United States v. Sanfilippo

572 F.Supp.3d 1269

UNITED STATES of America, Plaintiff,

v.Joseph A. SANFILIPPO, Defendant.

CASE NO. 21-60006-CR-ALTMAN

United States District Court, S.D. Florida.

Signed November 18, 2021

Entered November 19, 2021

Laurence M. Bardfeld, United States Attorney's Office, Fort Lauderdale, FL, for Plaintiff.

AMENDED ORDER ¹

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

At the outset of a pandemic that would go on to kill more than 762,000 Americans, our Court suspended all grand jury proceedings. While this moratorium was still in effect, the Government faced a Hobson's choice when it came to defendants—like Joseph Sanfilippo—who had committed their crimes almost five years earlier: it could either allow the five-year statute of limitations to expire (which would mean absolving these defendants of their crimes) or it could commence a criminal prosecution, before the window closed, by instituting² an information—with the understanding that, as soon as the grand jurors returned, it would dismiss the information and get its indictment. Unsurprisingly, the Government chose the latter course: it charged Sanfilippo by information and, once the grand jury reconvened, indicted him.

But (and here's the rub) Sanfilippo never waived his right to have his case presented to a grand jury—a right enshrined in both the Fifth Amendment to the U.S. Constitution and Rule 7 of the Federal Rules of Criminal Procedure. This wouldn't be such a big deal—except that, while the information was pending (and before our Court brought the grand jurors back), Sanfilippo's statute of limitations expired. Contending that the Government worked a clever—if illegal—end-run around his rights, Sanfilippo has moved to dismiss the indictment. See Motion to Dismiss the Indictment (the "Motion") [ECF No. 9].³ We disagree and now DENY his Motion.

BACKGROUND

On March 11, 2020, with infections skyrocketing, the World Health Organization declared the Covid-19 outbreak a global pandemic. See Proclamation No. 9994, 85 Fed. Reg. 16337 (Mar. 18, 2020) (noting the WHO's declaration). Two days later, the President of the United States declared a national emergency. Id. That same day, the Honorable K. Michael Moore, then-Chief Judge of our Court, entered the first in a series of administrative orders regarding the pandemic. That first order continued jury trials in the Southern District of Florida through March 30, 2020 "in order to protect the public health[ ] and ... to reduce the size of public gatherings and reduce necessary travel." Order Concerning Jury Trials and Other Proceedings, Administrative Order 2020-18 (S.D. Fla. Mar. 13, 2020).⁴ It also specified that "[t]he time period of any continuance entered as a result of th[e] order shall be excluded under the Speedy Trial Act, ... as the Court finds that the ends of justice served by taking that action outweigh the interests of the parties and the public in a speedy trial." Id. at 1–2.

About two weeks later, Chief Judge Moore suspended all grand jury sessions in the Southern District of Florida. See Order Concerning Grand Jury Sessions, Administrative Order 2020-22 (S.D. Fla. Mar. 26, 2020). He ultimately extended the moratorium on grand jury proceedings several more times⁵ —until, on November 17, 2020, we (as a court) reconvened the grand juries. See In re: Partial Sequestration of Grand Jurors, Administrative Order 2020-87 (S.D. Fla. Nov. 16, 2020) (resuming grand jury proceedings on November 17, 2020).

About a month earlier, on October 23, 2020, the Government charged Sanfilippo by information with four counts of wire fraud, in violation of 18 U.S.C. § 1343, and four counts of "structuring," in violation of 31 U.S.C. § 5234. See Information, United States v. Sanfilippo , No. 20-cr-60112-WPD (S.D. Fla. Oct. 23, 2020), ECF No. 1.⁶ According to the Information, Sanfilippo committed the four acts of wire fraud between October 28, 2015 and November 2, 2015, and he perpetrated the four acts of structuring between October 29, 2015 and November 4, 2015. See generally id. ; see also Motion at 1–2. It's therefore undisputed that the Government filed the Information before the five-year statute of limitations expired.

As we've said, the grand jury reconvened on November 17, 2020, and the Government finally indicted Sanfilippo—on those same eight counts—on January 14, 2021. See Indictment [ECF No. 1].⁷ It's thus undisputed that the Government indicted Sanfilippo more than five years after he'd committed the crimes that are charged in the Indictment. With that Indictment in hand, the Government asked Judge Dimitrouleas to dismiss Sanfilippo's Information without prejudice under Rule 48(a)—a request Judge Dimitrouleas promptly granted. See Order of Dismissal, United States v. Sanfilippo , No. 20-cr-60112-WPD (S.D. Fla. Feb. 26, 2020), ECF No. 5.

ANALYSIS

Sanfilippo now moves to dismiss the Indictment, claiming that, by the time he was indicted, the five-year statute of limitations for non-capital offenses had run. See Motion at 2 (citing 18 U.S.C. § 3282(a) ). In denying his Motion, we address the following three questions: (1) whether the Government satisfied the strictures of § 3282 when, without Sanfilippo's consent, it filed the Information; (2) whether the Indictment was timely under the standard set out in 18 U.S.C. § 3288 ; and (3) whether the Government's (alleged) pre-indictment delay justifies a dismissal or requires an evidentiary hearing.

I. THE STATUTE OF LIMITATIONS

Federal law provides that "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." 18 U.S.C. § 3282(a) (emphasis added). And, as Sanfilippo notes, Rule 7 requires that a felony "be prosecuted by an indictment" unless "the defendant—in open court and after being advised of the nature of the charge and of the defendant's rights—waives prosecution by indictment[.]" FED. R. CRIM. P. 7(a), (b) ; see also U.S. CONST. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury[.]"). In other words, a defendant can be charged by information only if he waives his right to be charged by indictment. FED. R. CRIM. P. 7(b). The question, then, is whether the Government satisfied the statute of limitations when, without Sanfilippo's consent, it charged him by information.

The Seventh Circuit tackled this issue more than twenty years ago in United States v. Burdix-Dana , 149 F.3d 741 (7th Cir. 1998), where the parties asked the court to consider "whether filing an information with the district court is sufficient to ‘institute’ the information as that language is used in the statute of limitations"—and, if so, "whether the subsequent filing of the indictment and dismissal of the information after the period of limitations had run satisfy the statute of limitations," id. at 742. In that case, as here, the defendant argued that an information wasn't "institute[d]" within the meaning of § 3282(a) unless (1) the defendant waived his right to grand jury and (2) the government filed the information before the five-year window closed. Id. (noting the defendant's position that "an information is not ‘instituted’ until the defendant has waived her right to an indictment and the prosecution may proceed on the information").

The Seventh Circuit disagreed. It recognized that, without a proper waiver, the district court couldn't accept the defendant's guilty plea or preside over his trial. Id. (citing FED. R. CRIM. P. 7(b) ). But it found nothing in the relevant statutes—or Rule 7—that would render a waiver-less information "a nullity." Id. Rule 7(b), the court explained, nowhere prohibits the government from filing a waiver-less information; "it simply establishes that prosecution may not proceed without a valid waiver." Id. Rule 7, moreover, doesn't "affect[ ] the statute governing the limitation period," as "there is nothing in the statutory language of 18 U.S.C. § 3282 that suggests a prosecution must be instituted before the expiration of a five year period; instead the statute states that the information must be instituted. " Id. at 742–43. Concluding that "the filing of the information is sufficient to institute it within the meaning of 18 U.S.C. § 3282," the Seventh Circuit affirmed the district court's denial of the defendant's motion to dismiss. Id. at 743.

And nearly every court that has interpreted § 3282 agrees with Burdix-Dana . See United States v. Rosecan , 528 F.Supp.3d 1289, 1292-93 (S.D. Fla. 2021) (Ruiz, J.) ("fully adopt[ing]" the "logic of the Seventh Circuit in Burdix-Dana [ ] because it is grounded in the plain language of section 3282" and noting that "the majority of federal district courts to confront this question have reached a similar conclusion"); see also United States v. Webster , 2021 WL 4952572, at *4 (S.D. Fla. Sept. 27, 2021) (Torres, Mag. J.), report and recommendation adopted , 2021 WL 4949170 (S.D. Fla. Oct. 25, 2021) ("We therefore follow the Seventh Circuit's decision in Burdix-Dana . This is because the plain language of § 3282 only requires that the ‘information’ be ‘instituted’ to satisfy the statute of limitations. The terms ‘prosecuted’ and ‘instituted’ are not equivalent, and an information is ‘instituted’ when it is properly filed, regardless of the defendant's waiver."); United States v. Briscoe , 2020 WL 5076053, at *2 (D. Md. Aug. 26, 2020) (explaining that § 3282 requires only that an information be "instituted" and noting that the words "prosecuted" and "instituted" "are not equivalent"); United States v. Rothenberg , 554 F.Supp.3d 1039, 1043 (N.D. Cal. Aug. 13, 2021) ("The Court concludes that the text of Section 3282(a) supports holding that an information can be instituted when it is filed.... [T]he language of Section 3282(a) refers to instituting an ‘information,’ not a ‘prosecution.’ ...