U.S. v. Wild, 76-1622

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation179 U.S.App.D.C. 232,551 F.2d 418
Docket NumberNo. 76-1622,76-1622
PartiesUNITED STATES of America v. Claude C. WILD, Jr., Appellee.
Decision Date16 May 1977

John P. Lydick, Asst. Sp. Prosecutor with whom Charles F. C. Ruff, Sp. Prosecutor and Alan L. Adlestein, Asst. Sp. Prosecutor, Watergate Special Prosecution Force, Washington, D. C., were on the brief for appellant.

Cary M. Feldman, with whom William G. Hundley, Washington, D. C., was on the brief for appellee.

Before BAZELON, Chief Judge, TAMM and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge TAMM.

TAMM, Circuit Judge.

This is a case of first impression. The United States appeals from the district court's pretrial dismissal of Count II of the indictment against the defendant, Claude C. Wild, Jr., on the ground that the statute of limitations barred prosecution of that Count as a matter of law. 1 The United States contends on appeal that the defendant expressly waived his statute of limitations defense and that therefore the dismissal was in error. Wild, on the other hand, asserts that the statute of limitations is not a waivable defense, in that once it has run, a court is deprived of jurisdiction over the matter. We decide that where, as here, the defendant followed the advice of competent counsel and executed an express written waiver prior to the expiration of the statute of limitations, the district court was not without jurisdiction to try him upon his subsequent indictment.


On November 13, 1973, the defendant (then vice-president of Gulf Oil Corporation) pled guilty to an information charging him with a single misdemeanor violation of 18 U.S.C. § 610. 2 The government, through the Watergate Special Prosecution Force (WSPF), reopened its investigation of the defendant and Gulf in 1975, ultimately concluding that Wild had not fully disclosed all of Gulf's contributions to federal officials during his previous encounter with the WSPF. Wild and his attorney, Leo T. Kissam, were notified of WSPF's position early in September of 1975, and on September 22, 1975, WSPF attorneys informed Kissam that they were prepared to seek an indictment against Wild for three violations of 18 U.S.C. § 610, one of which was the allegedly illegal contribution to Senator Nunn now at issue. Kissam was also told that the proposed indictment would be returned on September 26, one day before the statute of limitations would expire on the Nunn contribution. Plea bargaining then began, with the government seeking more information regarding illegal corporate contributions and the defendant seeking to avoid his indictment.

As Kissam did not consider himself sufficiently experienced in criminal law to proceed further as counsel for his client, both he and Wild sought assistance from attorney Edward B. Williams. Williams contacted the WSPF attorney in charge of Wild's case on September 25 to advise him that he would now be representing the defendant. Williams also stated that he realized that the statute of limitations would expire in two days, but that he nevertheless desired more time to prepare the case and explore a possible disposition with his client and the WSPF. In return, he proposed that his client execute and deliver a written waiver of the statute of limitations. This was done, but since the WSPF attorneys had also prepared a similar waiver, Wild immediately signed that one too. 3 In light of this development, the WSPF decided not to proceed to the grand jury on September 26 as they had originally planned.

Williams visited the WSPF shortly thereafter and, in the hope that the WSPF might drop its plans to seek an indictment or, at least, reduce the number of charges, he raised the possibility of Wild's cooperative testimony. In November of 1975, a proffer of such testimony was actually made; however, Williams' partner who was handling the case subsequently advised the WSPF that he and his firm would have to withdraw from their representation of Wild due to a potential conflict of interest. Wild, therefore, once again set out to find new counsel.

Wild's present counsel, William G. Hundley (who has no connection with the Williams' firm), was informed by the WSPF of the defendant's waiver of the statute of limitations. Hundley continued the plea bargaining initiated by Williams, and after further negotiations, Wild was interviewed in the WSPF offices in December and January. These interviews laid the groundwork for the defendant's appearance before the grand jury under a grant of use immunity on January 27, 1976.

On March 9, 1976, the WSPF, having made some minor changes to the earlier proposed indictment, advised Hundley that on March 12, 1976, it would request that the grand jury indict the defendant on two counts of violating 18 U.S.C. § 610. Wild evidently did not come forth with the testimony which the WSPF was seeking as he was subsequently indicted. The district court found Count II of this indictment, which referred to the Nunn contribution, to be barred by the statute of limitations in spite of the defendant's written waiver, and thus the court dismissed this charge. It is the propriety of this ruling which is now before us.


We have found no case precedent, nor has any been brought to our attention, which would apply precisely to the issue presented here, that is, whether a defendant, after consultation with his counsel, may waive the statute of limitations, 4 apparently in the hope that by so doing, he would escape prosecution as a result of plea bargaining. 5 The first step in our analysis, therefore, is to determine whether the statute constitutes a jurisdictional bar to prosecution or whether it is equivalent to an affirmative defense.

In an early Supreme Court case dealing with the nature of a statute of limitations containing language substantially the same as the one here, United States v. Cook, 17 Wall. 168, 84 U.S. 168, 21 L.Ed. 538 (1872), 6 the defendant demurred to his indictment on the ground that the crimes alleged therein appeared to have been committed more than two years before the filing of the indictment so that the statute of limitations barred his prosecution. Unfortunately, the Court's analysis of this argument is clouded somewhat by the archaic language necessarily attendant on any discussion of the old common law forms of pleading. The Court's discussion essentially focused on the defendant's ability to raise the issue of the statute's bar by demurrer (which admitted every allegation pleaded but nonetheless demanded that the action be dismissed as, for instance, in a case where all the facts alleged are true but the court has no jurisdiction over the matter) rather than by special plea (which was a means of raising affirmative defenses such as those under Fed.R.Crim.P. 12(b) today). If one makes his way through all of the old terminology used in the opinion, one finds that the bottom line of the decision is that a demurrer was inappropriate because the statute of limitations is not an element of the offense and therefore, need not be alleged in the indictment; thus, the defendant must raise it as a defense. Id. at 178. The Court stated:

Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was not found within the period prescribed in the limitation . . . .

Id. at 179.

Thus, the Court found that the defendant had to raise the statute of limitations by special plea, or as an affirmative defense in today's terminology, in order that the government might have a chance to show that an exception tolling the statute applied to the particular defendant. Although the parties did not raise the issue, and the Court made no mention of the effect of the statute's expiration on a court's subject matter jurisdiction, it is clear that the Court considered the statute to be in the nature of a defense which must be raised by the defendant. 7

The law of this circuit is consistent with Cook's view of the nature of the statute of limitations. In Askins v. United States, 102 U.S.App.D.C. 198, 251 F.2d 909 (1958), the defendant had been indicted for first degree murder, a capital offense having no statute of limitations, but convicted of second degree murder, a lesser included offense having a three-year limitation. After his conviction was affirmed on appeal, he filed a motion under 28 U.S.C. § 2255 (1970) to set aside his sentence, arguing for the first time that the indictment resulting in his conviction had been returned more than three years after the crime. The court ruled that the defendant could raise the limitation in this collateral attack on his second degree murder conviction even though he had not done so at trial because he "could not have objected to being tried on the indictment since it was for first degree murder, as to which there is no time limitation." Id. at 912. The court took care to note, however, that the case would be different were the statute of limitations applicable to the offense actually charged in the indictment (such as in the case sub judice ) as opposed to a lesser included offense that remains only an implicit possibility until the verdict is rendered. In the first of these two situations

the defense of the statute must be raised at the trial or before trial on motion. If this is not done and a verdict of guilty is rendered, sentence may be lawfully imposed. In other words, we differentiate that situation from our holding in the present case . . . .

Id. at 913 (citations omitted). This Askins "differentiation" is directly in line with the Cook view that the limitation is a defense which must be raised by the...

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