# Petition — Meeker v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 826

## Text

Office- Suns “Us.
82 - 2048 as [LED "

No. 14
ALEXANDER L. STEVAS,
IN THE CLERK

Supreme Court of the United States

Octoser Term, 1982

JERRY MEEKER,
Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KenneEtH E, Norts,
Sotoman, Rosenreip, Exxiorr
& Srrerex, Lrp.,
30 North LaSalle Street,
Suite 2700,
Chicago, Illinois 60602,
(312) 984-6000,

Attorney for Petitioner,
Jerry Meeker.

Keenan Printing Company 312-648-0050 ses

QUESTIONS PRESENTED
1. Whether Statutes of Limitations, such as 18 U.S.C.
§ 3282, are jurisdictional in federal criminal cases.

2. Whether a defense based upon the prior expiration
of the Statute of Limitations can be waived by the de-
fendant.

ili.

TABLE OF CONTENTS

PAGE
Questions Presented ..........: ses see reece eee eens i
Opinions Below ..........--seeeece eee eeeeeetenees 2
EE ESET 2
Statutory Provision Involved ........-+..++++eeeees 2
See seeeeee GF Hak CRON conc cnc 5 ce cece c ns encees 2
Reasons for Granting the Writ ...........--seeeees 4

Re

The Federal Courts of Appeals Are in Disagree-
ment Regarding the Nature of a Defense Based
Upon the Statute of Limitations ................ 4

ai.

State Courts Have Declared the Statute of Limita-
tions to be Jurisdictional, a Limitation Upon the
power to Prosecute .........seere eee eeeeeeeees 19

ait.

Strong Policy Considerations Support the Pro-
nouncement of the Statute of Limitations as Juris-
dictional in the Federal Courts .......1.....++. 20

ei lan cc awens cus cucaeen 22

Appendix — Opinion of the Court of Appeals ........ Al

[¥.,

TABLE OF AUTHORITIES

CASES PaGcR
Askins v. United States, 251 F. 2d 909 (1958) ........ 13. i7
Benes v. United States, 276 F. 2d 99 (6th Cir. 1960) ..11, 17
meee v. State, 81 Tenn. G44 (1G08) ... «0. eve wesc, 7

Biddinger v. Commissioner of Police, 245 U.S, 128
hs RS EI 9,13

Chaifetz v. United States, 288 F. 2d 133 (D.C. Cir.
1960), rev’d. on other grounds 366 U.S. 209 (1961) .12, 17

City of Cleveland v. Hirsch, 26 Ohio App. 2d 6, 268

a eg a 19
Fitch v. Commonwealth, 92 Va. 834, 24 S.E. 272 (1896) 7
French v. Lafayette Ins. Co., 9 F. Cas, 788 (C.C.D. Ind.

1853) (No. 5,102) aff'd. on other grounds 59 US.

ikki ne uenis teens 7

8

Garvagen ©. Pools, G7 Tl. 06 (1878) ... cc cescccenss

Holloway v. State, 362 So. 2d 335 (Fla. App. 1978),
cert den. 379 So. 2d 953 (after accepting jurisdiction
and hearing argument), cert. den. 449 U.S. 909 (1980) 20

Michigan v. Doran, 439 U.S. 282 (1978) ............. 10
Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S.

eS a a ec 22
Parsons v. Hunter, 18 F. Cas. 1259 (C.C.D. N.H. 1836)
6

Tg RAISE GR ST TR ne

CasEs

People v. Durrin, 2 N.Y. Cr. R. 328 (1884) .......... 8
State v. Stillwell, 418 A. 2d 267 (N.J. App. 1980) ..... 20
Strader v. Garrison, 11 F. 2d 61 (4th Cir. 1979) ...... 16
Taylor v. O’Grady, 113 F. 2d 798 (8th Cir. 1940) ...... 19
Thompson v. State, 54 Miss. 740 (1877) ............ 9
Toussie v. United States, 397 U.S. 112 (1970) ........ 21

United States v. Akmakjian, 647 F. 2d 12 (9th Cir.
1981), cert. den., 454 U.S. 964, 102 S. Ct. 505 (1982) . 13

United States v. Ballard, 24 F. Cas. 972 (C.C.D. Mich.

BO I vaca ks cece ce an aec eas 6
United States v. Benton and Co., Inc., 345 F. Supp.

pg os GE nl 9
United States v. Briscoe, 482 F. 2d 1351 (D.C. Cir.

cha ee kanes ce suenees 16

United States v. Cook, 84 U.S. (17 Wall.) 168 (1872) .5, 7, 8

United States v. DiStefano, 347 F. Supp. 422
os hank wane knas vee ns 14, 16

United States v. Doyle, 348 F. 2d 715 (2d Cir. 1965),
eert. dented, S62 U.S. S45 (1965) ..... 2. ccc ccencs 15

Umted States v. Gammill, 421 F. 2d 185 (10th Cir.
ike swan vn eacmwesdcccns 9

United States v. Hankin, 607 F. 2d 611 (3d Cir. 1979) . 12

CASES Paar

United States v. Harris, 133 F. Supp. 796 (W.D. Mo.
1955), aff’d. on other grounds, 237 F. 2d 274 (8th
Oe 11

United States v. Levine, 658 F. 2d 113 (3d Cir. 1981) .. 19
United States v. Marion, 404 U.S. 307 (1971) ........ 21
United States v. Parrino, 180 F. 2d 613 (2d Cir. 1950) . 15
United States v. Parrino, 203 F. 2d 284 (2d Cir. 1953) 14
United States v. Parrino, 212 F. 2d 919 (2d Cir. 1954),

cert demed, 346 U5. S40 (1954) .................. 15
United States v. Sindona, 473 F. Supp. 764 (S.D.N.Y.
0 ee 16
United States v. Watkins, 28 F. Cas. 419 (CCDC.
gt Hove Noo eng 5
United States v. White, 28 F. Cas. 568 (C.C.D.C. 1837)
OO ccc 6, 10
United States v. Wild, 551 F. 2d 418 (D.C. Cir.), 431
WO oo oe 12, 18
Vance v. Hedrick, 659 F. 2d 447 (4th Cir. WOeL) cc 13
Waters v. United States, 328 F. 2d 739 (10th Cir.
coeocg ET SOUR Se ee 4,12 13
Wright v. United States, 158 U.S. 232 CSG) whcecas, 9
CONSTITUTION

ee 21

Vii.

STATUTES
CasEs Pace
ih ih kee ew ckiceacns 2
Eg RS STE MOS Oa ates cu Ae ee 12
Oe evi ei nko cnc cae cn ck 21
ee ices eke 1,2
ec. 1,2
iio ee
ok os occ wnccecs ce. 17
ee oak eee ocak ccc oe: 14
Oe ee i ov eo ecccccce 21
RULES
oie i kc ceccuues 2

OTHER AUTHORITIES

Moore’s Federal Practice, Vol. 1, par. 0.60[3] (2d ed.
AR ERS So SUES AE ee see ner Tee 22

Moore’s Federal Practice, Vol. 8A, par. 32.07[3b] at
a ei ec 16

IN THE

Supreme Court of the United States

OctoBER TERM, 1982

JERRY MEEKER,
Petitioner,

vs.

UNITED STATES OF AMERICA,
Respondent.

TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Jerry Meeker, prays that a writ of certiorari
issue to review the judgment of the United States Court of
Appeals for the Seventh Circuit, entered March 3, 1983,
affirming his conviction under 18 U.S.C. §§ 371, 1001 and
1341, and that on hearing the judgment of conviction be
reversed.

Opinions Below

The opinion of the Court of Appeals is reported at 701
F’, 2d 685 (1983) and is reproduced in the appendix herein.

Jurisdiction

The judgment of the Court of Appeals was entered on
March 3, 1983.

A Petition for Rehearing and Suggestion for Rehearing
En Bane was denied April 13, 1983.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

Statutory Provision Involved

18 U.S.C. § 3282.

Except as otherwise expressly provided by law, no per-
son shall be prosecuted, tried, or punished for any offense,
not capital, unless the indictment is found or the informa-
tion is instituted within five years next after such offense
shall have been committed.

STATEMENT OF THE CASE

Appellant-defendant Meeker (‘‘Meeker’’) was indicted,
along with Nicholas L. Dennis, by the federal grand jury
for the District of Colorado on October 21, 1981. The 43
count indictment charged one count of conspiracy, 18 U.S.C.
§ 371, thirteen counts of false statements, 18 U.S.C. §§ 1001
and twenty-nine mail fraud counts, 18 U.S.C. §§ 1341 and 2.
Both defendants filed motions pursuant to Federal Rule of
Criminal Procedure 21(b), after which the matter was
transferred to the North District of Illinois, Eastern Divi-

sion.

3

On January 29, 1982, the District Court granted the gev-
ernment’s oral motion to dismiss counts 15 through 20 of
the indictment.

Meeker filed pretrial motions to dismiss due to statute
of limitations and breach of agreement, as well as other
motions. After Meeker’s motion for ruling, the District
Court denied these motions.

Jury selection commenced on April 5, 1982. The case
was submitted to the jury on April 19, 1982, with a verdict
being returned on April 21, 1982.

Dennis was found not guilty of all counts. Meeker was
found guilty of all counts.

Meeker filed motions for judgment of acquittal or, in
the alternative, for a new trial and an arrest of judgment.
Both motions were denied by the District Court on June 29,
1982 with judgment and sentence being entered on that
date.

Meeker was sentenced to three years on each count to
run concurrently.

During the course of the government’s preindictment in-
vestigation, Meeker was requested by the government to
execute two waivers of the Statute of Limitations. He exe-
cuted both waivers. The second waiver provided that

‘‘This Agreement supercedes all prior agreements
and waivers and shall be void if not executed by an
authorized representative of Justice and a duplicate
original returned to Meeker’s attorney on or before
October 1, 1981.’’

It is uncontested that Justice never complied with the
foregoing terms. In the trial court, the government con-
ceded that the purported waiver was picked up and placed
in an investigative file.

The trial court held, in essence, that prior portions of the
Agreement were complied with and thus Appellant was

4

bound by his waiver, even though there was an “adminis-
trative oversight.’’ The Court went on to describe the re-
quirements of the foregoing paragraph as pertaining to a
‘ministerial act’’ which ‘‘[t]he government should have
performed ... without any question.’’

REASONS FOR GRANTING THE WRIT

Certiorari is warranted in this case because of a clear
disagreement between the Circuit Courts of Appeals on the
question of whether or not the Statute of Limitations in a
federal criminal case may be waived. The recurring nature
of the question reflects that a basic tenet of justice is left
subject to more than one interpretation in the absence of a
pronouncement by this Court.

The Tenth Circuit, in the case of Waters v. United States,
328 F. 2d 739, 743 (10th Cir. 1964), characterized the
Statute of Limitations as ‘‘. .. a limitation upon the power
of the sovereign to act against the accused,’’ and concluded
it was jurisdictional and could be raised at any stage of the
proceedings.

However, the Seventh Circuit, in the present case, found
that a defense based on the Statute of Limitations is non-
jurisdictional and can be waived.

Zz.

THE FEDERAL COURTS OF APPEALS ARE IN DIS-
AGREEMENT REGARDING THE NATURE OF A
DEFENSE BASED UPON THE STATUTE OF LIMI.
TATIONS.

Introduction

Meeker was indicted by the grand jury for the District
of Colorado on October 21, 1981. Counts 2 through 14 and

-

rf)

21 charge offenses occurring more than five years prior
to the date of indictment. There is no assertion that any
statutory exceptions to the five year limitation of 18 U.S.C.
§ 3282 are applicable to Meeker.

The district court found that Meeker effectively waived
the statute of limitations and was thereby amenable to
prosecution and conviction of various counts otherwise
barred.

Considered in this section is the proposition that the
statute of limitations in criminal cases is jurisdictional and,
as such, nonwaivable.

The states ascribe to the proposition that the statute of
limitations is jurisdictional, whereby those federal circuits
which have ruled on the issue are divided, with the ma-
jority holding contrary to the states’ position.

Historical Perspective

Virtually all of the modern decisions on whether the
statute of limitations is jurisdictional find their genesis in
United States v. Cook, 84 U.S. (17 Wall..) 168 (1872). In
order to place this ruling in perspective, it is necessary
to consider the development of the issue which led to that
decision.

In United States v. Watkins, 28 ¥. Cas. 419, 470 (C.C.D.C,
1829) (No. 16,649), Chief Justice Cranch, after reviewing
the applicable authority, held that the trial court had no
Jurisdiction to consider an indictment which was barred
by the statute of limitations. Procedurally, the issue was
raised by way of demurrer to the indictment.

The government apparently did not even contest whether
or not the statute of limitations was jurisdictional, Rather,
at issue was the procedure used to raise the question. If

6

raised by demurrer, the government could not adduce evi-
dence of the defendant’s flight as an exception to the statu-
tory terms. However, Chief Justice Cranch ruled that the
government was bound by the language of tle indictment,
and thus could not adduce such evidence at trial.

Eight years later, the defendant’s timing in raising the
statute of limitations issue was held to be determinative of
whether the government would be allowed to offer evidence
on the issue. The issue was an ‘‘absolute bar’”’ if raised by
demurrer; but during trial, it becomes a ‘“prima facie bar’’
to the prosecution. At trial, the government may submit
evidence of flight. United States vy. White, 28 F. Cas. 568,
969 (C.C.D.C. 1837) (No. 16,677).

In 1837, once an indictment was returned, the defendant
possessed the absolute discretion as to whether the gov-
ernment would have an opportunity to prove that an ex-
ception of the statute of limitation existed. This discretion
was exercised by either demurrer to the indictment, or pro-
ceeding to trial on the general issue.

The Court in White, supra, spoke of ‘“‘bar” and ‘‘de-
fense’’ in the same paragraph. The two were not mutually
exclusive, and ‘‘defense” did not refer only to jurisdictional
issues.

The general rule in federal courts during the period
was that the statute of limitations was a bar to prosecu-
tion. United States v. Ballard, 24 F. Cas. 972 (C.C.D. Mich.
1844) (No. 14507), Parsons v. Hunter, 18 F. Cas. 1259
(C.C.D. N.H. 1836) (No. 10,778).

Story, J., in Parsons, supra at 1261-2, raised the statute
of limitations issue for the first time on appeal, and stated
that it may be considered under the general issues rather
than being specifically pleaded.

7

Generally, the matter of a court’s jurisdiction was con-
sidered to be a matter of defense which was raised under
the general issue. Fitch v. Commonwealth, 92 Va. 834, 24
S.E. 272 (1896), Bennett v. State, 31 Tenn. 411 (1852).

In considering a jurisdictional issue, the court in Ben-
nett, supra, at 412, stated that ‘‘. . . no act, omission, or
consent on the part of the prisoner could confer jurisdiction
{under these facts].’’

French v. Lafayette Ins. Co., 9 F. Cas. 788 (C.C.D. Ind.
(1883) (No. 5,102) aff’d. on other grounds 59 U.S. 404
(1855) considered a contract for insurance which specifi-
cally limited to six months the time within which suit could
be initiated. In rejecting this contractual provision, the
court stated:

The time specified in the statute of limitations is
as much a part of the policy of the law as the act itself.
It is a matter of law, and cannot be changed by the
contract of the parties. If they may shorten the time
expressed in the act, they may extend it; or they may,
by this agreement, annul it. This, it appears to me, they
cannot do. It would be a dangerous power. The law was
not made for particular cases, but it is founded in a
general policy, and applies equally to all contracts, as
specified in the act.

Id. at 789.

The court went on to indicate that the period of limita-
tions goes to the jurisdiction of the court.

Thus, prior to the Supreme Court’s ruling in Cook,
supra, there was no question but that the statute of limita-
tions was a bar to prosecution. It was a jurisdictional issue.
At issue was whether the government could adduce evidence
establishing a statutory exception to the period of limita-
tions.

8

This issue split the state courts, which division continued
after Cook. In Illinois, the government was required to
plead any statutory exception to the statute of limitations,
otherwise the indictment was fatally defective. Garrison
vy. People, 87 Ill. 96 (1872). On the other hand, while agree-
ing that the statute of limitations is a bar to prosecution,
New York did not require the government to plead excep-
tions, but allowed it to offer evidence on the issue at trial.
People v. Durrin, 2 N.Y. Cr. R. 328 (1884).

United States v. Cook

At issue in 1872 was the Watkins, supra, question, i.e.,
may a defendant raise the statute of limitations by de-
murrer. The Supreme Court in Cook, supra, analyzed vari-
ous rules of statutory construction and concluded that an
indictment may not be quashed on this matter. 84 U.S. at
179. The rule announced was that a defendant may not raise
the statute of limitations by demurrer, but must do so by
special plea or evidence under the general issue, thereby
allowing the government to introduce evidence concerning
it. Id.

The Supreme Court thus adopted the ‘‘prima facie bar”
of White, supra. It did not consider the nature of the
statute of limitations, nor did it reject its status as a juris-
dictional issue. The Court did refer to the statute of limi-
tations as a ‘‘defense,” but jurisdiction generally was
considered a ‘‘defense” at this time. Fitch and Bennett,
supra.

The above cited authorities commonly spoke of ‘‘bar’’
and ‘‘defense” in the same context. During this period,
“‘defense’’ referred to a matter raised under the general
issue, it did not a fortiort exclude jurisdictional questions.

Cook, supra, was a procedural case. It was recognized
as such by its contemporaries. People v. Durrin, supra. In

9

Thompson v. State, 54 Miss. 740, 744 (1877), it was dis-
cused as a procedural case based upon the recognition that
the statute of limitations presents a mixed question of law
and fact which should not be decided without benefit of fact
finding.

This view is consistent with other jurisdictional matters
recognized as containing mixed questions of law and fact
which were submitted to a jury for determination. Wright
v. United States, 158 U.S. 232, 238 (1895).

Even Cook’s specific holding that it is not necessary for
an indictment to charge that the offense occurred within
the applicable period of limitations has been rejected by
some courts. United States v. Gammill, 421 F. 2d 185, 186
(10th Cir. 1970), United States v. Benton and Co., Inc., 345
F. Supp. 1101, 1103 (M.D. Fla. 1972).

Federal Authorities—Generally

The Supreme Court spoke about the statute of limita-
tions in Biddinger v. Commissioner of Police, 245 U.S. 128
(1917). At issue was the extradition of the defendant from
New York to Illinois. In a federal habeas corpus petition,
the defendant interposed the statute of limitations to block
his return to Illinois. The court ordered that the defendant
be returned to Illinois and stated that federal habeas corpus
proceedings relating to extradition were very narrow in
scope and did not allow for a factual hearing as to the ap-
plicability of the statute of limitations. 7d. at 135.

The court went on to state, in dicta, that:

The statute of limitations is a defense and must be
asserted on the trial by the defendant in criminal cases,
United States v. Cook, 17 Wall. 168; and the form of
the statute in Illinois, which the appellant seeks to rely

10

upon, makes it especially necessary that the claimed
defense of it should be heard and decided by the courts
of that state. (citations omitted). 7d. at 135.

This is consistent with the historical material. The Bid-
dinger, supra, denomination of the statute of limitations
as a defense does not mean that it is nonjurisdictional. In
United States v. White, supra at 069, Chief Justice Cranch
spoke of ‘‘whatever way the defendant presents his defense
of limitations.’’ He also stated it was a bar to prosecution,

What must be taken into account is the procedural dis-
tinction between issues of law and issues of fact which
existed in our early jurisprudence. Purely legal issues could
be raised by demurrer, but without any possibility of an
evidentiary hearing. If determination of the issue required
an evidentiary hearing, it could not be resolved by de-
inurrer, but had to be considered as part of the general
issue, i.e., as a “defense”. That which propelled an issue
to the status of a ‘‘defense’’ was not whether it was juris-
dictional, but whether it required an evidentiary hearing.

Thus, when Biddinger, supra, states in dicta that the
statute of limitations is a ‘‘defense” and cites Cook, all
that is established is that the government is entitled to an
evidentiary hearing on the question of the defendant’s
flight prior to the court ruling on the jurisdictional issue.
Such hearing not being available in a narrow federal habeas
corpus action, it was up to the Illinois authorities to have

the hearing.’

1, The Supreme Court cites Biddinger as authority for
the proposition that the purpose of the extradition clause
[18 U.S.C. § 3182] was to bring defendants ‘‘to trial as
swiftly as possible in the state where the alleged offense
was committed.’’ Michigan v. Doran, 439 U.S. 282, 287

(1978).

11

At issue in United States vy. Harris, 133 F. Supp. 796
(W.D. Mo. 1955), aff'd. on other grounds, 237 F. 2d 274
(8th Cir. 1956), was a defendant’s motion to vacate a guilty
plea as to certain counts. In granting his motion, the court
reviewed the existing federal authorities on the statute of
limitations and said ‘‘that those cases all rest on the prin-
ciple announced in United States v. Cook, supra, that the
prosecution must be allowed an opportunity, in meeting the
defense of limitations, to show the existence of some excep-
tion to the rule.” Jd. at 798.

Judge kidrernaci went on to find no exceptions to 18

U.S.C. § 3282 applicable to the case before him. He then
ae the limitation of § 3282 to be jurisdictional, Jd. at 800,
even though he had previously spoke of ‘‘the defense of
limitations.’’

In reversing defendant’s conviction, the Sixth Circuit
dealt with a situation where, during certain periods, the
United States Attorney did not present evidence to the
grand jury either because of an injunction, or due to an
agreement with defendant’s counsel. After considering the
policy underlying statutes of limitation, the Court stated:

And the general rule is further that an indictment,
found after the expiration of the time for beginning
prosecution, is barred by the statute of limitations and
is not waived by the fact that the prosecution was
withheld on account of an agreement with the ac-
cused, or by the fact that the accused procured con-
tinuances of the preliminary hearing from time to
time until the period of limitations had expired. (cita-
tions omitted).

Benes v. United States, 276 F. 2d 99, 108-109 (6th Cir. 1960).

(considering 26 U.S.C. § 3748 (a)).

The court held that the agreement between the United
States Attorney and the defendant did not toll the statute

12

of limitations, and that the prosecution was thus barred

Id. at 109.

The Third Circuit appears at odds with itself as to the
nature of the statute of limitations. A conviction for vio-
lating the Federal Election Campaign Act was reversed
because the government had not met its burden of proof
regarding prosecution within the limitations period in
United States v. Hankin, 607 F. 2d 611 (3d Cir. 1979). The
court relied upon Waters v. United States, 328 F. 2d 739
(10th Cir. 1964), Chaifetz v. United States, 288 F. 2d 133
(D.C. Cir. 1960), rev’d. on other grounds 366 U.S. 209
(1961), and Askins v. United States, 251 F. 2d 909 (1958)
for the proposition ‘that the statute of limitations is a bar
to the right of prosecution.’’/d. at 615.

Two years later, the Third Circuit dealt with whether a
district courts’ pretrial order denying a motion to dismiss
an indictment on statute of limitations grounds may be the
subject of an interlocutory appeal by the defendant. United
States v. Levine, 658 F. 2d 113 (3d Cir. 1981). In holding
that such interlocutory appeal was not appropriate, the
court cited United States v. Wild, 551 F. 2d 418 (D.C. Cir.),
431 U.S. 916 (1977) and other cases to support dicta that
the statute of limitations may be waived, Jd. at 120 n.3,
and inferentially, is nonjurisdictional.

The Third Cireuit has followed both Waters and Wild,
supra.” Yet these cases each represent the leading contem-
porary opinions on whether the statute of limitations is
jurisdictional. Waters holds that it is jurisdictional, Wild
that it is not. Wild specifically rejected the ruling in Waters.
Thus, there is a split in the Third Circuit as to the nature
of the statute of limitations.

2. These cases are discussed in more detail later in this

mee

argument.

13

The Ninth Circuit, without analysis and supported by
the dicta of Biddinger v. Commissioner of Police, supra,
held that the statute of limitations is nonjurisdictional and
subject to waiver. United States y. Akmakjian, 647 F. 2d
12, 14 (9th Cir. 1981), cert. den., 454 U.S. 964, 102 S. Ct.
005 (1982). The Ninth Circuit therein considered the denial
of a petition under 28 U.S.C. § 2255 filed four years after
the entry of defendant’s guilty plea. Prior to the acceptance
of the guilty plea, the district court determined that defend-
ant was aware that the statute of limitations was a possible
defense, which he expressly waived in court. 7d. at 13.

While not facing a statute of limitations question in
Vance v. Hedrick, 659 F. 2d 447 (4th Cir. 1981), Hayns-
worth, J., writing for the court, did cite with approval
United States v. Wild, supra, and reject the Waters v.
United States, supra, line of authority. However, at issue
was a federal habeas corpus action wherein the claimed
procedural defect was characterized by the state court as
jurisdictional. Specifically, a West Virginia recidivist stat-
ute required trial prior to the expiration of the term of
court which is informed by the prosecution of the defend-
ant’s potential recidivist status.

In essence, West Virginia courts held that a trial court
with subject matter jurisdiction may be divested of such
jurisdiction due to the running of a statutorily fixed pe-
riod of time. The Fourth Circuit declined to elevate this
claim to a level consistent with federal habeas corpus relief.

Waters v. United States, 328 F. 2d 739 (10th Cir. 1964).
is the leading federal case supporting the proposition that
the statute of limitations is jurisdictional. It also controls
the circuit wherein this prosecution originated.

Factually, the court considered a federal firearms con-
viction and a double jeopardy claim by the defendant. After

14

denying this claim, the Tenth Circuit considered the de-
fendant’s statute of limitations issue raised for the first
time on appeal.* On its own initiative, the court considered
‘‘whether the statute is an affirmative defense, which must
be originally pleaded on peril of waiver, as in civil cases,
or whether it constitutes a constitutional bar to prosecution
or punishment.’’ Jd. at 742.

The court reviewed the then existing authority, discussed
the plain language of the statute, and said:

If recognition of a distinction between the statute
of repose in civil cases and the substantive bar in
criminal cases, is to have any meaning in the adminis-
tration of criminal justice, the statute of limitations
must be held to affect not only the remedy, but to
operate as a jurisdictional limitation upon the power
to prosecute and punish. (citations omitted).

Id. at 743.

Defendant’s conviction was reversed.
Second Circuit

The Second Circuit has apparently been consistent in
iis view that the sta‘ute of limitations is nonjurisdictional.*
In United States v. Parrino, 203 F. 2d 284 (2d Cir. 1953),
the court, after a procedural interpretation of United States
\. Cook, supra, determined that the defendant’s plea of
guilty preempted the statute of limitations issue unless the
defendant could establish some basis for withdrawing his
plea of guilty.

3. The statute of limitations under consideration in this
ease was 26 U.S.C. § 6531, which is essentially the same as
18 U.S.C. § 3282.

4, This apparent Circuit Court consistency has not al-
ways been shared by the Southern District of New York.
See United States v. DiStefano, infra.

15

The next year, the foregoing holding was summarized
by the Second Circuit in United States v. Parrino, 212 F. 2d
919, 922 (2d Cir. 1954), cert. denied, 348 U.S. 840 (1954):

We do not overlook the comparison contention that
the defendant, if he had elected to stand trial, might
have escaped because of the Statute of Limitations.
That defense addressed to the merits, was waived by
his plea of guilty. And utterly no grounds appear in
the record to support a contention that the waiver here
was other than deliberate and intentional.®

Yet there exists an earlier Parrino case wherein Judge
Hand stated: ‘‘It follows that, if three years pass after a
kidnapping, an indictment is barred if the victim has been
released ‘‘unharmed,’’ within that period. We need not de-
cide whether it would also be barred, if after that period the
victim were released ‘‘unharmed.’’ United States v. Par-
rino, 180 F. 2d 613, 615 (2d Cir. 1950).

Thus, in the first Parrino case, the statute of limitations
was presumed to be a bar, 1.e., jurisdictional.

In following the later Parrino dictates, the Second Cir-
cuit held that an unqualified plea of guilty precludes con-
sideration of a statute of limitations claim, which is not as
fundamental as a jurisdictional claim. United States v.
Doyle, 348 F. 2d 715, 718-719 (2d Cir. 1965), cert. denied,
5&2 U.S. 843 (1965).

d. It is interesting to note that in 1829, Chief Justice
Cranch in United States v. Watkins, supra, held that if,
procedurally, the statute of limitations is raised at point A
rather than point B, the government loses. In this Parrino
ease, the Second Circuit stated that if, procedurally, a de-
fendant raises the statute of limitations at point C rather
than point B, the defendant loses. In United States v. Cook,
supra, the procedural dictates of Watkins were corrected.

16

Notwithstanding this line of Second Circuit authority,
the Southern District of New York stated that it was with-
out power to reinstate a dismissed indictment because the
statute of limitations had run. United States v. DiStefano,
347 F. Supp. 422 (S.D.N.Y.), appeal dismissed (for lack of
jurisdiction on unrelated grounds) 464 F. 2d 845 (2d Cir.
1972).

However, in United States v. Sindona, 473 F. Supp. 764
(S.D.N.Y. 1979), the court gave a broad interpretation to
the Second Circuit’s line of cases and stated that a defend-
ant may waive the statute of limitations if such waiver
is knowingly given with advice of counsel. Jd. at 766.

While the court may have been correct in interpreting
Second Circuit law®, such law is based upon a procedural
concept which is the mirror image of the one rejected in
United States v. Cook, supra.

And, none of the Second Circuit authority is based upon
specific ruling that the statute of limitations is anything
other than jurisdictional. In fact, the historical precedents,
followed by the states and some circuits, took as a given the
jurisdictional nature of a statute of limitations.

D.C. Circuit

The earliest applicable decisions on the issue have pre-
viously been considered in the historical section. The basic

6. The primary Parrino case relied upon, United States
v. Parrino, 212 F. 2d 919 (2d Cir. 1954), has been charac-
terized as an ‘‘aberration,” Strader v Garrison, 611 F. 2d
61, 64 (4th Cir. 1979), and wrong, United States v. Briscoe,
432 F, 2d 1351, 1353-54 (D.C. Cir. 1970), citing 8A J. Moore,
Federal Practice {32.07 [3b] at 32-80, in its principle
proposition that deportability is only a collateral issue
vis-a-vis an informed guilty plea.

17

theory of these precedents was followed in Askins y. United
States, 251 F. 2d 909 (D.C. Cir. 1958), where a defendant,
indicted for first degree murder, was convicted of a lesser
included offense having a three year period of limitations.
In setting aside the conviction, the court held that it was
uithout power to act in cases barred by the statute of
limitations.

The court in Ashkins, supra, at 913, purported to dis-
tinguish its ruling from a situation in which the statute
of limitations is applicable to the original indictment. How-
ever, the differentiation is not consistent with the cited
authority, 7d. at 911, which holds state statutes of limita-
tions to be jurisdictional. Nor is it consistent with the
courts’ subsequent opinion in Chaifetz v. United States,
288 F. 2d 133 (D.C. Cir. 1960), rev’d on other grounds in
part and cert. denied in part, 366 U.S. 209 (1961).

In Chaifetz, supra, the defendant requested a lesser-
included instruction as to a time-barred offense. The trial
judge denied his request and the D.C. Circuit affirmed,
reasoning that, even though requested by the defendant,
and thereby inferentially acting as a waiver of the statute
of limitations, the statute of limitations is not waivable and
instructions must reflect the true state of the law. Jd. at
136.’

Supporting its decision, the court in Chaifetz v. United
States, supra, cited Benes v. United States, 276 F. 2d 99
(6th Cir. 1960) for the proposition that ‘‘a statute of limi-
tations in a criminal case, unlike such a statute in civil

7. In Chaifetz, the statute at issue was 26 U.S.C.
§ 3748(a) rather than 18 U.S.C. § 3282. However, there is
no substantial difference between the provisions of either

statute.

18

matters, is not merely a statute of repose but creates
a bar to prosecution.’’ 288 F. 2d at 135-136. It also noted
its consistency with its prior ruling in Askins v. United
States, supra.

Notwithstanding this long history, the D.C. Cireuit in
United States v. Wild, 551 F. 2d 418 (D.C. Cir. 1977), cert.
denied, 431 U.S. 916, changed its position and held the
statute of limitations to he nonjurisdictional and, thus,
waivable.

At issue was an express waiver of the statute of limita-
tions entered into between the defendant, through counsel,
and the Watergate Special Prosecution Force. The waiver
was requested by the defendant to allow his counsel to
prepare the case and enter into plea discussions.* He was
subsequently indicted.

In reaching its decision, the Wild court misinterpreted
United States v. Cook, supra, and the use of ‘‘defense” in
its procedural context. 551 F. 2d at 421-429. It held its
position to be consistent with its prior rulings in Askins v,
United States, supra, and Chaifetz v. United States, supra,
and specifically rejected the positions of the Sixth and
Tenth Circuits in Benes vy. United States, supra, and Waters
v. United States, 328 F. 2d 739 (10th Cir. 1964). 551 F. 2d
at 422.

The panel then reviewed and adopted the Second Circuit
authority, discussed in the previous section. Finally, the
court stated:

It seems to us, too, that if a defendant may waive
certain constitutional rights, he should certainly be

8. In this case, the Department of Justice asked
MEEKER to execute a waiver, and then did not comply
with its express provisions.

19

capable in this instance of waiving a statutory right
such as the statute of limitations. Constitutional rights
which the defendant may waive include, inter alia, the
right to be represented by counsel, the right not to be
twice put in jeopardy, and the right to be tried in the
district where the offense was committed. (Notes

omitted.)
Id. at 424-425. But a flaw in this logic exists, A defendant’s
constitutional rights are personal and do not accrue until
after a prosecution has been commenced. The statute of
limitations deals with the power to initiate the prosecution
in the first instance. This is the plain language of 18 U.S.C.

§ 3282: ‘‘. .. no person shall be prosecuted, tried or pun-
ished for any offense... .”’
II.

STATE COURTS HAVE DECLARED THE STATUTE
OF LIMITATIONS TO BE JURISDICTIONAL, A
LIMITATION UPON THE POWER TO PROSECUTE.

As with early federal law, the state courts are generally
in agreement that the statute of limitations is an absolute
bar to prosecution and is jurisdictional.

In interpreting Nebraska law on review of a petition
for habeas corpus, the Eighth Circuit, in a per curiam
opinion, held that the trial court was without power to try
a defendant if the offense charged was outside of the
applicable statute of limitations. Taylor vy. O’Grady, 113
I’, 2d 798, 799 (8th Cir. 1940).

Some thirty years later, the issue remained so well-
settled among the states that an Ohio appellate court was
able to announce a universal rule that statutes of limitation
‘‘cannot be waived by failure to assert them.’’ City of
Cleveland v. Hirsch, 26 Ohio App. 2d 6, 268 N.E. 2d 600,

20

601 (1971). The court went on to cite authority from the
Sixth Circuit, Arkansas, California, Florida, Idaho, Mis-
souri, and North Dakota for the proposition ‘‘that a statute
of limitations applicable to crimes is jurisdictional, and
goes to the trial court’s power to try the case.’’ Jd. at 602.

After specifically rejecting those federal cases holding
the statute of limitations to be nonjurisdictional, the court
stated that ‘‘[j]urisdiction cannot be conferred upon a
court by any act or omission of the parties.” Jd.

In Florida, where the statute of limitations is also juris-
dictional, a conviction based upon any such time barred
offense is a nullity. Holloway v. State, 362 So. 2d 335 (Fla.
App. 1978), cert. den. 379. So. 2d 953 (after accepting juris-
diction and hearing argument), cert. den. 449 U.S. 909
(1980).

This line of state authority supporting the proposition
that the statute of limitations is jurisdictional continues.
See, e.g., State v. Stillwell, 418 A. 2d 267 (N.J. App. 1980),
holding it ‘‘to be jurisdictional and thus nonwaivable.’’ Jd.
at 472. The court therein chronicles those cases, encyclope-
dic references, treatises, and law review comments on both

sides of the issue.

Sa.

STRONG POLICY CONSIDERATIONS SUPPORT THE
PRONOUNCEMENT OF THE STATUTE OF LIMITA-
TIONS AS JURISDICTIONAL IN THE FEDERAL

COURTS.

The statute of limitations in criminal cases is grounded
on well established principles. Its primary purpose is to
limit an individual’s exposure to criminal prosecution to a
specific period of time fixed by the legislature. The statute

21

of limitations is designed to bar the necessity of defending
against facts obscured due to the passage of time. Also, it
acts as a check on the executive to encourage prompt in-
vestigation and prosecution. Toussie v. United States, 397
U.S. 112, 115-116 (1970).

Mr. Justice White, speaking for the court in United
States v. Marion, 404 U.S. 307, 322 (1971), stated that
statutes of limitations ‘provide predictability by specify-
ing a limit beyond which there is an trrebutable presump-
tion that a defendant’s right to a fair trial would be
prejudiced.’’ (Emphasis added).

In essence, the statute of limitations is a legislatively
established limit imposed upon the executive. Congress
determines at what point to fix the irrebutable presump-
tion that bars executive action.

Clearly, it is arbitrary. Congress could have selected
three years or six years. In 1829, noncapital offenses were
subject to a two year statute of limitations. United States
v. Watkins, supra at 470. That period was three years in
1940, 18 U.S.C. § 582, and in 1954 it was changed to five
years. Pub.L. 87-299 §1(a). Yet these were legislative ex-
ercises of discretion in fixing such arbitrary dates, such
power having been granted to Congress. U.S. Const. Art. T,
§ 1.

The constraint imposed upon the executive was to pre-
vent criminal prosecutions and convictions due to stale
facts. Toussie v. United States, supra. Appellant’s con-
viction in this case is an example of such staleness. The
government’s witnesses commented repeatedly about their
difficulty in testifying accurately due to the passage of
time, or testified in vague generalities.

22

A bar to prosecution is a jurisdictional matter which is
not subject to waiver. It is beyond question that a court
may not confer jurisdiction upon itself, nor may the liti-
gants confer jurisdiction upon a court. Nezrbo Co. vy.
Bethlehem Shipbuilding Corp., 308 U.S. 165, 167 (1939).

Finally, federal courts are courts of limited jurisdiction.
‘hey have only the power given them via valid Congres-
sional enactments. 1 J. Moore, Moore’s Federal Practice
§0.60[3] (2d ed. 1976). The executive, either unilaterally
or with the concurrence of another litgant, cannot extend
the jurisdiction of a federal court. The executive may not
substitute its judgment for that of Congress.

CONCLUSION

Petitioner presents a case of a defective waiver of the
Statute of Limitations wherein there were no statutory
exceptions to the time limit of 18 U.S.C. § 3282.

Although the Cook and Biddinger cases, decided many
years ago, discussed when the Statute of Limitations ques-
tion could be raised, no case decided by this Court has ever
squarely dealt with the question of whether a defense
based upon the prior expiration of the Statute of Limita-
tions may be waived by the defendant. The Seventh Circuit,
in ruling on petitioner’s case, has said yes; the Tenth Cir-
cuit, in Waters, has said no, as have the sixth and one panel
of the Third Cireuit. The vast majority of state courts also
have said no, the only result which would comport with
the reasons for enacting a Statute of Limitations. The issue
will surely be raised repeatedly in the years to come until
it is settled by this Court. Defendants in criminal cases
brought in the federal system will continue to be unsure
as to the effect of past violations on their vulnerability to

23

prosecution. Lesser included offense instructions with dif-
fering periods of limitations will frequently address the
nature of Statutes of Limitations. For each of the fore-
going reasons, therefore, petitioner hereby prays that a
hearing be granted.

Respectfully submitted,

KennetH E. Norra,
Sotomon, RosenreLp, EvLiorr
& Strerer, Ltp.,
30 North LaSalle Street,
Suite 2700,
Chicago, Illinois 60602,
(312) 984-6000,

Attorney for Petitioner,
Jerry Meeker.

APPENDIX

Al

In the
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
No. 82-2086

UNITED SratEs OF AMERICA,
Plaintiff-A ppellee,

JERRY MEEKER,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 81 CR 721—-Charles P. Kocoras, Judge.

ARGUED JaNuaRY 18, 1983—Drcmep Marcu 38, 1983

Before Baver, Woop, and Posner, Circuit Judges.

Bauer, Circuit Judge. Defendant Meeker was convicted
of thirty-six counts of conspiracy to defraud the govern-
ment, making false statements, and mail fraud. He was
sentenced to concurrent terms of three years imprison-
iment on each count. On appeal the defendant asserts, among
other claims, that the district court improperly refused
to dismiss the indictment against him. The defendant claims
that several counts were barred by the relevant statute
of limitations and that another count was legally insuf-
ficient.

I

A

At the time he was indicted, the defendant worked as
manager of the student account center at Bell & Howell
Schools, a subsidiary of Bell & Howell Company. The stu-
dent account center serviced guaranteed ioans under the
Iederal Insured Student Loan Program, 20 U.S.C. §§ 1071
to 1087-4 (1965), for students enrolled in the Bell & Howell
vocational school system.

Under the federally insured loan program, Bell &
Howell was required to make reasonable collection efforts
when a student failed to make loan payments. 20 U.S.C.
$§ 1078(a)(4), 1080. The collection schedule included a
specific 120-day cycle of telephone calls and collection let-
ters to the defaulting borrower. A default claim submitted
by Bell & Howell Schools to the Department of Health,
Education and Welfare (HEW) had to contain a record of
due diligence detailing the collection efforts.

In 1975, Bell & Howell Schools’ delinquent accounts re-
ceivable numbered in the thousands, representing millions
of dollars. If Bell & Howell Schools could not collect these
loans from the students, each account would have to be
processed through the 120-day due diligence cycle before
it could be submitted to HEW for payment. The cash flow
problems and potential losses presented by the old ac-
counts caused concern to Bell & Howell management.

The scheme developed by the defendant in late 1975 in-
volved falsifying ‘‘due diligence” ecards for submission to
HEW. The defendant recruited a group of trusted em-
ployees to create the mendacious cards reflecting collec-
tion history. The employees forged dated entries detailing
telephone calls that were never made and letters that were
never sent. Additionally, the workers used different colored

A3

pens, exchanged ecards so that each card would contain
different handwritings, and applied coffee and cigarette
ashes to make the cards appear old.

The falsified due diligence cards were the bases for the
ialse statement charges in the indictment. The Treasury
checks mailed to Bell & Howell Schools in response to the
default claims were the bases for the mail fraud charges.

B

A federal grand jury heard evidence regarding the in-
vestigation of Bell & Howell beginning in March 1981, Be-
cause the allegedly fraudulent activity occurred in 1975
and early 1976, the government was faced with losing po-
tential criminal charges under the applicable five-year
statute of limitations. 18 U.S.C. § 3282 (1961).

To alleviate the immediate time pressures, the govern-
ment executed short-term waivers of the statute of limita-
tions with all targets of its investigation. The waivers were
attractive to Bell & Howell, the defendant, and the other
targets because the government needed time to review a
large package of documents furnished by Bell & Howell
which might have exonerated some of the targets, including
the defendant. Each target separately executed a govern-
ment-drafted limitations waiver in late July 1981. The

1. The statute of limitations in 18 U.S.C. § 3282 (1961)
provides:

Except as otherwise expressly provided by law, 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.

A4

waiver covered the period August 17, 1976 through Septem-
ber 23, 1976.?

Two months later, government attorneys realized that
they could not complete their investigation in time to pre-
sent evidence to the next grand jury session scheduled for
September 21-22, 1981. Therefore, on September 14 the
government sought from all parties an additional, one-

2. The waiver signed by the defendant and sent to the

Department of Justice on July 30, 1981, stated in part:

I have been advised by my attorney, Kenneth E.
North, that should all target defendants concur, a final
decision with respect to seeking criminal indictment in
this matter will be delayed based upon an agreed
tolling of the applicable statute of limitations. There-
fore, I hereby waive a defense founded upon the stat-
ute of limitations for any offenses in connection with
Bell & Howell FISL claims which allegedly occurred
between August 17, 1976 through and including Sep-
tember 25, 1976. It is understood that this waiver does
not preclude the Government from seeking an indict-
ment prior to September 23, 1981. It is further under-
stood that this waiver in no way bars or limits any de-
fenses of any kind based upon due process grounds and
associated with delay in bringing the indictment. It is
further understood and agreed that the only offenses
for which the statute of limitations waiver is appli-
cable is [sic] those allegedly occurring between Au-
gust 17, 1976 and September 23, 1976, and in no way
extends or tolls the statute of limitations for any
other or subsequent alleged offenses.

I have discussed this matter with my attorney and
fully understand the consequences of this waiver. No
promises, representations or inducements of any kind
other than those contained herein have been made to
me or my counsel in connection with this waiver.

Ad

month waiver of the statute of limitations. All parties
agreed immediately except the defendant, who insisted on
drafting his own version of the waiver. The government
and the defendant did not agree to the terms of that draft
until September 18, and the government did not receive a
copy of the defendant’s waiver until September 21, the
same day that the grand jury began its September session.

The defendant and a co-defendant were indicted on
October 21, 1981. The co-defendant was acquitted of all

charges.
II

In deciding that the issue whether a defendant was un-
justly imprisoned because the state indictment was re-
turned after the statute of limitations expired was not a
proper basis for habeas corpus relief, the Supreme Court
in 1917 stated, ‘‘The statute of limitations is a defense and
must be asserted on the trial by the defendant in criminal
cases....’’ Biddinger v. Commissioner of Police, 245 U.S.
128, 1385 (1917). The Court relied on United States v. Cook,
84 U.S. (17 Wall.) 168, 178-79 (1872), to support its holding.

This long-standing precedent formed the basis of the
District of Columbia Circuit’s ruling in Umted States v.
Wild, 551 F.2d 418 (D.C. Cir.), cert. denied, 431 U.S. 916
(1977), that criminal statutes of limitations do not create
jurisdictional bars to prosecution. The Wild court consid-
ered whether the limitations period pertaining to illegal
campaign contributions, 2 U.S.C. § 455(a) (Supp. V 1975),
was a jurisdictional bar. The court reasoned that because
the limitations defense must be raised affirmatively at
trial, it could be waived. The court further noted that if a
defendant may waive such constitutional rights as the
right to be represented by counsel and the right to not be

A6

put twice in jeopardy, he also must be able to waive rights
under statutes of limitations. 7d. at 424-25.

Other courts have adopted this view. See, e.g., Vance v.
Hedrick, 659 F.2d 447 (4th Cir. 1981), cert. denied, 102 S.
Ct. 2246 (1982) ; United States v. Levine, 658 F.2d 113 (3d
Cir. 1981); United States v. Akmakjian, 647 F.2d 12 (9th
Cir. 1981), cert. denied, 102 S. Ct. 505 (1982); United States
v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 840
(1965); United States v. Sindona, 473 F. Supp. 764
(S.D.N.Y. 1979); but see United States v. Hankin, 607
F.2d 611 (3d Cir. 1979) (this case not discussed in Levine,
supra); Waters v. United States, 328 F.2d 739 (10th Cir.
1964). In addition, two noted authorities on federal proce-
dure agree that such a statute of limitations may be
waived. 8 J. Moore, Moore’s Ferperat Practice
7 12.03[1], at 12-17, 18 (2d ed. 1976);1C. Wricut, FEeperau
Practice AND Procepvurg, § 193, at 409-10 (2d ed. 1969).

The defendant nevertheless urges that this statute of
limitations, 18 U.S.C. § 3282 (1961), poses a jurisdictional
bar to prosecution. We disagree. More than 100 years ago
the Supreme Court suggested that a defendant in a crimi-
nal action must affirmatively assert the limitations
defense. A great majority of today’s courts have adopted
that position; we helieve it to be correct.

This circuit has not yet ruled directly on the issue.
Hoewever, the defendant notes that this court once wrote:
‘‘A plea of the statute of limitations is a plea in bar and
should be presented to and passed upon by the trial
court.’’ United States v. Franklin, 188 F.2d 182, 186 (7th
Cir. 1955). That statement is not inconsistent with the po-
sition we embrace here. The Franklin court acted in re-
sponse to the government’s contention that the defendant

A7

was raising his limitations defense for the first time on
appeal and that, therefore, the court should not consider
that defense. The court agreed. A ‘‘plea in bar’’ is not a
jurisdictional bar, but rather an affirmative defense that
absolutely defeats a plaintiff’s claim.

Two lines of authority fortify this interpretation of
Franklin. First, in support of its holding the Franklin
court cited United States v. Katser, 138 F.2d 219 (7th Cir.
1943), cert. denied, 320 U.S. 801 (1944), where the court
held ‘‘that an appellate court will review only questions
brought to the attention of the trial court and upon which
the trial court has made a ruling.’’ Jd. at 220. This is not
the standard applicable to jurisdictional issues. Second,
several courts have cited Franklin for the antithesis of
the defendant’s position. Those courts held that time bars
are in fact defenses at trial and not jurisdictional. United
States v. Williams, 684 F.2d 296, 299 (4th Cir. 1982);
Umted States v. Walden, 253 F.2d 551, 558 (3rd Cir.) cert.
denied, 356 U.S. 973 (1958) (per curiam opinion denying
petition for rehearing): Askins v. United States, 251 F.2d
909, 913 (D.C. Cir. 1958).

It appears that only the Sixth and Tenth Circuits cur-
rently retain the view that the statute of limitations is a
jurisdictional bar in criminal actions. The Sixth Circuit’s
position was stated thirteen years ago in dictum. Benes v.
United ‘States, 276 F.2d 99, 108-09 (6th Cir. 1960). The
Tenth Circuit relied on Benes in formulating its position
in 1964. Waters v. United States, 328 F.2d 739, 742-43
(10th Cir. 1964). The District of Columbia Circuit rejected
Benes as unreliable in its thorough analysis of the issue in
Wild, 551 F.2d at 422 n.8. We agree with the D.C. Circuit;
the Williams-Wild line of cases enunciates the sounder

view.

A8

Our holding is consonant with the Supreme Court’s
view of the purpose underlying statutes of limitations
governing criminal laws. The Court in Toussie v. United
States, 397 U.S. 112, 114-15 (1970), stated:

The purpose of a statute of limitations is to limit
exposure to criminal prosecution to a certain fixed
period of time following the occurrence of those acts
the legislature has decided to punish by criminal
sanctions. Such a imitation is designed to protect in-
dividuals from having to defend themselves against
charges when the basic facts may have become ob-
scured by the passage of time and to minimize the
danger of official punishment because of acts in the
far-distant past.

See United States v. DiSantillo, 615 F.2d 128 (3d Cir.
1980). The purposes of a time bar are not offended by a
knowing and voluntary waiver of the defense by the
defendant.*

III

The defendant’s other major claim is that the district
court erred in not dismissing the conspiracy count of the
indictment for failure to allege that the defendant com-
mitted an overt act in furtherance of a conspiracy.

We recognize that the government must prove the com-
mission of an overt act to secure a conspiracy conviction.
United States v. Anderson, 542 F.2d 428 (7th Cir. 1976).
The defendant concedes that the government proved such

*The defendant raises other minor issues regarding his
waiver. The district court dismissed these claims when they
were presented in pretrial and post-trial motions. We af.
firm. The issues do not merit thorough discussion; we note
only that the defendant was not adversely affected in any
way by any alleged breach of agreement by the government.

AQ9

an act at trial. His argument is that reversal is required
because the overt act was inadequately charged.

The conspiracy count specifies seventeen cvert acts.
The defendant relies on his statute of limitations defense
to invalidate overt acts one through fourteen, which all oc-
curred before or during the period covered by the first
waiver. For overt acts fifteen through seventeen, the
defendant argues that the acts alleged were merely
‘‘caused,’’ and not ‘‘committed,’’ by the defendant. That,
the defendant argues, is insufficient to sustain a charge of
conspiracy. Because we have rejected the defendant’s
argument that he could not waive the statute of
limitations, we consider all of the seventeen overt acts in
determining whether the conspiracy count was vaild.

We believe that the indictment adequately alleged an
overt act. Counts eight through twelve, for example,

allege that the ‘‘defendants did submit and cause to be

submitted ... default claim[s] ... to the U.S. Department
of Health, Education & Welfare... .*’ These allegations

satisfy any requirement for pleading overt acts. We do
not need to probe any further into the sufficiency of the
seventeen allegations.*

‘The overt acts illustrated in the text conclusively defeat
the defendant’s claim. We note, nevertheless, that overt
acts fifteen through seventeen, which allege that ‘‘the de-
fendants caused to be delivered by the U.S. Postal Service
to the Bell & Howell Industrial Bank . . . U.S. Treasury
Check[s] ....’’, satisfy overt act pleading requirements.
See, ¢.g., Davis v. United States, 86 F.2d 45 (Sth Cir. 1936),
cert. denied, 300 U.S. 657 (1937) (‘‘Overt acts need not
be pleaded with the fullness that would be necessary if
they were themselves charged as er mes.’’); United States
v. McClarty, 191 F. 518 (W.D. Ky. 1911) (‘‘{TJhe con-
spirator must himself ‘do’ the ‘act’ or give authority to
another to do that particular thing for him.’’)

A10

IV

The statute of limitations relevant to this action does
not pose a jurisdictional bar to prosecution. The defendant
voluntarily and knowingly executed a valid waiver of that
statute. Therefore, the acts falling within the time period
encompassed by the waiver were validly charged in the
indictment. Moreover, the indictment sufficiently alleged
overt acts committed in furtherance of a conspiracy to de-
fraud the government. Accordingly, the district court’s
judgment of conviction is affirmed.

AFFIRMED,

A true Copy:

Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

All

UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604

April 13, 1983

Before

Hon. WILLIAM J. BAUER, Circuit Judge
Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge

No. 82-2086

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vs.

JERRY MEEKER,

Defendant-A ppellant.

ORDER

~

ey,

Appeal from the
United States
District Court

for the

Northern District

of Illinois,

Eastern Division.

—_——

No. 81 CR 721

Charles P. Kocoras,
Judge.

On consideration of the petition for rehearing and sug-
gestion for rehearing en banc filed in the above-entitled
eause by Defendant-Appellant Jerry Meeker, no judge in
active service has requested a vote thereon, and all of the
judges on the original panel have voted to deny rehearing.

Accordingly,

It is ordered that the aforesaid petition for rehearing be,
and the same is hereby, DENIED.

EXHIBIT C

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1143%3A1. Public record. Not legal advice.