US v. Maroun, Crim. No. 88-6.

• Decision Date: 31 October 1988
• Docket Number: Crim. No. 88-6.
• Parties: UNITED STATES of America, Plaintiff, v. Alfred MAROUN, Defendant.
• Court: U.S. District Court — District of Massachusetts

699 F. Supp. 5

UNITED STATES of America, Plaintiff, v. Alfred MAROUN, Defendant.

Crim. No. 88-6.

United States District Court, D. Massachusetts.

October 31, 1988.

Peter Mullin, Asst. U.S. Atty., for plaintiff.

Andrew H. Good, Silverglate, Gertner, Good, Fine & Mizner, Boston, Mass., for defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

SKINNER, District Judge.

The indictment in this case was returned by the grand jury on January 14, 1988 and filed with the magistrate on January 15, at which time it was sealed by order of the magistrate at the request of the United States Attorney. It remained under seal until the defendant was arrested in the following June. The statute of limitations ran on all of the twenty counts of the indictment while it remained under seal, the last date being February 15, 1988. The statute of limitations had not run on any of the counts as of January 15, 1988.

The defendant asserts that the indictment was not "found" within the meaning of 18 U.S.C. § 3282 until it was unsealed, and that, therefore, the indictment is time-barred and must be dismissed. The general rule is that an indictment is "found" when it is returned to the district court notwithstanding the fact that it is subsequently sealed and may not become known to the defendant for some time thereafter. United States v. Michael, 180 F.2d 55 (3rd Cir.1949), cert. denied sub nom., United States v. Knight, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950). The filing of an indictment under seal will toll the statute of limitations, however, only when the sealing is ordered for a proper purpose. The defendant argues that so much of Fed.R.Crim.P. 6(e)(4) which provides that an indictment may be kept secret "until the defendant is in custody or has been released pending trial" limits the sealing of an indictment to situations where sealing is required to prevent the defendant from fleeing the jurisdiction before he can be apprehended. Although there are cases which support that proposition, in my opinion the better and prevailing rule is that an indictment may be sealed for any proper purpose in the sound discretion of the court, i.e., the magistrate. United States v. Michael, supra; United States v. Southland Corporation, 760 F.2d 1366 (2d Cir.1985).

While both of the cited cases say that the propriety of sealing is addressed to the sound discretion of the magistrate, the Court of Appeals for the Second Circuit has held that there need be no record before the magistrate of the reason for sealing, and, indeed, that the prosecutor's reason for requesting secrecy need not even be revealed to the magistrate. United States v. Srulowitz, 819 F.2d 37 (1987). As a matter of fact, in United States v. Michael, supra, the seminal case on the sound discretion of the court, it also appears that the prosecutor's reason for secrecy was not communicated to the magistrate. United States v. Southland Corporation, 760 F.2d at 1379, n. 5.

The only case in this circuit bearing even remotely on the point is United States v. Cosolito, 488 F.Supp. 531 (D.Mass.1980). In that case the prosecutor did make a representation to the magistrate that secrecy was required in order to protect an ongoing investigation. Evidence later developed disclosed that this representation was without basis in fact. Chief Judge Caffrey held that the discrepancy between the prosecutor's representation and the facts later disclosed...