DANIEL A.
HOROWITZ State Bar No. 92400
Attorney at Law
Second Floor
120-11th Street
Oakland, California 94607
(510) 444-4888
Attorney for Defendant
NAME EXCISED
UNITED STATES DISTRICT
COURT
NORTHERN DISTRICT OF
CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff, No.
vs.
... NAME EXCISED,
Defendants.
__________________________/
... NAME EXCISED=S AUTHORITIES
ASSERTING ASTATUTE OF LIMITATIONS@
(DEMURRER AND MOTION TO STRIKE
SUPERSEDING INDICTMENT)
INTRODUCTION
These authorities raise the issue of whether the filing of a Superseding Indictment charging the same offense but adding an AApprendi@ quantity allegation relates back to the original filing or is barred when (as in this case) the statute of limitations has long run.
Relying upon the Apprendi line of cases the defense argues that because the quantity amounts alleged in the Superseding Indictment set Athe outer limits of a sentence, and of the judicial power to impose it, [they] are elements of the crime for the purposes of the constitutional analysis.@ (Harris v. U.S., 536 U.S. 545, 547 (U.S. Jun 24, 2002)) The defense therefore argues that the current Superseding Indictment is charging a new offense with greater punishment.
The basic rule is that a superseding indictment that is brought after the statute of limitations has run is timely if the original indictment is still pending and if the superseding indictment does not substantially amend or broaden the original charges. (United States v. Sears, Roebuck & Co., 785 F.2d 777, 778 (9th Cir.), cert. denied, 479 U.S. 988 (1986).
THE QUANTITY ALLEGATION ADDS AN ELEMENT OF THE CRIME
Our decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), clarified what constitutes an "element" of an offense for purposes of the Sixth Amendment's jury‑trial guarantee. Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact‑‑no matter how the State labels it‑‑constitutes an element, and must be found by a jury beyond a reasonable doubt. Id., at 482‑484, 490, 120 S.Ct. 2348.
(Sattazahn v. Pennsylvania, 537 U.S. 101, 110 (U.S.Pa. Jan 14, 2003) Emphasis added)
Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury. Pp. 2437‑ 2443.
(Ring v. Arizona, 536 U.S. 584, 585 (U.S. Jun 24, 2002) Emphasis added)
This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." This rule reflects two longstanding tenets of common‑law criminal jurisprudence: that the "truth of every accusation" against a defendant "should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason," 1 J. Bishop, Criminal Procedure S 87, p. 55 (2d ed. 1872).
(Blakely v. Washington, ‑‑‑ S.Ct. ‑‑‑‑, 2004 WL 1402697 page 3 (U.S.Wash. Jun 24, 2004) Emphasis added)
ADDING
AN ELEMENT CREATES A SUBSTANTIAL
CHANGE UNDER U.S. v. SEARS
A superseding indictment that is brought after the statute of limitations has run is timely if the original indictment is still pending and if the superseding indictment does not substantially amend or broaden the original charges. (United States v. Sears, Roebuck & Co., 785 F.2d 777, 778 (9th Cir.), cert. denied, 479 U.S. 988 (1986). The addition of a new element required by Apprendi is a substantial change and a new element of a crime. No case holds that a new element of a crime is not a substantial factor in a statute of limitations analsysis. Justice Kennedy in the majority opinion in Harris v. U.S., 536 U.S. 545, 548 (U.S. Jun 24, 2002) made it clear that these Apprendi factors are elements of the crime and the failure to prove allege them is fatal to the charge.
The Constitution permits legislatures to make the distinction between elements and sentencing factors, but it imposes some limitations as well. For if it did not, legislatures could evade the indictment, jury, and proof requirements by labeling almost every relevant fact a sentencing factor.
(Harris at 548)
He then emphasized:
In federal prosecutions, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" alleging all the elements of the crime. U.S. Const., Amdt. 5; see Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (Harris at 548, Emphasis added)
The Constitutional stature of the requirement of proof of each element of a crime is
black letter law.
Lest there remain any doubt about the constitutional stature of the reasonable‑doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
(In re Winship, 397 U.S. 358, 365; (U.S.N.Y. Mar 31, 1970))
The Apprendi allegation as alleged in the superseding indictment is an element
of the crime and its addition is a substantial amendment and broadening of charges under Sears. A[I]f the counts in the superseding indictment >broaden[ed] or substantially amend[ed]= the charges in the original indictment, the statute of limitations would not have been tolled as to those charges. Sears, 785 F.2d at 778‑79 (quoting Grady, 544 F.2d at 602). The recent holdings of the Supreme Court in Blakeley, Harris, Ring and Apprendi are controlling and therefore under Sears there has been a substantial broadening.
A DOUBLE JEOPARDY ANALYSIS SUPPORTS THE SEARS ARGUMENT
Double Jeopardy cases have made it clear that an addition of an element changes the crime. The Blockburger[1] test focuses on this exact point. Most published cases citing Blockburger are applied to allow a prosecution to go forward with closely related charges as the courts find that the addition of a single element changes the charge. In the context of NAME EXCISED=s case the opposite must be found. The addition of this additional element creates a substantial amendment and broadening of charges under Sears.
Under Blockburger, "[d]ouble jeopardy is not implicated so long as each violation requires proof of an element which the other does not."
(United States v. Vargas‑Castillo, 329 F.3d 715, 720 (9th Cir.2003)
The Supreme Court has repeatedly identified Apprendi allegations as elements and not
sentencing factors.
The Government counters Ford's claim of double jeopardy by arguing that the Blockburger test is met here. The Blockburger test asks "whether each offense contains an element not contained in the other; if not, they are the same offense' and double jeopardy bars additional punishment and successive prosecution." United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)
(U.S. v. Ford, 371 F.3d 550, 4 Cal. Daily Op. Serv. 4929, 2004 Daily Journal D.A.R. 6757 (9th Cir.(Cal.) Jun 08, 2004) Emphasis added)
The wording of Blockburger cannot be avoided.
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
(Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (emphasis added).
This lesser included analogy has been used by the United States Supreme Court in the context of a base crime and then an added sentencing element.
That is to say, for purposes of the Sixth Amendment's jury‑trial guarantee, the underlying offense of "murder" is a distinct, lesser included offense of "murder plus one or more aggravating circumstances": Whereas the former exposes a defendant to a maximum penalty of life imprisonment, the latter increases the maximum permissible sentence to death. Accordingly, we held that the Sixth Amendment requires that a jury, and not a judge, find the existence of any aggravating circumstances, and that they be found, not by a mere preponderance of the evidence, but beyond a reasonable doubt. Id[2]., at 608‑609, 122 S.Ct. 2428.
(Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (U.S.Pa. Jan 14, 2003) Emphasis added)
The Court even spoke in terms of Aacquittal@ when the element was missing.
If a jury unanimously concludes that a State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double‑jeopardy protections attach to that "acquittal" on the offense of "murder plus aggravating circumstance(s)."
(Sattazahn at 111)
Therefore, unless the government wishes to the abandon years of Double Jeopardy rulings in its favor, it must now agree that the addition of an element to an offense at the very least is a substantial change and broadening of the charges.
DISMISSAL IS REQUIRED STATUTE OF LIMITATIONS HAVING RUN
As there is no tolling of the statute for the new element there must be dismissal. There is no discretion and there are numerous published cases which enforce the statute of limitations without any requirement that the government acted improperly.
For example, in U.S. v. Podde, 105 F.3d 813 (C.A.2 (N.Y.) 1997)) the government was not permitted to reindict defendant on original charges after statute of limitations had expired. The court refused to make a Agood faith@ exception for the government.
In Podde the defendant had successfully withdrawn his guilty plea to lesser included offense and the court found that the government had acted diligently in seeking reindictment. Accordingly, in light of Judge Lumbard's Liguori concurrence, of the purpose of the statute of limitations, and of the mandate that "criminal limitations statutes are to be liberally interpreted in favor of repose," Toussie, 397 U.S. at 115, 90 S.Ct. at 860, we refuse to read a good faith exception into the statute of limitations that would allow the government to indict a defendant years after the limitations period has expired.
(Poodle at 819)
See also: U.S. v. Midgley, 142 F.3d 174 (3rd Cir.(Pa.) Apr 23, 1998); U.S. v. Deglomini, 111 F.Supp.2d 198, (E.D.N.Y. Jul 24, 2000).
CONCLUSION
The Superseding Indictment was filed far outside the limitations of 18 U.S.C. ' 3288 as the original charges arise from 1994. There is a substantial change from the original Indictment affecting a material element of the charge. The original indictment has been dismissed and the superseding indictment is all that the government can rely upon. It is a greater charge than the original, now dismissed charge. Whether or not the government acted in good faith, there are no exceptions which allow them to toll the statute. Therefore, under a Sears analysis this is a substantial broadening of the charges which implicates the statute of limitations. All of the above is apparent on the face of the indictment (and in the undisputed record) and is therefore a matter of law for the Court to decide. The demurrer and motion to strike must therefore be granted.
Dated: July 6, 2004 ________________________________
Daniel A. Horowitz