US v. Del Percio
| Decision Date | 20 March 1987 |
| Docket Number | No. G86-94 CR.,G86-94 CR. |
| Parties | UNITED STATES of America, Plaintiff, v. Jude G. DEL PERCIO, Indiana and Michigan Electric Company, a corporation, and American Electric Power Service Corporation, a corporation, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
John A. Smietanka, U.S. Atty., Grand Rapids, Mich., Barry Blyveis, Criminal Div., U.S. Dept. of Justice, Washington, D.C., for U.S.
Larry C. Willey, Local Counsel, Grand Rapids, Mich., J. Patrick Hickey and Gerald Charnoff, Thomas C. Hill, Shaw Pittman Potts & Trowbridge, Washington, D.C., for Del Percio.
Dennis C. Kolenda, Grand Rapids, Mich., J. Patrick Hickey and Gerald Charnoff, Thomas C. Hill, Shaw Pittman Potts & Trowbridge, Washington, D.C., for Indiana and Michigan Elec. Co. and American Elec. Power Service Corp.
OPINION GRANTING DEFENDANTS' MOTION TO DISMISS
On September 10, 1987, the government filed a nine count indictment against Jude G. Del Percio, Indiana and Michigan Electric Company ("IMECo"), and American Electric Power Service Corporation ("AEPSC"). Count One alleges that defendants, in a letter dated March 27, 1981, knowingly submitted false statements to the Nuclear Regulatory Commission ("NRC") concerning the fire protection regulation known as Appendix R and thus violated 18 U.S.C. § 1001. Counts Two and Three allege that the defendants' failure to provide the NRC with plans and schedules for Appendix R modifications or requests for exemption on or before March 19, 1981, as required by 10 C.F.R. § 50.48(c)(5) and (6), constitutes a willful violation, under 42 U.S.C. §§ 2131 and 2272, of the licenses issued to IMECo for Units 1 and 2 of the D.C. Cook Nuclear Plant. Counts Four and Five allege that the defendants' failure to comply with these Appendix R regulations also violates 42 U.S.C. § 2273(a) which makes the willful violation of an NRC regulation a crime. Counts Six and Seven charge that beginning on March 19, 1981, defendants' alleged willful failure to make modifications necessary to comply with Appendix R was a willful violation, under 42 U.S.C. §§ 2131 and 2272, of the licenses of Cook Units 1 and 2. Counts Eight and Nine allege that this failure to modify Units 1 and 2 provides a basis for prosecution under 42 U.S.C. § 2273(a).
On January 26, 1987 the parties argued three motions before this court. Two of the motions were brought by defendants pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. In the first of these, defendants moved for dismissal of the indictment as barred by the statute of limitations. In the second they sought dismissal of the indictment on the ground that it fails to allege the essential elements of the offenses charged.
The third motion, brought by the government, requests that the court address an alleged conflict of interest "situation" arising out of the fact that the law firm of Shaw, Pittman, Potts & Trowbridge represents defendants as well as former employees of IMECo and AEPSC, who may be called as witnesses at trial.
For the reasons discussed below, I have granted defendants' motion for dismissal of the indictment on the grounds that the offenses alleged are barred by the applicable statute of limitations. As this ruling is dispositive of the case, I do not address the merits of the other two motions.
On November 19, 1980, the NRC revised Section 50.48 and Appendix R of Title 10, Code of Federal Regulations, Part 50, both of which deal with fire protection at nuclear power plants. By its terms, Appendix R became effective on February 17, 1981. The revised regulations required that utilities submit to the NRC plans and schedules for making these modifications by March 19, 1981. 10 C.F.R. § 50.48(c)(5). In addition, the regulation provided that utilities could seek exemption from the provisions of Appendix R by March 19, 1981. The filing of an exemption request tolled the requirements of Appendix R pending NRC resolution of such a request. 10 C.F.R. § 50.48(c)(6).
AEPSC provides technical and licensing support to IMECo, and within AEPSC the Appendix R matter was assigned to defendant Jude G. Del Percio, an engineer in the Nuclear Safety and Licensing section. He drafted the letter and technical attachment that was ultimately sent to the NRC on March 27, 1981 as "the March 19, 1981 submittal required by Appendix R." According to the submittal, "the information and references provided therein demonstrate compliance with ... Appendix R." No plans or schedules for modifications were proposed.
Following an NRC inspection at the Cook plant in April 1982, the NRC Office of Investigations ("OI") initiated an investigation to determine whether the IMECo March 27, 1981 submittal contained material false statements. By early 1984, the NRC had referred this matter to the Department of Justice for criminal investigation. A grand jury began hearing testimony in July of 1984, and continued to hear testimony until its term expired on February 20, 1986. At that time an indictment had still not been returned, and subsequently a new grand jury was empaneled.
In March of 1986, with the statute of limitations approaching on at least the false statements charge, the corporations and the individuals still under investigation executed documents purporting to extend the statute of limitations for 90 days to June 24, 1986. The language of these documents is limited to violations of 18 U.S.C. §§ 371 and 1001 (Count I), and thus cannot be construed to apply to the alleged Atomic Energy Offenses (Counts II through IX). As the June 24, 1986 deadline approached, the government determined that it needed more time for its investigation. Accordingly, the two corporate and three potential individual defendants signed waiver forms substantially identical to those executed in March, 1986.
In late August 1986, the government was prepared to present the case for indictment. However, on the urging of defense counsel, it agreed to reappraise its position. A third waiver of the statute of limitations was executed to allow for the government's review. Ultimately the government determined that it would proceed with the prosecution and on September 10, 1986, a grand jury in the Western District of Michigan returned the nine count indictment described above.
The statute of limitations for most criminal offenses and for all of the Atomic Energy Act offenses charged in the indictment is five years as provided by 18 U.S.C. § 3282. Section 3282 provides:
Except as otherwise expressly provided by law, 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.
Defendants assert that this provision bars the government's indictment.
With respect to Count One, defendants argue that the statute of limitations' requirements are jurisdictional. Consequently, they conclude that the waivers described above are without legal effect.
With respect to Counts Two through Nine, defendants argue that the government incorrectly characterized the charged violations as "continuing" and thus illegally extended the statute of limitations period until April 30, 1987. Each of these last eight counts charge defendants with violating either 42 U.S.C. §§ 2131 and 2272 or 2273(a) from "on or about March 19, 1981 and continuing to on or about April 30, 1982." (Indictment, Sept. 10, 1986 at 11, 13, 15, 17, 19, 21, 23 and 25.) Defendants argue that the offenses are not continuing but were complete as of March 19, 1981 and that the statute of limitations consequently expired on March 19, 1986, nearly six months prior to the return of the indictment.
Defendants' arguments must be addressed in the light of the purpose and function of statutes of limitations. Statutes of limitations protect citizens from having to answer to overly stale criminal charges. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). Limiting exposure to criminal prosecution to a fixed time period minimizes the possibility that individuals will have to defend themselves against charges involving facts that have been obscured by the passage of time and encourages law enforcement officials to investigate suspect activity promptly. See Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 859-60, 25 L.Ed.2d 156 (1970). In most instances the limitations period starts to run when a crime is complete, Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 270, 87 L.Ed. 368 (1943), and generally a crime is deemed complete when each element of the crime has occurred. United States v. Smith, 740 F.2d 734, 736 (9th Cir.1984). Exceptions to this rule are rare. 22 C.J.S. Criminal Law § 228(1) (1961). Finally, it should be noted the United States Supreme Court has ruled that "criminal limitations statutes are `to be liberally interpreted in favor of repose.'" United States v. Habiq, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055 (1968) (quoting United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932)).
The Supreme Court has distinguished the "instantaneous" from the "continuing" offense in that in the commission of an act of the former type, the illegal aim is attained as soon as every element of the crime has occurred, whereas in the commission of an act of the latter type, "the unlawful course of conduct is `set on foot by a single impulse and operated by an unintermittent force,' until the ultimate illegal objective is finally attained." Toussie, supra, 397 U.S. at 136, 90 S.Ct. at 871 (White, J. dissenting) (citing United States v. Midstate Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563 (1939)). So defined, a continuing offense is an exception to the rule that an offense is complete and the...
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