Opinion
04 Cr. 1247 (PAC).
March 30, 2007
OPINION AND ORDER
Defendant Nathaniel Dames moves to dismiss the indictment on the grounds that the United States failed to indict him within the five-year statute of limitations set by 18 U.S.C. § 3182(a). 18 U.S.C. § 3281 provides that "an indictment for any crime punishable by death may be found at any time without limitation." The Defendant was indicted for violations of 21 U.S.C. § 848(e)(1)(A) and § 18 U.S.C. 924(j), both of which are punishable by death. Therefore the offenses with which the Defendant is charged are not subject to a statute of limitations, regardless of whether the underlying narcotics conspiracy, if charged separately, would be time-barred. See United States v. Martinez-Martinez, No. 01 Cr. 307, 2001 WL 1287040, at *2 (S.D.N.Y. Oct. 24, 2001). It is also irrelevant that the United States does not seek the death penalty in this case; it is sufficient that the statutes allegedly violated authorize such a sentence.
United States v. Eppolito, 436 F.Supp.2d 532 (E.D.N.Y. 2006), on which Defendant relies, is not to the contrary. There, Judge Weinstein applied the five year statute of limitations mandated by 18 U.S.C. § 3282 to the non-capital RICO violations charged in the indictment. The fact that murder was one of predicate acts alleged by the Government to support the RICO charge did nothing to alter the fact that a RICO violation is not punishable by death, and is therefore subject to the statute of limitations. Judge Weinstein expressly noted that where a defendant is charged directly with capital crimes there is no statute of limitations:
At the August 9 conference, the court also enquired why the government had chosen not to charge the murders directly under section 1958 of Title 18 of the United States Code or similar statutes that might apply without a statute of limitations bar.Eppolito, 436 F.Supp.2d at 540 (emphasis added).
Finally, Defendant's argument that he was indicted under § 848(e)(1)(A) expressly to avoid the statute of limitations is not a basis for dismissing the indictment. If the Government cannot prove the narcotics elements of the statutory violations, the Defendant will be entitled to an acquittal on the charge, not a dismissal of the indictment as time-barred.
Defendant's motion to dismiss the indictment is DENIED.
SO ORDERED