Petition for Writ of Certiorari — Yesid Avila-Diaz, Petitioner v. United States

Supreme Court briefJun 10, 2026

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No. 26-________

IN THE

Supreme Court of the United States

YESID AVILA-DIAZ,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

O’DONNELL CHRISTOPHER LLP

700 S. Royal Poinciana Blvd.

#705

Miami Springs, FL 33166

Tel: 305.640.8958

Email: sodonnell@

odonnellchristopher.com

/s/ Sonia E. O’Donnell

SONIA E. O’DONNELL

Florida Bar No. 250643

/s/ Robert A. O’Donnell

ROBERT A. O’DONNELL

Florida Bar No. 1011567

June 10, 2026

Counsel of Record for Petitioner

QUESTIONS PRESENTED

Whether an unconditional guilty plea waives appellate review of a

preserved claim that the prosecution was barred on the face of the charging record—

a claim that goes to the Government’s authority to convict rather than to the

defendant’s factual guilt.

Whether the courts of appeals are divided over whether an

unconditional guilty plea waives a preserved claim that the government lacked

authority to bring.

Whether the court of appeals applied the wrong unit of analysis to the

statute-of-limitations claim by examining the Second Superseding Indictment in

isolation, when the limitations bar appears on comparison of the successive

indictments because the Second Superseding Indictment materially broadened the

timely Superseding Indictment and cannot relate back.

PARTIES TO THE PROCEEDING

The parties to the proceedings in the Eleventh Circuit Court of Appeals include

the Respondent, United States of America and Petitioner Yesid Avila-Diaz. There

are no parties to the proceedings other than those named in this petition.

Pursuant to Rule 29, undersigned court-appointed counsel for Appellant Yesid

Avila-Diaz certifies that no persons or entities have an interest in the outcome of this

case.

RELATED PROCEEDINGS

The following proceedings are directly related to this Petition: United States v.

Yesid Avila-Diaz, No. 25-12380, opinion granting the Government’s Motion to

Dismiss Appeal as barred by Defendant’s plea and sentence waiver, United States v.

Yesid Avila-Diaz, 2026 WL 699135 (11th Cir. March 12, 2026). On April 24, 2026

rehearing was denied, and mandate issued on May 5, 2026.

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................ i

PARTIES TO THE PROCEEDING ................................................................................ i

RELATED PROCEEDINGS .......................................................................................... ii

TABLE OF AUTHORITIES ........................................................................................... v

OPINION BELOW..…………………………………………………………………………...1

STATEMENT OF JURISDICTION ............................................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED ......................................................... 1

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE PETITION ............................................................ 3

THE COURTS OF APPEALS ARE DIVIDED OVER WHETHER AN

UNCONDITIONAL GUILTY PLEA WAIVES A PRESERVED CLAIM

THAT THE GOVERNMENT LACKED AUTHORITY TO BRING ............. 4

A. This Court Distinguishes Claims of Factual Guilt, Which a Plea Concedes,

From Claims That the Government Lacked Authority to Convict, Which

Survive a Plea When They Can Be Resolved on The Existing Record. ....... 4

B. The Courts of Appeals Have Divided on Applying the Court’s

Precedent ........................................................................................................ 7

II.

THE QUESTION IS IMPORTANT AND RECURS IN NUMEROUS

FEDERAL CASES. ......................................................................................... 9

III.

THIS CASE IS A SUITABLE VEHICLE TO RESOLVE THE

QUESTIONS PRESENTED; PETITION SHOULD BE GRANTED. .......... 9

A. The Decision Below Did Not Decide the Federal Question .......................... 9

B. Petitioner’s Claim Requires Contradicting No Admitted Fact. ................. 11

C. The Decision Below Does Not Foreclose This Analysis .............................. 12

iii

TABLE OF CONTENTS (Cont’d)

IV.

INDEPENDENTLY, CERTIORARI IS WARRANTED BECAUSE THE

PANEL EVALUATED THE LIMITATIONS CLAIM UNDER THE

WRONG UNIT OF ANALYSIS ................................................................... 13

A. The Panel Applied the Wrong Unit of Analysis in Evaluating the Statuteof-Limitations Claim. ................................................................................... 14

B. The Second Superseding Indictment Materially Broadened the Timely

Superseding Indictment and Cannot Relate Back. .................................... 15

CONCLUSION.............................................................................................................. 18

APPENDIX

TABLE OF AUTHORITIES

CASES

Page

Blackledge v. Perry,

417 U.S. 21 (1974) ........................................................................................... 5-7, 9-11

Bousley v. United States,

523 U.S. 614 (1998) ..................................................................................................... 6

Class v. United States,

583 U.S. 174 (2018) .................................................................................. 4, 6-8, 10-12

Grzegorczyk v. United States,

997 F.3d 743 (7th Cir. 2021) ..................................................................................... 8

Menna v. New York,

423 U.S. 61 (1975) ................................................................................................. 4-11

Musacchio v. United States,

577 U.S. 237 (2016) .................................................................................................... 9

United States v. Yesid Avila-Diaz,

2026 WL 699135 (11th Cir. March 12, 2026)………………………………………..i, ii

United States v. Broce,

488 U.S. 563 (1989) ........................................................................................ 5-6, 8-12

United States v. Cotton,

535 U.S. 625 (2002) .................................................................................................... 7

United States v. Delgado-Garcia,

374 F.3d 1337 (D.C. Cir. 2004) .................................................................................. 7

United States v. Helmich,

704 F.2d 547 (11th Cir. 1983) .................................................................. 3, 12-14, 17

United States v. Italiano,

894 F.2d 1280 (11th Cir. 1990) .......................................................................... 13-16

United States v. Najjar,

283 F.3d 1306 (11th Cir. 2002) ................................................................................. 9

TABLE OF AUTHORITIES (Cont’d)

United States v. Pittman,

125 F.4th 527 (4th Cir. 2025) ................................................................................ 7, 9

United States v. Ratcliff,

245 F.3d 1246 (11th Cir. 2001) .......................................................................... 13-16

United States v. Rosa-Ortiz,

348 F.3d 33 (1st Cir. 2003) .................................................................................... 8, 9

United States v. Rubin,

743 F.3d 31 (2d Cir. 2014) ..................................................................................... 7, 9

United States v. Sanfilippo,

91 F.4th 1380 (11th Cir. 2024) ............................................................................ 9, 10

United States v. St. Hubert,

909 F.3d 335 (11th Cir. 2018) ............................................................................... 8, 9

STATUTES AND OTHER AUTHORITIES

18 U.S.C. § 924(c) ............................................................................................................ 7

18 U.S.C. § 3282(a) ....................................................................................................... 11

21 U.S.C. § 959 ................................................................................................................ 2

21 U.S.C. § 963 .......................................................................................................... 2, 16

28 U.S.C. § 1254(1) ......................................................................................................... 1

Fed. R. Crim. P. 11(a)(2) ........................................................................................... 9, 10

Advisory Committee’s Notes on 1983 Amendments to Fed. R. Crim. P. 11 .............. 10

PETITION FOR WRIT OF CERTIORARI

Petitioner, Yesid Avila-Diaz, respectfully petitions this Court for a writ of

certiorari to review the Opinion rendered by the Eleventh Circuit Court of Appeals

on March 12, 2026.

STATEMENT OF JURISDICTION

The Eleventh Circuit entered judgment on March 12, 2026. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

The Eleventh Circuit Court of Appeals issued an opinion granting the

government’s motion to dismiss the appeal as barred by defendant’s plea and

sentence waiver. App. A. The mandate issued on May 5, 2026. This Court has

jurisdiction to review the Eleventh Circuit’s judgment under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The United States Constitution’s Fifth Amendment provides:

In relevant part: “No person shall . . . be subject for the same offence to be twice

put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without

due process of law[.]”

STATEMENT OF THE CASE

Petitioner Yesid Avila-Diaz respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of Appeals for the

Eleventh Circuit.

In 2017, a federal grand jury in the Southern District of Florida charged

Santiago Alirio Gomez Rivera with conspiring to distribute cocaine, knowing and

intending that it would be unlawfully imported into the United States, in violation of

21 U.S.C. §§ 959 and 963. The original indictment alleged a conspiracy lasting from

March 1 through May 20, 2013. (DE:3).

In April 2018, the grand jury returned a Superseding Indictment that added

codefendants, including Appellant Yesid Avila Diaz, to the charge against Rivera. The

conspiracy period remained substantially the same: March through May 2013.

(DE:7). That indictment was filed within the five-year statute of limitations.

Three months later, in July 2018, the grand jury returned a Second

Superseding Indictment. The codefendants and the statutory charge remained the

same, but the alleged conspiracy period was expanded to run from January 2008

through September 2013. (DE:11). The Second Superseding Indictment also

contained no overt acts and no individualized allegations of when any defendant

joined or withdrew from the conspiracy. By the time it was returned, the three-month

conspiracy period alleged in the Superseding Indictment, ending in May 2013, had

fallen outside the five-year limitations window.

Appellant was extradited from Colombia in November 2024 and pled guilty

under an unconditional plea agreement on March 6, 2025. (DE:241; DE:243). He was

sentenced to 108 months of imprisonment, the low end of his guidelines range.

(DE:280).

On appeal, the government moved to dismiss before their brief was filed,

arguing that Appellant’s unconditional guilty plea waived his statute-of-limitations

challenge. The panel granted the motion in a per curiam order dated March 12, 2026,

citing United States v. Helmich, 704 F.2d 547, 548 (11th Cir. 1983) for the proposition

that a defendant who pleads guilty may challenge his prosecution as time-barred

“only insofar as the indictment on its face shows that the limitations period expired.”

The panel concluded that the Second Superseding Indictment does not make that

showing, but failed to analyze the face of all of the successive indictments to so

conclude.

REASONS FOR GRANTING THE PETITION

The decision below holds that a defendant who enters an unconditional guilty

plea forfeits all appellate review of a claim that the Government had no authority to

bring. The holding of the Eleventh Circuit deepens a recognized and intractable

conflict among the courts of appeals over the most consequential question that follows

a guilty plea: what such a plea gives up. The conflict reaches the majority of federal

criminal judgments obtained by plea. The Federal Circuits do not have consistent law

concerning whether or not a plea extinguishes a claim against the lawfulness of the

conviction itself.

This petition does not ask the Court to correct one panel’s application of circuit

precedent. It asks the Court to resolve a division it has twice engaged but never

closed: whether, and how far, the rule, that a guilty plea admits the facts but does

not concede the Government’s authority to convict, survives an unconditional plea on

direct appeal. See Menna v. New York, 423 U.S. 61 (1975), and Class v. United States,

583 U.S. 174 (2018). The conflict has developed around claims that the admitted

conduct is not a crime. Petitioner’s claim, that the prosecution was time-barred on

the face of the successive charging instruments, provides the Court with the

opportunity to resolve the circuit conflict. The petition should also be granted for the

Court’s resolution of the question concerning the reach of federal courts.

THE COURTS OF APPEALS ARE DIVIDED OVER WHETHER AN

UNCONDITIONAL GUILTY PLEA WAIVES A CLAIM THAT THE

GOVERNMENT LACKED AUTHORITY TO BRING

A. This Court Distinguishes Claims of Factual Guilt, Which a Plea

Concedes, From Claims That the Government Lacked Authority

to Convict, Which Survive a Plea When They Can be Resolved on

The Existing Record.

More than fifty years ago, this Court rejected the proposition that a counseled

guilty plea waives every antecedent defect. A plea “simply renders irrelevant those

constitutional violations not logically inconsistent with the valid establishment of

factual guilt.” Menna, 423 U.S. at 62 n.2. But “where the claim is that the State may

not convict petitioner no matter how validly his factual guilt is established,” the plea

“does not bar the claim.” Id. at 62–63 n.2. The Court stated the principle: “a plea of

guilty to a charge does not waive a claim that judged on its face the charge is one

which the State may not constitutionally prosecute.” Id. at 63 n.2. Menna itself

involved a Double Jeopardy claim that was concededly non-jurisdictional, yet the

claim survived the plea, because it attacked the sovereign’s power to bring the charge

rather than the defendant’s guilt. The Court grounded that result in Blackledge v.

Perry, 417 U.S. 21, 30 (1974), which it described as requiring that a conviction

obtained on a charge the State was constitutionally precluded from bringing be set

aside even after a counseled plea. See Menna, 423 U.S. at 62.

This Court refined the doctrine’s scope in United States v. Broce, 488 U.S. 563

(1989). Broce holds that the exception reaches only claims that can be adjudicated “on

the basis of the existing record,” without venturing beyond it. Id. at 575. The

defendants there pleaded guilty to two indictments charging two conspiracies and

then asserted that there had been only one, in violation of the Double Jeopardy

Clause; the Court refused to entertain the claim because the defendants “cannot

prove their claim without contradicting those indictments” to which they had pleaded,

and that opportunity was “foreclosed by the admissions inherent in” the plea. Id. at

575–76. Menna and Blackledge, by contrast, were claims that—“on the face of the

record”—the court “had no power to enter the conviction or impose the sentence,” and

could be resolved without disputing any admitted fact. Id. at 569; see id. at 575–76.

The line Broce draws is therefore not between jurisdictional and non-jurisdictional

claims, but between claims that require contradicting the plea’s admissions and

claims that do not.

This Court reaffirmed that line, in a claim arising from a direct appeal to the

circuit court after an unconditional plea, in Class v. United States, 583 U.S. 174 (2018)

where the Court held that a guilty plea, by itself, does not bar a federal criminal

defendant from challenging the constitutionality of his conviction on direct appeal.

It expressly reaffirmed “the Menna–Blackledge doctrine,” id. at 178–80, and tied its

limit to Broce: the claim survived because it did “not contradict the terms of the

indictment or the written plea agreement” and could “be resolved ‘on the basis of the

existing record,’”; it survived also because it challenged “the Government’s power to

criminalize Class’ (admitted) conduct” and thereby called into question the

Government’s power to “constitutionally prosecute” him. Id. at 181–82 (quoting

Broce, 488 U.S. at 575, and Menna, 423 U.S. at 62–63 n.2). The right that survives

an unconditional plea is thus not confined to jurisdictional defects: the Double

Jeopardy claim in Menna and the constitutional claim in Class were each nonjurisdictional, and each survived. The Court instead will consider whether the claim

can be decided on the existing record without contradicting the plea, and to what

extent the Government’s authority to convict is implicated, rather than the factual

guilt of the defendant.

A further decision illuminates the principle. In Bousley v. United States, 523

U.S. 614 (1998), the Court considered a claim that the admitted conduct was not in

fact criminal as a claim of innocence; in Bousley, “actual innocence” meant “factual

innocence”, not merely legal insufficiency, and the Court allowed the claim. Id. at

620–24. Bousley arose on collateral review, but it establishes the premise that carries

over here: a claim that admitted conduct is not criminal, and that the government

therefore lacked authority to convict, is qualitatively different from a defense to

factual guilt.

B. The Courts of Appeals Have Divided on Applying the Court’s

Precedent.

Several circuits have read the Menna–Blackledge exception narrowly and have

treated defects in the charging instrument as non-jurisdictional and therefore

relinquished. The leading statement is the District of Columbia Circuit’s decision in

United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004), which holds that

knowing and voluntary unconditional pleas waive all claims of error, subject to only

two exceptions. The first exception challenges the Federal Courts prerogative to hale

the defendant into court at all, as for example, when the defendant would be placed

under double jeopardy; the second exception challenges the subject-matter

jurisdiction of the courts below. Id. at 1341–43. The Second Circuit reached the same

result in United States v. Rubin, 743 F.3d 31 (2d Cir. 2014), holding that, “in light of

United States v. Cotton, 535 U.S. 625 (2002),” a failure-to-state-an-offense defect “is

non-jurisdictional in nature, and therefore could be, and was, waived” by an

unconditional plea. Id. at 35–36. The Fourth Circuit followed last year in United

States v. Pittman, 125 F.4th 527 (4th Cir. 2025): acknowledging this Court’s

statement in Class that “a guilty plea by itself does not bar” a later challenge, the

court nonetheless held the defendant by his plea “either waived or forfeited” his

assertion that his conduct did not violate the statute; the district court’s subjectmatter jurisdiction was therefore secure. Id. at 530–33. The Seventh Circuit’s

decision in Grzegorczyk v. United States, 997 F.3d 743 (7th Cir. 2021), points the same

way, holding that an unconditional negotiated plea foreclosed a later challenge to a

18 U.S.C. § 924(c) conviction.

Other circuits hold that a plea admits the facts but not their legal sufficiency,

so that a defendant may claim on appeal that the admitted conduct is not a crime, or

that the Government otherwise lacked authority to convict. The First Circuit so held

in United States v. Rosa-Ortiz, 348 F.3d 33 (1st Cir. 2003), concluding that an

unconditional plea did not waive the defendant’s argument that the Federal Escape

Act did not reach his conduct, and invoking Menna’s “judged on its face” principle. Id.

at 36–38. The Eleventh Circuit, applying Class directly, held that an unconditional

guilty plea did “not waive” the defendant’s constitutional challenge to his statute of

conviction, even though that challenge was non-jurisdictional. United States v. St.

Hubert, 909 F.3d 335, 345-46 (11th Cir. 2018). The division is thus not merely lateral

but runs through the very circuit whose judgment is under review: the Eleventh

Circuit recognizes, through Class, that a non-jurisdictional authority-to-convict claim

can survive an unconditional plea.

The conflict is recurring. This Court has twice spoken to the doctrine, in Broce

and in Class, yet the courts of appeals remain divided over how far the surviving

category extends, and they decide materially identical claims in opposite ways

depending only on the circuit in which the plea was entered. Only this Court can

restore uniformity.

II.

THE QUESTION IS IMPORTANT AND RECURS IN NUMEROUS

FEDERAL CASES

The question presented governs the consequences of a most common event in

the federal criminal system. Many federal convictions are obtained by guilty plea,

and the unconditional plea is the default; the conditional plea that preserves

appellate review under Federal Rule of Criminal Procedure 11(a)(2) is a rare

exception. The rule adopted below therefore determines, for nearly every federal

defendant, whether a claim that the Government lacked authority to convict may

ever be heard on the merits.

The same defense that survives an unconditional plea in the First Circuit

(Rosa-Ortiz) and the Eleventh (St. Hubert) is extinguished under the reasoning of the

Second (Rubin) and the Fourth (Pittman).

III.

THIS CASE IS A SUITABLE VEHICLE TO RESOLVE THE

QUESTIONS PRESENTED; THE PETITION SHOULD BE

GRANTED

A. The Decision Below Did Not Decide the Federal Question.

The order below did not ask whether petitioner’s claim falls within the Menna–

Blackledge exception. It dismissed the appeal on the authority of United States v.

Sanfilippo, 91 F.4th 1380 (11th Cir. 2024), which resolved a materially identical

limitations claim by a single syllogism: an unconditional plea “waives all nonjurisdictional defects,” a statute-of-limitations defense is non-jurisdictional, and the

claim is therefore waived. Id. at 1383 (relying on United States v. Najjar, 283 F.3d

1306, 1308 (11th Cir. 2002), and this Court’s decision in Musacchio v. United States,

577 U.S. 237, 248 (2016)). Sanfilippo never cited Menna, Blackledge, Broce, or Class.

It did not ask whether a limitations bar apparent on the face of the charging record

is a claim that the Government lacked authority to convict regardless of factual guilt.

It treated “non-jurisdictional” as a synonym for “waived.”

The Sanfilippo holding cannot be reconciled with this Court’s decisions. The

Double Jeopardy claim in Menna, the vindictive-prosecution claim in Blackledge, and

the constitutional claim in Class were each non-jurisdictional, and each survived an

unconditional plea. The surviving category is defined not by jurisdiction but by the

Broce test: whether the challenge to the guilty plea can be resolved on the existing

record without contradicting the plea’s admissions. The court below thus disposed of

petitioner’s appeal on a rule that does not answer the federal question, and in doing

so deepened the conflict described in Part I without engaging the framework that

governs it.

The point is sharpened by what Class held about the very rule the panel

treated as dispositive. Sanfilippo reasoned that, absent a conditional plea under Rule

11(a)(2), a non-jurisdictional claim is irretrievably waived. See 91 F.4th at 1383. But

Class held that Rule 11(a)(2) “has no application” to the “kinds of constitutional

objections” that may be raised under the Menna–Blackledge doctrine, and therefore

“cannot resolve” such a case. 583 U.S. at 182–83 (quoting Advisory Committee’s Notes

on 1983 Amendments to Fed. Rule Crim. Proc. 11). Class rejects Sanfilippo’s panel’s

premise that the absence of a Rule 11(a)(2) reservation ends the inquiry into the

Government’s authority to convict.

B. Petitioner’s Claim Requires Contradicting No Admitted Fact.

Class does not require Petitioner to dispute that the limitations defense under

18 U.S.C. § 3282(a) is non-jurisdictional. Because the Menna–Blackledge exception is

not confined to jurisdictional defects, the governing question is whether a limitations

bar apparent on the face of the successive charging instruments is a claim that the

Government may not convict “no matter how validly his factual guilt is established,”

Menna, 423 U.S. at 62 n.2, and one that can be “resolved on the basis of the existing

record” without contradicting the plea’s admissions, Broce, 488 U.S. at 575.

In the present case, Petitioner pleaded to the Second Superseding Indictment,

admitting to a conspiracy continuing through September 2013. The date that made

the charging instrument facially timely, because it was returned in July 2018, within

five years. See 18 U.S.C. § 3282(a). Vindicating the claim requires no contradiction of

that admission. Yet the Second Superseding Indictment, returned in July 2018, could

allege a September 2013 end date only by materially broadening the earlier, timely

Superseding Indictment, which charged a discrete conspiracy of roughly three

months in 2013, into a conspiracy spanning nearly six years, adding years of conduct

and defendants that the timely instrument never alleged. Whether the later

instrument validly relates back to the earlier one is a pure question of law, decided

by comparing two charging instruments already in the record. It does not ask when

the conspiracy in fact ended; it asks whether the instrument that alleged the

September 2013 date was a valid, timely charge. That is the record-based legal

question Broce and Class permit, not the factual contradiction Broce forbids.

The Government may respond that crediting the earlier, shorter conspiracy

contradicts the admission petitioner made when he pleaded to the later instrument,

and that Broce therefore bars the claim. But the relation-back inquiry credits no

competing factual account; rather, it tests the legal validity of the charging

instrument on its own terms. A defendant who admits the allegations of an

indictment does not thereby admit that the indictment was timely returned, any more

than the defendant in Class admitted, by pleading guilty, that the statute he violated

was constitutional. The admission determines and fixes the facts of the case; it does

not validate the Government’s authority to charge them when it did.

C. The Decision Below Does Not Foreclose This Analysis.

The order below invoked United States v. Helmich, 704 F.2d 547, 548 (11th Cir.

1983), for the proposition that a defendant who pleads guilty may challenge his

prosecution as time-barred “only insofar as the indictment on its face shows that the

limitations period expired,” and concluded that the Second Superseding Indictment

makes no such facial showing. Pet. App. A. But the panel applied that standard to

the later instrument in isolation, as though it stood independent of the indictment it

superseded. The “face of the record” includes both successive instruments. Whether

Helmich’s facial standard reaches a defect visible only on comparison of successive

charging instruments is itself the unresolved question, and it collapses into the same

inquiry Broce poses: whether the claim can be decided on the existing record without

contradicting an admitted fact. The order below did not resolve that question against

petitioner on the merits; it did not recognize that the question was presented.

IV.

INDEPENDENTLY, CERTIORARI IS WARRANTED BECAUSE

THE PANEL EVALUATED THE LIMITATIONS CLAIM UNDER

THE WRONG UNIT OF ANALYSIS

Certiorari is warranted in this case to address the important issue of whether

the government can expand the original charged conspiracy after the statute of

limitations has run by simply tacking on new charges. A motion to dismiss, filed

after defendant’s brief but before the government was required to respond in full

and before the defendant was permitted to file his reply, could not address the

factual arguments necessary to be analyzed in this case. This Petition contends that

the Eleventh Circuit panel applied Helmich to the wrong unit of analysis. Appellant’s

claim is not that the Second Superseding Indictment, read in isolation, discloses a

time-bar on its face. It is that the Second Superseding Indictment cannot relate back

to the timely Superseding Indictment because it materially broadened the original

charge, expanding a three-month conspiracy to nearly six years. That determination

requires comparing the successive indictments, both of which were part of the record

below and which needed to be examined and analyzed. When these indictments are

read together, the broadening that renders the Second Superseding Indictment timebarred under United States v. Italiano, 894 F.2d 1280 (11th Cir. 1990) and United

States v. Ratcliff, 245 F.3d 1246 (11th Cir. 2001) is apparent on the face of the

charging record.

The panel treated the inquiry as confined to the Second Superseding

Indictment alone. But the defect inheres in the relationship between successive

indictments – namely, a timely Superseding Indictment charging a three-month

conspiracy and an untimely Second Superseding Indictment expanding that charge

to nearly six years with new defendants and new conduct. The panel should have

considered the relationship between the timely and untimely indictments, and so

applied the wrong unit of analysis. Had the panel considered the relationship among

the various indictments, it would have seen that the change from the original, timely

indictments to the ultimate indictment renders that Second Superseding Indictment

time-barred under Italiano and Ratcliff; it would be apparent on the face of the

charging record when the successive instruments are read together. The panel’s

contrary conclusion warrants certiorari because superseding indictments are

common in federal criminal cases and this decision allows the government to extend

the statute of limitations at will.

The Panel Applied the Wrong Unit of Analysis in Evaluating

The Statute-of-Limitations Claim.

A statute-of-limitations defense, properly raised, challenges the government’s

authority to prosecute. A guilty plea does not waive a limitations defense when the

charging instrument itself demonstrates that the charges are time-barred. Helmich,

704 F.2d at 548.

The panel concluded that the Second Superseding Indictment does not reveal

a time-bar on its face, because it alleges a conspiracy extending through September

2013 and was filed within five years of that date. Read in isolation, the Second

Superseding Indictment does not disclose the defect. But Appellant’s claim does not

rest on the Second Superseding Indictment read in isolation. The claim is that the

Second Superseding Indictment cannot relate back to the timely Superseding

Indictment because it materially broadened the original charge. That determination

requires comparing the two instruments, both of which comprise the “face of the

record”.

Both indictments are part of the record before this Court. The Superseding

Indictment, filed within the limitations period, charged a conspiracy spanning

roughly three months: March through May 2013. (DE:7). The Second Superseding

Indictment, filed three months later in July 2018, charged a conspiracy beginning in

January 2008 and continuing until September 2013, added defendants not previously

named, and alleged conduct not previously charged. (DE:11). Where, as here, the

defect inheres in the relationship between successive charging instruments, the “face

of the charging record” includes both. The broadening is visible on that record without

resort to extrinsic evidence.

The panel erred in confining its analysis to a facial inquiry of the later

instrument alone, treating the Second Superseding Indictment as though it existed

independently of the indictment it purported to supersede. That framing assumes the

answer to the question the claim poses: whether the Second Superseding Indictment

validly relates back. By declining to compare the instruments, the panel foreclosed

the very analysis that Italiano and Ratcliff require.

The Second Superseding Indictment Materially Broadened The

Timely Superseding Indictment and Cannot Relate Back.

A superseding indictment filed after the statute of limitations has expired is

valid only if the original indictment was timely, remains pending, and the

superseding indictment “does not broaden or substantially amend the original

charges.” Italiano, 894 F.2d at 1282. When a superseding indictment materially

broadens a timely indictment, it does not relate back, and the later charges are timebarred. Ratcliff, 245 F.3d at 1253.

In Ratcliff, the Eleventh Circuit held the relate-back doctrine inapplicable

where “the differences in scope between the two sets of conspiracy charges [were]

dramatic”, as the superseding indictment had expanded the conspiracy’s duration by

years. 245 F.3d at 1253. The appellate court rejected the government’s contention

that the later indictment merely clarified or corrected the earlier one.

The case at bar is much the same. The Superseding Indictment in the present

case charged a discrete conspiracy lasting roughly three months. The Second

Superseding Indictment transformed that charge into one spanning nearly six years,

from January 2008 through September 2013, and added defendants and conduct that

the timely indictment never alleged. This was not a clarification or correction of the

original charge within the meaning of Ratcliff. The Second Superseding Indictment

altered the factual core of the charge by reaching backward more than five years to

allege conduct and participants far outside the scope of the original prosecution.

Under Italiano and Ratcliff, that expansion cannot relate back.

The magnitude of the broadening is compounded by the character of the

indictment itself. The Second Superseding Indictment charged a single § 963

conspiracy containing no overt acts and no individualized allegations of when any

defendant joined or withdrew. (DE:11 at 1) It left unspecified what conduct the

government relied on to satisfy the limitations period. The Superseding Indictment,

by contrast, at least confined the conspiracy to a discrete and identifiable period. The

Second Superseding Indictment erased that specificity while adding years of

uncharged conduct, making the broadening visible on the face of the successive

instruments and reinforcing the conclusion that the later indictment cannot be

treated as a continuation of the timely charge.

The panel cited Helmich for the proposition that a defendant who pleads guilty

may challenge his prosecution as time-barred only insofar as the indictment on its

face shows that the limitations period expired. Helmich supports Appellant’s position,

not the Eleventh Circuit panel’s conclusion. In Helmich, the Court examined the

indictment and found no facial time-bar because the conspiracy, despite beginning

nearly twenty years earlier, was alleged to have continued through a date within the

limitations period. 704 F.2d at 548. There was no claim that a later indictment had

expanded an earlier one. Here, by contrast, the claim is that the Second Superseding

Indictment obtained its alleged end-date by materially broadening the timely

Superseding Indictment. The Eleventh Circuit in Helmich directed the court to the

face of the charging record; it did not instruct the court to ignore the relation-back

question that determines whether the charging instrument is valid in the first place.

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of

certiorari.

Respectfully submitted,