U.S. v. Ramirez

• Decision Date: 18 March 2003
• Docket Number: No. 02-10731.,02-10731.
• Citation: 324 F.3d 1225
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Yuby RAMIREZ, Jairo Castro, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

324 F.3d 1225

UNITED STATES of America, Plaintiff-Appellee, v. Yuby RAMIREZ, Jairo Castro, et al., Defendants-Appellants.

No. 02-10731.

United States Court of Appeals, Eleventh Circuit.

March 18, 2003.

Timothy Cone, Fort Lauderdale, FL, Reuben Camper Cahn, Chief Asst. Fed. Pub. Def., Mary R. Barzee and Kathleen M. Williams, Fed. Pub. Defenders, G. Richard Strafer, G. Richard Strafer, P.A., Sheryl Joyce Lowenthal (Dist. Court-Appointed), Miami, FL, for Defendants-Appellants.

Lisa T. Rubio, Anne R. Schultz, Madeleine R. Shirley, Miami, FL, for Plaintiff-Appellee.

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

Before MARCUS and WILSON, Circuit Judges, and LIMBAUGH^*, District Judge.

PER CURIAM:

Yuby Ramirez, Edward Lezcano, and Jairo Castro (collectively the defendants) appeal the life sentences they received after a jury found them guilty of witness tampering in violation of 18 U.S.C. § 1512(a)(1)(C).¹ They assert that the indictment was time-barred, because it failed to charge a capital crime.² Because we find that the defendants waived their right to raise that defense by failing to raise it in a pretrial motion, we affirm.

BACKGROUND

The defendants were involved in a conspiracy to murder various witnesses who were scheduled to testify against Salvador Magluta and Augusto Falcon, alleged drug kingpins in South Florida.³ As a result of that conspiracy, three potential witnesses were murdered, and various attempts were made to kill others.

Consequently, on May 11, 2000, a grand jury indicted the defendants, among others, for witness tampering. The four-count indictment charged Lezcano with three counts of witness tampering, Castro with two counts of witness tampering, and Ramirez with one count of witness tampering.⁴ The case proceeded to trial, and, after opening statements, the defendants moved for a judgment of acquittal, asserting that the indictment was insufficient because it failed to charge the necessary elements of first degree murder, "malice aforethought" and "premeditation." Hence, they argued that they were entitled to a judgment of acquittal, because the indictment was time-barred. The district court, construing the motion as a Federal Rule of Criminal Procedure 12(b)(2) motion, held that their motion was untimely. Alternatively, it held that, under a liberal construction of the indictment, those elements were charged. It therefore denied the defendants' motion and instructed the jury regarding those elements. This appeal followed.

STANDARD OF REVIEW

We review the sufficiency of the indictment de novo. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). We review the district court's denial of a motion as untimely under Rule 12(f) for abuse of discretion. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir.1990).

DISCUSSION

The defendants assert that the indictment was insufficient, because the necessary elements of first degree murder, "malice aforethought" and "premeditation," were not charged. As a result, they contend that the district court should have granted their motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29, because, without those elements, the indictment was time-barred as it failed to charge a capital crime.⁵ See 18 U.S.C. § 3282 (providing 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").

Rule 12 provides that

[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.... The following must be raised prior to trial:

. . . .

(2) Defenses and objections based on defects in the indictment ... (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings).

Fed.R.Crim.P. 12(b)(2) (emphasis added). Rule 12 also provides that the "[f]ailure by a party to raise defenses or objections or to make requests which must be made prior to trial ... shall constitute [a] waiver thereof." Id. R. 12(f).

Rule 12(b)(2) clearly provides that "[d]efenses and objections based on defects in the indictment" must be raised before trial. Id. R. 12(b)(2). Although the defendants raised their statute of limitations defense in a Rule 29 motion and not in a Rule 12(b) motion, we believe that their defense merely is a challenge based upon the sufficiency of the indictment that should have been raised before trial.⁶ As they assert a defense "based on defects in the indictment" that was clear from the face of the indictment and that does not satisfy any of the exceptions set forth in the Rule,⁷ id., they waived this issue by failing to raise it in a pretrial motion, see United States v. Suescun, 237 F.3d 1284, 1286-88 (11th Cir.) (holding that "Suescun's challenges ... were capable of determination without the trial of the general issue" and that "Suescun waived his objection to the validity of the indictment because he did not present it as required by Rule 12(b)"), cert. denied, 534 U.S. 863, 122 S.Ct. 146, 151 L.Ed.2d 98 (2001); Ward v. United States, 694 F.2d 654, 659 n. 4 (11th Cir.1983) (noting that failure to challenge the technical sufficiency of the indictment prior to trial constitutes a waiver of that challenge).⁸

Although we recognize that there may be times when a statute of limitations defense cannot be raised before trial because the development of facts pertaining to that defense is necessary, this is not one of those times. Nothing in this case warranted waiting until after opening statements to raise this defense;⁹ the defendants merely waited to gain a strategic advantage by raising the defense after jeopardy attached. This tactic is precisely what Rule 12 was designed to prevent. See United States v. Oldfield, 859 F.2d 392, 397 (6th Cir.1988). As the Sixth Circuit noted, Rule 12

sharply restricts the defense tactic of "sandbagging" that was available in many jurisdictions under common law pleading. Recognizing that there was a defect in the pleading, counsel would often forego raising that defect before trial, when a successful objection would merely result in an amendment of the pleading. If the trial ended in a conviction, he could then raise the defect on a motion in arrest of judgment and obtain a new trial. Federal Rule 12 eliminated this tactic as to all objections except the failure to show jurisdiction or to charge an offense.

Id. (internal quotation marks omitted). As a result, the defendants waived their defense by failing to raise it before trial.¹⁰

CONCLUSION

Thus, we hold that when a statute of limitations defense is clear on the face of the indictment and requires no further development of facts at trial, a defendant waives his right to raise that defense by failing to raise it in a pretrial motion. Accordingly, we AFFIRM.

* Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri, sitting by designation.

1. Lezcano also was convicted of witness tampering in violation of § 1512(a)(1)(A).

2. The defendants also assert that (1) the district court violated their Sixth Amendment rights by limiting the cross-examination of two of the government's witnesses, Phanor Caicedo-Ramos and Juan Carlos Caicedo-Ramos; (2) the district court improperly provided a Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), instruction; and (3) there was insufficient evidence to support their convictions. As we find that those issues lack merit and do not require any discussion, we will not address them herein.

3. Magluta and Falcon were acquitted of the drug charges for which they originally were indicted, but they subsequently were charged with various counts of witness tampering as a result of these murders and other acts that they allegedly committed.

4. Count One of the indictment charges that Lezcano and a coconspirator "did knowingly, intentionally and willfully aid, abet, counsel, command, induce and procure the killing of Juan Acosta, Esq., by causing him to be shot by paid assassins, with the intent to prevent Juan Acosta, Esq., from testifying before a federal grand jury." Count Two charges that Lezcano, Castro, and others "did knowingly, intentionally and willfully kill Luis Escobedo... with the intent to prevent Luis Escobedo... from communicating to a law enforcement officer or a judge of the United States information relating to the commission of federal offenses by Salvador Magluta ... and Augusto...