United States v. James Wiley Craft

KEITH, Circuit Judge,

dissenting.

Because I cannot agree that Fed.R.Civ.P. 12(b) extends to a district court the privilege of rewriting a validly constituted indictment before the court has heard any evidence in a case, and because I feel that proper respect for the values reflected in the decision in Costello v. United States, 350 U.S. 359 , 76 S.Ct. 406 , 100 L.Ed. 397 , reh’g denied, 351 U.S. 904 , 76 S.Ct. 692 , 100 L.Ed. 1440 (1956), outweighs the interest in judicial efficiency that is served by dismissing part of this indictment in the pre-trial stage, I must respectfully dissent from the decision of this panel.

The majority opinion makes much of the fact that Rule 12(b) was intended to encourage pre-trial disposition of issues relying purely on legal analysis. However, as the opinion duly notes and then ignores, this does not grant the district court free rein to invade the province of the jury. United States v. Jones, 542 F.2d 661, 664-65 (6th Cir.1976). Deciding whether the district court crossed the line between proper pretrial disposition of matters of law and illicit invasion of the province of the fact-finder is the crux of my disagreement with the majority.

In the present ease, the district court had before it a validly constituted indictment which encompassed in its charges an explanation of the conspiracy that the government proposed to prove at trial. Before hearing so much as one shred of evidence, and having *1130 before it only two highly partisan renditions of the facts, the district court preceded to rewrite the indictment, substituting its own theory of the conspiracy for the government’s. On the basis of its own opinion of what the conspiracy entailed, the district court dismissed several counts of the indictment. I cannot stress too strongly that the dismissal was predicted upon the district court’s own opinion of what the aim of the conspiracy was, an opinion that was not formed with reference to any established fact.

The simple truth is that no evidence had been heard, and without the evidence, no one could yet establish with authority the precise aim of the conspiracy. The government has its theory, the district court and the majority here share another theory, and I can think of several other possibilities. The point is that the object of the conspiracy is a fact which needs to be established by the evidence. Until the evidence is heard, therefore, the government is entitled to some deference to its theory, if for no other reason than because, at the pre-trial stages, that theory is nothing more or less than the government’s statement of what it proposes to prove at trial. It is not within the purview of the district court to tell the government that it must prove the district court’s theory rather than its own. In sum, I believe that the actions of the district court in this case violate the Jones prohibition against invading the province of 'the fact-finder by providing an ultimate decision on an issue that properly should have been determined by the jury.

The Costello case also provides some guidance on the situation before the Court. That ease directs that “[a]n indictment returned by a legally constituted grand jury ... if valid on its face, is enough to call for trial of the charge on the merits.” 350 U.S. at 363 , 76 S.Ct. at 409 . This Circuit has long held that Costello should be read literally. United States v. Powell, 823 F.2d 996, 1000-01 (6th Cir.), cert. denied, 484 U.S. 969 , 108 S.Ct. 464 , 98 L.Ed.2d 403 (1987); United States v. Adamo, 742 F.2d 927, 936 (6th Cir.1984), cert. denied sub nom. Freeman v. United States, 469 U.S. 1193 , 105 S.Ct. 971 , 83 L.Ed.2d 975 (1985); United States v. Short, 671 F.2d 178, 182 (6th Cir.), cert. denied, 457 U.S. 1119 , 102 S.Ct. 2932 , 73 L.Ed.2d 1332 (1982). There is no challenge to the validity of the indictment at bar. Rather, the district court in effect erased the description of the conspiracy as the government proposed to prove it, and substituted its own theory of the conspiracy. This attempt to rewrite the indictment under the guise of disposing of a pre-trial issue surely violates the literal meaning of Costello. There was no challenge to the indictment’s validity; thus, it should have been allowed to proceed to trial without any premature revision by the court below.

The majority makes much of the fact that Costello is not a statute of limitations case, but that is entirely beside the point. Costello directs that deference be accorded to the right of a valid indictment to proceed to trial on the charges it embodies. On the face of the valid indictment before the district court, the conspiracy was described as including acts which bring the indictment within the limitations period. Thus, on the face of the indictment, the statute is met. Until facts are established at trial that evidence the actual specifics of the conspiracy, including the time during which it was in operation and the acts which it encompassed, the statute of limitations is therefore not an issue. If at trial it becomes apparent that the proof does not support a theory of the conspiracy that includes acts sufficiently late in time to bring one or more counts of the indictment within the limitations period, then, and only then, may the district court dispose of those counts based on limitations grounds.

While the majority points out that the limitations defense can be waived if not raised, they conveniently fail to mention that once raised, as it has been in this case, the decision may be deferred until more facts are available. That is what the district court should have done in the present case. The limitations issue had been raised, and therefore was no longer subject to waiver. On the face of the indictment the statute of limitations was met, no evidence had been heard, and thus, no facts undermining that conclusion were yet established. Rather than intercede, and in so doing ignore the dictates of both Costello and Jones , the district court *1131 should have deferred the statute of limitations analysis until it had had a chance to hear evidence regarding the scope and aim of the conspiracy. 1 Essentially, I believe that the district court erred in weighing two different values, both important to our judicial system, and in this case conflicting. The majority opinion implicitly agrees with the district court that the issues of judicial efficiency embodied in Rule 12(b) are the more important ones. I would say that the preeminent values ought to be deference to the government’s right to attempt to prove at trial the allegations of its valid indictment, and deference to the jury in determining issues of fact.

Weighing the conflicting values of our system is an eternal problem faced by courts. As Learned Hand put it, “Justice, I think, is the tolerable accommodation of the conflicting interests of society.” Learned Hand quoted in Life Magazine, Nov. 4, 1946, at 122-126. In the present case, I disagree with the majority about the proper manner of balancing the conflicting interests in this case. I believe that the district court’s dismissal of two counts of the indictment was premature and should have been reversed. For that reason, I dissent.

. The district court relies heavily on the decision in Grunewald v. United States, 353 U.S. 391 , 77 S.Ct. 963 , 1 L.Ed.2d 931 (1957), in support of its actions in this case. However, in Grünewald, a trial had been conducted long before the Supreme Court rejected the government's theory of the conspiracy. This is crucial because no one would argue that a court cannot look at all the facts in evidence and determine that the government's theory of the conspiracy is not supported. However, it is entirely another matter to make this judgment before even one fact is in evidence. For that reason, Grünewald provides no shelter for the district court's actions in this case and in fact, serves only to highlight the inappropriateness of those actions.