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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-20172-CR-GAYLES/TORRES

UNITED STATES OF AMERICA, 

Plaintiff,

v.

LENNOY WEBSTER,

Defendant.

___________________________________________/

REPORT AND RECOMMENDATION

ON DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on Lennoy Webster’s (“Defendant”) motion to 

dismiss the United States of America’s (the “Government”) indictment as time-barred 

pursuant to Federal Rules of Criminal Procedure 12(b)(3)(A)(ii). [D.E. 29]. The 

Government responded to the motion on September 9, 2021 [D.E. 31] and the time 

for Defendant to file a reply has passed. Therefore, Defendant’s motion is now ripe 

for disposition. After careful consideration of the motion, response, relevant 

authorities, and for the reasons discussed below, Defendant’s motion to dismiss 

should be DENIED.

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I. BACKGROUND

From March 26, 2020 until November 17, 2020, the Southern District of 

Florida suspended grand juries in response to the COVID-19 pandemic, creating a 

1 On August 31, 2021, the Honorable Darrin P. Gayles referred Defendant’s

motion to the undersigned Magistrate Judge for disposition. [D.E. 30].

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nearly eight-month period during which the Government could not seek indictments. 

During this period, on May 26, 2020, the Government filed an information charging

Defendant and one other individual with Conspiracy to Commit Access Device Fraud, 

in violation of 18 U.S.C. § 1029(b)(2); Possession of Fifteen or More Unauthorized 

Access Devices, in 18 U.S.C. § 1029(a)(3); and Defendant with Aggravated Identity 

Theft, in violation of 18 U.S.C. § 1028A(a)(1).

Shortly after grand juries resumed, on January 21, 2021, the Government 

obtained a superseding indictment that contained charges substantially identical to 

the information. All the counts against Defendant respectively allege criminal 

conduct through June 3, 2015, so the applicable five-year statute of limitations under 

18 U.S.C. § 3282(a) permitted a criminal action to be brought until June 3, 2020. 

Because Defendant never waived prosecution by indictment, he argues the 

information failed to stop the expiration of the statute of limitations and thus the 

superseding indictment was untimely. 

II. APPLICABLE PRINCIPLES AND LAW

Fed. R. Crim. P. 7(c)(1) requires that an indictment contain “a plain, concise, 

and definite written statement of the essential facts constituting the offense charged.” 

Under Fed. R. Crim. P. 12(b)(1), “[a] party may raise by pretrial motion any defense, 

objection or request that the court can determine without a trial of the general issue.” 

A motion alleging a defect in the indictment must be raised before trial, unless the 

defect is regarding the district court’s lack of jurisdiction or failure to state an offense, 

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which may be brought at any time while a case is pending. See United States v.

Baxter, 579 F. App’x 703, 705 (11th Cir. 2014) (citing Fed. R. Crim. P. 12(b)(3)(A)-(B)).

An indictment is sufficient if it: “(1) presents the essential elements of the 

charged offense, (2) notifies the accused of the charges to be defended against, and (3) 

enables the accused to rely upon a judgment under the indictment as a bar against 

double jeopardy for any subsequent prosecution for the same 

offense.” Id. (quoting United States v. Steele, 178 F.3d 1230, 1233-34 (11th Cir.

1999)). A court must determine the sufficiency of an indictment from its face and 

“may not dismiss an indictment based on a determination of facts that should have 

been developed at trial.” Id. (citing United States v. Salman, 378 F.3d 1266, 1268

(11th Cir. 2004); United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006)).

Indeed, the Eleventh Circuit has held that there is “no summary judgment 

procedure in criminal cases. Nor do the rules provide for a pre-trial determination of 

the sufficiency of the evidence.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir.

1992); see also Salman, 378 F.3d at 1268 (“A motion for acquittal under Rule 29 is 

the proper avenue for contesting the sufficiency of the evidence in criminal cases 

because there is no explicit authority to grant a pre-trial judgment as a matter of law 

on the merits under the Federal Rules of Criminal Procedure.”). An indictment that 

charges in the language of the relevant statute is sufficient “as long as it also provides 

a statement of facts and circumstances that give notice of the offense to the 

accused.” United States v. Jordan, 582 F.3d 1239, 1246 (11th Cir. 2009) (quotation 

omitted).

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III. ANALYSIS

Defendant seeks to dismiss all counts against him because they violate the 

five-year statute of limitations provided under 18 U.S.C. § 3282. The Government 

does not dispute that the superseding indictment was filed more than seven months 

after the five-year statute of limitations expired. However, the Government filed the

waiver-less information with the belief that this was sufficient to “institute” the 

information and to toll the statute of limitations under 18 U.S.C. § 3288. But,

Defendant argues that the filing of a waiver-less information for felony charges is 

inconsistent with the purpose and statutory text of 18 U.S.C. § 3282(a). The parties 

agree that there is no controlling precedent from the United States Supreme Court 

or the Eleventh Circuit on whether an information lacking a waiver of indictment is 

“instituted” for the purposes § 3282. To answer this question, we turn to the 

controlling statutes and persuasive case law. 

The Fifth Amendment to the United States Constitution provides that “[n]o 

person shall be held to answer for a capital, or otherwise infamous crime, unless on 

a presentment or indictment of a Grand Jury.” U.S. Const. amend. V. Federal Rule 

of Criminal Procedure 7(a) “gives effect to” this provision with the requirement that 

felonies “be prosecuted by an indictment.” Fed. R. Crim. P. 7(a) (quoting 1944 

advisory committee note to subdivision (a)). Non-capital felony offenses are an 

exception to the rule, where these can “be prosecuted by information if the 

defendant—in open court and after being advised of the nature of the charge and of 

the defendant’s rights—waives prosecution by indictment.” Fed. R. Crim. P. 7(b). 

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Title 18, Section 3282 provides a statute of limitations for non-capital, federal 

crimes, including both felony and misdemeanor offenses. It provides that “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.” 18 U.S.C. § 3282(a) (emphasis added). 

The Seventh Circuit directly answered whether an information lacking a 

waiver of indictment is “instituted” pursuant to § 3282. It answered yes in United 

States v. Burdix-Dana, 149 F. 3d 741 (7th Cir. 1998). Like this case, the Government 

in Burdix-Dana filed a waiver less information shortly before the statute of 

limitations expired. Id. at 742. After the five-year limitations period expired, the 

Government obtained an indictment for the same offense charged in the information. 

Id. The defendant in that case argued that “institute” should equal the ability to 

proceed with prosecution, which an information cannot do. Id. The Seventh Circuit 

rejected this argument and concluded:

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 the absence of this waiver 

makes the filing of an information a nullity. Rule 7(b) does 

not forbid filing an information without a waiver; it simply 

establishes that prosecution may not proceed without a 

valid waiver. Rule 7(b) concerns itself with the 

requirements that the government must satisfy before it 

proceeds with a prosecution. We do not see how this rule 

affects the statute governing the limitation period. There 

is nothing in the statutory language of 18 U.S.C. § 3282 

that suggests a prosecution must be instituted before the 

expiration of a five year period; instead the statute states 

that the information must be instituted. We hold that the 

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filing of the information is sufficient to institute it within 

the meaning of 18 U.S.C. § 3282.

Id. (emphases in original) (internal citation omitted). 

There is no contrary authority from any other Court of Appeals and the Tenth 

Circuit has adopted the logic from Burdix-Dana. See United States v. Cooper, 956 

F.2d 960, 962-63 (10th Cir. 1992) (“Rule 7(b) does not prohibit the filing of an 

information in the absence of a waiver of indictment . . . . Therefore, the information 

could have been filed within the period of limitations, thus providing a valid basis for 

prosecution.”). And many district courts have followed this rule. See United States 

v. Marifat, No. 17-CR-189, 2018 WL 1806690, at *2-3 (E.D. Cal. Apr. 17, 2018); United 

States v. Stewart, 425 F. Supp. 2d 727, 729 (E.D. Va. 2006); United States v. HsinYung, 97 F. Supp. 2d 24, 28 (D.D.C. 2000); United States v. Watson, 941 F. Supp. 601, 

603 (N.D. W. Va. 1996). 

This includes several recent decisions that considered the Covid-19 pandemic

and the suspension of grand juries. See United States v. Briscoe, No. CR RDB-20-

0139, 2020 WL 5076053, at *2 (D. Md. Aug. 26, 2020) (“An information is ‘instituted’ 

when it is properly filed, regardless of the Defendant’s waiver.); United States v. 

Holmes, No. 18-cr-00258-EJD, 2020 WL 6047232, at *8 (N.D. Cal. Oct. 13, 2020) (“the 

Court holds that the filing of an information without an accompanying waiver is 

sufficient to toll the statute of limitations—even though it may not be effective for 

other purposes”). 

There is also a recent case from this District in which Judge Ruiz adopted the 

holding from Burdix-Dana. See United States v. Lauren Rosencan, No. 20-80052-CRCase 1:20-cr-20172-DPG Document 35 Entered on FLSD Docket 09/27/2021 Page 6 of 10
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Ruiz(s), DE 49 (S.D. Fla. Mar. 17, 2021) (“This Court fully adopts the logic of the 

Seventh Circuit in Burdix-Dana because it is grounded in the plain language of 

section 3282. The main issue in this case is one of statutory interpretation, which 

mandates that the Court begin with the text at issue.”).

On the other hand, a handful of district courts have found that an information 

lacking a waiver of indictment is not “instituted.” See United States v. B.G.G., 20-cr80063-DMM, DE 19 (S.D. Fla. Jan. 11, 2021); United States v. Machado, 2005 WL 

2886213, at *1 (D. Mass. Nov. 3, 2005); United States v. Sharma, 14-CR-61, at *1

(S.D. Tex. May 19, 2016). Most relevant is the recently decide B.G.G. case, which is 

currently on appeal with the Eleventh Circuit. See United States v. B.G.G., No. 21-

10165 (11th Cir. 2021). In B.G.G., Judge Middlebrooks relied on legislative history 

and the historical record to support this interpretation of § 3282. While the decision 

in B.G.G. does an admirable job of charting out the history of § 3282 from the creation 

of grand juries in 1635 to its 1964 amendments, this path was needless. This is 

because § 3282’s text is plain and unambiguous. See United States v. Noel, 893 F.3d 

1294, 1297 (11th Cir. 2018) (“[I]f the statute’s language is clear, there is no need to 

go beyond the statute’s plain language into legislative history.”) (internal quotation 

marks omitted). 

Moreover, the statute of limitations in §3282 may be tolled if the “indictment 

or information charging a felony is dismissed for any reason after the period 

prescribed by the applicable statute of limitations has expired[.]” 18 U.S.C. § 3288 

(emphasis added). If this occurs:

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A new indictment may be returned in the appropriate jurisdiction within 

six calendar months of the date of the dismissal of the indictment or 

information . . . or, if no regular grand jury is in session in the 

appropriate jurisdiction when the indictment or information is 

dismissed, within six calendar months of the date when the next regular 

jury is convened, which new indictment shall not be barred by any

statute of limitations. This section does not permit the filing of a new 

indictment or information where the reason for the dismissal was the 

failure to file the indictment or information within the period prescribed 

by the applicable statute of limitations, or some other reason that would 

bar a new prosecution. 

Id. (emphasis added). Thus, if the Government moved to dismiss the information for 

any reason while the grand juries were suspended, there is no question that the 

superseding indictment here was timely brought. If we adopted the rule from B.G.G.

as Defendant asks us to, this §3288 six-month tolling exemption would still survive 

as a loophole for the Government to use to avoid that rule. Clearly, the unambiguous 

language of § 3288 complements a reading of § 3282 that allows for an information 

lacking a waiver of indictment to be considered “instituted.” This reading of § 3282 

is also supported by “the central policy underlying the statutes of limitations” that 

focuses on giving a defendant fair notice of the charges against him within a 

reasonable amount of time, which the information here did. See United States v. 

Pacheco, 912 F.2d 297, 305 (9th Cir. 1990).

We therefore follow the Seventh Circuit’s decision in Burdix-Dana. This is 

because the plain language of § 3282 only requires that the “information” be 

“instituted” to satisfy the statute of limitations. The terms “prosecuted” and 

“instituted” are not equivalent, and an information is “instituted” when it is properly 

filed, regardless of the defendant’s waiver. See United States v. DBB, Inc., 180 F.3d 

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1277, 1281 (11th Cir. 1999) (“The starting point for all statutory interpretation is the 

language of the statute itself.”). And where the language of the statute is 

unambiguous, the inquiry ends. See United States v. St. Amour, 886 F.3d 1009, 1013 

(11th Cir. 2018) (having concluded that the “language at issue has a plain and 

unambiguous meaning,” “we need go no further.”). 

Given that the information here was timely filed, the superseding indictment 

is also timely filed. As explained by the Eleventh Circuit, “[a] superseding indictment 

brought after the statute of limitations has expired is valid so long as the original 

indictment is still pending and was timely and the superseding indictment does not 

broaden or substantially amend the original charges.” United States v. Italiano, 894 

F.2d 1280, 1282 (11th Cir. 1990). This logic applies equally to a timely filed 

information just as it would to an original indictment. See Briscoe, 2020 WL 5076053 

at *2 (“Although the rule is ordinarily applied as between superseding and original 

indictments, there is no reason why a subsequent indictment cannot relate back to a 

preceding, valid information because the two forms of charging documents are treated 

the same for statute of limitation purposes.”) (citing 18 U.S.C. § 3282(a)). Defendant’s

motion to dismiss should therefore be DENIED. 

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Defendant’s

motion to dismiss the Government’s indictment [D.E. 29] should be DENIED.

Pursuant to Local Magistrate Rule 4(b), the parties have fourteen (14) days 

within which to file written objections, if any, with the District Judge. Failure to 

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timely file objections shall bar the parties from de novo determination by the District 

Judge of any factual or legal issue covered in the Report and shall bar the parties 

from challenging on appeal the District Judge’s Order based on any unobjected-to 

factual or legal conclusions included in the Report. 28 U.S.C. § 636(b)(1); 11th Cir. 

Rule 3-1; see, e.g., Patton v. Rowell, 2017 WL 443634 (11th Cir. Feb. 2, 2017); Cooley 

v. Comm’r of Soc. Sec., 2016 WL 7321208 (11th Cir. Dec. 16, 2016).

DONE AND SUBMITTED in Chambers at Miami, Florida, this 28th day of 

September, 2021.

/s/ Edwin G. Torres 

EDWIN G. TORRES

United States Magistrate Judge

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