### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 18, 2003 THOMAS K. KAHN CLERK

* Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-10731

________________________ D. C. Docket No. 00-00376-C R-JAL UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus YUBY RAMIREZ, JAIRO CASTRO, et al., Defendants-Appe llants.

________________________ Appeals from the United States District Court for the Southern District of Florida

_________________________ (March 18, 2003)

Before MARCUS and WILSON, Circuit Jud ges, and LIMBAUGH * , District Judge. PER CURIAM:1 Lezcano also was convicted of witness tampering in violation of § 1512(a)(1)(A).

2 The defendants also assert that (1) the district court violated their Sixth Amendmentrights by limiting the cross-examination of two of the government’s witnesses, Phanor CaicedoRamos and Juan Carlos Caicedo-Ramos; (2) the district court improperly provided a Pinkerton v. United States , 328 U.S. 640 (1946) , instruction; and ( 3) there was insu

fficient eviden

ce to support their convictions. As we find that those issues lack merit and do not require any discussion, we will not address them herein.

3 Magluta and Falcon were acquitted of the drug charg es for which they originally were indicted, but they

subsequently

were charge

d with various coun

ts of witness tampe

ring as a result of these murders and other acts that they allegedly committed. 2 Yuby Rami

rez, Edward L

ezcano, and Jairo

Castro (collectiv

ely the defendants) appeal

the life sentences

they received

after a jury

found them guilty of witness tampering in violation of 18 U.S.C. § 1512(a)(1)(C). 1 They assert that the indictment was time-barred, because it failed to charge a capital crim e. 2 Because we find t

hat the defendants w

aived their right to r

aise that defense by faili ng to raise it in a pret rial mo tion , we aff irm. BACKGROUND The defendants were involved in a conspiracy to murder various witnesses who were schedule

d to testify agai

nst Salvador Magluta

and Augusto Falcon, alleged drug kingpins in South Florida. 3 As a result of that conspiracy, three potential witnesses

were murder

ed, and various atte

mpts were m

ade to kill others. Consequently, on

May 11, 2000, a

grand jury indi

cted the defendants , among others, f

or witness tam

pering. The four

-count indictme

nt charged Lezca

no4 Cou nt O ne o f th e in dic tme nt c harg es t hat Lezc ano and a coc ons pir ato r “di d kn owi ngly,

intentionally and willfully aid, abet, counsel, command, induce and pr ocure the killing of Juan Acosta, Esq., by causing him to be shot by paid assa ssins, with the intent to prevent Juan Acosta, Esq., from testifying before a federal g rand jury.” Count Two charges that L ezcano, Castro, and others “did knowin

gly, intent

ionally and w

illfully kill L

uis Escobedo . . . wi

th the intent to prevent Luis Escobedo . . . from communicating to a law enforcement officer or a judge of the United States infor mation relating to the commission of federal offenses by Salvador Mag luta . . . and Augusto Falcon.” Count Three contains the same language as Count Two, but charges the defenda nts and others with the ki

lling of B ernardo

Gonzalez. 3 with three counts of

witness tampe

ring, Castro with

two counts of witne ss tampering, a

nd Ramirez w

ith one count of witne ss tampering. 4 The case proceeded to trial, and, after opening statements, the defendants moved for a judgment of ac

quittal, asserting t

hat the indictme

nt was insufficient

because it failed to charge the necessary elements of first degree m urder, “malice aforethought” and “

premeditation. ” Hence, they argued that they

were entitled to a judgment of acquittal, because the indictment was time-bar red. The district court, construing the

motion as a Fede

ral Rule of Crim

inal Procedure 12(

b)(2) motion, held that their motion was untimely. A lternatively, it held that, under a liberal construction of the indictment, those elements were charged. It therefore denied the defendan ts’ motion and instructe d the jury regarding thos e elements. This appeal follow

ed. STANDARD OF REVIEW5 Indeed, June 22, 1993 is the date on which the last crime charged with respect to the

defendants was committed. As the indictment was not returned until May 11, 2000, more than five years after the date on which the crimes cha rged were committed, it would be time-barred unless the crimes charged were capital crimes. See 18 U.S.C. § 3282. 4 We review the sufficiency of the i ndictment de novo. United States v. Pendergraft

, 297 F.3d 1 198, 1204 (11th Cir. 2 002). We revi ew the dist rict court ’s denial of a motion as unt imely under Rule 12(f) for abus e of discretion. United States v. Smith , 918 F.2d 1501, 1509 (11th Cir. 1990). DISCUSSION The defendants ass ert that the indictm ent was insufficie

nt, because the necessary ele

ments of first degree murder , “malice aforethought” and “premeditation,” were not charged. As a re sult, they contend that the district court should have granted the

ir motion for a judgment of ac quittal under Feder

al Rule of Criminal Procedure 29, because, without those elements, the indictment was timebarred as it failed to charge a capital crime. 5 See 18 U.S.C. § 3282 (providing that “no person shall b e prosecuted, tri ed, or punished for a

ny offense, not

capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed”). Rule 12 provides that6 The defendants assert that the Advisory Committee Notes to Rule 12 make clear that

they had the option of bringing their motion before trial, but that they were not required to do so, because a statute of limitations defense is a matter that can be brought in a permissive pretrial motion under Rule 12(b). Fed. R. Crim. P. 12 advisory committee notes (providing that permissive pretrial motions “include such matters as . . . statute of limitations”). As noted above, however, the defendants’ statute of limitations defense is a defense based upon the sufficiency of the indictment. As the plain language of Rule 12 dictates that defenses based upon the sufficiency of the indictment must be brought before trial, there is no nee d to look to the notes. See United States v. Vonn , __ U.S. __, 122 S. Ct. 1043, 1049 n.6 (2002) (“In the absence of a clear legisla

tive mandate, the

Advisory Comm

ittee Notes provid

e a reliable sour

ce of insight into the meaning of a rule . . . .”). 5 [a]ny defe

nse, objection, or request which is capable of determ ination without the trial of

the general issue m

ay be raised before trial by motion. . . .The following must be raised prior to tr

ial:

. . . . (2) Defenses and objecti

ons based on defects in th e indictment

. . . (other than tha

t it fails to show j urisdiction in the cour t or to charge an off ense w hich objec tion s shal l be no ticed by the court at any t ime during the pendency of the proceedings). Fed. R. Crim. P. 12(b)(2) ( emphasis added) . Rule 12 also provide s that the “[f]ailure by a party

to raise defenses or objections or to make requests which must be made prior to trial . . . shall constitute [a] wa iver thereof.” Id. R. 12(f). Rule 12(b)(2) clearly provides tha t “[d]efen ses and objections ba

sed on defects in the indi ctment” must be raised before tri al. Id. R. 12(b)(2). A lthough the defendants rais ed their statute of l imitations defe

nse in a Rule 29 m

otion and not in a Rule 12(b) m

otion, we believe t

hat their defense m

erely is a cha

llenge based upon the sufficiency of the indictment that should have been raised before trial. 6 As they assert a defense “based on defects in the indictment” that was c lear7 Neither exception applies in this case. In fact, the defendants concede that they were not alleging that the indictment failed to state an offense. Although Lezcano a sserts in his reply brief that the defenda

nts are arguing

that the indictment

failed to state an

offense, the opp

osite assertion was mad

e before the dist

rict court and this

Court. As a result,

we need not addr

ess Lezcano’s claim that the indictment failed to state an offense. See Jackson v. United States , 976 F.2d 679, 680 n.1 ( 11th Cir. 1992) (pe r curiam) (noting

that “[a]rguments

raised for the f

irst time in a reply brief are not properly before the reviewing court” (internal quotation marks omitted)).

8 Although Rule 12 provides that the waived issue can be considered upon a showing of cause, Fed. R. Crim. P. 12(f), there is no good cause in this case. As the district court noted, [R]ather than file a motion prior to trial, Defendants decided to submit this motion and a lengthy memorandum immediately upon the conclusion of opening statements. Defendants were clearly prepar ed to file their motion earlier, but decided to withhol

d it in order to see

k a strategic a

dvantage by

waiting until jeopardy attached upon the swearing in of the jury . As in Suescun , Defendants in this case clear

ly “had all t

he information ne

cessary to challenge the

[indictment] prior to the date s

et by the dist

rict court for pr

etrial motions, but d

id not.” Rule 12(b) is designed to prevent precisely such use of belatedly filed motions and, accordingly

, mandates that ce

rtain motions be fil

ed prior to trial. Thus, the defendants were unable to show cause to excuse their waiver in this case. 6 from the face of the indictment and that does not satisfy any of the exce ptions set forth in the Rule, 7 id. , they waived this issue by failing to raise it in a pretrial motion, see United States v. Suescun , 237 F.3d 1284, 1286–8 8 (11th Cir.) (holdi ng that “Suescun’ s challenges . . .were capable of determination without the trial of the general issue” a

nd that “Suescun

waived his object

ion to the validity of the indictment because he di d not present it as re quired by Rule 12(b)”), cert. denied , 534 U.S. 863 (2001); Ward v. United States , 694 F.2d 654, 659 n.4 (11th Cir. 1982) (noting that fai

lure to challenge the

technical suffici

ency of the indic

tment prior to trial constitutes a waiver of that challenge). 89 The defendants a ssert that they

could not raise the

ir statute of limita

tions defense unti

l after opening statements, because they neede d the government to concede that the crimes charged were committed more than five years before the indictment was r eturned. We, however, disagree, because the indictment specifically set for th the dates on which the crimes were committed. Thus, the

statute of limitatio

ns defense was c

lear on the face

of the indictment.

10 In light of our holding, we need not address the constructive amendment and sente ncing issues that arise f

rom the defendan

ts’ arguments r

egarding the

sufficiency

of the indictment. 7 Although we recogni

ze that there m

ay be time s when a statute of l imitations defense cannot be r

aised before tria

l because the develo

pment of facts

pertaining to that defense is ne

cessary, this

is not one of those tim

es. Nothing in this c ase warranted waiting until after opening statements to raise this defense; 9 the defendants merely waited to gain a strategic advantage by raising the defense after jeopardy attached. This tacti c is precisely what Rule 12 wa s designed to prev ent. See United States v. Oldfield , 859 F.2d 392, 397 (6

th Cir. 1988). As

the Sixth Circuit noted, Rule

12 sharply restri

cts the defense tac

tic of ‘sandbagging ’ that was avail able in many jurisdictions under common law pleading. R ecognizing that there was a defe

ct in the pleading, counsel would often for ego raising that defect befor

e trial, when a s

uccessful object

ion would merel

y result in an ame

ndment of the ple

ading. If the tria

l ended in a conviction, he could t

hen raise the defe

ct on a motion in a

rrest of judgment and obt

ain a new trial. Federal Rule 12 el iminated this tactic as to all obj ections except the f ailure to show jur

isdiction or to charge an offense. Id. (internal quotation m

arks omitted).As a result, the d efendants waived t

heir defense by fai

ling to raise it befor

e trial. 108 CONCLUSION Thus, we hold that when a statute of limitations defense is clear on the face of the indictme

nt and requires no fur

ther developme

nt of facts at tria

l, a defendant waives his right to r

aise that defense by

failing to raise it i

n a pretrial m

otion. Accordingly, we AFFIRM.