U.S. v. Italiano

• Decision Date: 20 February 1990
• Docket Number: No. 89-3079,89-3079
• Citation: 894 F.2d 1280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nelson ITALIANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1280

894 F.2d 1280

UNITED STATES of America, Plaintiff-Appellee, v. Nelson ITALIANO, Defendant-Appellant.

No. 89-3079.

United States Court of Appeals, Eleventh Circuit.

Feb. 20, 1990.

John R. Lawson, Jr., Aileen S. Davis, Stephen O. Decker, Lawson, mcWhirter, Grandoff & Reeves, Tampa, Fla., for defendant-appellant.

Terry A. Zitek, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and CLARK, Circuit Judges, and ATKINS ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Nelson Italiano, convicted of mail fraud, appeals from the denial of his motion to dismiss the indictment. Italiano seeks dismissal on the ground that the statute of limitations for bringing the indictment had expired before the indictment was returned. The district court found that the indictment was not barred by the statute of limitations because it alleged approximately the same facts as a previous indictment; therefore the previous indictment had given Italiano sufficient notice of the facts and charges against him. We affirm.

BACKGROUND

On May 22, 1985, a federal grand jury in the Middle District of Florida returned a forty-five count indictment against thirty persons and corporations in connection with a widespread bribery scheme in Hillsborough County, Florida. ¹ In Count IV of the indictment, Italiano was charged with a single count of mail fraud in violation of 18 U.S.C. Sec. 1341. The gravamen of the charge was that Italiano had devised a scheme to defraud the citizens of the county of their right to the honest services of the Board of County Commissioners. Italiano moved to dismiss the indictment on the ground that the mail fraud statute was only intended to reach schemes designed to cause economic loss to the victims and not those schemes designed to deprive victims of their intangible right to good government. The district court denied that motion. Italiano's trial was severed from that of the other defendants, and in January of 1987, a jury found Italiano guilty of mail fraud.

In June of 1987, the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which held that 18 U.S.C. Sec. 1341 does not protect citizens from the fraudulent deprivation of intangible rights, but only from the fraudulent taking of money or property. On the basis of McNally, Italiano appealed his conviction to the Eleventh Circuit, and on February 22, 1988, a panel of this court reversed the conviction and vacated the judgment. The court found that Italiano's indictment was "fatally flawed" because it failed to allege that the victim of the scheme to defraud was deprived of On August 18, 1988, less than six months after dismissal of the indictment, another federal grand jury returned a new mail fraud indictment against Italiano. This new indictment alleged that Italiano's participation in the bribery scheme defrauded the government of Hillsborough County of property in the form of a cable television franchise.

money or property. United States v. Italiano, 837 F.2d 1480, 1483 (11th Cir.1988).

Italiano filed a motion to dismiss, alleging that the new indictment had been returned outside the five year statute of limitations for federal criminal offenses. The district court denied the motion. United States v. Italiano, 701 F.Supp. 205 (M.D.Fl.1988) and Italiano was again convicted for mail fraud.

Testimony at both trials focused on Italiano's role in a scheme to bribe the commissioners of Hillsborough County in order to obtain a cable television franchise for a company named Coaxial Communications of the Suncoast, Inc. ("Coaxial"). Coaxial was primarily interested in obtaining the cable franchise for the City of Tampa, Florida, but decided to establish a presence in the area by securing franchises in Hillsborough County. The Hillsborough County Board of County Commissioners had the final authority to award cable television franchise rights within the county. Italiano secured the support of County Commissioner Bean for Coaxial and introduced Bean to McGillicuddy, one of the owners of Coaxial. Bean and various other commissioners were given sums of money by Italiano and others in order to secure their support for Coaxial, and the contract between Coaxial and Hillsborough County was ratified in July of 1980. Apparently, McGillicuddy made it clear to Bean that he would sell the franchise if Coaxial failed in its efforts to obtain the Tampa franchise. Coaxial's efforts were in fact unsuccessful and McGillicuddy ultimately sold his franchise in Hillsborough County and left the area.

DISCUSSION

The statute of limitations for non-capital federal crimes states that:

Except as otherwise expressly provided by law, 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. Sec. 3282. The purpose of the statutory bar is to protect defendants from "having to defend themselves against charges when the basic facts may have become obscured by the passage of time...." Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 24 L.Ed.2d 156 (1970). The statutory bar applies to all indictments whether they are original indictments, superseding indictments or new indictments. ²

A. The Tolling Effect of the Indictment

In certain circumstances, the filing of an indictment may serve to toll the statute of limitations for purposes of filing a superseding or new indictment after the limitations period has expired.

A superseding indictment brought after the statute of limitations has expired is valid so long as the original indictment is still pending and was timely and the superseding indictment does not broaden or substantially amend the original charges. United States v. Grady, 544 F.2d 598, 602 (2d Cir.1976). See also, United States v. Edwards, 777 F.2d 644, 649 (11th Cir.1985); United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 779 (9th Cir.1986); United States v. Friedman, 649 F.2d 199, 203-04 (3rd Cir.1981). For purposes of the statute of limitations, the "charges" in the superseding indictment are defined not simply by the statute under which the defendant is indicted, but also by the factual allegations that the government relies on to show a violation of the statute.

Notice to the defendant is the central policy underlying the statutes of limitation. If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows that he will be called to account for certain activities and should prepare a defense. See Grady, 544 F.2d at 601.

The case of a new indictment, brought after the limitations period has expired, is controlled by 18 U.S.C. Sec. 3288, which provides that the indictment must be returned within a certain time after the original indictment is found defective:

Whenever an indictment is dismissed for any error, defect, or irregularity with respect to the grand jury, or an indictment or information filed after the defendant waives in open court prosecution by indictment is found otherwise defective or insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, if no regular grand jury is in session in the appropriate jurisdiction when the indictment or information is dismissed, within six calendar months of the date when the next regular grand jury is convened, which new indictment shall not be barred by any statute of limitations.

18 U.S.C. Sec. 3288. ³ The notice considerations that permit tolling in cases of superseding indictments apply in the case of new indictments as well. That is, the limitations period will only be tolled if the charges and allegations in the new indictment are substantially the same as those in the original indictment. The Ninth Circuit has held that the underlying concept of section 3288 is that if the defendant was first indicted within the limitations period, then "approximately the same facts may be used for the basis of any new indictment, if the earlier indictment runs into legal pitfalls." United States v. Charnay, 537 F.2d 341, 354 (9th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 527, 528, 50 L.Ed.2d 610 (1976) (emphasis added) (quoting Mende v. United States, 282 F.2d 881, 883-84 (9th Cir.1960), cert. denied, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365 (1961)). In sum, an untimely indictment can only be saved by the section 3288 exception if it does not broaden or substantially amend the original charges "tolled" by the previous indictment.

B. The Language of the Two Indictments

In order to decide whether the charges and underlying facts in the two indictments returned against Italiano are sufficiently similar to provide him with notice, we must examine the language of those indictments.

1. The first indictment

Count IV of the indictment, under which Italiano was specifically charged with violating section 1341, states that Italiano and others "would and did engage in the acts set forth in paragraph 14 of COUNT TWO of this Indictment." Paragraph 14 of Count II, incorporated into Count IV, makes reference to a cable television franchise. It states that:

Between in or about January, 1980 and in or about December, 1980, Nelson Italiano and others, corruptly offered, promised and gave Charles Frank Bean III and Robert E. Curry, public servants, and Charles Frank Bean III and Robert E. Curry, corruptly requested, solicited, agreed to accept and accepted, a benefit with an intent and purpose to influence an act which Nelson Italiano believed to be, and ...