyond the applicable statute of limitations. We hold that, under the facts of this case, a superseding indictment is permissible.

Section 3282 of Title 18 of the United States Code sets forth the general statute of limitations period for the issuance of indictments in non-capital federal criminal cases. It states that "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." 18 U.S.C. 3282. This circuit has acknowledged "that normally the date of the last overt act in furtherance of the conspiracy alleged in the indictment begins the clock for purposes of the five-year statute of limitations." United States v. Smith, 197 F.3d 225, 228 (6th Cir. 1999). With respect to the charges brought in the indictment, however, the five-year limitations period stops running as soon as the indictment is brought. Id. at 227.

We have followed the lead of other circuits in holding that, because 3282's limitations period stops running when the original indictment is filed, a superseding indictment brought outside the five-year limitations period while an earlier indictment is still validly pending will nevertheless be timely under 3282 so long as it does not materially broaden the charges of the original indictment. Id. at 228 (citing United States v. Grady, 544 F.2d 598, 601 (2d Cir. 1976); United States v. Friedman, 649 F.2d 199, 203 (3d. Cir. 1981); United States v. Schmick, 904 F.2d 936, 940 (5th Cir. 1990), cert. denied, 498 U.S. 1067 (1991)). When a superseding indictment is filed outside the limitations period but does not broaden the charges set forth in the original timely indictment, it is said to "relate back" to the filing of the original indictment. Smith, 197 F.3d at 227-28.

As other circuits have held, the practice of tolling the statute of limitations for superseding indictments that do not materially broaden the charges of the original indictment is equally applicable to 18 U.S.C. 3288, the statutory provision at issue in this case. Italiano, 894 F.2d at 1283; United States v. Charnay, 537 F.2d 341, 354 (9th Cir.), cert. denied, 429 U.S. 1000 (1976). Section 3288 applies in cases where an indictment "charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired," and provides the government with an additional "six calendar months" from the date of the dismissal of the indictment to issue a new indictment against the defendant.² 18 U.S.C. 3288. Similar to the courts' holdings in Italiano and Charnay, we hold that, just as superseding indictments returned after the five-year statute of limitations may not materially broaden the charges set forth in the original indictment, any new indictment issued after the five-year limitations period pursuant to 3288 is similarly confined to the charges included in the first indictment.

In this case, pursuant to our holding in Ovalle I, the indictments on which the defendants were originally convicted were effectively dismissed due to fatal flaws in the Eastern District of Michigan's grand jury selection procedure. Thus, following that dismissal, the government had six months in which to reindict the defendants. The government's second superseding indictment, which, as we stated earlier, is better described as a new indictment altogether because the first superseding indictment was dismissed, was filed within six months of the first superseding indictment's dismissal in compliance with 3288.³ The defendants do not claim that the second superseding indictment, which made no changes...