Opinion
No. 02 CR 0341.
March 10, 2003
MEMORANDUM OPINION AND ORDER
Defendant Billie Lewis ("Lewis") has filed a motion to strike all but one (Count Two) of the five counts in the indictment in this case as untimely brought. This Court has conducted an evidentiary hearing, as well as being provided by counsel for both sides with thoughtful submissions on the legal issues involved. This Court has given the matter careful consideration, and it denies Lewis' motion.
what is essentially at issue is whether the sealing of the indictment between its return date of April 10, 2002 and the later date when Lewis was served and the indictment was unsealed causes the former date rather than the latter to be operative for limitations purposes. Lewis urges that this Court follow the approach taken in United States v. Deglomini, 111 F. Supp.2d 198 (E.D.N.Y. 2000) under which a negative answer to the question whether the sealing of an indictment is for a "proper purpose" not only serves to delay the time when the indictment is "found" for purposes of the 18 U.S.C. § 3282 ("Section 3282) statute of limitations, but does so even in the absence of any actual prejudice to defendant during the period between sealing and unsealing.
But such cases as United States v. Thompson, 287 F.3d 1244, 1251 (10th Cir. 2002) (footnote omitted) announce a different rule:
This court holds that an indictment is "found" under 18 U.S.C. § 3282 when the grand jury votes to indict the defendant and the foreperson subscribes the indictment as a true bill. Whether the indictment is then sealed is thus irrelevant for statute of limitations purposes.
And in so doing Thompson pointed to and relied upon (id. at 1249-50 and 1252. n. 4) our Court of Appeals' decision in United States v. Burdix-Dana, 149 F.3d 741, 742-43 (7th Cir. 1998). In Burdix-Dana an information had been filed before the five-year limitations period had run out, but the indictment was returned later — after expiration of the period — without a waiver having been obtained under Fed.R.Crim.P. ("Rule") 7(b). Here is how Burdix-Dana rejected the contention that the Rule 7(b) requirement operated to modify or limit the literal language of the limitations statute that specifies the institution of the information as the critical date for timeliness purposes (id. at 742-43 (citation omitted)):
While we recognize that the absence of a valid waiver of prosecution by indictment bars the acceptance of a guilty plea or a trial on the relevant charges, see Fed.R.Crim.P. 7(b), we do not believe that
§ 110, at 472-73 (3d ed. 1999) (footnotes and numerous citations omitted):
An indictment returned in open court before the statute of limitations has run is valid even though it is then sealed and kept secret until after the period of limitations has expired. Only if a defendant can show substantial actual prejudice in the period between the sealing of the indictment and its unsealing is dismissal of the indictment required on this ground.
That proposition is simply a particularized application of the general principle mandated by Rule 52(a) that the relevant standard is one of harmless error. On that score Thompson, 287 F.3d at 1252-53 properly drew on the Supreme Court's decisions in Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988) and United States v. Lane, 474 U.S. 438, 448 n. 11 (1986) as supporting the same proposition. In this instance Lewis' original assertion that records that could have been important to his defense were lost or destroyed during the interim between the return and the unsealing of the indictment was flatly disproved during the evidentiary hearing.
In sum, then, Lewis' motion to dismiss must be and is denied. This ruling ends the period of exclusion for Speedy Trial Act purposes, and a status hearing is therefore ordered to be held at 1:15 P.M. March 13, 2003 to discuss whether any further delays are essential to permit the parties to prepare for trial and (2) if appropriate, to set a trial date.