1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0207P (6th C ir.) File Name: 04a02 07p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA , Plaintiff- Appellant
,

v.

R ICHA RD T ITTER INGTON , et al., Defenda nts-Appe llees. X - - - -> , - - - - N No. 03-5829

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 02-20165—Bernice B. Donald, District Judge.

Argued: April 20, 2004 Decided and Filed: July 6, 2004 Before: BOGGS, Chief Judge; NEL SON and SUTTON,

Circuit Judg es.

_________________ COUNSEL
ARGUED: Dan L. Newso m, ASSISTANT UNI TED STATES ATTORNEY , Memphis, Tennessee, for Appellan t. Rob ert W. Ritchie, RITCHIE, F ELS & DI LL AR D , K noxville, Tennessee, for Appellees. ON BRI EF: Dan L

. 2 United Sta tes v. Titte rington, e t al. No. 03-5829

Newsom, ASSISTANT UNI TED STATES ATTORNEY, Memphis, Tennessee, for Appe l lant. Robert W. Ritchie, Wade V. Dav ies , S tep hen Ro ss Jo hns on, RITC HIE, FELS & DIL LARD, Knoxville , T ennessee, Richard M. Carter, M AR TIN, TATE, MOR ROW & MARSTO

N, Memphis , Tennes se e, Richard M. Steingard, Los Ang eles, California, GlenG. Reid, Jr. , WYATT, TA RRANT & CO MBS, Memphis, Tennessee, Kemper B. Dura nd, THOMASON, HENDRIX, HARVEY, J OHNSON & M ITCHE LL , Memphis, Tennessee, W i lliam D. Ma ssey , Lor na S. M cC lu sk y, MASSEY & McCL USKEY, Me mphis , Tenness ee, for

Appellee s. SUTTON, J., delivered the opinion of the court, in wh ich BOGGS, C. J., joined. NELSON, J. (p. 14) , delivered a separa te opinion concurring in the judgment and in the opinion of

the cour t.

_________________ OPINION

_________________ SUTTON, Circuit Judg e. As thiscase comes to the cour t, all agree that a federal indictment

need not s

pecific ally

state that the ch arge d offenses occurred within the pertinent statute-of-limitations period; it s uffices that the indictment alleges facts establishing that the offense occur red within the limitations peri od. Wh at 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 ind ictm ent covers offenses that occurre d within the ex tended limitations period? The district court said yes; we say no. Cont rar

y to the views of the district cour t, we conclude that the statute of limitations is an affirmative defense that the Government need not specifically plea

d in a criminal indictment. We therefore reverse the district court’sNo. 03-5829 United Sta tes v. Titte rington, e t al. 3
judgment infavor of the defendants and remand the case for further procee dings.
I.
InJanuary 1996, the FB I be g an an investigation of the defenda nts in this case—Richard Titterington, Geoffrey Feldman, Sh er ri e- Lee Do re en Ca ve , R ob er t M ur ra y Bohn , Stacy Lay ne Bea vers and Michael Elliot Cole

—r egarding their involveme

nt wit h a Barbados-based entity known as IDM. According to the Unit ed 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, Bar

bados headquarters held evidence of this criminal conduct, the Office of International Affa irs of the Depa rtm ent of Justice obtained a warrant from the Barbados government in June 1996 to search I DM’s headqua rters. Bar bad os a ut hor it ies , as si st ed b y the FBI, executed the warr ant on July

12, 1996, seizing a

pproximate ly 140 box es of evidence that were “significant to the . . . ongoing FBI investigation.” JA 498.
After the search, IDM of

ficials challenged t he validity of the warrant. A local Barbados cour tordered that

the evidence remain in Barb ados pen

ding a h earing

as well as any appeal, thenplaced t

he evide nce unde r seal, w hich in this

i nst ance meant locking the 140 boxes of evid ence in a jail cell. The evidence remained

in the jail cell at the time the district court en te re d j ud gm en t i n t hi s c as e, an d i t r em ai ns th er e t od ay. Claiming that the evidenc e it needed to prosec

ute these defenda nts 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 al leged c

riminal of fenses. Under the mail f

raud, RICO and an

ti-smugg ling sta tutes, a five-ye ar limitations period generally governs criminal allegations under the se provisions. See 18 U.S.C. § 3282(a). But a separate federal statute per mits the Government “before return of an indictment” to file an application “indicating that 4 United Sta tes v. Titte rington, e t al. No. 03-5829

evidence of an

offens e is in a forei gncountry” a nd requesting that the limitat ions period be extended. Id. § 3292(a)(1). Under this second statute, if “ th e c ou rt fi nd s b y a prepon deranc e of the evidence that an official reque st has been made for such evidence and that it reasona bl y appea r s

. . . that such evidence is . . . in such for eign co untry,” the court must “susp end the r

unning o f the stat

ute of limi

tations” until “the foreign court or authority takes final action o n t he request,” butfor no longer than three y ears. Id. § 3292(a)(1), (b) & (c)(1). As the Ba

rbados c ourt appe ared nowhere near taking “final a

ction” in the evide

nti ary ma tter, the district court granted the motion

to suspend

the statute of limitations for up to t hree y ears. OnMay 8, 2002, a fe deral grand jury returned an 89-count indictmentagains t the six def endantsinvolved

in this appeal and 11 other co-def endantswho remain outside United States jurisdi cti onand for whom extradition requests have been lo dged wi th various countries. The indictment charged the defend a nts with violations of 18 U.S.C. § 1962(c) (substantive RIC O) , 1 8 U .S .C . § 19 62 (d ) ( RIC O c on sp ir ac y) and 18 U.S.C. § 1341 (m a il fraud). In addition, the indictmentcharged

that one of the defendants, Feldman, violated 18 U.S.C. § 545 (smuggling).
Defend ants moved to dismiss the indictment, arguing that anindi ctmen t mus t all ege that an offense occurred within the applica ble statute- of-lim itati ons period. The district court (thro ugh the same judge who granted the Gove rnm ent’s t olli ng motion) g

ranted t he defe ndants’ motion to dism

iss. “[T]obe facially

suffi cient ,” the court noted, an indictment must “contain each essential elemen t of each of

fense charge d,” mus t “provide notice to the defendant of the charges agains t him” and must prov ide “information su fficient to protect the defendant against double jeopar dy.” JA 500–01. At the same time, the court added, an indictment need not “negate de fe nsive matt ers . . . nor . . . anti cipate affirmative defenses.” JA 501. Recognizing that one might natural ly think of th e statute

of limitations as a “defense” thatNo. 03-5829 United Sta tes v. Titte rington, e t al. 5

falls outside of

the pleadingrequire

ments for a facia lly valid indictmen t, the district

court nonetheless concluded that “the statute of limi t ations cannot be construed as a mere affirmat i ve defense

or defe nsive matt

er” bec ause in th

is Circuit the statut e-of-li mit a tions 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 o f limitations as a “jurisdictional bar” and finding no alleg ation inthe indi ctme nt that the crimes occurred within the limitations period or that the limitat i ons period had been tolled, the cour

t held tha

t it lacke d “jurisd

iction ove

r this matter” and that “the indictment must be d

ismi sse d.”

JA 501–02. The Government appealed.
II.
A.
The appro priat e stan dard fo r revi ewing a dis trict court’s decisionwhether

to dismis s an indictmen t is not enti

rely clear. As th e parties observe, we have treated the issue differ ently at different times, in some cases describing our task as abuse-of-discretion review, in other ca ses describing our task as de-novo review. Compare, e.g., United States v. DeZarn , 157 F.3d 1 042, 1046 ( 6th Cir. 1998) (de novo), with United States v. Middleton , 246 F.3d 825, 841 ( 6th

Cir. 2001) (abuse of d is cre ti on) . In this case, as in many cases involving anallegedly

flawed indictment and as the parties themselves here agree, the distinction does not make a diff erence, a s an error of law compels a rev ersal un der either standard of review. See United States v. Taylor , 286 F.3d 303, 305 ( 6th Cir. 2002) (“[A]n erroneous legal determination is always a n abuse of discretion.”).
B.
Infedera l court, a criminal defenda nt “shall [n

ot] be held

to answer for a ca pital, or otherwise

infamous crime, u nless on a presentment or indictment of a Grand Jury ,” U.S. Const. 6 United Sta tes v. Titte rington, e t al. No. 03-5829

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

ture and cause of the acc usation,” U.S. Const. amend. VI. Consistent with these constitutional commands , Rule 7(c)(1) of the Feder al Rules of Criminal Procedu re say s that an “ indictmen

t or infor mation must

be a plain, concise , and def

inite written statement of

the essential facts constituting the offense charge d.” An indictment comp lies w ith all of these requirements, the Supreme Court has held, if it (1) “contains the eleme nts of the

offense charged,” (2) “fairly

informs a defendant of the charge agains t whichhe must defen d” an d (3) “enables him to plead an acquittal or con vic tion in bar of future prosecutions for the same offense.” Hamling v. United States , 418 U.S. 87, 117 (1974).
While an indictmen

t must satisfy these three

notice-related require ments, “[i]t has never been thought t hat an ind ictment, inorder to be suffi cient, ne ed antic ipate af fir mative defense s.” United States v. Sisson , 399 U.S. 267, 288 (1970). “[ A ]n indic tm ent

. . . 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 Eva ns v

. United States , 153 U.S. 584, 590 (1894) (“Neither in cr iminal nor

in civil ple ading is

[the Government] required to anticipate or negative a defense.”).
Inaddition to giving general g uidance that

the elements of a criminal charge must be in the indictment while allega tions negati ng the e lements of an affirmative defense need not be, the Supreme Court has held that a sta tute-of- limitations

claim falls on the affirmative-defense side of t he line. In United States v. Cook , 84 U.S. 168 (1872), a gra nd jury indicted a paymaster

inthe Army

under an act of Con

gress making it

a crimeto embezzle

public funds. A different statute imposed a two-year limitations period on the offense but also provided that the limi tations p eriod did not “extend to any person or persons fleeing from justice.” Id. at 173. Arguin

g that “ itNo. 03-5829 United Sta tes v. Titte rington, e t al. 7

appears o n the fac e of the i ndictmen t . . . that the crim e charged . . . was committed more than two years be fo re the indictmen t, ” the paymaster “ demurre d” to th e indictment—w hich is to say, he admit ted the a llegat ions in the indictmen

t, then ar gued th at he cou

ld not be c onvic t ed even if they were true. Id. at 172.
The Supreme Court rejected the argument, ho ldi ng that a defendant may not “ by demu rrer [] set up th e statute of limitatio n s as a defence” just “because another act of Co ngress provides that no pe

rson shal l be prose cuted, tr ied , 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 e vidence under the genera l issue [ i.e. , by pres entin

g ev iden ce a

t tria l],” t he Cou rt exp laine d, “but courts . . . will not qu ash an indict ment bec ause it appears on its fa ce that it was not found within the [limitations ] period . . . as such a proceeding would deprive the prosecutor

of t he right to reply

or give evidence, as the casemay be, that the de fendant fl ed from justice and was within the exception [to the limitations period].” Id. at 179–80. Nor would

a “diff erent r ule [] apply

. . . if the statut e o f lim itations 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 defe

ndant in criminal cases.”).
More than a ce

ntu ry lat er, Cook remains good law and governs the outcome of this disp ute. I n this case, as in Cook , the statute de fining t

he offe nses does not conta ina 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 indictmentjust

“becau se it appe ars on its face that it was not found within the [limitations] period” because to do so “would deprive the prosecutor of theright to reply or give evidence, as the case may be, that the defenda

nt . . . was 8 United Sta tes v. Titte rington, e t al. No. 03-5829

within the exception [to the limitations period].” 8 4 U.S. at 179–80. Nor, as in Cook , would a “ di ff er en t r ul e [ ] a pp ly .

. . even if the statute o f limit ations did not contain any exception,” id. at 180, as

time is not an essential element of a mail-fraud, RICO or smuggling off ense. As Co ok

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

prosecutions does n ot impose a pleading requirement

on the Gover

n ment, but merely cr

eates an affirmative defense for the ac cused.
III

. Defend ants raise se

veral challeng es to this con clusion, a ll uncon vinci ng. At oral argument, defendan ts cl aimed that Cook is a relic of common-law plea ding and has no applicationto the modern Federal Rules of C rim inal Procedure. But to say

that Cook

does not control be cause i t spoke o f “ demurrers,” “special pleas” a nd “evidence under the general issue”instead

of usi ng the u p-to- date t ermin ology of the Federal Rules gives too much cre dit to linguistic trends and too little credit to the stability of the law. All of these antiq uat ed terms of course have modern analog ues, just as today’sterminology is apt one day to have f

uture a nalog ues of its own. I

n this cas e, for examp l e, a pretrial motion alleging a “defect in the indictment” under the Federal Rules,
see Fed. R. Crim. P. 12(b)(3)(B), re present s the modern equivalent

of a “demurrer” beca

use both pleadi n gs serv e to attack the fac ial validi

ty of the indictment. See United States
v. Ponto , 454 F. 2d 657, 660 (7th Cir. 1971) (“In 1946, the FederalRules of Criminal Procedure abo lished the use of commonlaw procedures such as a demurr e r and ple a in abatement

and substitute d in their

place th e motion to d

ismiss the indictmentunder Ru le 12.”). Because a demurr er and a motion alleging a defect in the indictment per form the same core function, Cook ’s es sentia l holding—that the statute of limitat i ons concerns an affirmative defe nse (which need not be pled), not an element of the offe nse (which must be pled)—has continuing currency under the Federal Rules. See United States v. Parrino , 20 3 F. 2d 2 84, 287 (2d Ci r. 1 953 ) (L.No. 03-5829 United Sta tes v. Titte rington, e t al. 9
Hand, J.) (“Rule 12(a) abolished all defe ns ive pl eadin gs excep t‘not guilty,’ a

nd provided that ‘defenses . . . whi c h heretofore could have been raised’ by demurrer ‘shall be raised only by

motion to dismiss.’ From tha t it follows

that, s ince the question decided in United States v. Cook [] could notbe raised by

demurrer under the old practice, it may not no w be raise d by

motion to dismiss and, if so, it must b e raised by the ple a of ‘not guilty .’”).
The defendants next argue that, no matter what Cook

say s, this Circuit ha s determi

ned that the st atute of limitations contained in 18 U.S.C. § 3282 is not merely defensi ve but is “jurisdictional,” which sup ports the district court’s ruling. As defenda nts correctly

observe, United States v. Crossley , 224 F.3d 847, 858 ( 6th

Cir. 2000), held that

“absen t an explici

t 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 , defend

ants arg ue 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 statut e of limi tations in order to vest the district c ourt with “

jurisdict ion” over the indic tment. Crossley does not

support this string of inferences. I t does not s ay any

thing about what an indictment must contain, let alone mention the

Supreme C ourt’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 appea l is jurisdict

ional. Just th

is Term , the Supreme Court highlighted the flaw in t hi s reason ing. In Kon trick

v. Ryan , 124 S. Ct. 906, 915 (2004), t he Court obse

rved tha t just beca

use “[a] liti gant g eneral l y may raise a court’s lack

of subject-matter jurisdiction at any time in the same civi l action, e ven initia lly a t the hig hest appella te instance,” and

just because “a debtor may chall enge a cr editor’s objection to a discharge as untimely . . . at any 10 United Sta tes v. Titte rington, e t al. No. 03-5829

time in the proceedings, even initially on appeal,” does not mean th at the rules governing the timeliness of a c reditor ’ s objection“have the same import as provision s gov erning subject-matter

jurisdiction.” A “critical difference” be tween s ubject -matter

jurisdict ion and the

timing ru

les at issu

e in Kontrick , the Court explained, is that the for mer “cannot be expanded to account for

pa rties’ litigation conduct” and the latter can be. Id. at 916. Courts “have more tha n occasi onally used the term ‘

jurisdict ional’ to d

escribe emphatic

time prescriptions,” the Court no ted, but the label “can be confo undi ng” because such prescriptions do not generally affect personal or subj ect -matter jurisdiction. Id. at 915 (quotationand cita

tion omitt ed); s ee also Scarborough v. Principi , 124 S. Ct. 1856, 1858 (2004).
Inchallen

ging the district court’s

jurisdict io n over this criminal indictmen

t, the def endants make a si

mila r mistake. The federal courts’ subject-matter jurisdiction to hear f ederal criminal prosecutions comes from 18 U.S.C. § 3231, which grants “[t]he district courts of the United States . . . o riginal jurisdiction . . . of all offenses against the laws of the United States.” A true jurisdictional problem—say, the Federal G overnment

prosecutes a defendant for a non-f ed era l crime—cannot

be waive d or alte

red by the part i es’ c onduct during the proceeding. As mail fraud, RI CO and smuggling are “offenses agains t the United States,” however, § 3231 grants the district courts jurisdiction—the power to hea r th e case—no matter how much time elapsed between the cr imin al conduct and the c riminal i ndictmen t and no matter what the G ove rnment

ultimately proves or fa

ils to prove. See United States v. Raybo rn , 312 F.3d 229, 231 (6th Cir. 2002) (holding that the interstate-commerce requirement of the federal arson statute “is not jur

isdictiona l in the sen se that it a ffects a court’s subject-matter jurisdict io n, i.e. , a court’s constitutional or statutory powe

r t o adjudic ate a ca se”); Hugi v. United States , 164 F.3d 3 78, 380 (7 thCir. 1 999) (“Subject-matter jurisdiction inevery f

ederal criminal prosecution comes from 18 U.S.C. § 3231, and t here can be n o do ubt th at A rti cle III permits Congre ss to assig n feder al criminal prose cutions toNo. 03-5829 United Sta tes v. Titte rington, e t al. 11

federal courts. That’s the beginning and the end of the ‘jurisdictional’ inquiry.”).
Were the statut

e of limita

tions ju risdict ional in the

sense that defendants claim, moreover, an indivi dual c ould not explicitly waive its protection, see United States v. Cotton , 535 U.S. 625, 630 (20 02) (“subject-matter jurisdiction . . . . can never be forfeited or waived” ), which Crossley itself sa ys a defendant can do and

which man

y de fendant s desire

to do. For example: some defendant s p lead guilty to a time-barred lesser offense with a shorte r limitation period i

nexchange for the Government dropping charge s on a gr eater o ffense with a longer limitation peri od; other defendants request jury i nstructions on a time-

barred lesser o ffense

to avoid givin g the ju ry a n all-o r-nothing-at-all choice. See Spaziano v. Florida , 468 U.S. 447, 454 –57 (1984) ( sugge sting tha t a capital defendant has a due pro cess rig ht to a jury instruction ona time-barred lesser

included offense so long as he waives the statute of limitations for that offense). All of this explains
w hy the fede ral cour ts of appe als that ha

ve addre ss ed thi s issue uniformly ag

ree that the statute of limitations provides anaffirmative defense that the defenda nt may waive. See United Sta tes 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. 1 992); United States v. Cooper , 956 F.2d 960, 962 (1 0th Cir. 1992); United States v. Arky , 938 F.2d 579, 581–82 ( 5 thCir. 1991) ; United States v. DeTar , 832 F.2d 1110, 1114 (9th

Cir. 1987); United Sta tes v. Karl in , 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 ); Un ited States v. Williams , 684 F.2d 296, 299–300 (4th Cir. 1982) ; United States v. W ild , 551 F.2d 418, 421–25 (D.C. Cir. 1977).
Had Crossley s aid wh at the defendants claim it said—a court lacks subject-matter

jurisdiction if the indictment does notplead the

statute of

limitations

— Crossley no longer would be good law. As th e Supreme Court rec ently

held in 12 United Sta tes v. Titte rington, e t al. No. 03-5829

Cotton , “defects in an indictment do not deprive a court o f its power to adjudicate a case” and thus are not “jurisdictional.” 535 U.S. at 630–31.
Neither does Cr ossley say that beca use failing to prove complianc e w ith the statute of limitations establishes a “bar to prosecu

ti on,” pleading the statute of limitations must be mandatory

(even if it is n ot jurisdict

ional). T

he Double Jeopardy Clause and the Ex Post

Facto Cl ause als o establish a bar to crimi nal pr osecu tion . Yet n o case t o our k nowle dge mandates that indictments must allege that the Government did not previous ly prosecut e the def endant f or the sa me off ense or that the defendant completed the crime aft e r Congre ss criminalized the conduct. If these c onstitutional defenses do not alter

the norma

l rules for pleadi

ng crimes, it is hard to unders tand why

this statut

ory defense should do so.
The Tenth Circuit’s decision in United States v. Gammill , 421 F.2d 185 (1970), does not sugg est otherwise. There, the court held that a district court lacked authority to amend an indictmentthat omitte d th e yea r in which the alleg ed crime took place, witho ut first submitting the new indictment to a grand jury. I d. at 186. Here, in marked contrast, the indictment does mention the year in whic h the alleged crimes took place and that y

ear falls within the eight-y ear limitations period (five years plus thre e 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” ca ses are different and require the Government to allege that “ the limitations period for this crime was tolled for three y

ears” or perhaps that “the prosecu tion would c omply

with the st

atute of limitations as computed under 18 U.S.C. §§ 3282 & 3292.” But the defendants offe r n o pertine nt author ity f or this proposition and fail to expl ain w hy Cook , which its elf i nvolv ed an exception to the statute of limitations (for a fleeingfelon), does not squarely control the ou tcom e of this case.No. 03-5829 United Sta tes v. Titte rington, e t al. 13

IV.
For the fore goin g re asons, we reverse the district court’s judgment dismissing the indictment and remand the case for further proceedings consistent with this opinion. 14 United Sta tes v. Titte rington, e t al. No. 03-5829

____________________ CONCURRENCE

____________________ DAV ID A. NELSO N, Ci rcuit Judge , co ncurrin g. I fully concur in the judgment

and in Judge Sutton’s opinion for the court. Perhaps i

t would not be ami ss, howev er, for me to add a word on the q

uestio n of our standard of review, given the tension betwee

n my unqualified assertion in United States v. Powell , 823 F.2d 996, 1001 (6th Cir. 1987), that “[w]e review a district c ourt’s re fusal to d ismiss an in

dictm ent o nly for abuseof discretion” and my unqua lified concurrencein J udge Rosen’s opinion in Un ited State s v. DeZar

n , 157 F.3d 1042 (6th Cir. 1998), which asserted that “[t]he sufficiency of the indictment is reviewed de novo .” Id at 1046.
Isuppose a pedant could claim tha t Powell is not dire ctly inpoint here, the case at bar not being one that gives us occasion to “review a district court’s refusal to dismiss an indictme nt. . . .” But were it not for the fact that, as Judg e Sutton has generously

pointed out, “an erroneous legal de termin ation is always an a buse of discretion,” see United States v. Taylor , 286 F.3d 303, 305 (6th Cir. 200 2), I would be hard pressed to deny

that the log ic of my

statemen t in Powell is at o dds 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 wha t I said in Powell ; the Powell statement (which I must have

expunged from my me

mory in the ensuin g decade) now strikes me as wide of the mark, while Judge Rosen’s statement in DeZarn strikes me now — as it did when I

concurr ed in it — a s right on targe t.