1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0207P (6th Cir.)

File Name: 04a0207p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

RICHARD TITTERINGTON, et

al.,

Defendants-Appellees.

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No. 03-5829

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 02-20165—Bernice B. Donald, District Judge.

Argued: April 20, 2004

Decided and Filed: July 6, 2004 

Before: BOGGS, Chief Judge; NELSON and SUTTON,

Circuit Judges.

_________________

COUNSEL

ARGUED: Dan L. Newsom, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellant.

Robert W. Ritchie, RITCHIE, FELS & DILLARD,

Knoxville, Tennessee, for Appellees. ON BRIEF: Dan L.

2 United States v. Titterington, et al. No. 03-5829

Newsom, ASSISTANT UNITED STATES ATTORNEY,

Memphis, Tennessee, for Appellant. Robert W. Ritchie,

Wade V. Davies, Stephen Ross Johnson, RITCHIE, FELS &

DILLARD, Knoxville, Tennessee, Richard M. Carter,

MARTIN, TATE, MORROW & MARSTON, Memphis,

Tennessee, Richard M. Steingard, Los Angeles, California,

Glen G. Reid, Jr., WYATT, TARRANT & COMBS,

Memphis, Tennessee, Kemper B. Durand, THOMASON,

HENDRIX, HARVEY, JOHNSON & MITCHELL,

Memphis, Tennessee, William D. Massey, Lorna S.

McClusky, MASSEY & McCLUSKEY, Memphis,

Tennessee, for Appellees.

SUTTON, J., delivered the opinion of the court, in which

BOGGS, C. J., joined. NELSON, J. (p. 14), delivered a

separate opinion concurring in the judgment and in the

opinion of the court.

_________________

OPINION

_________________

SUTTON, Circuit Judge. As this case comes to the court,

all agree that a federal indictment need not specifically state

that the charged offenses occurred within the pertinent

statute-of-limitations period; it suffices that the indictment

alleges facts establishing that the offense occurred within the

limitations period. What happens, however, when the

Government obtains permission to toll the limitations period?

Must the Government in that setting specifically allege that

the limitations period has been tolled or otherwise allege that

the indictment covers offenses that occurred within the

extended limitations period? The district court said yes; we

say no. Contrary to the views of the district court, we

conclude that the statute of limitations is an affirmative

defense that the Government need not specifically plead in a

criminal indictment. We therefore reverse the district court’s
No. 03-5829 United States v. Titterington, et al. 3

judgment in favor of the defendants and remand the case for

further proceedings.

I.

In January 1996, the FBI began an investigation of the

defendants in this case—Richard Titterington, Geoffrey

Feldman, Sherrie-Lee Doreen Cave, Robert Murray Bohn,

Stacy Layne Beavers and Michael Elliot Cole—regarding

their involvement with a Barbados-based entity known as

IDM. According to the United States, the defendants and

IDM ran an international lottery operation, which defrauded

United States citizens of more than $100 million. Believing

that IDM’s Bridgetown,Barbados headquarters held evidence

of this criminal conduct, the Office of International Affairs of

the Department of Justice obtained a warrant from the

Barbados government in June 1996 to search IDM’s

headquarters. Barbados authorities, assisted by the FBI,

executed the warrant on July 12, 1996, seizing approximately

140 boxes of evidence that were “significant to the . . . ongoing FBI investigation.” JA 498.

After the search, IDM officials challenged the validity of

the warrant. A local Barbados court ordered that the evidence

remain in Barbados pending a hearing as well as any appeal,

then placed the evidence under seal, which in this instance

meant locking the 140 boxes of evidence in a jail cell. The

evidence remained in the jail cell at the time the district court

entered judgment in this case, and it remains there today.

Claiming that the evidence it needed to prosecute these

defendants was itself in prison, the United States filed an ex

parte motion in federal district court on December 9, 1998, to

toll the limitations period for these alleged criminal offenses.

Under the mail fraud, RICO and anti-smuggling statutes, a

five-year limitations period generally governs criminal

allegations under these provisions. See 18 U.S.C. § 3282(a).

But a separate federal statute permits the Government “before

return of an indictment” to file an application “indicating that

4 United States v. Titterington, et al. No. 03-5829

evidence of an offense is in a foreign country” and requesting

that the limitations period be extended. Id. § 3292(a)(1).

Under this second statute, if “the court finds by a

preponderance of the evidence that an official request has

been made for such evidence and that it reasonably appears

. . . that such evidence is . . . in such foreign country,” the

court must “suspend the running of the statute of limitations”

until “the foreign court or authority takes final action on the

request,” but for no longer than three years. Id. § 3292(a)(1),

(b) & (c)(1). As the Barbados court appeared nowhere near

taking “final action” in the evidentiary matter, the district

court granted the motion to suspend the statute of limitations

for up to three years.

On May 8, 2002, a federal grand jury returned an 89-count

indictment against the six defendants involved in this appeal

and 11 other co-defendants who remain outside United States

jurisdiction and for whom extradition requests have been

lodged with various countries. The indictment charged the

defendants with violations of 18 U.S.C. § 1962(c)

(substantive RICO), 18 U.S.C. § 1962(d) (RICO conspiracy)

and 18 U.S.C. § 1341 (mail fraud). In addition, the

indictment charged that one of the defendants, Feldman,

violated 18 U.S.C. § 545 (smuggling). 

Defendants moved to dismiss the indictment, arguing that

an indictment must allege that an offense occurred within the

applicable statute-of-limitations period. The district court

(through the same judge who granted the Government’s

tolling motion) granted the defendants’ motion to dismiss.

“[T]o be facially sufficient,” the court noted, an indictment

must “contain each essential element of each offense

charged,” must “provide notice to the defendant of the

charges against him” and must provide “information

sufficient to protect the defendant against double jeopardy.”

JA 500–01. At the same time, the court added, an indictment

need not “negate defensive matters . . . nor . . . anticipate

affirmative defenses.” JA 501. Recognizing that one might

naturally think of the statute of limitations as a “defense” that
No. 03-5829 United States v. Titterington, et al. 5

falls outside of the pleading requirements for a facially valid

indictment, the district court nonetheless concluded that “the

statute of limitations cannot be construed as a mere

affirmative defense or defensive matter” because in this

Circuit the statute-of-limitations argument may be made for

the first time on appeal. See United States v. Crossley, 224

F.3d 847, 858 (6th Cir. 2000). Construing the statute of

limitations as a “jurisdictional bar” and finding no allegation

in the indictment that the crimes occurred within the

limitations period or that the limitations period had been

tolled, the court held that it lacked “jurisdiction over this

matter” and that “the indictment must be dismissed.” JA

501–02. The Government appealed.

II.

A.

The appropriate standard for reviewing a district court’s

decision whether to dismiss an indictment is not entirely

clear. As the parties observe, we have treated the issue

differently at different times, in some cases describing our

task as abuse-of-discretion review, in other cases describing

our task as de-novo review. Compare, e.g., United States v.

DeZarn, 157 F.3d 1042, 1046 (6th Cir. 1998) (de novo), with

United States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001)

(abuse of discretion). In this case, as in many cases involving

an allegedly flawed indictment and as the parties themselves

here agree, the distinction does not make a difference, as an

error of law compels a reversal under either standard of

review. See United States v. Taylor, 286 F.3d 303, 305 (6th

Cir. 2002) (“[A]n erroneous legal determination is always an

abuse of discretion.”).

B.

In federal court, a criminal defendant “shall [not] be held to

answer for a capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,” U.S. Const.

6 United States v. Titterington, et al. No. 03-5829

amend. V, and the defendant “shall enjoy the right . . . to be

informed of the nature and cause of the accusation,” U.S.

Const. amend. VI. Consistent with these constitutional

commands, Rule 7(c)(1) of the Federal Rules of Criminal

Procedure says that an “indictment or information must be a

plain, concise, and definite written statement of the essential

facts constituting the offense charged.” An indictment

complies with all of these requirements, the Supreme Court

has held, if it (1) “contains the elements of the offense

charged,” (2) “fairly informs a defendant of the charge against

which he must defend” and (3) “enables him to plead an

acquittal or conviction in bar of future prosecutions for the

same offense.” Hamling v. United States, 418 U.S. 87, 117

(1974).

While an indictment must satisfy these three notice-related

requirements, “[i]t has never been thought that an indictment,

in order to be sufficient, need anticipate affirmative defenses.”

United States v. Sisson, 399 U.S. 267, 288 (1970). “[A]n

indictment . . . founded on a general provision defining the

elements of an offense . . . need not negative the matter of an

exception made by a proviso or other distinct clause . . . . [I]t

is incumbent on one who relies on such an exception to set it

up and establish it.” McKelvey v. United States, 260 U.S.

353, 357 (1922); see Evans v. United States, 153 U.S. 584,

590 (1894) (“Neither in criminal nor in civil pleading is [the

Government] required to anticipate or negative a defense.”).

In addition to giving general guidance that the elements of

a criminal charge must be in the indictment while allegations

negating the elements of an affirmative defense need not be,

the Supreme Court has held that a statute-of-limitations claim

falls on the affirmative-defense side of the line. In United

States v. Cook, 84 U.S. 168 (1872), a grand jury indicted a

paymaster in the Army under an act of Congress making it a

crime to embezzle public funds. A different statute imposed

a two-year limitations period on the offense but also provided

that the limitations period did not “extend to any person or

persons fleeing from justice.” Id. at 173. Arguing that “it
No. 03-5829 United States v. Titterington, et al. 7

appears on the face of the indictment . . . that the crime

charged . . . was committed more than two years before the

indictment,” the paymaster “demurred” to the

indictment—which is to say, he admitted the allegations in

the indictment, then argued that he could not be convicted

even if they were true. Id. at 172.

The Supreme Court rejected the argument, holding that a

defendant may not “by demurrer [] set up the statute of

limitations as a defence” just “because another act of

Congress provides that no person shall be prosecuted, tried,

or convicted of the offence unless [] indict[ed] . . . within two

years.” Id. at 178. “Accused persons may avail themselves

of the statute of limitations by special plea [i.e., by raising an

affirmative defense] or by evidence under the general issue

[i.e., by presenting evidence at trial],” the Court explained,

“but courts . . . will not quash an indictment because it

appears on its face that it was not found within the

[limitations] period . . . as such a proceeding would deprive

the prosecutor of the right to reply or give evidence, as the

case may be, that the defendant fled from justice and was

within the exception [to the limitations period].” Id. at

179–80. Nor would a “different rule [] apply . . . if the statute

of limitations did not contain any exception,” the Court

continued, because time is not an element of the offense. Id.

at 180; see also Biddinger v. Comm’r of Police, 245 U.S. 128,

135 (1917) (“The statute of limitations is a defense and must

be asserted on the trial by the defendant in criminal cases.”).

More than a century later, Cook remains good law and

governs the outcome of this dispute. In this case, as in Cook,

the statute defining the offenses does not contain a statute of

limitations, but “another act of Congress” does. As in Cook,

that other act sets forth a limitations period, which contains an

exception. And, as in Cook, a court may not dismiss an

indictment just “because it appears on its face that it was not

found within the [limitations] period” because to do so

“would deprive the prosecutor of the right to reply or give

evidence, as the case may be, that the defendant . . . was

8 United States v. Titterington, et al. No. 03-5829

within the exception [to the limitations period].” 84 U.S. at

179–80. Nor, as in Cook, would a “different rule [] apply . . .

even if the statute of limitations did not contain any

exception,” id. at 180, as time is not an essential element of a

mail-fraud, RICO or smuggling offense. As Cook makes

clear, the statute of limitations for mail-fraud, RICO and

smuggling prosecutions does not impose a pleading

requirement on the Government, but merely creates an

affirmative defense for the accused.

III.

Defendants raise several challenges to this conclusion, all

unconvincing. At oral argument, defendants claimed that

Cook is a relic of common-law pleading and has no

application to the modern Federal Rules of Criminal

Procedure. But to say that Cook does not control because it

spoke of “demurrers,” “special pleas” and “evidence under

the general issue” instead of using the up-to-date terminology

of the Federal Rules gives too much credit to linguistic trends

and too little credit to the stability of the law. All of these

antiquated terms of course have modern analogues, just as

today’s terminology is apt one day to have future analogues

of its own. In this case, for example, a pretrial motion

alleging a “defect in the indictment” under the Federal Rules,

see Fed. R. Crim. P. 12(b)(3)(B), represents the modern

equivalent of a “demurrer” because both pleadings serve to

attack the facial validity of the indictment. See United States

v. Ponto, 454 F.2d 657, 660 (7th Cir. 1971) (“In 1946, the

Federal Rules of Criminal Procedure abolished the use of

common law procedures such as a demurrer and plea in

abatement and substituted in their place the motion to dismiss

the indictment under Rule 12.”). Because a demurrer and a

motion alleging a defect in the indictment perform the same

core function, Cook’s essential holding—that the statute of

limitations concerns an affirmative defense (which need not

be pled), not an element of the offense (which must be

pled)—has continuing currency under the Federal Rules. See

United States v. Parrino, 203 F.2d 284, 287 (2d Cir. 1953) (L.
No. 03-5829 United States v. Titterington, et al. 9

Hand, J.) (“Rule 12(a) abolished all defensive pleadings

except ‘not guilty,’ and provided that ‘defenses . . . which

heretofore could have been raised’ by demurrer ‘shall be

raised only by motion to dismiss.’ From that it follows that,

since the question decided in United States v. Cook [] could

not be raised by demurrer under the old practice, it may not

now be raised by motion to dismiss and, if so, it must be

raised by the plea of ‘not guilty.’”).

The defendants next argue that, no matter what Cook says,

this Circuit has determined that the statute of limitations

contained in 18 U.S.C. § 3282 is not merely defensive but is

“jurisdictional,” which supports the district court’s ruling. As

defendants correctly observe, United States v. Crossley, 224

F.3d 847, 858 (6th Cir. 2000), held that “absent an explicit

waiver, the statute of limitations [under § 3282] presents a bar

to prosecution that may be raised for the first time on appeal.”

Relying on Crossley and echoing the district court’s reliance

on Crossley, defendants argue that the statute of limitations

must be jurisdictional because a defendant may raise it for the

first time on appeal, which in turn means that the Government

must plead the statute of limitations in order to vest the

district court with “jurisdiction” over the indictment.

Crossley does not support this string of inferences. It does

not say anything about what an indictment must contain, let

alone mention the Supreme Court’s Cook decision. Nor does

it say that a statute of limitations is “jurisdictional.”

Although Crossley says that the statute of limitations may

be raised for the first time on appeal, not every issue that may

be raised for the first time on appeal is jurisdictional. Just this

Term, the Supreme Court highlighted the flaw in this

reasoning. In Kontrick v. Ryan, 124 S. Ct. 906, 915 (2004),

the Court observed that just because “[a] litigant generally

may raise a court’s lack of subject-matter jurisdiction at any

time in the same civil action, even initially at the highest

appellate instance,” and just because “a debtor may challenge

a creditor’s objection to a discharge as untimely . . . at any

10 United States v. Titterington, et al. No. 03-5829

time in the proceedings, even initially on appeal,” does not

mean that the rules governing the timeliness of a creditor’s

objection “have the same import as provisions governing

subject-matter jurisdiction.” A “critical difference” between

subject-matter jurisdiction and the timing rules at issue in

Kontrick, the Court explained, is that the former “cannot be

expanded to account for parties’ litigation conduct” and the

latter can be. Id. at 916. Courts “have more than occasionally

used the term ‘jurisdictional’ to describe emphatic time

prescriptions,” the Court noted, but the label “can be

confounding” because such prescriptions do not generally

affect personal or subject-matter jurisdiction. Id. at 915

(quotation and citation omitted); see also Scarborough v.

Principi, 124 S. Ct. 1856, 1858 (2004). 

In challenging the district court’s jurisdiction over this

criminal indictment, the defendants make a similar mistake.

The federal courts’ subject-matter jurisdiction to hear federal

criminal prosecutions comes from 18 U.S.C. § 3231, which

grants “[t]he district courts of the United States . . . original

jurisdiction . . . of all offenses against the laws of the United

States.” A true jurisdictional problem—say, the Federal

Government prosecutes a defendant for a non-federal

crime—cannot be waived or altered by the parties’ conduct

during the proceeding. As mail fraud, RICO and smuggling

are “offenses against the United States,” however, § 3231

grants the district courts jurisdiction—the power to hear the

case—no matter how much time elapsed between the criminal

conduct and the criminal indictment and no matter what the

Government ultimately proves or fails to prove. See United

States v. Rayborn, 312 F.3d 229, 231 (6th Cir. 2002) (holding

that the interstate-commerce requirement of the federal arson

statute “is not jurisdictional in the sense that it affects a

court’ssubject-matterjurisdiction, i.e., a court’s constitutional

or statutory power to adjudicate a case”); Hugi v. United

States, 164 F.3d 378, 380 (7th Cir. 1999) (“Subject-matter

jurisdiction in every federal criminal prosecution comes from

18 U.S.C. § 3231, and there can be no doubt that Article III

permits Congress to assign federal criminal prosecutions to
No. 03-5829 United States v. Titterington, et al. 11

federal courts. That’s the beginning and the end of the

‘jurisdictional’ inquiry.”).

Were the statute of limitations jurisdictional in the sense

that defendants claim, moreover, an individual could not

explicitly waive its protection, see United States v. Cotton,

535 U.S. 625, 630 (2002) (“subject-matter jurisdiction . . . .

can never be forfeited or waived”), which Crossley itself says

a defendant can do and which many defendants desire to do.

For example: some defendants plead guilty to a time-barred

lesser offense with a shorter limitation period in exchange for

the Government dropping charges on a greater offense with

a longer limitation period; other defendants request jury

instructions on a time-barred lesser offense to avoid giving

the jury an all-or-nothing-at-all choice. See Spaziano v.

Florida, 468 U.S. 447, 454–57 (1984) (suggesting that a

capital defendant has a due process right to a jury instruction

on a time-barred lesser included offense so long as he waives

the statute of limitations for that offense). All of this explains

why the federal courts of appeals that have addressed this

issue uniformly agree that the statute of limitations provides

an affirmative defense that the defendant may waive. See

United States v. Soriano-Hernandez, 310 F.3d 1099, 1103–04

(8th Cir. 2002); United States v. Najjar, 283 F.3d 1306, 1309

(11th Cir. 2002); Acevedo-Ramos v. United States, 961 F.2d

305, 307 (1st Cir. 1992); United States v. Cooper, 956 F.2d

960, 962 (10th Cir. 1992); United States v. Arky, 938 F.2d

579, 581–82 (5th Cir. 1991); United States v. DeTar, 832

F.2d 1110, 1114 (9th Cir. 1987); United States v. Karlin, 785

F.2d 90, 92–93 (3d Cir. 1986); United States v. Meeker, 701

F.2d 685, 687–88 (7th Cir. 1983); United States v. Walsh, 700

F.2d 846, 855–56 (2d Cir. 1983); United States v. Williams,

684 F.2d 296, 299–300 (4th Cir. 1982); United States v. Wild,

551 F.2d 418, 421–25 (D.C. Cir. 1977).

Had Crossley said what the defendants claim it said—a

court lacks subject-matter jurisdiction if the indictment does

not plead the statute of limitations—Crossley no longer

would be good law. As the Supreme Court recently held in

12 United States v. Titterington, et al. No. 03-5829

Cotton, “defects in an indictment do not deprive a court of its

power to adjudicate a case” and thus are not “jurisdictional.”

535 U.S. at 630–31.

Neither does Crossley say that because failing to prove

compliance with the statute of limitations establishes a “bar

to prosecution,” pleading the statute of limitations must be

mandatory (even if it is not jurisdictional). The Double

Jeopardy Clause and the Ex Post Facto Clause also establish

a bar to criminal prosecution. Yet no case to our knowledge

mandates that indictments must allege that the Government

did not previously prosecute the defendant for the same

offense or that the defendant completed the crime after

Congress criminalized the conduct. If these constitutional

defenses do not alter the normal rules for pleading crimes, it

is hard to understand why this statutory defense should do so.

The Tenth Circuit’s decision in United States v. Gammill,

421 F.2d 185 (1970), does not suggest otherwise. There, the

court held that a district court lacked authority to amend an

indictment that omitted the year in which the alleged crime

took place, without first submitting the new indictment to a

grand jury. Id. at 186. Here, in marked contrast, the

indictment does mention the year in which the alleged crimes

took place and that year falls within the eight-year limitations

period (five years plus three years) under 18 U.S.C. §§ 3282

& 3292.

Even if a run-of-the-mill indictment need not mention the

statute of limitations, defendants argue that “tolling” cases are

different and require the Government to allege that “the

limitations period for this crime was tolled for three years” or

perhaps that “the prosecution would comply with the statute

of limitations as computed under 18 U.S.C. §§ 3282 & 3292.”

But the defendants offer no pertinent authority for this

proposition and fail to explain why Cook, which itself

involved an exception to the statute of limitations (for a

fleeing felon), does not squarely control the outcome of this

case. 
No. 03-5829 United States v. Titterington, et al. 13

IV.

For the foregoing reasons, we reverse the district court’s

judgment dismissing the indictment and remand the case for

further proceedings consistent with this opinion.

14 United States v. Titterington, et al. No. 03-5829

____________________

CONCURRENCE

____________________

DAVID A. NELSON, Circuit Judge, concurring. I fully

concur in the judgment and in Judge Sutton’s opinion for the

court. Perhaps it would not be amiss, however, for me to add

a word on the question of our standard of review, given the

tension between my unqualified assertion in United States v.

Powell, 823 F.2d 996, 1001 (6th Cir. 1987), that “[w]e review

a district court’s refusal to dismiss an indictment only for

abuse of discretion” and my unqualified concurrence in Judge

Rosen’s opinion in United States v. DeZarn, 157 F.3d 1042

(6th Cir. 1998), which asserted that “[t]he sufficiency of the

indictment is reviewed de novo.” Id at 1046.

I suppose a pedant could claim that Powell is not directly

in point here, the case at bar not being one that gives us

occasion to “review a district court’s refusal to dismiss an

indictment . . . .” But were it not for the fact that, as Judge

Sutton has generously pointed out, “an erroneous legal

determination is always an abuse of discretion,” see United

States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002), I would

be hard pressed to deny that the logic of my statement in

Powell is at odds with the logic of Judge Rosen’s statement

in DeZarn. And I am at a loss to know what I could have

been thinking of when I said what I said in Powell; the Powell

statement (which I must have expunged from my memory in

the ensuing decade) now strikes me as wide of the mark,

while Judge Rosen’s statement in DeZarn strikes me now —

as it did when I concurred in it — as right on target.