U.S. v. Shell
| Decision Date | 03 April 1992 |
| Docket Number | No. 91-30206,91-30206 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. James Ray SHELL, a/k/a Kelly Barrick Bonney, a/k/a Chris Raymond Weber, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brian P. Conry, Portland, Or., for defendant-appellee.
Douglas B. Whalley, Asst. U.S. Atty., Seattle, Wash., Patty Merkamp Stemler, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.
Appeal from the United States District Court for the Western District of Washington.
Before: WRIGHT and ALARCON, Circuit Judges, and FONG, * District Judge.
The government appeals from an order dismissing an indictment charging James Ray Shell with one count of passport falsification, 18 U.S.C. § 1542. The district court held that the indictment was not found within the ten-year limitation period, and that the preindictment delay violated Shell's Sixth Amendment right to a speedy trial. Although we do not approve of the government's failure to investigate actively a defendant's whereabouts after sealing an indictment, as to this defendant, the mere passage of time was not prejudicial. We reverse.
In October 1978, Shell applied for a passport using the name "Kelly Barrick Bonney." Bonney is the brother of Shell's ex-girlfriend, Megan Bonney. Shell falsely stated in his passport application that he was born in Salem, Oregon, on September 10, 1952, and that he was the son of Lewis Sanford Bonney and Mary Joan Roddy.
Late in 1978 and early 1979, Shell was under investigation for heroin smuggling. DEA agents searched his residence for the false passport in May 1979. During the search, Shell told the agents that the Bonney passport no longer existed.
One month after the DEA search of his home, Shell applied for another passport using the name Chris Raymond Weber. A short time later, Shell and Megan Bonney moved to Hong Kong, where Shell lived under the Weber name. In 1982, he and Megan Bonney were arrested for violating local immigration laws and were deported to Guam. During the next eight years, Shell lived in Guam using the Weber name. He worked as a taxi driver and had a driver's license. He had a real estate license too, and later worked as a real estate agent.
In January 1984, a federal grand jury in the Western District of Washington returned an indictment against Shell on the passport charge. The government requested that the indictment be sealed pursuant to Fed.R.Crim.P. 6(e)(4). There is no record explaining why it was sealed. At the time of the indictment the government personnel were aware that Shell had falsified a second passport application using the Weber alias. The government issued a warrant for his arrest and placed his name (with the Bonney and Weber aliases) in the National Crime Information Center and the Treasury Enforcement Communication System databanks.
Over the next five years, the government did not investigate Shell's whereabouts because it had misplaced his working file. In mid-1989, after a call from the San Francisco investigator's office complaining that a report on the Shell case was overdue, the government began another investigation. In September 1990, after interviewing Shell's family and Megan Bonney, the government located Shell in Guam and arrested him on the outstanding passport charge.
Shell moved to dismiss the indictment. The district court granted the motion on the grounds that the criminal act charged occurred outside the ten-year limitation period of 18 U.S.C. § 3291, and that the post-indictment delay violated his Sixth Amendment right to a speedy trial. We reverse.
The district court held that dismissal of Shell's indictment was mandated because it violated the statute of limitation. The government acknowledges that the ten-year statute expired but asserts that the 1984 indictment sealed under Rule 6(e)(4) 1 tolled the limitation period.
The statute of limitation applicable to Shell's prosecution provides:
No person shall be prosecuted, tried, or punished for violation of any provisions of ... sections 1541-1544, inclusive, of chapter 75 of title 18 of the United States Code ... unless the indictment is found or the information is instituted within ten years after the commission of the offense.
18 U.S.C. § 3291.
For purposes of tolling the statute, an indictment is found when it is returned by the grand jury and filed. Fed.R.Crim.P. 6(f). This circuit has not addressed the issue whether a sealed indictment is "found" when it is returned, even if it is not unsealed until the limitation period expires.
Courts that have considered this issue have held that when a sealed indictment is not opened until after the expiration of the statute of limitation, the statute ordinarily is not a bar to prosecution if the indictment was timely filed. United States v. Muse, 633 F.2d 1041, 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. Ramey, 791 F.2d 317, 320 (4th Cir.1986); United States v. Lakin, 875 F.2d 168, 169 (8th Cir.1989), United States v. Edwards, 777 F.2d 644, 647 (11th Cir.1985) cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986); United States v. Richard, 943 F.2d 115, 118 (1st Cir.1991).
We agree with these courts and hold that an indictment properly sealed under Rule 6(e) is found when it is filed, and tolls the statute of limitation for a reasonable period. Here, the indictment was sealed in 1984, well within the ten-year limitation period. If this sealed indictment meets the requirements of Rule 6(e)(4), then the statute was tolled.
For a sealed indictment to toll the statute of limitation, the government must have a legitimate reason for the sealing. See Ramey, 791 F.2d at 321. Shell contends that the government is required to make a contemporaneous record of proceedings relating to sealing of an indictment for it to be found on the date it was filed. The 1984 sealed indictment does not have an affidavit attached explaining the reasons for sealing. Because it was not sealed properly, Shell asserts that it should be deemed returned when unsealed in 1990, two years after the expiration of the limitation period.
Most courts do not require a contemporaneous record of the government's application for sealing. United States v. Srulowitz, 819 F.2d 37, 41 (2d Cir.1987), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 111 (1988); Richard, 943 F.2d at 119; Lakin, 875 F.2d at 170-71; but see United States v. Laliberte, 131 F.R.D. 20, 21 (D.Mass.1990) (). These courts reason that the defendant's right to challenge the propriety of sealing is fully protected by affording him the right to a hearing after the indictment is opened to the public. During the hearing, the government must demonstrate legitimate prosecutorial purposes for sealing. Srulowitz, 819 F.2d at 41; Lakin, 875 F.2d at 171.
We find the reasoning of these decisions persuasive and hold that the proper time for the government to provide a legitimate prosecutorial objective is when the defendant's motion to dismiss is heard. The government asserted here that it had the indictment sealed because it wished to locate and gain custody over Shell. This is a legitimate objective. Shell's right to challenge the propriety of the sealing was fully protected at the hearing on his motion to dismiss. We find the indictment was properly sealed.
An indictment may remain sealed beyond the limitation period but only for a reasonable time. 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). Shell argues that the court's decision should be upheld because the indictment was sealed for an unreasonable length of time, two years beyond the statute of limitation.
In Watson, the Second Circuit held that Rule 6(e)'s extension of the statutory limitation period must be reasonable. Id. at 1155. It determined that Rule 6(e) permits an extension only to the degree necessary to accommodate the prosecutorial interests that the sealing of an indictment legitimately furthers. Id.
Only two courts have attempted to define more precisely a "reasonable time" for sealing purposes. United States v. Heckler, 428 F.Supp. 269, 272 (S.D.N.Y.1976); United States v. Sherwood, 38 F.R.D. 14 (D.Conn.1964), aff'd sub nom., United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965). These two courts focused on the defendant's availability to determine whether the length of the sealing period was reasonable. Heckler, 428 F.Supp. at 272 (); Sherwood, 38 F.R.D. at 20 ().
The government asserts that it sealed the indictment because it needed time to gain custody of Shell. It says it could not locate him because he lived overseas under assumed names. The district court found, however, that most of the delay resulted from the government's negligence in losing Shell's file for five years, and had nothing to do with any difficulty it had locating him. The court found that the government knew of Shell's Weber alias when it filed the 1984 indictment. It also found that Shell lived openly in Guam for the eight years he was there. He was available to the government. We find that the government's reason for sealing does not support the two-year delay beyond the...
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