U.S. v. Spector

• Decision Date: 03 March 1995
• Docket Number: No. 94-1987,94-1987
• Parties: 19 Employee Benefits Cas. 1493 UNITED STATES, Appellant, v. Michael R. SPECTOR, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 22

55 F.3d 22

19 Employee Benefits Cas. 1493

UNITED STATES, Appellant, v. Michael R. SPECTOR, Defendant, Appellee.

No. 94-1987.

United States Court of Appeals First Circuit.

Heard March 3, 1995.

Decided May 26, 1995.

Peter E. Papps, First Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellant.

Douglas J. Miller, with whom Hall, Morse, Anderson, Miller & Spinella, P.C., Concord, NH, was on brief, for appellee.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and JOHN R. GIBSON, ^* Senior Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

In the early 1990s, the U.S. Department of Labor began an investigation of defendant Michael Spector and of David Murray and Bernard Mintz, suspecting them of having submitted false statements in connection with an employee benefit plan. The government notified counsel for all three men that it was conducting the investigation and that it intended to charge the three with criminal violations of 18 U.S.C. Sec. 1027 (1988) (ERISA) and 18 U.S.C. Sec. 644 (1988). Among the violations under investigation were a false statement allegedly submitted to the department on January 20, 1988, and an act of embezzlement allegedly occurring on February 19, 1988. Since the violations were subject to a five-year statute of limitations, 18 U.S.C. Sec. 3282 (1988), the limitations periods for the two violations above were to expire on January 20, and February 19, 1993, respectively.

On January 15, 1993, defendant Spector and the two others (whom we shall collectively call "defendants," although this appeal relates to Spector only) asked the government to delay seeking an indictment in order to give them more time to investigate and additional opportunity to persuade the government to modify its position on certain issues. The defendants entered into a written agreement with the government, under which the government agreed not to file an information or to seek an indictment before February 26, 1993, in exchange for the defendants' agreement to waive a statute of limitations defense for charges brought on or before March 5, 1993 (thereby effectively extending the limitations period until March 5). The agreement provided that it would be effective "upon execution by all parties," and was in fact signed by all parties. The agreement went on to state "that further extensions of this agreement may be agreed to subsequently, but only by a further writing signed by all parties."

As the new March 5 deadline approached, defendants again sought to extend the period before the government brought an indictment. Defendants executed another written agreement on March 5. Under the terms of the second agreement, the government stated that it had not yet brought an indictment against defendants and would forebear from doing so until April 9, 1993. In exchange, the defendants agreed to extend the limitations period until April 16, 1993. Like the first agreement, the second agreement provided that it would be effective "upon execution by Murray, Spector and Mintz, and their respective counsel and the United States by its counsel." However, unlike the first agreement, this second agreement, though signed by defendants and their counsel, was not signed by counsel for the government.

On April 16, 1993, the grand jury returned an initial twenty-seven count indictment against defendants. On September 1, 1993, the grand jury returned a seven count superseding indictment. Nearly a year later, on August 15, 1994, Spector moved to dismiss the two counts of the indictment that were based on the false statement and embezzlement described above. Spector argued that the second extension of the statute of limitations was not binding, since it was not signed by the government. Without the extension provided by the second agreement, Spector argued, the two counts were barred by the statute of limitations, as they were handed down after March 5, 1993, the deadline set by the first extension.

The district court agreed and dismissed the two counts as time-barred. Although it found the first extension to be binding, the district court determined that the second extension was ineffective, having been an offer that explicitly required the government's signature for acceptance, and not permitting alternative forms of acceptance. The court rejected the government's contention that an oral agreement existed, holding that such an agreement would be contrary to the plain terms of the written agreements. The district court also rejected the government's argument based upon promissory estoppel, finding that any reliance by the government on the second extension was unreasonable, given that the first extension expressly provided that any additional extensions had to be in writing and signed by all parties. The government now appeals, pursuant to 18 U.S.C. Sec. 3731 (1988).

A statute of limitations defense is a waivable affirmative defense, not a jurisdictional bar to prosecution. See Acevedo-Ramos v. United States, 961 F.2d 305, 307 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 299, 121 L.Ed.2d 222 (1992). Failure to raise the defense in a timely manner can result in its waiver, as can an unqualified guilty plea or other, similar "action[ ] obviously constitut[ing] a waiver of the time limitation." Id. at 309. Most relevantly for present purposes, several federal courts of appeals have held that an individual under investigation may, in order to delay indictment, expressly waive a statute of limitations defense prior to trial, indeed prior to indictment, so long as that waiver is made knowingly and voluntarily. See, e.g., United States v. Wild, 551 F.2d 418, 422-24 (D.C.Cir.), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977). ¹ In these cases, like the present, the defendant has typically entered into a written waiver in exchange for the government's agreement not to indict before a certain time, in hopes that further discussion may result in a more favorable disposition or prevent an indictment altogether. The courts have enforced such agreements where voluntarily and knowingly made, finding that they do not violate the policies underlying the statute of limitations.

The issue in this appeal is whether the district court erred in holding that, because of the government's failure to sign, the second agreement was not an effective waiver of defendant's rights under the statute of limitations. It is undisputed that if the second agreement is found binding, the defendant may not assert his statute of limitations defense. If not, however, both parties agree that the defendant may assert the defense and that the two counts of the indictment were properly dismissed as time-barred, since they were handed down after the deadline set by the first agreement.

Reviewing the district court's decision on this issue of law de novo, Thrifty Rent-A-Car System, Inc. v. Thrift Cars, Inc., 831 F.2d 1177, 1181 (1st Cir.1987), we sustain the district court's holding that the second agreement was ineffective and did not constitute a waiver of the defendant's statute of limitations defense. The two agreements carefully and explicitly set forth the conditions under which the extensions of the limitations period would become effective. The first extension would become effective "upon execution by all parties;" the second extension would become effective "upon execution by Murray, Spector, and Mintz, and their respective counsel and the United States by its counsel." The agreements go so far as to specify that acceptance by...