§ 110, at 472-73 (3d ed. 1999) (footnotes and numerous citations
omitted) ;

An indictment returned in open court before
the statute of limitations has run is valid
even though it is then sealed and kept secret
until after the period of limitations has
expired. Only if a defendant can show
substantial actual prejudice in the period
between the sealing of the indictment and its
unsealing is dismissal of the indictment
required on this ground.

That proposition is simply a particularized application of
the general principle mandated by Rule 52(a) that the relevant
standard is one of harmless error. On that score Thompson, 287
F.3d at 1252-53 properly drew on the Supreme Court's decisions in

Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988)

and United States v. Lane, 474 U.S. 438, 448 n.11 (1986) as

supporting the same proposition. In this instance Lewis'
original assertion that records that could have been important to
his defense were lost or destroyed during the interim between the
return and the unsealing of the indictment was flatly disproved
during the evidentiary hearing.

In sum, then, Lewis' motion to dismiss must be and is
denied. This ruling ends the period of exclusion for Speedy
Trial Act purposes, and a status hearing is therefore ordered to

be held at 1:15 P.M. March 13, 2003 to discuss whether any



the absence of this waiver makes the filing
of an information nullity. Rule 7(b) does
not forbid filing an information without a
waiver; it simply establishes that
prosecution may not proceed without a valid
waiver. Rule 7(b) concerns itself with the
requirements that the government must satisfy
before it proceeds with a prosecution. We do
not see how this rule affects the statute
governing the limitation period. There is
nothing in the statutory language of 18
U.S.C. § 3282 that suggests a prosecution
must be instituted before the expiration of
the five year period; instead the statute
states that the information must be
instituted. We hold that the filing of the
information is sufficient to institute it
within the meaning of 18 U.S.C. § 3282.

Like the Court in Thompson, this Court finds that parity of
reasoning calls for a comparable result here: Rule 6(e) (4),
which addresses the sealing of indictments, does not modify or
limit the language of Section 3282 that defines the statute of
limitations in terms of when the indictment is “found.”

To be sure, some other courts have taken the different view
that an indictment is considered to be “found” only after
unsealing if the sealing has taken place for some improper
purpose. But even if this Court were to adopt that view, it
would reach the same result in this case. And that is so because
the evidentiary hearing has demonstrated Lewis to have suffered
no harm whatever from the delay that took place between the
return of the indictment and its unsealing. On that score, this
Court views Deglomini as simply incorrect. As stated succinctly

in 1 Charles Wright, Federal Practice and Procedure: Criminal 3d



further delays are essential to permit the parties to prepare for

trial and (2) if appropriate, to set a trial date.

Calli, Jiisdcsre

Milton I. Shadur
Senior United States District Judge

Date: March 10, 2003



United Sts District Court, Northern Distric¥f Mlinois

Name of Assigned Judge Milton I. Shadur Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 CR 341 DATE 3/10/2003
CASE USA vs. Billie Lewis
TITLE

[ln the following box (a) indicnte the purty fifing the motion, e.2., plaintiff, dctendant, 3rd party plaintifY, and (b) state briefly the nature:
of the motion being presented.

MOTION:

DOCKET ENTRY:

ap) ao Viled motion of | use listing in “Motion” box above.)

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due Reply to answer brief due.

(4) im) Ruling/Hearing on set for at _

(3) a Status hearing{held/continued to] {set for/re-set for] on ____ set for abo.

@ oO Pretrial conference[held/continued to] [set for/re-set for] on setfor_ at,

(7) a Trial[set for/re-set forlon ___at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to______at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) Local Rule 41.1. OLFRCP41(a)(1) 0 FRCP41(a)(2),

(io) [Other docket entry] Enter Memorandum Opinion and Order, Lewis’ motion to dismiss must be

and is denied. (26-1) This ruling ends the period of exclusion for Speedy Trial Act purposes, and a status
hearing is therefore ordered to be held at 1:15 p.m. March 13, 2003 to discuss whether any further delays
are essential to permit the partics to prepare for trial and (2) if appropriate, to set a trial date.

(11) |For further detail see order attached to the original minute order.]

No notices required, advised in open court, Document

Number

No notices required. purer of ootces

nn
LR

J | Notices muiled by judge's staff.

Notified counse! by telephone,

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge

OOOH TT uy ey
Dueikehekariald T]J

central Clerk's Oflice vaiiny eoputy initials

courtroom
SN depuly’s
initials



* @ ®@

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
Plaintiff,
v.

No. 02 CR 0341

BILLIE LEWIS,

Defendant.

MEMORANDUM _ OPINION AND ORDER

Defendant Billie Lewis (“Lewis”) has filed a motion to
strike all but one (Count Two) of the five counts in the
indictment in this case as untimely brought. This Court has
conducted an evidentiary hearing, as well as being provided by
counsel for both sides with thoughtful submissions on the legal
issues involved. This Court has given the matter careful
consideration, and it denies Lewis' motion.

What is essentially at issue is whether the sealing of the
indictment between its return date of April 10, 2002 and the
later date when Lewis was served and the indictment was unsealed
causes the former date rather than the latter to be operative for
limitations purposes. Lewis urges that this Court follow the
approach taken in United States v. Deglomini, 111 F. Supp.2nd 198
(E.D.N.¥. 2000) under which a negative answer to the question
whether the sealing of an indictment is for a “proper purpose”
not only serves to delay the time when the indictment is “found”

for purposes of the 18 U.S.C. § 3282 (“Section 3282) statute of

30.



. @ e

limitations, but does so even in the absence of any actual
prejudice to defendant during the period between sealing and
unsealing.

But such cases as United States v. Thompson, 287 F.3d 1244,

1251 (10° Cir. 2002) (footnote omitted) announce a different

rule:

This court holds that an indictment is “found”
under 18 U.S.C. § 3282 when the grand jury votes
to indict the defendant and the foreperson
subscribes the indictment as a true bill. Whether
the indictment is then sealed is thus irrelevant
for statute of limitations purposes.

And in so doing Thompson pointed to and relied upon (id. at 1249-
50 and 1251 n. 4) our Court of Appeals' decision in United States

v. Burdix-Dana, 149 F.3d 741, 742-43 (7 Cir. 1998). In Burdix-

Dana an information had been filed before the five-year
limitations period had run out, but the indictment was returned
later -- after expiration of the period -- without a waiver
having been obtained under Fed.R.Crim.P (“Rule”) 7(b). Here is
how Burdix-Dana rejected the contention that the Rule 7(b)
requirement operated to modify or limit the literal language of
the limitations statute that specifies the institution of the
information as the critical date for timeliness purposes (id. at

742-43 (citation omitted)):

While we recognize that the absence of a
valid waiver of prosecution by indictment
bars the acceptance of a guilty plea or a
trial on the relevant charges, see
Fed.R.Crim.P. 7(b), we do not believe that