### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-23-1998 

# U nit ed S t a t es v

. M id gle y

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-7402

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. M id gley " (1998). 1998 D e cisio n s

. P a pe r 87.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/87Filed April 23, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7402

UNITED STATES OF AMERICA,

Appellant

v.

RAYMOND M. MIDGLEY

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 91-cr-00169)

Argued January 29, 1998

Before: SCIRICA, ROTH and RENDELL, Circuit Judges

(Opinion filed April 23, 1998)

David M. Barasch United States Attorney Bruce Brandler (Argued) Assistant U.S. Attorney U.S. Attorney's Office, Federal Building

228 Walnut Street

P.O. Box 11754 Harrisburg, PA 17108 Attorneys for AppellantJames V. Wade, Esquire

Federal Public Defender Daniel I. Siegel, Esquire (Argued)
Assistant Federal Public Defender Middle District of Pennsylvania 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Attorneys for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

The United States appeals from an order entered by the
U.S. District Court for the Middle District of Penn sylvania, denying a motion to reinstate dismissed counts of a n indictment against the appellee, Raymond Midgley. T he government had dismissed the counts after Midgley p led guilty to one charge of the indictment pursuant to a plea agreement. Midgley subsequently made a successful
collateral attack on his conviction. The district c ourt denied reinstatement of the dismissed counts on the ground s that the statute of limitations had run. In seeking reve rsal, the government asks us to resolve a conflict among our district
courts as to whether dismissed counts of an indictm ent may be reinstated under these circumstances. The di strict court had jurisdiction under 28 U.S.C. S 2255, and we have appellate jurisdiction pursuant to 28 U.S.C. S 1291

. Because we find insufficient grounds for withholdin g application of the statute of limitations, we will affirm the
order of the district court.

I. FACTS

On September 3, 1991, a federal grand jury returned an indictment against Raymond Midgley, charging six co unts
of controlled substance and firearms violations. In cluded in the indictment was a charge that Midgley had used o r carried a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. S 924(c).1 Prior to trial,

___________________________________________________ ______________

1. An investigation had revealed that Midgley was i nvolved in drug trafficking, and that he carried firearms during dr ug sales. During

2Midgley entered into a plea agreement with the gove rnment

in which he agreed to plead guilty to the count of violating S 924(c) in exchange for dismissal of the remaining counts of the indictment.2 The agreement contained no prov ision for waiver of Midgley's statute of limitations defe nse as to the counts to be dismissed. Midgley entered his gui lty plea and was sentenced on October 5, 1992, to five years imprisonment, the statutory minimum. The government dismissed the remaining counts of the indictment on the same day. Midgley was incarcerated on October 23, 1 992,
and commenced service of his sentence.

On December 6, 1995, the United States Supreme Cour t held in Bailey v. United States, 516 U.S. 137 (1995 ), that in
order to establish that a defendant "used" afirearm within the meaning of S 924(c), the government must show n ot mere possession, but active employment of the firea rm by the defendant. On May 23, 1996, some 5 years and 3 months after commission of his offenses, Midgleyfil ed a motion pursuant to 28 U.S.C. S 2255 to vacate his s entence in light of Bailey. Although the government concede d that

___________________________________________________ ______________

execution of a search warrant at his residence, a h andgun was found among drugs and drug paraphernalia. The sixth count of Midgley's indictment charged a violation of 18 U.S.C. S 924(c )(1), which provides:

Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which he may be prosecuted in a court

of the United States, uses or carries a firearm , shall, in addition to

the punishment provided for such crime of violen ce or drug trafficking crime, be sentenced to imprisonment for five years. . . .

2. Count I charged that Midgley distributed heroin on or about December 14, 1990, in violation of 21 U.S.C. S 841(a)(1). Co unt II charged that Midgley distributed marijuana on or about February 10, 1991, in violation of 21 U.S.C. S 841(a)(1). Count III charg ed that Midgley distributed L.S.D. on or about February 11, 1991, i n violation of 21 U.S.C. S 841(a)(1). Count IV charged that Midgley p ossessed marijuana with the intent to distribute on or about February 11, 1991, in violation of 21 U.S.C. S 841(a)(1). Count V charged that Midg ley, a previously convicted felon, possessed a .38 caliber handgun on or about February 11, 1991, in violation of 18 U.S.C. S 922(g)(1). Co unt VI, to which Midgley had pled guilty, charged that he violated 1 8 U.S.C. S 924(c) by using and carrying a firearm during and in relation to a drug trafficking crime on or about February 11, 1991.

3Bailey required Midgley's sentence to be vacated, i t

requested that the court reinstate the dismissed co unts of his original indictment. The U.S. District Court fo r the Middle District of Pennsylvania, Kosik, J., granted Midgley's
S 2255 motion but refused to reinstate the dismisse d counts. In a Memorandum Opinion dated March 11, 199 7, No. 96-7494, we affirmed the order but stated that the disposition was "without prejudice to whatever righ ts the government may have to pursue in the district court its application to reinstate the dismissed counts of Mi dgley's indictment and without prejudice to Midgley's right to raise the statute of limitations in opposition to that mo tion or a new indictment." On March 21, 1997, the government filed
a motion to reinstate the dismissed counts which th e district court denied on July 31, 1997. The governm ent now appeals.

II. DISCUSSION

Our review of a district court's legal determinatio ns and its application of legal precepts to facts is plena ry. Epstein Family Partnership v. KMart Corp., 13 F.3d 762, 766 (3d Cir. 1994).

The general federal statute of limitations applies to all offenses charged in Midgley's indictment. That stat ute provides:

Except as otherwise expressly provided by la w, no person shall be prosecuted, tried, or punish ed for any offense, not capital, unless the indictment is found or the information is instituted within five ye ars next after
such offense shall have been committed.

18 U.S.C. S 3282 (1994). On appeal, the government asks us to hold that this statute does not prevent reins tatement of any or all of the five dismissed counts of the o riginal indictment against Midgley, notwithstanding that mo re than five years have elapsed since the commission o f the underlying offenses. The government argues alternat ively that (1) the literal terms of the statute do not ap ply to counts which are brought within five years, dismiss ed, and then reinstated; (2) the statute should be tolled u nder principles of contract law and equity because Midgl ey breached the plea agreement; and (3) the statute sh ould be

4tolled as a matter of policy in order to prevent ab use of the

plea bargain process. Whether the statute of limita tions prevents reinstatement of dismissed counts of an indictment when the defendant's guilty plea convict ion is vacated is a question of first impression before th is Court.

Two district judges in the Middle District of Penns ylvania have addressed this issue prior to the case sub jud ice, with contrary results. In United States v. Gaither, 925 F. Supp. 50 (M.D. Pa. 1996) (Rambo, C.J.), the defendant, pu rsuant to a written plea agreement, pled guilty in 1990 to violating S 924(c). In 1996, after the defendant's conviction was vacated under Bailey, the government sought to rein state a dismissed count of the original indictment. Despite sympathy for the government's position that the def endant would "reap a windfall" by evading the dismissed ch arge, the court maintained that the "overwhelming concern " of the policy underlying the statute of limitations wa s protection of the accused. For this reason, the cou rt refused to toll the statute. 925 F. Supp. at 53-54. Only weeks later, however, in United States v. Viera, 93 1 F. Supp. 1224 (M.D. Pa. 1996) (Caldwell, J.), another judge in the same district held on nearly identical facts3 t hat the government could reinstate dismissed charges after expiration of the limitation period where the gover nment was "not at fault" and "the defendant has upset wha t the government reasonably understood to be a final disp osition of a criminal matter." 931 F. Supp. at 1230-31.

Much of the analysis in Gaither was embraced by the Second Circuit in United States v. Podde, 105 F.3d 813 (2d Cir. 1997), vacating United States v. Reguer, 901 F . Supp. 525 (E.D.N.Y. 1995). In Podde, nearly nine years af ter the alleged misconduct, the defendant's guilty plea con viction for structuring financial transactions under 31 U.S .C. S 5313 was reversed. The government then sought to reinstate dismissed charges of conspiracy and wire fraud. Podde, 105 F.3d at 815. In vacating a district cour t order

___________________________________________________ ______________

3. In Viera, after the defendant's conviction was v acated in light of Bailey, the government in 1996 requested reinstatem ent of two dismissed counts based on acts committed in May of 1990. 931 F. Supp.

at 1226.

5permitting reinstatement, the Second Circuit reject ed

arguments similar to those offered by the governmen t here
in favor of the rule that the statute of limitation s applies to counts of an indictment dismissed pursuant to a ple a agreement and that the statute is not tolled follow ing vitiation of the agreement merely because the gover nment "acts diligently and without fault." Id. at 819.

A. Applicability of the Statute of Limitations

Section 3282 itself does not indicate whether the limitation period applies to reinstated counts of a n indictment which was originally "found" within five years. The government maintains that a district court may simply vacate the order dismissing the original indictment , at which point "the indictment becomes pending as thou gh it had never been dismissed." In this posture, the sta tute of limitations would be inapplicable on its face, and the result that follows would comport with the policy objectiv es behind the statute. We disagree with both contentio ns.

A statute of limitations "limit[s] exposure to crim inal prosecution to a certain fixed period of time follo wing the
occurrence of " criminal acts. Toussie v. United St ates, 397 U.S. 112, 114 (1970). Limitations are "designed to protect individuals from having to defend themselves agains t charges when the basic facts may have become obscur ed by the passage of time and to minimize the danger of o fficial punishment because of acts in the far-distant past. " Id. at
114-15. "Limitations statutes . . . are intended to foreclose the potential for inaccuracy and unfairness that st ale evidence and dull memories may occasion in an undul y delayed trial." United States v. Levine, 658 F.2d 1 13, 127 (3d Cir. 1981) (emphasis in original).

In order to adhere to this mandate and still determ ine
that a dismissed indictment is "found" within the m eaning of S 3282, it would be necessary to conclude that a defendant could never be prejudiced in his defense by the delay in prosecution that occurs between the times of dismissal and reinstatement. Yet this proposition i s inherently unsound, because any statute of limitati ons incorporates an "irrebuttable presumption" that, be yond

6the period of limitation, "a defendant's right to a fair trial

would be prejudiced." United States v. Marion, 404 U.S. 307, 322 (1971). Absent a statute of limitations, a n indefinite suspension of prosecution impairs a defe ndant's constitutional rights and prolongs the defendant's "anxiety and concern" over the pending charges. See Klopfer v. North Carolina, 386 U.S. 213, 222 (1966) (holding State's nolle prosequi procedure to be an unconstitutional violat ion of right to speedy trial where statute of limitations was tolled during pendency).

Other circuit courts faced with this issue have hel d that the terms of S 3282 do apply to dismissed counts of an indictment which was brought within the limitation period. Podde, 105 F.3d at 818 (holding that "the statute o f limitations begins to run again once an indictment is dismissed"); United States v. Davis, 487 F.2d 112, 118 (5th Cir. 1973) (applying Klopfer, and holding that dism issal of criminal charges "does not impair the protection af forded by the statute of limitations," which is a defendan t's "primary protection" against prosecutorial delay). We agree that, for purposes of S 3282, counts of an indictme nt do not survive a dismissal. We therefore reject the govern ment's position that the statute does not apply to reinsta tement of
dismissed counts.

This conclusion is particularly compelling when we examine the policy goals served by a statute of lim itations. The government argues that reinstatement of the dis missed counts would be faithful to the policy concerns und erlying the statute because (1) the initial indictment agai nst Midgley fulfilled the objective of providing notice to the defendant, (2) no concerns of prosecutorial unfairn ess or dilatory conduct are implicated, and (3) any remain ing concerns involving protection of the defendant do n ot apply where the defendant "created the problem."4

___________________________________________________ ______________

4. Bailey was decided in December of 1995, approxim ately three months prior to the expiration of the limitation period ap plicable to Midgley's dismissed counts. The government suggests that it i s no coincidence that Midgley delayed filing his S 2255 petition until Ma y of 1996, three months after the limitation period had run. We expr ess no opinion as to whether Midgley's delay "created the problem" here.

7The government is correct that giving notice to the

defendant and discouraging prosecutorial delay are both important policies served by a statute of limitatio ns. We do not disagree that those goals would still be fulfil led were reinstatement of the dismissed charges permitted he re. Yet in terms of policy, our primary focus must be upon the defendant. While the Supreme Court stated in Toussi e that "several considerations" formed the policy basis of a statute of limitations, it explained first that the limitat ion protects the accused "from having to defend themselves again st charges when the basic facts may have become obscur ed by the passage of time," and added that the time limit "may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspe cted criminal activity." Toussie, 397 U.S. at 114-15 (in ternal quotations and citations omitted) (emphasis added).

Following Toussie, the Court instructed us in Mario n that

the applicable statute of limitations is the primary guarantee against bringing overly stale crim inal charges. Such statutes represent legislative
assessments of relative interests of the Sta te and the defendant in administering justice; they are made for the repose of society and the protection of those who may during the limitation have lost their me ans of

defence.

Marion, 404 U.S. at 322 (internal quotations, citat ions, brackets, ellipses and footnotes omitted).

In evaluating Toussie and Marion, the Second Circui t concluded that the statute of limitations "exists p rimarily to protect the rights of the defendant," and the fact that a defendant's guilty plea conviction was later vacate d by a Supreme Court decision "in no way affects the fact that his defense to the original charges may have been jeopa rdized by the passage of time." 105 F.3d at 819-20. We agr ee that the primary purpose of the statute of limitations i s to protect the ability of the accused to present an ef fective defense to the charges against him. Consequently, a pplying

8the terms of S 3282 to dismissed counts of an indic tment

best fulfills that objective.5

B. Tolling

The government next argues that, even if the statut e of limitations applies to reinstated counts, the statu te should be tolled because Midgley breached his plea bargain agreement. In exchange for Midgley's guilty plea to one charge, the United States dismissed the five other charges it now seeks to reinstate. According to the governm ent, by successfully moving to vacate his guilty plea convi ction, Midgley has "revoked his acceptance" of the plea ag reement and the government should be free to withdraw its p art of the bargain. See United States v. Reguer, 901 F. Su pp. 525, 529 (E.D.N.Y. 1995), vacated, United States v. Podd e, 105 F.3d 813 (2d Cir. 1997). The government thus seeks an equitable restoration of the parties to the status quo ante by a tolling of the statute of limitations from the ti me of the
dismissal order.

We have observed that criminal statutes of limitati ons are subject to tolling, suspension, and waiver. United States v. Levine, 658 F.2d 113, 119-121 (3d Cir. 1981). Equit able tolling of a statute of limitations may apply where a complaint succeeds a filing deadline through either the complainant's benign mistake or an adversary's misconduct. Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96 (1990). "[E]quitable tolling may be app ropriate if (1) the defendant has actively misled the plaint iff, (2) if the plaintiff has "in some extraordinary way" been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 753 (3d Cir. 1983) (citations omitted). Although th e doctrine of equitable tolling is most typically applied to l imitation periods on civil actions, see Irwin, 498 U.S. at 95 , "there is no reason to distinguish between the rights protect ed by

___________________________________________________ ______________

5. Because we hold that the dismissed counts may no t be reinstated, we
need not reach the issue of whether facts admitted to by Midgley in his guilty plea to Count VI might constitute admissions as to elements of

these other offenses.

9criminal and civil statutes of limitations." Powers v.

Southland Corp., 4 F.3d 223, 233 (3d Cir. 1993).

Federal courts invoke the doctrine of equitable tol ling "only sparingly," and will not toll a statute becau se of "what is at best a garden variety claim of excusable negl ect" on the part of the defendant. Irwin, 498 U.S. at 96. A bsent a showing of intentional inducement or trickery by th e defendant, a statute of limitations should be tolle d only in the "rare situation where equitable tolling is dema nded by sound legal principles as well as the interests of justice." Alvarez-Machain v. United States, 96 F.3d 1246, 125 1 (9th Cir. 1996) (tolling two-year limitation period for actions against the U.S. under the Federal Tort Claims Act where the plaintiff, a foreign national, had been incarce rated in the U.S. for over two years); Lewis v. United State s, 985 F. Supp. 654, 657 (S.D. W. Va. 1997) (finding circumst ances "sufficiently extraordinary" to warrant equitable t olling of new one-year statute of limitations for relief unde r 28 U.S.C. S 2255 where information charging defendant was "negligently and carelessly prepared" and the gover nment delayed other remedial action). Thus, the governmen t's tolling argument here depends on a finding that Mid gley's "breach" of the plea agreement, if indeed it can be so characterized, prevented the government in an "extraordinary way" from exercising its right to pr osecute
him on the dismissed counts.

In our consideration of tolling, we find it unneces sary to engage, as other courts have, in an analysis of the defendant's conduct under contract principles. See, e.g., Podde, 105 F.3d at 820 (finding defendant certainly voided, and may well have breached, the plea agreement, yet remaining "suspicious of the application of contrac t law doctrine in favor of the prosecution"); United Stat es v. Anderson, 514 F.2d 583, 587 (7th Cir. 1975) (findin g vacated conviction removed "condition precedent" to government's agreement not to prosecute on dismisse d charges); Gaither, 926 F. Supp. at 51-52 (finding

defendant's successful collateral attack on sentenc e more analogous to a discharge of performance by superven ing impracticability). A party aggrieved by a breach of contract is not entitled per se to relief from a statutory l imitation

10period. Even assuming that Midgley "breached" his

agreement here, equitable tolling is appropriate on ly if the breach constituted an "extraordinary" interference with the government's ability to assert its rights.

Midgley alone did not create the situation of which the government complains. Had it not been for the Supre me Court's decision in Bailey, he would have had no opportunity to "breach" his plea agreement while av oiding prosecution on the remaining charges. While the government makes much of Midgley's three month dela y in filing his S 2255 petition, we cannot say that Midg ley did not simply take advantage of a serendipitous circum stance created by others. Although Midgley may in fact hav e frustrated the government's purpose, he did not sol ely by his own design contrive a "rare situation where equ itable tolling is demanded by sound legal principles."

Moreover, our conclusion here does not depend upon an evaluation of the relative equity or good faith exh ibited by the parties. Congress has the authority to make a"g ood faith" exception to S 3282, yet has declined to do so. See Podde, 105 F.3d at 820; Gaither, 926 F. Supp. at 54 . While the government has pursued its rights here with dil igence and good faith, it is not entitled to equitable tol ling of the statute of limitations merely because it is without fault.

C. Potential for Abuse

Lastly, the United States contends that if we fail to create an exception to the statute under the circumstances of this case, defendants will be encouraged to "sit on thei r rights until the statute has expired on the remaining char ges," thus encouraging "gamesmanship of a most offensive nature."6 Although it stops short of accusing Midgl ey himself of bad faith, the government maintains that Midgley "created the statute of limitations problem" here b y delaying the filing of his S 2255 motion until after the exp iration of

___________________________________________________ ______________

6. The government borrows this phrase from United S tates ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), wh ere it was held that reinstatement of an indictment should be permitted during the limitations period.

11the five-year period. The government urges that the inequity

of Midgley's tactics, compared to its own diligence in prosecution, warrants tolling of the statute from a t least the date of the Bailey decision. While we agree that th e government has not been at all dilatory and that Mi dgley has in fact upset what the government "reasonably understood to be a final disposition of the matter, " we nonetheless decline to fashion a tolling rule on th is basis.

First, as the Podde court observed, the government may seek to include a clause in future plea agreements whereby
the defendant waives the statute of limitations def ense as to
dismissed counts if the defendant withdraws or chal lenges the guilty plea after the limitations period on the original charges has expired.7 Podde, 105 F.3d at 821. The government may also in the future negotiate a guilt y plea to more than one count. Moreover, the "potential for a buse" complained of here is now substantially reduced bec ause of a recent statutory amendment imposing a limitation period for petitions brought under 28 U.S.C. S 2255.8 Beca use a

___________________________________________________ ______________

7. See Levine, 658 F.2d at 120-21 ("It is also poss ible for a defendant knowingly and intelligently to waive the statute of limitations, thus sanctioning a later indictment which, absent such a waiver, would be untimely"); United States v. Meeker, 701 F.2d 685, 688 (7th Cir. 1983) ("The purposes of a time bar are not offended by a knowing and voluntary waiver of the defense by the defendant"). The validity of such waivers is not, however, a question before us, and we will not, therefore,
decide it.

8. The Antiterrorism and Effective Death Penalty Ac t of 1996 adds the following to 28 U.S.C. S 2255:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run fro m the latest of --

(1) the date on which the judgment of convic tion becomes final;

(2) the date on which the impediment to maki ng a motion created by governmental action in violation of the C onstitution or laws of

the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been ne wly recognized by the Supreme Court and made retroactively applica ble to cases on collateral review; or

12habeas petition must now be filed not later than on e year

after an intervening change in the law, it is only when less than one year remains of the limitation period on t he dismissed counts that a defendant can delay filing until after this limitation period has run.

Finally, we must not forget that "criminal limitati on statutes are to be liberally interpreted in favor o f repose." Toussie, 397 U.S. at 115 (quoting United States v. Habig, 390 U.S. 222, 227 (1968)). Section 3282 establishes a fixed limitation period with no exception. However tempti ng it may be to create equitable exceptions to bright lin e rules, we must concur with Chief Judge Rambo's observation in Gaither that "the very existence of a statute of li mitations entails the prospect that wrongdoers will benefit," and that
this reason alone cannot serve as the basis for an exception to the statute. Ultimately, the clear and unambiguo us rule afforded by the criminal statute of limitations is preferable to a shifting standard based on the perceived equit y of the defendant's conduct. While Congress and the courts may continue to weigh competing policy interests concer ning the administration of justice, the unqualified limitati on period of S 3282 reflects a balance that has already been struck.

III. CONCLUSION

For the foregoing reasons, we will affirm the order of the district court denying the government's motion to r einstate charges against the appellee.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

(4) the date on which the facts supporting t he claim or claims presented could have been discovered through the exercise of due diligence.

Pub. L. No. 104-132, S 105, 110 Stat. 1214, 1220 (c odified as amended at 28 U.S.C. S 2255) (Apr. 24, 1996) (emphasis adde d).

13