U.S. v. Guerro

• Decision Date: 24 November 1982
• Docket Number: Nos. 155,156,D,157,158,s. 155
• Citation: 694 F.2d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Andrew GUERRO, Angelo Michael Marino, Lucien Joseph Provost, and Anthony Joseph Bottiglio, Defendants-Appellants. ockets 82-1103, 82-1131, 82-1137, 82-1139.
• Court: U.S. Court of Appeals — Second Circuit

Page 898

694 F.2d 898

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Andrew GUERRO, Angelo Michael Marino, Lucien Joseph

Provost, and Anthony Joseph Bottiglio,

Defendants-Appellants.

Nos. 155, 156, 157, 158, Dockets 82-1103, 82-1131, 82-1137, 82-1139.

United States Court of Appeals, Second Circuit.

Argued Oct. 5, 1982.

Decided Nov. 24, 1982.

Douglas E. Grover, Dept. of Justice, Brooklyn, N.Y. (Edward R. Korman, U.S. Atty., E.D.N.Y., Edward A. McDonald, Dept. of Justice, Brooklyn, N.Y., on brief), for plaintiff-appellee.

Thomas F. Clauss, Jr., New York City (Bert H. Nisonoff, Forest Hills, N.Y., Richard S. Berne, New York City, on brief), for defendants-appellants Guerro, Marino, and Provost.

Phylis Skloot Bamberger, New York City (The Legal Aid Soc., Federal Defender Services Unit, New York City, on brief), for defendant-appellant Bottiglio.

Before NEWMAN, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Thomas Andrew Guerro, Angelo Michael Marino, Anthony Joseph Bottiglio, and Lucien Joseph Provost appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge. Guerro, Marino, and Bottiglio pleaded guilty to a single felony count of conspiracy to commit an offense against the United States in violation of 18 U.S.C. Sec. 371 (1976). Provost pleaded guilty to a misdemeanor charge of conspiracy in violation of 18 U.S.C. Sec. 371. Defendants' pleas were entered pursuant to a court-approved agreement preserving their rights to appeal the district court's refusal to dismiss the indictment on the ground that prosecution was barred by the statute of limitations, 18 U.S.C. Sec. 3282 (1976). ¹ For the reasons below, we affirm.

I

The focal point of the prosecution is the alleged sale by defendants Marino and Bottiglio of twenty-five pounds of military-type plastic explosives to FBI informant Joseph Cantalupo, in the presence of FBI Special Agent Nicholas Gianturco, on December 29, 1976. In an indictment filed on December 29, 1981, Marino, Bottiglio, Guerro, and Provost were charged with one count of conspiring to commit offenses against the United States in violation of 18 U.S.C. Sec. 371, to wit: (1) receiving, concealing, and selling, etc., military-type explosive materials they had reason to believe were stolen, in violation of 18 U.S.C. Sec. 842(h) (1976); (2) selling, without authority, military-type plastic explosives belonging to the United States, in violation of 18 U.S.C Sec. 641 (1976); and (3) knowingly transferring military-type plastic explosives without paying a transfer tax or filing the required written application, in violation of 26 U.S.C. Sec. 5811, 5812, 5861(e) and 5871 (1976). The indictment alleged that the conspiracy had begun on or about November 2, 1976, and had ended on or about February 2, 1977. It alleged that in furtherance of the conspiracy the defendants had committed seven specified overt acts, among others. The latest overt acts specified were the December 29, 1976 sale by Marino and Bottiglio to Cantalupo, and a February 2, 1977 statement by Provost to Cantalupo "indicat[ing]" that the defendants had lost money on the explosives transaction because they had delivered five pounds too much. ²

Defendants moved to dismiss the indictment on the ground that the prosecution was barred by the five-year period of limitations provided in 18 U.S.C. Sec. 3282. They contended that the statement alleged to have been made on February 2, 1977, was merely a narrative of past events, and could not be construed as an overt act in furtherance of the conspiracy since the goal of the conspiracy had been achieved with the sale of the explosives on December 29, 1976. Accordingly, defendants argued that the last overt act properly alleged in the indictment occurred on December 29, 1976. On the premise that the day of the last overt act is counted as the first day of the limitations period, defendants contended that the December 29, 1981 indictment was filed one day past the end of the five-year limitations period.

The government opposed the motions on three grounds. First, it argued that even without any overt act later than December 29, 1976, the indictment was timely because, in computing the time within which a prosecution may be commenced, the first day counted is the day following that on which the offense was committed. Second, the government argued that the indictment was timely because the alleged February 2, 1977 statement by Provost sought additional payment for the extra five pounds of explosives and hence was an act in furtherance of the conspiracy, and was obviously within the five-year period. Finally, the government contended that an overt act not listed in the indictment had occurred on December 30, 1976, namely, a statement by Marino to Cantalupo that because of the overdelivery on December 29, he wanted either payment of an additional $1,250 or the return of five pounds of explosives; ³ thus the government argued that even if the day of the last overt act were counted as the first day of the limitations period, and the February 2, 1977 act were excluded, the December 30, 1976 overt act would make the December 29, 1981 indictment timely.

The district court denied defendants' motions on the ground that the question whether the February 2, 1977 conversation was in furtherance of the conspiracy was for the jury to decide. The court also agreed with the government's contention that the limitations period begins on the day after that on which the last overt act has been committed.

Following the denial of their motions, defendants entered conditional pleas of guilty: Marino, Bottiglio, and Guerro to the conspiracy charge described above, and Provost to a misdemeanor conspiracy count charged in a superseding information against him. The terms of the defendants' conditional pleas, however, are not entirely clear.

There is no question that the plea agreement approved by the court permitted the defendants to preserve only a statute-of-limitations defense. Defendants contend, however, that they entered pleas of guilty only to a conspiracy that ended on December 29, 1976, and that the government is not entitled to rely on any events following that date in opposition to this appeal. Colloquy at the plea hearing, set forth in the margin, ⁴ suggests that the defendants believed they were so limiting the issue for appeal. The government, on the other hand, contends that the defendants' pleas do not demark what the government would have been entitled to prove at trial nor, therefore, what it may argue on appeal.

Fortunately, we need not parse the terms of the plea agreement, since we conclude that even if the last overt act in furtherance of the conspiracy occurred on December 29, 1976, the December 29, 1981 indictment was timely.

II

Section 3282 of Title 18 provides, in pertinent part, 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.

The long-established general rule is that a statute of limitations begins to run on the day following the day on which the event giving rise to the cause of action occurred. Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 439, 51 S.Ct. 185, 75 L.Ed. 448 (1931).

"When the period allowed for doing an act is to be reckoned from ... the happening of any ... event, the day on which the event happened may be regarded as an entirety, or a point of time; and so may be excluded from the computation."

Id. at 439, 51 S.Ct. at 185 (quoting Cornell v. Moulton, 3 Denio 12, 16 (N.Y.Sup.Ct. 1846)). This principle has been applied in criminal as well as civil cases. ⁵ "The general rule is that the day of the offense or act is excluded and the day on which the indictment is filed is included." United States v. Mahler, 181 F.Supp. 900, 903 (S.D.N.Y.1960) (footnote omitted); see also United States v. Davis, 533 F.2d 921, 926 (5th Cir.1976); Wiggins v. United States, 64 F.2d 950, 950-51 (9th Cir.), cert. denied, 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569 (1933); De Hardit v. United States, 224 F.2d 673 (4th Cir.), cert. denied, 350 U.S. 863, 76 S.Ct. 105, 100 L.Ed. 765 (1955).

While recognizing the general rule, defendants argue that a special rule applies in prosecutions for conspiracy. They rely on language in several cases to support their contention that the computation of the period must include the day of the last overt act. See Grunewald v. United States, 353 U.S. 391, 396, 77 S.Ct. 963, 969, 1 L.Ed.2d 931 (1957); United States v. Brasco, 516 F.2d 816, 818 (2d Cir.) (per curiam), cert. denied, 423 U.S. 860, 96 S.Ct. 116, 46 L.Ed.2d 88 (1975); United States v. Stein, 456 F.2d 844, 850 (2d Cir.), cert. denied, 408 U.S. 922, 92 S.Ct. 2489, 33 L.Ed.2d 333 (1972); United States v. Sarantos, 455 F.2d 877, 883 (2d Cir.1972); United States v. Borelli, 336 F.2d 376, 385 (2d Cir.1964); Ex parte Black, 147 F. 832, 841 (E.D.Wis.1906), aff'd, 160 F. 431 (7th Cir.1908). In each of these cases, however, the language relied on is at most dictum, for in none of them was the indictment filed on the anniversary of the last alleged overt act, and hence in none of them could the statute of limitations be found to have run by including within the limitations period the day of the last overt act.

Grunewald v. United States, for example, was a prosecution for conspiracy to defraud the United States by preventing the criminal prosecution of certain taxpayers for fraudulent tax evasion. The indictment, charging violation of 18 U.S.C. Sec. 371, was filed on October 25, 1954, and the defendants contended that the period of limitations, then three years, barred the prosecution. Noting the date on which the indictment had been filed, the Supreme Court stated as follows:

It was therefore incumbent on the...