## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4255

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States
v. * District Court for the * Western District of Missouri. Patricia A. Grimmett, * * Defendant - Appellant. *

___________ Submitted: May 13, 1998 Filed: August 5, 1998

___________ Before BEAM, LOKEN, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.
Patricia A. Grimmett pled guilty to one count of conspiracy to distribut e marijuana in violation of 21 U.S.C. § 846, conditio ned on her right to appeal the denial of her pretr ial motion to dismiss based on the statute of limitations. She argues o n ap peal that she withdrew from the conspiracy more than five years before th e indictment and that the district court erred by denying her motion to dismiss the drug charge as time barred and by not holding an evidentiary hearing on the issue. She also seeks in the alternative to appeal the failure to apply the safety valve provisions, 1 8 U.S.C. § 3553(f) and USSG § 5C1.2, to reduce her sentence. We remand for further proceedings on the statute of limitations issue.-2-

Grimmett pled guilty to participating in the conspiracy by keeping records for her boyfr iend, Elmont Kerns, who supplied drugs for the conspiracy. She also admitte d receivi ng drugs for Kerns once and helping him count drug proceeds on anothe r occasion. Grimmett says her involvement in the conspiracy ended immediately after Kerns was killed on June 27, 1989 on orders of Dennis Moore, Sr., who was in charge of drug distribution for the conspiracy and who owed a debt to Kerns. After th e murde r, Grimmett went to the police and informed them about the drug activities and ledthem to locations where drug money and records were found. A few years later, she was interviewed by agents from the Drug Enforcement Administration abou t Kerns’ drug dealings.

Grimmett was charged in the superseding indictment with one count o f conspira cy to distribute marijuana in a conspiracy beginning in January 1980 an d

c o ntinuing until November 14, 1994. She failed to appear for a hearing on her bond, and a wa rrant issued. She was arrested in Florida on December 27, 1996, waived a
re moval hearing, and was returned to Missouri. She subsequently moved to dismis s the indictment against her on the ground that it was barred by the five year statute of limitations for noncapital offenses. See 18 U.S.C. § 3282.

The motion to dismiss was based on her contention that the five year limitations period had expired before the issuance of the indictment on November 14, 1994 , becaus e the period had started to run when she withdrew from the conspiracy afte r Kerns was murdered on June 27, 1989. She requested an evidentiary hearing on her statute of limitations claim, but her motion was denied without one. The magistrat e judge reasoned that withdrawal is not an avail able defense to a drug conspiracy charge under 2 1 U.S.C. § 846, which does not require proof of an overt act, and that th e indictme nt

alleged a conspiracy that continued into the limitations period. He als o noted that a defense of withdrawal is co nsidered “a fact question for the jury to decide in the context of the entire case rather than on a pretrial motion.” He did not discuss any distinction between withdrawal as a bar to prosecution under the statute of-3-

limitations and withdrawal as a substantive defense to a conspiracy charge. The district court adopted the report and recommendation of the magistrate judge and denied the motion to dismiss wit

hout any findings of fact or additional legal discussion related to the statute of limitations issue.

After de nial of the motion to dismiss, a plea agreement was negotiated an d Gr immett pled guilty to failure to appear, 18 U.S.C. § 3146, and to conspiracy, 2 1 U.S.C. § 846, conditioned on her right to appeal the denial of her motion to dismis s based on the statute of limitations. The agreement concerning the plea to the dru g conspiracy provided in part:

The defen dant agrees that this Court has jurisdiction and authority t o imp ose any sentence up to the statutory maximum established for th e offense and expressly wa

ives the right to appeal her sentence, directly or collaterally, on any ground except for an upward departure by th e senten cing judge, a sentence in excess of the statutory maximum or a sentence in violation of law apart from the sentencing guidelines.
At the sentencing hearing, Grimmett asked the court to apply the safety valv e pr ovisions in the Mandatory Minimum Sentencing Reform Act, see 18 U.S.C. § 3553(f), and in the sentencing guideline s, see USSG § 5C1.2, which permit a sentence below the statutory minimum if the defendant meets certain criteria. The district court ruledthat Grimmett did not satisfy the required criterion that the offense not hav e resulted in death or serious bodily injury to any person because of Kerns’ murder by coconspirators. SeeUSSG § 5C1.2(3). Grimmett was sentenced to 120 m onths for the drug con spiracy, the statutory minimum, and one consecutive month for the failure to appear.
The main focus of Grimmett’s appeal relates to the statute of limitations, but she also seeks to appeal the length of her sentence. Grimmett claims that the district court erred in considering only the time period alleged in the conspiracy count instead ofGri mmett bases her foreseeability argument on the commentary to USSG § 1 5C1.2(3). The commentary states that “offense” refers to “the offense of conviction and all relevant conduct,” see USSG § 5C1.2, comment. (n.3), and relevant conduct is defined in USSG § 1B1.3(a) in part as “all acts . . . willfully caused by the defendant” and “all r easonably foreseeable acts and omissions of others in furtherance of th e jointly undertaken criminal activity.” The hearing transcript reveals the following. In response to the court’s question, 2 “how do you get around what the third subsection of 5C1.2 says?” Grimmett’s counsel said “Can’t, Your Honor.” The court repl ied: “I know. But from the evidence I heard during th e trial and based on the information that’s in the presentence investigatio n report . . . the death of Elmont Kerns was one very regrettable result of the conspiracy . . . . [S]o I do not believe that 5C1.2 applies.” Sentencing Hearing Tra nscript at 19-20.
-4- whether she withdrew from the conspiracy more than five years before the date th e indictment was returned. She argues that when a coconspirator withdraws from a continu ing conspiracy, the statute of limitations begins to run as to that coconspirator on the date of withdrawal and that s he is entitled to an evidentiary hearing to show the date of her withdrawal. She also contends that the district court erred by not giving her the benefit of the safety valve sentencing opti on since Kerns’ death was neither caused by nor reasonably foreseeable to her. 1

The government responds that the motion to dismiss was properly denie d because the indictment was va lid on its face, that withdrawal is an affirmative defense that must be raised at trial, and that a withdrawal defense is not available for dru g
co nspiracy charges. As to the sentencing issue, the government maintains tha t Grimmett waiv ed her right in the plea agreement to appeal an issue such as th e applicability of the safety valve and that she conceded at her sentencing hearing tha t she coul d not overcome the qualifying requirement that no death or serious bodil y injury have resu lted from the conspiracy. Grimmett replies that she did not concede 2 the safety valve issue or waive it in her plea agreement which preserved her right t o appeal a “violation of law apart from the sentencing guidelines.”-5-

The denial of a motion to dismiss an indictment on statute of limitations grounds is reviewe d de novo. See United States v. Dolan , 120 F.3d 856, 864 (8th Cir. 1997). The g eneral rule is that an individual conspirator can commence the running of th e statute of limitations as to that individual by affirmatively withdrawing from th e conspiracy. See United States v. Antar , 53 F.3d 568, 582 (3d Cir. 1 995); United States v. Salerno , 868 F.2d 524, 534 n.4 (2d Ci r. 1989); In re Corrugated Container Antitrust Litigation , 662 F.2d 875, 886 (D.C. Cir. 1981). The government cites cases holding that wi thdrawal cannot be a defense to a conspiracy charge under a statute like 2 1 U.S.C. § 846 t

hat does not require proof of an overt act, see United States v. Francis , 916 F.2d 46 4, 466 (8th Cir. 1990); United States v. Nicoll , 664 F.2d 1308, 1315 (5th Cir. 1982), but tho se cases do not deal with a statute of limitations bar. They support the general rule that a defendant m ay not raise withdrawal as an affirmative defense to a conspiracy charge where no ov ert act is necessary. They do not address withdrawal as a statute of limitations issue.
Even where withdrawal is not an available defense to conspiracy, withdrawal can be a bar to prosecution or conviction if it too k the defendant’s participation outside the limitations period. See United States v. Gornto , 792 F.2d 10 28, 1033 (11th Cir. 1986);

see also United States v. Nava-Salazar , 30 F.3d 788, 799 (7th Cir. 1994 ) (“[w]ithd rawal does not absolve a defendant from his membership in the conspiracy” under 21 U.S.C. § 846 but it may be raised “with th e defense of statute of limitations”) (quoting United States v. Read , 658 F.2d 1225, 1232-33 (7th Cir. 1981)). If Grimmett can show that she affirma

tively disavowed the conspiracy more than five years before the in dictment by “making a clean breast to the authorities or by communicating he r withdrawal in a manner

reasonably calculated to reach coconspirators,” United States

v. Askew , 958 F.2d 806, 812-13 (8th Cir. 1992), the statute would have run. Se e Gornto , 792 F.2d at 1033. Thecited cases recognize the distinction between a statute of limita tions challenge based on a withdrawal claim and withdrawal as a substantive def ense to a conspiracy charge; the former may be pursued even when the latter i s unavailable.-6-

Astatute of limitations bar is generally considered “capable of determinatio n without the trial of the general issue” and may properlybe raised before trial. See Fed. R. Crim P. 12(b) advisory committee’s note to subdivision (b)(1) and (2); see als o Jab en v. United States , 333 F.2d 535, 538 (8th Cir. 1964). Grimmett is not offerin g withdrawal as a defense to the crime of conspiracy, and the issue of p otential bar by the statute of limitations claim does not go to the question of guilt or innocence which is the general issue for trial. See United States v. Ayarza-Garcia , 819 F.2d 1043, 1048 (11th Cir. 1987); see also United Sta tes v. Weller , 401 U.S. 254, 260 (1971) (“special plea in bar” does not deny that defendant committed the acts alleged or that the act s
wer e a crime but affirms that prosecution is barred because of an extraneous factor , such as the statute of limitations). Grim mett’s statute of limitations issue was a proper subject for a pretrial motion to dismiss under Fed. R. Crim. P. 12(b), and the motion should not have been denied without fuller consideration.

It is not possible to determine from the record on appeal whether Grimmett’ s
ar gument that her prosecution is time barred turns on disputed issues of fact. Th e governm ent

has not disputed Grimmett’s factual contentions about her allege d withdrawal , and the magistrate judge did not indicate that he had found a factua l dispute in the record, only that the defense of withdrawal is gen erally a subject for trial. It may be that the statute o f limitations issue can be determined on remand as a matter of law, but there could be significant issues of fact such as whether Grimmett continued illegal dru g activities or when she went to the authorities. The rules provide that a court may make findings of fact in order to rule on a pretrial motion, see Fed. R. Crim. P. 12(g), but if there are factual issues “inevitably bound up with evidence about the alleged offense itself,” they may need to be deferred to trial. United States v. Wilson , 26 F.3d 142, 159 (D.C. Cir. 1994); see Fed. R. Crim. P. 12(e); United States v

. Williams , 644 F.2d 950, 953 (2d Cir. 1981); United States v. Barletta , 644 F.2d 50, 58 (1st Cir. 1981); see also United States v. Covington , 395 U.S. 57, 60 (1969). Here , Grimmett gave up her right to a jury trial by pleading guilty so if there were a factual dispute that could not be resolved b y the court and she wished to continue to press theBecause of this disposition, it is not necessary to determine Grimmett’ s 3 al ternative argument about being entitled to the safety valve at sentencing, but i t appears that she waived this issue in her plea agreement and that she would not qualify under the required criteria, see 18 U.S.C. § 3553(f)(1)-(5); USSG § 5C1.2(1) -(5).
For additional background regarding the underlying conspiracy, see Unite d 4 States v. Moore , No. 97-2603 (8th Cir. Jun. 26, 1998).
-7- statute of limitations issue, she would have to move to vacate her guilty pleas and seek to proceed to trial on the original charges. It would then be up to the district court to decide whether such a motion should be granted. For all these reasons the record needs to be more fully developed, and we remand for that purpose.

Since the issues raised in the motion to dismiss based on the statute o f limitations were not fully considered, the order of the district court den ying the motion is reversed, the judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. 3
LOKEN, Circuit Judge, dissenting.
I agree with the major leg al premise underlying the court’s decision in this case

-- a conspi rator commences the running of the statute of limitations as to her b y affirm atively withdrawing from a conspiracy to distribute drugs in violation of 2 1 U.S.C. § 846 . However, that premise leads the court to reverse only because i t mischaracterizes the district court’s ruling. Therefore, I respectfully dissent.

Patricia Grimmett filed a motion todismiss the indictment as time-barred by the five-year statute of limitations in 18 U.S.C. § 3282. Her motion alleged withdrawa l from the conspiracy after Elmont Kerns was murdered and concluded by asking th e 4 district court to “schedul e a factual hearing to establish on the record the facts alleged by movant in support of her motion.” The magistrate judge issued a Report and-8-

Recommendation suggesting that the motion be denied. The district court adopted the Report and Recommendation , noting that the court agreed with the magistrate judge’s conclusions of law. Thereafter, Grimmett entered into a plea agreement, paragraph 3 of which provided: “The d efendant reserves the right to appeal the adverse ruling she received regarding her motion to dismiss indictment based on statute of limitations.”

The c ourt reverses based on its view that the magistrate judge recommende d denial of Grimmett’s motion because “withdraw al is not an available defense to a drug conspiracy charge under 21 U.S.C. § 84 6,” without “fully consider[ing]” the statute of limitat ions issue. I conclude that is an unfair characterization of the operativ e paragraph of the magistrate judge’s Report and Recommendation:

The conspiracy statute under which Defendant Grimmett i s charged, 21 U.S.C. § 846, do es not require proof of an overt act. United States v. Escobar , 50 F.3d 1414, 1419 (8th Cir. 1995). Thus, the defense of withd rawal is unavailable in this case. Furthermore, the issue o f withdrawal from a conspira cy, even when it is available as a defense, is
a fact question for the jury to decide in the context of the entire cas e rather than as pre trial motion. United States v. Jimenez , 622 F.2d 753, 755-56 (5th Cir . 1980). “With respect to conspiracy statutes that do not require proof o f an overt act, the indictment satisfies the requirements of the statute of limitations if the conspiracy is alleged to h ave continued into the limitations period.” United States v. Coia , 7 19 F.2d 1120, 1124 (11th Cir. 1983) (citations omitted), [ cert. denied , 466 U.S. 973 (1984).]
(Em phasis added.) A fair reading of that paragraph is that the motion to dismiss was denied at least in part because it turned upon a disputed issue of fact, Grimmett’ s alleged withdrawal from the conspiracy. Indeed, it is apparent from the district court record that Grimmett’s counsel so understood it. The magistr ate judge’s Memorandum of Matters Discussed and Action Taken at Pretrial Conference, filed the same day as his Report and Recommendation, recites that defense counsel announced that at trial “the defendant will rely on the defenses of statute of limitations and general denial.”-9-

In othe r words, defense counsel understood that the magistrate judge’ s recommendation, if adopted by the distric t court, would not preclude proof of a statute of limitations/withdrawal defense at trial.

Viewed in this procedural context, the district court’s denial of Grimmett’ s motion to dismiss was correct. There can be no doubt that withdrawal from a
c o nspiracy is a fact intensive issue that is submitted to the jury. See United States v. United States Gypsum Co. , 438 U.S. 422, 462-65 (1978); United States v. Gornto , 792 F.2d 1028, 1033 (11th Cir. 1986); Jimenez , 622 F.2d at 755-58. Indeed, there is a split among the circuits on the question whether withdrawal is an element of th e government’s case because it goes to the issue of membership in the conspiracy, or an affirmative defense that the defendant must prove. See United States v. MMR Corp. , 907 F.2d 489, 499-500 (5th Cir. 1990), cert. denied , 499 U.S. 936 (1991). If it is an element of the government’s case -- an issue we need not address -- a defendan t unquestionably has a Fifth and Sixth Amendme nt right to have it submitted to the jury. See United States v. Gaudin , 115 S. Ct. 2310 (1995). Thus, it was neither error nor

an abuse of

discretion for the district court to deny Grimmett’s request for a pretria l evide ntiary hearing on this issue, and then to deny the motion to dismiss because i t turned on a disputed issue of fact. As the Eleventh Circuit said in United States v

. Coia , 719 F.2d at 1125 (cited by the magistrate judge):

The distr ict court should approach with delicacy and circumspection the question of whether to dismiss a case on the ground that, at trial, th e proof, as a matter of law, would fail to establish the commission of th e charged offense within the limitations period.

In these circumstances, I con clude that Grimmett’s appeal on this issue fails for two reas ons. First, in the plea agreement she reserved only the right to appeal th e district court’s ruling on her motion to dismiss, and that ruling was correct. Second, further litigation of Grimmett’s claim of withdrawal is foreclosed by her guilty plea,-10-

which “comprehend[ed] all of the factual and legal elements necessary to sustain a binding, final judgment of guilt.” United States v. Broce , 488 U.S. 563, 569 (1989). I fur ther conclude that Grimmett does not qualify for a safety valve sentencin g departure. Accordingly, I would affirm.
A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.