[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

_________________

No. 22-11175

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JOSEPH A. SANFILIPPO, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:21-cr-60006-RKA-1

____________________

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2 Opinion of the Court 22-11175

Before JORDAN, LAGOA, and MARCUS, Circuit Judges.

LAGOA, Circuit Judge:

Joseph Sanfilippo appeals his conviction for wire fraud pursuant to a guilty plea and contends that the district court erred in 

denying his motion to dismiss the indictment against him because 

it was issued after the expiration of the federal statute of limitations 

under 18 U.S.C. § 3282. Sanfilippo argues that the district court 

misinterpreted § 3282(a), and thus incorrectly concluded that the 

government indicted him within the statute of limitations. We 

conclude, however, after careful review and with the benefit of oral 

argument, that we cannot resolve this issue, as Sanfilippo entered 

an unconditional guilty plea to one of eight counts in the indictment and, under our precedent, waived his ability to appeal the 

district court’s denial of his motion to dismiss the indictment. Because Sanfilippo waived any challenge to the timeliness of his indictment by entering a knowing, voluntary, and unconditional 

plea, we dismiss Sanfilippo’s appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND1

Sanfilippo met the victim, a wealthy widow, in 2008 or 2009, 

and the pair had a long-distance relationship that lasted for a few 

years. In 2013, Sanfilippo informed the victim that he was moving 

to South Florida, and the couple’s relationship rekindled once he 

did. In 2015, Sanfilippo convinced the victim that she should invest 

1 Sanfilippo stipulated to the following facts in the factual proffer submitted 

with his plea agreement.

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22-11175 Opinion of the Court 3

in Cayman Shipping and Distribution, LLC (“Cayman Shipping”), 

which allegedly bought excess inventory from companies like 

Walgreens and CVS and shipped it to South America for resale. 

Sanfilippo told the victim that he knew the president of Cayman 

Shipping, who would only accept investment money directly from 

him. So, in late October and early November 2015, the victim 

wrote four checks, payable to Sanfilippo, for a total of $100,000. In 

return for her investments, Sanfilippo gave the victim a fraudulent 

promissory note. Sanfilippo deposited these checksinto one of two 

personal bank accounts, and almost immediately thereafter withdrew the money in increments of less than $10,000. In April 2017, 

the victim hired an attorney, who unsuccessfully tried to contact 

Cayman Shipping seeking return of the victim’s investment. 

Agents later learned that Cayman Shipping did not exist, nor did 

the person Sanfilippo said was the president. 

For a large part of 2020, grand jury sessions were suspended 

in the Southern District of Florida due to the COVID-19 pandemic. 

See S.D. Fla. Admin. Order 2020-22 (suspending all grand jury sessions as of March 26, 2020); S.D. Fla. Admin. Order 2020-76 (providing that two grand jury sessions per week were to resume on November 16, 2020). As a result, by late 2020, the government still 

had not brought its case. Under federal law, however, “[e]xcept 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.” 18 U.S.C. 

§ 3282(a).

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Unable to bring an indictment, the government instead filed 

an eight-count information in the Southern District on October 23, 

2020. Because the government alleged that Sanfilippo committed 

four acts of wire fraud in violation of 18 U.S.C. § 1343 between October 28, 2015, and November 2, 2015, and four acts of structuring 

in violation of 31 U.S.C. § 5324 between October 29, 2015, and November 4, 2015, the information was filed within the five-year period provided by § 3282(a). The parties agree that Sanfilippo could 

be prosecuted by information only if he waived prosecution by indictment “in open court and after being advised of the nature of the 

charge and of [his] rights.” Fed. R. Crim. P. 7(b); see U.S. Const.

amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a 

Grand Jury. . . .”). But Sanfilippo did not provide such a waiver. 

After grand jury sessions resumed, the government indicted 

Sanfilippo on the same eight counts on January 14, 2021. The government then moved under Federal Rule of Criminal Procedure

48(a) to dismiss the information without prejudice, which the district court granted on February 26, 2021. Sanfilippo then moved to 

dismiss the indictment, arguing that it was “filed after the Statute 

of Limitations had expired” for all eight counts.

The district court denied Sanfilippo’s motion. The district 

court first concluded that an information is “instituted” when it is 

filed, and thus the government acted timely under § 3282(a), even 

though Sanfilippo had not waived his right to prosecution by indictment. The district court then turned to 18 U.S.C. § 3288. 

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When an information charging a felony is dismissed after the statute of limitations expires, § 3288 provides, with some exceptions, a 

six-month window in which the government can indict the defendant. See § 3288. While the government cannot invoke this provision when 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., Sanfilippo did not argue that either applied 

in his case. Even if he had, the district court concluded that “any 

reliance on these exceptions would have been futile.” Therefore, 

the district court concluded that the indictment was timely, and, 

after rejecting other arguments not relevant to this appeal, denied 

Sanfilippo’s motion to dismiss. 

Sanfilippo later agreed to plead guilty to one count of wire 

fraud. The written plea agreement does not contain a reservation 

of the right to appeal the district court’s denial of Sanfilippo’s motion to dismiss. At the plea colloquy, Sanfilippo stated that he had 

discussed the plea agreement with his counsel and fully understood 

its terms, including the fact that the plea agreement “fully reflect[ed] [his] agreement with the United States.” The district court 

summarized the terms of the plea agreement and alerted Sanfilippo 

to the last paragraph, which stipulated “that this plea agreement 

represents the entire agreement and understanding between you 

and the United States, and that there are no other secret or mysterious agreements, promises, or guarantees that have been made to 

you in order to induce you to plead guilty in this case.” Sanfilippo 

confirmed that the plea agreement represented his entire 

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understanding with the government and that he understood he 

was waiving certain rights by pleading guilty. Sanfilippo’s counsel 

indicated that Sanfilippo understood the rights that he was waiving 

in signing the agreement. Sanfilippo then pleaded guilty to Count 

Four, and the district court accepted his plea, adjudging him guilty. 

After Sanfilippo’s guilty plea was entered and the district 

court sought to end the hearing, the government interjected, 

“there is one other issue.” The government noted that United States 

v. B.G.G., another case that raised similar statute of limitations 

questions, was on appeal to this Court. If it turned out, based on 

this Court’s decision in B.G.G., that the government was “in error 

by filing an information within the statute of limitations,” the government said that “Sanfilippo would be exonerated at that point, 

just as a matter of fundamental fairness.” In such a case, “what [the 

government] would probably do is allow [Sanfilippo] to withdraw 

his guilty plea, and then [the government] would have to dismiss 

the charges, because the statute of limitations had run.” Sanfilippo 

would be able to “file a motion to dismiss based on the statute of 

limitations again, in which case it would be granted at that point.” 

Both the district court and Sanfilippo agreed to this potential path.

The district court subsequently sentenced Sanfilippo to 24 

months’ imprisonment with three years of supervised release and

restitution in the amount of $300,000.2 This appeal follows.

2 The district court has since moved Sanfilippo’s self-surrender date to May 

2024.

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II. STANDARD OF REVIEW

Whether a defendant waived the right to appeal a district 

court’s decision on a pretrial motion by entering a guilty plea is a 

question of law this Court reviews de novo. See United States v. 

Patti, 337 F.3d 1317, 1320 & n.4 (11th Cir. 2003).

III. ANALYSIS

We have long held that a “defendant’s [unconditional] plea 

of guilty, made knowingly, voluntarily, and with the benefit of 

competent counsel, waives all non-jurisdictional defects in that defendant’s court proceedings.” United States v. Pierre, 120 F.3d 1153, 

1155 (11th Cir. 1997) (quoting United States v. Yunis, 723 F.2d 795, 

796 (11th Cir. 1984); see, e.g., Patti, 337 F.3d at 1320 (same)). And 

we have held that a statute of limitations defense is one of those 

non-jurisdictional defects. In United States v. Najjar, we rejected the 

argument that “in a criminal case, the statute of limitations is a jurisdictional bar that cannot be waived in a plea agreement.” 283 

F.3d 1306, 1308 (11th Cir. 2002). Instead, we recognized that, “pursuant to binding precedent, the statute of limitations is a matter of 

defense that must be asserted at trial by the defendant.” Id. (citing 

Capone v. Aderhold, 65 F.2d 130, 131 (5th Cir. 1933)). And in Musacchio v. United States, 577 U.S. 237, 248 (2016), the Supreme Court 

held in a case involving § 3282(a)—the statute of limitations at issue 

here—that “[i]n keeping with § 3282(a)’s text, context, and history, 

we conclude that § 3282(a) provides a non-jurisdictional defense, 

not a jurisdictional limit.”

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Thus, if Sanfilippo wished to preserve appellate review of

the district court’s denial of his motion to dismiss the indictment 

while pleading guilty, he could “do so only by entering a ‘conditional plea’ in accordance with Fed. R. Crim. P. 11(a)(2).” Pierre, 

120 F.3d at 1155.

Federal Rule of Criminal Procedure 11(a)(2) provides that 

“[w]ith the consent of the court and the government, a defendant 

may enter a conditional plea of guilty or nolo contendere, reserving 

in writing the right to have an appellate court review an adverse 

determination of a specified pretrial motion.” Thus, a “conditional 

plea must be in writing and must be consented to by the court and 

by the government.” Pierre, 120 F.3d at 1155. As for consent under 

the Rule, it “means express approval: direct assent requiring no inference or implication.” Id. at 1156. “[S]ilence or inaction by the 

government” will not cut it. Id.

Sanfilippo’s plea fails to qualify as a conditional plea on both 

fronts. First, Sanfilippo’s plea agreement—the only written agreement we have in the record—does not show that Sanfilippo reserved his right to appeal the district court’s denial of his motion to 

dismiss. Further, the written plea agreement confirms that “[t]his 

is the entire agreement and understanding between this Office and 

the defendant,” and that “[t]here are no other agreements, promises, representations or understandings.” And during his plea colloquy Sanfilippo said that this written agreement fully reflected his 

agreement with the government.

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Second, there is no record evidence indicating that the district court and the government consented to Sanfilippo reserving 

his ability to appeal the district court’s motion to dismiss. Sanfilippo points us to the agreement reached at the end of his plea colloquy. As we discussed above, the government said that if it turned 

out, based on this Court’s then-forthcoming decision in United 

States v. B.G.G., that it was “in error by filing an information within 

the statute of limitations,” then the government believed that “Sanfilippo would be exonerated at that point, just as a matter of fundamental fairness.” Procedurally, the government said that “what [it]

would probably do is allow him to withdraw his guilty plea, and 

then [the government] would have to dismiss the charges, because 

the statute of limitations had run.” Sanfilippo would be able to, in 

the government’s words, “file a motion to dismiss based on the 

statute of limitations again, in which case it would be granted at 

that point.” Sanfilippo agreed to this plan, as did the district court. 

We do not find evidence in this conversation of “direct assent” to a conditional plea from either the district court or the government to permit Sanfilippo to appeal the district court’s denial of 

his motion to dismiss. Pierre, 120 F.3d at 1156. Instead, we interpret this discussion as an agreement that Sanfilippo’s plea would be 

withdrawn and the charges dismissed if this Court, in B.G.G., 

agreed with Sanfilippo’s statute of limitations argument. For similar reasons, the fact that the government agreed to stay Sanfilippo’s 

sentencing and then to stay Sanfilippo’s appeal while B.G.G. was

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pending in front of this Court is also not sufficient evidence of express consent for Rule 11(a)(2) purposes.3

For these reasons, we conclude that Sanfilippo’s plea was 

not conditional under Rule 11(a)(2), and consequently, he waived 

his ability to appeal the district court’s denial of his motion to dismiss. The district court’s decision is therefore “not reviewable,” 

and we “offer no opinion about the merits” of it. Patti, 337 F.3d at 

1323.

3 In United States v. B.G.G., we did “not reach the issue of whether filing an 

information without a waiver of indictment institutes the prosecution, and 

tolls the statute of limitations, under sections 3282(a) and 3288.” 53 F.4th 1353, 

1361 n.3 (11th Cir. 2022). Instead, we concluded that the district court erred 

when it dismissed the information with prejudice but noted that if a “grand 

jury later indicts [the defendant], he can still raise a statute of limitations defense.” Id. at 1370. After remand, a grand jury indicted the defendant, and the 

defendant moved to dismiss the indictment on statute of limitations grounds. 

The district court in that case determined that the filing of an information, 

without a corresponding waiver of an indictment, within the five-year limitations period did not satisfy § 3282(a). See United States v. Gatz, No. 20-CR80063, 2023 WL 8355363, at *4 (S.D. Fla. Dec. 1, 2023). The district court also 

concluded that the dismissal of a waiver-less information after the statute of 

limitations had expired did not entitle the government to a new six-month 

window under § 3288 in which it could indict the defendant. Id. at *8–*9. The 

district court therefore granted the defendant’s motion to dismiss the indictment. Id. at *13. If the government once again decides to appeal the district 

court’s order in B.G.G., and this Court agrees with the district court’s interpretation of §§ 3282(a) and 3288, then, under the terms of the government’s 

agreement with Sanfilippo before the district court, Sanfilippo would be entitled to withdraw his plea.

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IV. CONCLUSION

For the reasons stated, we conclude that Sanfilippo entered 

an unconditional guilty plea to one of eight counts in the indictment and thus waived his ability to appeal the district court’s denial 

of his motion to dismiss the indictment. Because Sanfilippo waived 

any challenge to the timeliness of his indictment by entering a 

knowing, voluntary, and unconditional plea, we dismiss Sanfilippo’s appeal.4

APPEAL DISMISSED.

4 While in past cases we have afforded relief to defendants if they entered a 

guilty plea “only on the reasonable (but mistaken) belief” that they had preserved the ability to challenge on appeal a district court’s pretrial decision, 

Pierre, 120 F.3d at 1156, here Sanfilippo did not argue that his plea was unknowing and involuntary until oral argument. Under our precedent, his failure to make this argument in his briefs precludes us from considering it. See, 

e.g., Hernandez v. Plastipak Packaging, Inc., 15 F.4th 1321, 1330 (11th Cir. 2021) 

(explaining that we “do not consider arguments raised for the first time at oral 

argument”); Holland v. Gee, 677 F.3d 1047, 1065–66 (11th Cir. 2012) (rejecting 

a party’s “last-minute attempt to raise [an] alternative argument” at “oral argument”); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 

2004) (“[T]he law is by now well settled in this Circuit that a legal claim or 

argument that has not been briefed before the court is deemed abandoned and 

its merits will not be addressed.”).

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22-11175 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, Concurring.

I join Judge Lagoa’s opinion for the court in full. I write separately to alert the parties that their agreement to allow Mr. Sanfilippo to withdraw his guilty plea if the Eleventh Circuit ultimately 

rules against the government on the statute of limitations issue—

something the district court seemed to countenance—will require 

traversing some tricky jurisdictional terrain.

A district court has limited jurisdiction under the U.S. Code 

(e.g., 18 U.S.C. § 3582(c)) and the Federal Rules of Criminal Procedure (e.g., Rule 35) to set aside or modify a federal defendant’s conviction or sentence, and it does not possess inherent authority to 

take such action. See generally United States v. Diaz-Clark, 292 F.3d 

1310, 1315-198 (11th Cir. 2002). I am therefore not sure how it is 

that the parties believe that they will be able, months or years from 

now, to go back to the district court and request that Mr. Sanfilippo 

be allowed to withdraw his guilty plea in a closed case. 

There is, of course, the possibility of Mr. Sanfilippo seeking 

collateral relief from his conviction, but a motion to vacate has a

one-year limitations period that runs from a number of possible 

trigger dates. See 28 U.S.C. § 2255(f ). Once this direct appeal is 

dismissed, Mr. Sanfilippo’s conviction will become final when the 

time for seeking certiorari expires or when the Supreme Court denies certiorari. See Clay v. United States, 537 U.S. 522, 524-25 (2003); 

Drury v. United States, 507 F.3d 1225, 1296 (11th Cir. 2007). If Mr. 

Sanfilippo files a § 2255 motion after the one-year limitations period 

has expired, the government, in order to follow through on its 

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2 JORDAN, J., Concurring 22-11175

agreement with him, will have to expressly disclaim or waive any 

statute of limitations argument in its response. 

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