United States v. John Muse ( 1980 )

NEWMAN, Circuit Judge:

An indictment charging a criminal offense is subject to dismissal if it is not filed within the period of time established by the statute of limitations for that offense. Rule 6(e) of the Federal Rules of Criminal Procedure permits a district court to direct that a timely-filed indictment may be sealed until the defendant is in custody. A sealed indictment is timely even though the defendant is not apprehended and the indictment is not made public until after the end of the statutory limitations period. United States v. Michael, 180 F.2d 55, 56-57 (3d Cir. 1949), cert. denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950); United States v. Niarchos, 125 F.Supp. 214, 231-32 (D.D.C. 1954). When this occurs, a defendant can be expected to claim that he has suffered prejudice because of the long delay between the date of the offense charged and the unsealing of the indictment. The issue in this case is to determine the relevant period of time in which such a claim of prejudice is to be assessed.

The panel that first considered this appeal held, by a divided vote, that an indictment timely filed under seal and not unsealed until after the limitations period must be dismissed whenever the defendant can show “substantial actual prejudice” occurring any time during the entire period between the date of the crime and the unsealing of the indictment. United States v. Watson, 599 F.2d 1149, 1155 (2d Cir. 1979), modified, Nos. 78-1296-8 (2d Cir. Oct. 9, 1979). Believing that prejudice had occurred because during that period the memory of appellant Muse had faded, the panel reversed his conviction. We granted a rehearing en banc because the issue presented, though arising infrequently, is important in the administration of criminal justice. We now hold that in determining prejudice to the defendant, the relevant time period is no longer than the time between the sealing of the indictment and its unsealing. Since in this case there is no basis for claiming that prejudice occurred during any of the time the indictment was sealed, we reinstate the judgment of conviction and leave for another day the issue of whether the relevant period for assessing prejudice should be only the post-limitations portion of the period during which an indictment is sealed.

I.

The indictment in this case charged that Aaron Watson, John Muse, and two others, whose names were unknown, had participated in a narcotics conspiracy during the months of March to November, 1971. This indictment was filed and sealed on June 1, 1976, some five months before the end of the five-year limitations period. See 18 U.S.C. § 3282 (1976). Although the Government was aware of Muse’s whereabouts during much of the post-indictment period, it did not arrest him for fear that his arrest would prompt his co-conspirators to flee. On September 29, 1977, Watson was finally located and arrested, and Muse was arrested the next day. A third member of the conspiracy, Robert Whitley, was arrested some two months later, while the fourth has yet to be found.

Muse, Watson, and Whitley were tried together in the United States District Court for the Eastern District of New York before Judge Charles P. Sifton and a jury. The jury returned verdicts of guilty against all three defendants, and they appealed, claiming, among other things, that the delay in unsealing the indictment denied them the protection of the statute of limitations.¹ A panel of this Court rejected Watson’s and Whitley’s claims, concluding that these two defendants were not prejudiced by the delay, and that the delay was justified by the Government’s need to locate them. 599 F.2d 1149 (2d Cir. 1979). But with respect to the third defendant, Muse, the panel found that he had been significantly prejudiced by the length of time that had passed since the commission of the crime, as he could not remember relevant dates when testifying on his own behalf. Given this prejudice to the defendant, the panel concluded, “the Government must show that the delay is justified by a strong prosecuto-rial interest, not simply by a legitimate interest.” Id. at 1154. Judge Friendly, in dissent, argued that no significant prejudice had been shown, and that the Government had established as strong a prosecutorial interest as was needed to justify the delay. Id. at 1158-60.

The Government then petitioned the panel for rehearing, with a suggestion for rehearing en banc, as to Muse. Although the rehearing petition was initially denied, a majority of the panel subsequently vacated its order denying the petition and substituted a revised opinion. Nos. 78-1296-8 (2d Cir. Oct. 9, 1979). This opinion abandoned the distinction between “legitimate” and “strong” prosecutorial interests, and concluded instead that “when the defendant can show substantial actual prejudice, the indictment must be dismissed, for even a legitimate prosecutorial interest is then insufficient to effectuate statute of limitations policies.” Id. at 5024. The revised opinion adhered to the view that the entire period from the offense to the unsealing of the indictment was relevant in assessing prejudice. Judge Friendly filed an additional dissent, arguing that the revised standard was even more harmful to legitimate prosecutorial interests and that there was no reason why delay prior to the sealing of the indictment should be considered in determining prejudice. Id. at 5029. The Government renewed its suggestion for rehearing en banc as to Muse; rehearing was ordered December 10, 1979, and the matter was submitted after receipt of additional briefs.

II.

This case can be decided with adequate recognition of the legitimate interests of both the prosecution and the defendant. The Government’s interests were recognized in the Michael decision, which first upheld the Government’s power to maintain an indictment under seal beyond the limitations period. The Michael decision was based on Fed.R.Crim.P. 6(e)(4), which now states: “The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial.” The obvious purpose of this provision is to prevent the requirement of an indictment from serving as a public notice that would enable the defendant to avoid arrest. See United States v. Lyles, 593 F.2d 182, 196 n.17 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979). United States v. Sherwood, 38 F.R.D. 14 (D. Conn. 1964). Extrapolating from Rule 6, Michael held that a timely-filed, sealed indictment satisfies the five-year statute of limitations established by 18 U.S.C. § 3282 even though it is unsealed after the limitations period. This decision was designed to prevent the defendant from securing an unwarranted benefit from the statute of limitations by continuing to avoid arrest until the limitations period had run. The power granted to the Government in Michael, like that granted by Rule 6(e)(4), is based on the legitimate prosecuto-rial needs of the Government to capture those properly indicted for criminal activity.

The defendant’s interest in avoiding a stale prosecution is safeguarded primarily by the federal statute of limitations, 18 U.S.C. § 3282, which states: “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.” The purpose of this provision is to prevent the Government from instituting prosecutions after excessively long delays, and thus prejudicing the defendant by increasing his difficulty in marshaling evidence on his behalf. Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 859-60, 25 L.Ed.2d 156 (1970); United States v. Laut, 17 F.R.D. 31, 36 (S.D.N.Y. 1955). “Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.” Toussie v. United States, supra, 397 U.S. at 115, 90 S.Ct. at 860.

Section 3282 establishes a clear outer time limit beyond which indictments are invalid, but it does not provide guidance for determining how much protection should be afforded a defendant when an indictment is returned within the limitations period but maintained under seal until that period has run in order to serve the prosecutorial interest in arresting an indicted defendant. We think the defendant’s interests are adequately protected by permitting him to secure dismissal only when he can show prejudice occurring during the period when the indictment was sealed, or perhaps only during the post-limitations portion of that period.² Only prejudice occurring during either of these periods could be attributable to the prosecutor’s decision to seal the indictment; any prejudice occurring prior to the sealing of the indictment is unrelated to this decision, and thus irrelevant to the issue in this case. There is a general presumption against regarding elapsed time during the limitations period as prejudicial to the defendant. See United States v. Marion, 404 U.S. 307, 322-23, 92 S.Ct. 455, 464-65, 30 L.Ed.2d 468 (1971). The policy of § 3282 does not require, or even suggest, that this presumption is to be reversed when the Government justifiably delays the unsealing of a timely-filed indictment beyond the limitations period. Under the approach taken by the panel’s opinion, the death of a defense witness one week after the offense would be grounds for dismissal of an indictment filed under seal years later just prior to the end of the limitations period and unsealed just after the end of that period, even though the death of the same witness on the same date would not justify dismissal of an indictment unsealed just prior to the end of the limitations period. As Judge Friendly observed, “There must be something wrong with a view that could yield such a result.” United States v. Watson, supra, slip op. at 5030.

In this case, the Government initially sealed the indictment, and kept it sealed past the limitations period, because it feared that the indictment and arrest of Muse would cause his co-defendants to flee. Muse himself could have been captured at any time during the period in question and, had he been the sole defendant, the Government might be hard put to justify its delay. But his confederates were indicted defendants as well, and the need to capture them is as justifiable a basis for delay as the need to capture Muse himself. Judge Sifton found that the Government acted in good faith, with a reasonable basis for estimating the effect of Muse’s arrest on the other defendants.

Muse’s claim of prejudice is that, by the time of the trial, he had forgotten many of the relevant events, including the dates of various meetings with his co-conspirators. While memory loss may be a valid basis for a finding of prejudice, it is more difficult to establish that the passage of a particular time period created this type of prejudice than the prejudice resulting from the more usual grounds such as the death or disappearance of a witness or the loss of physical evidence. In any event, Muse’s memory loss would be relevant to a statute of limitations defense only if it occurred during the sixteen months in which the indictment was sealed, or perhaps only during the ten months after the limitations period expired. Judge Sifton, having observed Muse testify, found that Muse had not been prejudiced by any memory loss, and, a fortiori, found no prejudice occurring during the ten-or sixteen-month period at issue here. We see no basis for disregarding this conclusion. Judge Oakes, writing for the panel majority, and Judge Friendly, in dissent, engaged in a well-reasoned and scholarly debate about the degree of incremental memory loss over time. We do not suggest that the law cannot benefit from the teachings of psychology, or that they would not be relevant to a fact-finder’s consideration of this issue. But we are not prepared to hold that either position in this psychological debate is incorrect as a matter of law. Consequently we accept the findings of Judge Sifton that no significant memory loss occurred at least during the sixteen-month interval that we conclude is the outer limit of the relevant period.

Since the Government’s prosecutorial interest in keeping the indictment sealed past the limitations period was substantial, and there was no resulting prejudice to the defendant, we conclude that Muse has no valid statute of limitations defense, and his conviction is therefore affirmed.

1 . The other grounds for appeal were violation of the defendants’ Sixth Amendment right to a speedy trial, impermissible restriction of the right to cross-examine a Government witness, and the improper, prejudicial behavior of that Government witness. These claims were unanimously rejected by the panel, and we find no reason to disturb the panel’s decision in this respect.

2 . For reasons that will appear below, it is unnecessary in this case to choose between these two time periods or to determine whether different standards of prejudice might be appropriate to each of the two periods. See United States v. Watson, supra, slip op. at 5031 n.2 (Friendly, J., dissenting).