United States of America v. Patricia A. Grimmett , 236 F.3d 452 ( 2001 )

LOKEN, Circuit Judge.

Federal drug conspiracy crimes are subject to the five-year statute of limitations found in 18 U.S.C. § 3282. The limitations period begins when a conspirator withdraws from a continuing conspiracy. See Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). But it is not easy to withdraw from a criminal conspiracy. As Judge Henry Friendly explained in an oft-quoted passage:

Mere cessation of activity is not enough to start the running of the statute; there must also be affirmative action, either the making of a clean breast to the authorities, or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.

United States v. Borelli, 336 F.2d 376, 388 (2d Cir.1964) (citation omitted). In this case of first impression, Patricia Grimmett ended her participation in a marijuana distribution conspiracy and confessed her role to government investigators more than five years before she was indicted. However, the district court rejected her statute-of-limitations defense because she did not make a “clean breast” by disclosing all the details of her prior participation. Concluding that this application of Judge Friendly’s quotable dicta is contrary to the purposes of the five-year statute of repose, we reverse.

I. Background.

Grimmett’s boyfriend, drug dealer El-mont Kerns, was murdered at his home on June 27, 1989. Over the next two weeks, homicide investigators conducted many interviews of the distraught Grimmett, who had lived with Kerns until just before the murder. Grimmett cooperated in the investigation and made the following admissions: (i) her belief that Kerns was a marijuana distributor, though he tried to protect her by not telling her the details of his drug activities; (ii) that she kept drug records for the nearly illiterate Kerns, but she only recorded what he told her to write and did not understand what she was writing because Kerns used codes; (iii) the identity of Kerns’s drug “runners,” who, she said, could decipher the codes; (iv) the identity of other Kerns associates, including Dennis Moore, who, she said, owed Kerns money and who was eventually convicted of arranging Kerns’s murder; (v) that she and Kerns used cocaine together, and the identity of Kerns’s cocaine suppliers; and (vi) the existence of secret compartments in Kerns’s house, where investigators discovered marijuana and more than $300,000 in cash. Lieutenant Jerry Cassaday reported that Grimmett “stated that she would cooperate any way she could with the authorities.” The murder investigation soon terminated with no charges being brought.

In 1992, federal agents investigated the drug activities of Dennis Moore, known to be one of Kerns’s major marijuana customers.¹ They interviewed Grimmett after learning she had kept Kerns’s drug records. Grimmett voluntarily attended two interviews, one at her home and a second at the agents’ office where copies of the drug records were reviewed. For purposes of the “clean breast” issue raised on this appeal, the government emphasizes the following new disclosures Grimmett made during these 1992 interviews: (i) that she accompanied Kerns when he picked up money from his marijuana customers and helped Kerns count the money; (ii) that she cleaned up the records because Kerns could not keep them straight; (iii) that the word “sticks” in the records meant “Thai sticks,” an imported illegal drug; and (iv) that she occasionally received cocaine being delivered to Kerns for their personal use.

Dennis Moore and alleged conspirators were first indicted on numerous charges on November 14, 1994. Grimmett was charged in one count with conspiracy to distribute marijuana in violation of 21 U.S .C. § 846. Grimmett moved to dismiss the charge as time-barred by the five-year statute of limitations, alleging that she withdrew from the conspiracy in July 1989. After the district court denied that motion without an evidentiary hearing, Grimmett pleaded guilty to the charge, reserving the right to appeal the denial of her statute-of-limitations defense. Grim-mett appealed, and we reversed, concluding the statute of limitations commences to run when a conspirator withdraws from an ongoing drug conspiracy, and remanding for further proceedings to ■ determine whether Grimmett had, in fact, withdrawn in July 1989. United States v. Grimmett, 150 F.3d 958 (8th Cir.1998).

On remand, after an evidentiary hearing, the district court again rejected Grim-mett’s statute-of-limitations defense. Noting that the dictionary defines “clean breast” as a full disclosure, and the policy supporting a rigorous standard for withdrawal from a criminal conspiracy, the district court concluded that Grimmett’s partial disclosures to the authorities in 1989 were not close enough to “a full and utter confession” to satisfy that rigorous standard. Grimmett again appeals. We review the statute-of-limitations issue de novo. See Grimmett, 150 F.3d at 961.²

II. Discussion.

At the hearing on remand, Grimmett made a prima facie showing that she withdrew from the conspiracy in July 1989. Her role in the conspiracy was to keep the books for her boyfriend, Kerns. After Kerns was murdered, she was ostracized by other conspirators at his funeral. Though Grimmett had the burden to prove withdrawal, the government had the burden to come forward with evidence rebutting her prima facie showing. See United States v. Antar, 53 F.3d 568, 582 (3d Cir.1995). The government presented no evidence that she participated in or shared in the fruits of the conspiracy after July 1989, more than five years prior to her indictment. The government’s sole argument is that the additional details Grimmett disclosed to the drug investigators in 1992 demonstrate that she did not make a “clean breast” to the homicide investigators in July 1989. This contention requires us to take a closer look at the purposes underlying both the “clean breast” doctrine and the statute of limitations governing this criminal prosecution.

Hyde established that the statute of limitations begins to run when a conspirator withdraws from a continuing conspiracy. But withdrawal requires affirmative action:

Having joined in an unlawful scheme, ... until [the conspirator] does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending.

225 U.S. at 369, 32 S.Ct. 793. As Judge Friendly recognized, a conspirator’s confession — the making of a “clean breast”— qualifies as an affirmative act because it tends both to defeat the purposes of the ongoing conspiracy and to evidence the confessing conspirator’s bona fide intent to withdraw. But the confession is not, by itself, enough to start the limitations period. The issue is still withdrawal, and even a full confession may be followed by conduct demonstrating the conspirator’s continuing support of or acquiescence in the conspiracy. In that event, as the facts of Hyde make clear, the statute of limitations will not begin to run until the conspiracy runs its course.

In Hyde, conspirator Schneider argued that his conspiracy prosecution was time-barred because he had disclosed the conspiracy to the relevant government agen-' cy. The Supreme Court rejected this defense and affirmed the conviction because the trial court had properly submitted the withdrawal issue to the jury with this instruction:

If [Schneider] had stood on his disclosure, you might have said: “Well, he is out of it from now on” — but in connection with that you are to consider what he said afterwards. If you find that he closed his mouth and refused to say anything more about the matter and kept still in the interest of the others, you would have a right to say that that showed that he was still acquiescent in the matter. It would neutralize, if you choose to treat it so, the effect of his former declaration, that he did know, and was willing to disclose.

225 U.S. at 371, 32 S.Ct. 793. See also United States v. United States Gypsum Co., 438 U.S. 422, 463-65, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978).

Viewed from this perspective, we conclude that Grimmett’s admissions to the homicide investigators immediately after Kerns’s murder were affirmative acts confirming that she had “ceased to act in the role of a conspirator.” Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196 (1946). She admitted her prior involvement as bookkeeper, providing information that was probably sufficient to indict, if not convict, her. Cf. United States v. Carter, 721 F.2d 1514, 1532 (11th Cir.1984). She provided the investigators with sufficient facts to defeat the conspiracy (or at least as much of it as she knew), had the investigators vigorously pursued her leads. Finally, she told the investigators she would cooperate in any way she could, and there is no evidence she failed to do so. We agree with the government that she gave additional incriminating details to the federal investigators in 1992. But that does not rebut Grimmett’s evidence that she both withdrew from and acted affirmatively to defeat the conspiracy in July 1989, nor does the government argue that it evidences further participation in the conspiracy after her withdrawal.

We agree with the district court that public policy is served by a rigorous standard for withdrawal from a criminal conspiracy. But the issue here is the commencement of the statute of limitations, not the admissibility of incriminating co-conspirator hearsay, the issue in United States v. Patel, 879 F.2d 292 (7th Cir.1989), on which the district court relied. The Supreme Court has emphasized that criminal statutes of limitations “are to be liberally interpreted in favor of repose.” Toussie v. United States, 897 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) (citation omitted). Viewed in that light, we do not believe that the “clean breast” phrase used by Judge Friendly in applying Hyde’s withdrawal doctrine should be construed as requiring a “full confession” to commence the limitations period. If the withdrawing conspirator severs all ties to the conspiracy and its fruits, and acts affirmatively to defeat the conspiracy by confessing to and cooperating with the authorities, the continuing crime is complete as to that conspirator, and the limitations period begins to run.

Looking at all the circumstances in this case — Grimmett’s minor role, the decisive termination of that role when Kerns was murdered, the evidence other conspirators then wanted nothing to do with her, and her immediate, voluntary, incriminating disclosure to authorities of enough information about the conspiracy to permit its defeat — we conclude Grimmett made a legally effective withdrawal in early July 1989. Accordingly, the district court erred in denying Grimmett’s motion to dismiss the drug conspiracy charge as time-barred.

In the district court, Grimmett’s drug conspiracy conviction was consolidated for sentencing purposes with her separate conviction for failure to appeal' at a bond revocation hearing. The consolidated Judgment in a Criminal Case dated December 1, 1997, is reversed. The case is remanded for dismissal of Grimmett’s drug conspiracy indictment (Case No. 4:94CR00194-010) and for resentencing on her conviction for failure to appear (Case No. 97-00015-01-CR-W-4-9).

1 . For a description of the criminal activities of Moore and his conspirators, including the murder of Kerns, see United States v. Moore, 149 F.3d 773, 777-78 (8th Cir.1998).

2 . Given the fact intensive nature of conspiracy withdrawal issues, there is always a question whether they should be resolved before or at trial. See Fed. R. Crim. P. 12(b); Grim-mett, 150 F.3d at 963 (Loken, J., dissenting); United Slates v. Wilson, 26 F.3d 142, 159 (D.C.Cir.1994); United States v. Shaw, 106 F.Supp.2d 103, 123 (D.Mass.2000); 1 Charles Alan Wright, Federal Practice And Procedure § 193 (3d ed. 1999 & Supp.2000). The government does not raise that procedural issue, and we decline to consider it.