Opposition Brief — Ahmad Abouammo, Petitioner v. United States
Supreme Court briefOct 17, 2025
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No. 25-5146
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
AHMAD ABOUAMMO, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
D. JOHN SAUER
Solicitor General
Counsel of Record
JOHN A. EISENBERG
Assistant Attorney General
JEFFREY M. SMITH
JOSEPH P. MINTA
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether a prosecution for knowingly falsifying a record
with the intent to obstruct an investigation, in violation of 18
U.S.C. 1519, may be brought in the district of the investigation
at which the obstruction was directed.
2.
petitioner
Whether
the
timely
filed
information
committed
various
felonies,
filed
alleging
when
that
grand-jury
proceedings were suspended due to COVID-19 restrictions, was an
“information charging a felony” under 18 U.S.C. 3288.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 25-5146
AHMAD ABOUAMMO, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-47a) is
reported at 122 F.4th 1072.
An accompanying memorandum of the
court of appeals is available at 2024 WL 4972564.
The relevant
order of the district court (Pet. App. 48a-97a) is available at
2022 WL 17584238.
JURISDICTION
The judgment of the court of appeals (Pet. App. 1a-47a) was
entered on December 4, 2024.
A petition for rehearing was denied
on March 18, 2025 (Pet. App. 98a).
On June 9, 2025, Justice Kagan
extended the time within which to file a petition for a writ of
2
certiorari to and including July 16, 2025, and the petition was
filed on that date.
On July 2, 2025, on remand from the court of
appeals, the district court issued an amended judgment.
The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the Northern District of California, petitioner was convicted
on one count of acting as an agent of a foreign government without
notification to the Attorney General, in violation of 18 U.S.C.
951; one count of conspiring to commit wire fraud, in violation of
18 U.S.C. 1349; one count of wire fraud, in violation of 18 U.S.C.
1343, 1346; two counts of money laundering, in violation of 18
U.S.C. 1956(a)(2)(B)(i); and one count of falsifying a record with
the intent to obstruct an investigation, in violation of 18 U.S.C.
1519.
Pet. App. 5a, 12a.
He was sentenced to 42 months of
imprisonment, to be followed by three years of supervised release.
Id. at 13a. The court of appeals affirmed petitioner’s convictions
but vacated his sentence.
Id. at 1a-47a.
On remand, petitioner
was sentenced to time served, to be followed by two years of
supervised release.
1.
D. Ct. Doc. 482, at 2-3 (July 2, 2025).
While working at the social-media company then known as
Twitter, petitioner agreed to act as an agent of the Kingdom of
Saudi Arabia.
Pet. App. 5a-7a.
Petitioner exploited his internal
corporate access to acquire confidential information on Twitter
users who used pseudonymous accounts to post content critical of
3
the Saudi government, including allegations of “corruption and
incompetence in the Saudi Kingdom and royal family.”
Id. at 7a.
Petitioner then passed the identifying information to his Saudi
contacts.
Id.
at
8a.
Testimony
at
petitioner’s
sentencing
indicated that one dissident Twitter user identified through the
scheme
--
a
humanitarian
worker
who
had
satirized
the
Saudi
government in his posts -- was subsequently “detained in Saudi
Arabia,”
“held
electric
shocks
in
solitary
and
confinement,”
beatings,”
“tortured
“hospitalized
]threatening injuries,” and has now “disappeared.”
with
through
life[-
Id. at 9a.
In
return for this confidential information, petitioner received a
$42,000 watch and hundreds of thousands of dollars wired to a
Lebanese bank account he maintained in his father’s name.
Id. at
7a-9a.
In May 2015, petitioner resigned from Twitter and moved from
northern California to Seattle.
Pet. App. 9a.
On October 20,
2018, the New York Times published an article revealing that the
government was investigating Saudi efforts to obtain confidential
information from Twitter in order to identify dissidents.
9a-10a.
Id. at
That same day, two agents of the Federal Bureau of
Investigation traveled to petitioner’s home to interview him.
at 10a.
Id.
The agents introduced themselves as “FBI agents from the
San Francisco office,” and they interviewed petitioner for several
hours about his work at Twitter and his contacts with a Saudi
official.
Ibid.
During the interview, petitioner claimed that he
4
had been paid by the Saudi official for consulting services.
at 11a.
Id.
When asked if there was documentation to support that
claim, petitioner told the agents that he had an invoice and went
upstairs unaccompanied.
Ibid.
Approximately 30 minutes later,
petitioner emailed a purported invoice to one of the agents. Ibid.
Analysis
of
the
document’s
metadata,
however,
showed
petitioner had created it during that 30-minute period.
2.
that
Ibid.
In November 2019, a federal grand jury in the Northern
District of California returned an indictment charging petitioner
with one count of acting as an agent of a foreign government
without notification to the Attorney General, in violation of 18
U.S.C. 951, and one count of falsifying a record to obstruct a
federal investigation, in violation of 18 U.S.C. 1519.
11a-12a.
Pet. App.
In February 2020, the government and petitioner agreed
to toll the statute of limitations for additional charges until
April 7, 2020, so that the parties could discuss a possible plea
deal.
Id. at 12a.
In March 2020, COVID-19 restrictions caused the district
court to suspend grand-jury operations.
7,
2020,
with
the
grand
jury
still
Pet. App. 12a.
suspended
and
On April
petitioner
unwilling to extend the tolling agreement, the government filed a
superseding information alleging 15 counts of wire fraud, one count
of conspiring to commit wire fraud, and three counts of money
laundering, in addition to the two previously charged counts.
Ibid.
On July 28, 2020, after grand-jury proceedings resumed, the
5
government dismissed the superseding information, and the grand
jury
returned
charges.
a
superseding
indictment
containing
the
same
Ibid.
Following a two-week trial, a jury found petitioner guilty on
one count of acting as a foreign agent without notification to the
Attorney General, one count of conspiring to commit wire fraud,
one count of wire fraud, two counts of money laundering, and one
count of falsifying a record with the intent to obstruct a federal
investigation.
Pet.
App.
12a.
The
district
court
imposed
concurrent 42-month sentences for each of the six counts, to be
followed by three years of supervised release.
3.
Id. at 13a.
The court of appeals affirmed petitioner’s convictions
but vacated his sentence and remanded for resentencing.
Pet. App.
1a-47a; 2024 WL 4972564, at *1-*2.
a.
The court of appeals rejected petitioner’s argument that
his money-laundering and wire-fraud charges were barred by the
statute of limitations.
Pet. App. 23a-30a.
The court observed
that 18 U.S.C. 3288 “categorically excludes from ‘any statute of
limitations’
bar
a
‘new
appropriate
jurisdiction
indictment
.
.
returned
in
the
within
calendar
months’
of
the
six
.
dismissal of an ‘information charging a felony.’”
(quoting 18 U.S.C. 3288).
Pet. App. 26a
The court further observed that “the
superseding indictment in this case was returned within six months
of the dismissal of the April 7, 2020 information,” which, in turn,
was filed “within the statute of limitations.”
Ibid.
And the
6
court accordingly found that the superseding indictment was thus
“[c]onsistent with the plain language of [Section] 3288” and
therefore timely.
Ibid.
The court of appeals observed that petitioner’s contrary
argument -- that “the ‘information charging a felony’ referred to
in [Section] 3288
* * *
requires an ‘instituted’ information
accompanied by a waiver of indictment” -- “finds no support in the
statutory text.” Pet. App. 26a. The court added that petitioner’s
“position is significantly undercut by the history of” Section
3288, as the “very limitation [petitioner] wishes to read back
into the statute” was removed from the statute by Congress in 1988.
Id. at 27a.
Because “[petitioner’s] argument already lacks a
textual foundation in [Section] 3288,” the court was “reluctant to
interpret that provision to include a requirement that Congress
specifically removed.”
Id. at 28a.
The court of appeals also rejected petitioner’s venue-based
challenge to his obstruction conviction.
Pet. App. 30a-44a.
The
court explained that by incorporating as an element the defendant’s
“intent to impede, obstruct, or influence” an investigation, 18
U.S.C. 1519 “‘expressly contemplates the effect of influencing the
action’ of another.”
Id. at 37a (citation and emphasis omitted).
The court accordingly determined “that the contemplated effects
are part of the ‘essential conduct’ of the offense for venue
purposes because the statute[] expressly define[s] the conduct in
those terms.”
Ibid. (citation omitted).
And it therefore found
7
that “venue for a charge under 18 U.S.C. § 1519” is appropriate in
either “the district in which the false document was prepared” or
“the district in which the obstructed federal investigation was
taking place.”
Id. at 31a.
The court thus recognized that
petitioner’s obstruction offense, though begun in Seattle, “was
continued or completed in the Northern District [of California],
making venue proper there.”
Id. at 40a.
In a concurring opinion, Judge Lee emphasized that the court
of appeals’ decision “does not give free rein to the government to
manufacture venue.”
Pet. App. 45a.
He observed that no such
concerns were presented by petitioner’s case, because “there is no
whiff that the government intentionally used San Francisco-based
FBI
agents
California.”
b.
to
manufacture
venue
in
the
Northern
District
of
Id. at 46a.
Although it affirmed petitioner’s convictions, the court
of appeals issued a separate, unpublished memorandum concluding
that the district court had erred in its Sentencing Guidelines
calculation.
2024 WL 4972564.
The court of appeals accordingly
vacated petitioner’s sentence and remanded for resentencing.
at *2.
Id.
By the time of resentencing, petitioner had completed his
original term of imprisonment, and he was sentenced to time served,
to be followed by two years of supervised release.
482, at 2-3.
He did not appeal the amended judgment.
D. Ct. Doc.
8
ARGUMENT
Petitioner renews his contentions that venue for the Section
1519 charge was improper in the Northern District of California
(Pet. 9-19) and that three of his six convictions were barred by
the
statute
of
limitations
because
the
government
initially
charged them by information without having first obtained a waiver
of his right to indictment (Pet. 19-25).
The court of appeals
correctly rejected both contentions, and the decision below does
not conflict with any decision of this Court or of another court
of appeals.
1.
No further review is warranted.
a.
Under the Constitution and the Federal Rules of
Criminal Procedure, a crime must be prosecuted in a “district
wherein the crime shall have been committed.”
U.S. Const. Amend.
VI; see Fed. R. Crim. P. 18 (“Unless a statute or these rules
permit otherwise, the government must prosecute an offense in a
district
where
the
offense
was
committed.”).
As
this
Court
explained in United States v. Rodriguez-Moreno, 526 U.S. 275, 281
(1999), however, a single criminal offense may be “committed” in
more than one district.
Accord 18 U.S.C. 3237(a) (“Except as
otherwise expressly provided by enactment of Congress, any offense
against the United States begun in one district and completed in
another, or committed in more than one district, may be inquired
of and prosecuted in any district in which such offense was begun,
continued, or completed.”).
9
In Rodriguez-Moreno, the Court considered a venue challenge
to a conviction for using or carrying a firearm during and in
relation
to
924(c)(1).
a
crime
of
violence,
526 U.S. at 276-278.
in
violation
of
18
U.S.C.
The underlying crime of violence
in that case was a kidnapping that continued through several States
(and thus through several federal judicial districts).
Ibid.
The
defendant was prosecuted in the District of New Jersey, one of the
locations in which the victim had been held captive.
The
Section
924(c)(1)
charge
was
based
on
Id. at 277.
evidence
that
the
defendant had used a firearm in Maryland in furtherance of the
kidnapping offense.
Ibid.
Emphasizing that the “locus delicti [of the charged offense]
must be determined from the nature of the crime alleged and the
location of the act or acts constituting it,” Rodriguez-Moreno,
526 U.S. at 279 (quoting United States v. Cabrales, 524 U.S. 1, 67 (1998)), this Court rejected the defendant’s argument that “venue
was proper only in Maryland, the only place where the Government
had proved he had actually used a gun,” id. at 277.
The Court
interpreted Section 924(c)(1) as containing “two distinct conduct
elements” -- “[1] the ‘using and carrying’ of a gun[,] and [2] the
commission of a kidnaping [or other crime of violence],” id. at
280 -- and reaffirmed the settled principle that such “a crime
consist[ing] of distinct parts
* * *
may be tried where any part
can be proved to have been done,” id. at 281 (quoting United States
v. Lombardo, 241 U.S. 73, 77 (1916)).
10
The Court further explained that “[t]he kidnaping, to which
the [Section] 924(c)(1) offense [was] attached, was committed in
all of the places that any part of it took place,” so that “venue
for the kidnaping charge
* * *
was appropriate in any of them.”
Rodriguez-Moreno, 526 U.S. at 282.
Because venue in New Jersey
was “appropriate for the underlying crime of violence,” the Court
concluded that venue was appropriate “for the [Section] 924(c)(1)
offense” as well.
b.
this
The court of appeals correctly articulated and applied
Court’s
conduct
Ibid.
in
venue
jurisprudence
violation
of
Section
when
analyzing
1519.
Pet.
petitioner’s
App.
30a-44a.
Consistent with Rodriguez-Moreno, 526 U.S. at 279, the court of
appeals first “identif[ied] the conduct constituting the offense
(the nature of the crime)” set out in Section 1519, and it then
“discern[ed] the location of the commission of the criminal acts.”
See Pet. App. 36a-40a (citation omitted).
The court also noted
that petitioner “d[id] not dispute that for some criminal offenses,
the place where the effects of the crime are directed or sustained
can be an appropriate venue for prosecution.”
Id. at 33a.
In analyzing “the nature of the crime” here, the court of
appeals
explained
that,
where
a
criminal
statute
“expressly
contemplate[s] the effect of influencing [a specified] action,”
venue is proper where that effect would occur.
Pet. App. 32a, 38a
(quoting United States v. Fortenberry, 89 F.4th 702, 710 (9th Cir.
2023)).
And based on the statutory text, the court of appeals
11
determined that Section 1519 is such a provision.
Id. at 36a-38a.
As the court observed, Section 1519 requires proof that a defendant
acted “with the intent to impede, obstruct, or influence” an
investigation.
Id.
at
37a
(citation
omitted).
The
statute
therefore captures an “express connection between the actus reus
and its contemplated effect.”
this
case
--
where
Ibid.
petitioner
And in the circumstances of
endeavored
to
obstruct
an
investigation he knew to be taking place in the Northern District
of California -- venue was proper in that district.
c.
Id. at 44a.
No court has reached a contrary determination as to
permissible venue(s) under Section 1519.
The court below was the
first (and, so far, only) court of appeals to address the issue.
See Pet. App. 31a (observing that “no circuit has yet
* * *
address[ed] this question in the context of [Section] 1519”).
In
addition to the district court that presided over petitioner’s
case, one other district court has analyzed venue for a Section
1519 prosecution -- and it reached the same conclusion as the
courts below.
See United States v. Baugh, 597 F. Supp. 3d 502,
510 (D. Mass. 2022).
Petitioner nevertheless posits a circuit conflict by citing
cases from the First, Third, Fourth, Fifth, Eleventh, and D.C.
Circuits examining venue under other criminal statutes.
9-14 (collecting cases).
specific
analysis
set
See Pet.
Under the element-by-element statuteout
in
Rodriguez-Moreno,
statute-to-statute comparisons have limited utility.
supra,
such
And none of
12
those decisions adopts a categorical rule that would preclude a
future panel from agreeing with the decision below if a case that
actually involves Section 1519 were to arise.
The Third and Fourth Circuit decisions on which petitioner
relies address statutes that do not contain any element similar to
Section 1519’s requirement that a defendant act “with the intent
to impede, obstruct, or influence” an investigation.
In United
States v. Auernheimer, 748 F.3d 525 (3d Cir. 2014), the Third
Circuit considered 18 U.S.C. 1030(a)(2), which prohibits, inter
alia,
the
unauthorized
“access[ing]”
and
“obtain[ing]”
of
“information from any protected computer”; it then concluded that,
because “[n]o protected computer was accessed and no data was
obtained in [the district of conviction],” venue could not lie
there, 748 F.3d at 534.
And in United States v. Bowens, 224 F.3d
302 (4th Cir. 2000), cert. denied, 532 U.S. 944 (2001), the Fourth
Circuit reasoned, in the context of the federal fugitive-harboring
statute, that venue lies “where acts of harboring or concealing
take place”; in contrast, the statute’s antecedent requirement of
“‘a
warrant
or
process
ha[ving]
been
issued’”
harboring was “merely a circumstance element.”
(quoting 18 U.S.C. 1071).
prior
to
the
Id. at 309-311
As the decision below emphasized (Pet.
App. 38a-39a), the Ninth Circuit follows a similar rule for crimes
that lack an intent element.
See id. at 34a-36a (discussing
Fortenberry, 89 F.4th at 704-705).
13
Petitioner also invokes (Pet. 9-10, 12-13) decisions of the
First, Fifth, and Eleventh Circuits, but each of those courts
rejected venue based on a required statutory intent to obtain or
remove a discrete person or thing -- not, as here, to influence or
obstruct an ongoing matter.
See United States v. Smith, 22 F.4th
1236, 1243–1244 (11th Cir. 2022) (theft of trade secrets), aff’d
on other grounds, 599 U.S. 236 (2023); United States v. Clenney,
434 F.3d 780, 781 (5th Cir. 2005) (per curiam) (kidnapping); United
States v. Salinas, 373 F.3d 161, 165–166 (1st Cir. 2004) (passport
fraud).
In the latter context -- for example, in prosecutions for
“mak[ing]
* * *
false statement[s]
* * *
for the purpose of
influencing” federal agencies and federally insured entities, 18
U.S.C. 1014 -- those courts have found venue proper where the
target of the “influencing” is situated.
See, e.g., United States
v. Dupre, 117 F.3d 810, 822 (5th Cir. 1997) (Section 1014), cert.
denied, 522 U.S. 1078 (1998); United States v. Greene, 862 F.2d
1512, 1515 (11th Cir. 1989) (Section 1014), cert. denied, 493 U.S.
809 (1989); United States v. Tedesco, 635 F.2d 902, 902, 904-906
(1st Cir. 1980) (witness tampering under 18 U.S.C. 1503), cert.
denied, 452 U.S. 962 (1981); cf. United States v. Uribe, 890 F.2d
554, 559 (1st Cir. 1989) (citing, with approval, an out-of-circuit
Section 1014 decision so holding).
Petitioner’s
reliance
on
D.C.
Circuit
decisions
for
the
proposition that there, “venue for attempting to influence a
witness [i]s proper only where the attempt took place, not where
14
the witness would testify,” Pet. 13, is unsound.
The first of
those decisions, United States v. Swann, 441 F.2d 1053 (D.C. Cir.
1971), was a witness-tampering prosecution under 18 U.S.C. 1503,
in which the court deemed venue to lie only where the influencing
occurred, not where the witness would testify.
1055.
See id. at 1054-
The second, United States v. White, 887 F.2d 267 (D.C. Cir.
1989), was a bribery prosecution under 18 U.S.C. 201(c) that relied
on Swann to reach a similar result, while noting that “other
circuits” -- including three that petitioner views as aligned with
him (the First, Fourth, and Eleventh) -- “disagree with our holding
in Swann.”
Id. at 272 & n.3.
witness-tampering
“resolv[ed]
[the]
interpretation
of
And when it enacted a specific
statute
(18
U.S.C.
split
in
the
Section
1503
1512)
in
1988,
Congress
circuits”
on
the
(at
in
Swann)
issue
proper
by
“clarify[ing]” that a prosecution under the new provision “could
be brought in the district where the official proceeding that the
defendant intended to influence was taking place, as well as in
the district where the illegal act itself occurred.”
134 Cong.
Rec. 13780 (1988); see, e.g., United States v. Gonzalez, 922 F.2d
1044, 1054-1055 (2d Cir.), cert. denied, 502 U.S. 1014 (1991); see
also 18 U.S.C. 1512(h).
Although that amendment predates White, it was not addressed
in that decision, and petitioner identifies no decision of the
D.C. Circuit addressing but disregarding the abrogation of Swann
in a case presenting an issue of this sort.
He therefore provides
15
no evidence from the last 35 years indicating that the D.C. Circuit
would adhere to its previous view.
In any event, at most,
petitioner has demonstrated that different statutes have different
essential conduct elements and thus give rise to different venue
analyses.
“the
That is an unremarkable and unavoidable byproduct of
Sixth
Amendment’s
offense-specific
approach
to
venue.”
United States v. Lanier, 879 F.3d 141, 148 (5th Cir.), cert.
denied, 586 U.S. 892 (2018).
It is thus unclear in what way or to
what
fashion
end
this
Court
might
a
new
general
applicable beyond the specific statute at issue here.
venue
rule
And because
only the decision below has thus far passed on the appropriate
venue for Section 1519, no conflict exists that would require the
Court’s intervention at this time.
2.
Petitioner
separately
contends
(Pet.
19-25)
that
“a
felony information that is not accompanied by a valid waiver of
indictment does not ‘charg[e] a felony,’ as [18 U.S.C.] 3288
requires.”
See
18
U.S.C.
3288
(“Whenever
an
indictment
or
information charging a felony is dismissed for any reason after
the period prescribed by the applicable statute of limitations has
expired, a new indictment may be returned in the appropriate
jurisdiction
within
six
calendar
months
of
the
dismissal of the indictment or information[.]”).
date
of
the
This Court has
recently denied petitions for writs of certiorari raising similar
16
issues,* which have uncertain prospective importance given the
post-COVID-19 restoration of grand-jury proceedings.
The same
course is warranted here.
a.
The court of appeals correctly rejected petitioner’s
construction of Section 3288, which would require reading the
statutory phrase “information charging a felony” to mean something
other than an “information” that “charg[es]” a “felony.”
App. 25a-26a.
See Pet.
Contrary to petitioner’s contention (Pet. 21), both
legal and lay definitions of “charge” require nothing more than to
accuse someone of a crime -- something that a felony information,
which puts a defendant on notice that he stands accused of a
criminal
offense,
plainly
accomplishes.
See
Charge
(verb),
Black’s Law Dictionary (12th ed. 2024) (“To accuse (a person) of
an offense,” as in “the police charged him with murder”); Charge
(noun),
Black’s
Law
Dictionary
(12th
ed.
2024)
(“A
formal
accusation of an offense as a preliminary step to prosecution”)
(emphasis
added);
Charge
(verb),
Merriam-Webster
Online
Dictionary, http://www.merriam-webster.com/dictionary/charge (“to
make an assertion against especially by ascribing guilt or blame”).
At base, petitioner’s argument rests on the premise that an
information charging a felony is “invalid,” Pet. 19, without a
preexisting waiver of the right to indictment.
But the fact that
an information cannot ultimately lead to conviction without a
* See Webster v. United States, 145 S. Ct. 1461 (2025) (No.
24-6633); Briscoe v. United States, 145 S. Ct. 382 (2024) (No. 24284).
17
superseding indictment or waiver of the right thereto does not
render it a nullity as a preliminary step in the prosecutorial
process.
To the contrary, “filing an information establishes it
as an operative legal document and begins an action.”
United
States v. Webster, 127 F.4th 318, 323 (11th Cir.), cert. denied,
145 S. Ct. 1461 (2025); accord United States v. Cooper, 956 F.2d
960, 962-963 (10th Cir. 1992). The filing of an information begins
criminal proceedings, even if those proceedings may culminate in
a motion to dismiss any charges as to which the information is
deemed invalid, see Pet. App. 29a, and the defendant is not exempt
from the requirement to appear in court and address the criminal
prosecution in some way.
Moreover, as the court of appeals explained, the requirement
petitioner seeks to impose is not only absent from the statute but
was affirmatively removed by Congress.
For decades, Section 3288
required the filing of “an indictment or information filed after
the defendant waives in open court prosecution by indictment.”
Pet. App. 27a (citation omitted).
But in 1988, Congress removed
“the very limitation [petitioner] wishes to read back into the
statute,” ibid., and instead required only the filing of “an
indictment or information charging a felony,” 18 U.S.C. 3288.
Petitioner suggests (Pet. 24) that Congress was merely clarifying
that “[Section] 3288 did not apply to a dismissal for speedy-trial
violations,”
but
that
“waive[r]” language.
does
not
explain
its
removal
of
the
“[W]hen Congress acts to amend a statute,
18
[this Court] presume[s] it intends its amendment to have real and
substantial effect.”
Pierce Cnty. v. Guillen, 537 U.S. 129, 145
(2003) (citation omitted).
The court of appeals appropriately
adhered to that principle.
b.
Petitioner also has not shown that the second question
presented satisfies any of the criteria for certiorari.
R. 10.
Sup. Ct.
First and foremost, petitioner fails to identify a circuit
conflict or other division of authority on the question.
As
petitioner acknowledges, “the Ninth Circuit is not the only court”
to have rejected claims identical to the one he now advances.
20 (citations omitted).
Pet.
Indeed, every court of appeals to have
considered petitioner’s contention or a closely related one has
rejected it.
See Webster, 127 F.4th at 321-326; United States v.
Briscoe, 101 F.4th 282, 291-293 (4th Cir.), cert. denied, 145 S.
Ct. 382 (2024); United States v. Burdix-Dana, 149 F.3d 741, 742743 (7th Cir. 1998), cert. denied, 525 U.S. 1180 (1999).
In addition, the prospective importance of this question is
far from clear.
Petitioner states that an information charging a
felony has been “rarely used” to ensure timeliness outside the
anomalous context of COVID-19 restrictions.
Pet. 20 (citation
omitted); see Pet. App. 23a (observing that petitioner’s “argument
is rooted in the peculiarities of timing” prompted by COVID-19).
And proceeding by information generally confers no advantage to
the
government:
the
prosecutor
must
“still”
prepare
the
“sufficiently specific” case, Pet. App. 29a, before expiration of
19
the limitations period so that a subsequent superseding indictment
will “relate[] back” to the timely filed information, Briscoe, 101
F.4th at 293; and the defendant receives timely notice of the
charges against him and may move to dismiss them, Pet. App. 29a;
Webster, 127 F.4th at 323.
And in some cases, “substantial delay”
by the government in securing a superseding indictment “could
present speedy trial or due process concerns” that are not “present
in this case.”
Pet. App. 29a.
Instead, the filing of an information charging a felony is
beneficial primarily, if not exclusively, when a grand jury is
unavailable.
That is a rare circumstance that petitioner provides
no sound reason to believe will recur.
And while many defendants
charged in early 2020 raised time-bar arguments related to the
pandemic, it appears that virtually all such prosecutions have now
been resolved.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
JOHN A. EISENBERG
Assistant Attorney General
JEFFREY M. SMITH
JOSEPH P. MINTA
Attorneys
OCTOBER 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.