
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1987                                    UNITED STATES,                                      Appellant,                                          v.                                 MICHAEL R. SPECTOR,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                      and John R. Gibson,* Senior Circuit Judge.                                           ____________________                                 ____________________            Peter E. Papps, First  Assistant United States Attorney, with whom            ______________        Paul M . Gagnon, United States Attorney, was on brief for appellant.        _______________            Douglas  J. Miller,  with whom  Hall,  Morse, Anderson,  Miller  &            __________________              __________________________________        Spinella, P.C. was on brief for appellee.        ______________                                 ____________________                                     May 26, 1995                                 ____________________                                    ____________________        *Of the Eighth Circuit, sitting by designation.                      CAMPBELL,  Senior  Circuit  Judge.   In  the  early                                 ______________________            1990s, the U.S. Department of Labor began an investigation of            defendant  Michael Spector  and of  David Murray  and Bernard            Mintz, suspecting them  of having submitted  false statements            in connection with an employee  benefit plan.  The government            notified counsel for all three men that it was conducting the            investigation  and that it intended  to charge the three with            criminal violations of 18 U.S.C.   1027 (1988) (ERISA) and 18            U.S.C.      644   (1988).     Among   the  violations   under            investigation were  a false statement  allegedly submitted to            the   department  on  January   20,  1988,  and   an  act  of            embezzlement allegedly occurring on February 19, 1988.  Since            the  violations  were  subject  to  a  five-year  statute  of            limitations, 18 U.S.C.   3282 (1988), the limitations periods            for  the two violations above  were to expire  on January 20,            and February 19, 1993, respectively.                      On January 15, 1993,  defendant Spector and the two            others  (whom   we  shall  collectively   call  "defendants,"            although  this  appeal relates  to  Spector  only) asked  the            government  to delay seeking  an indictment in  order to give            them more  time to investigate and  additional opportunity to            persuade  the government  to modify  its position  on certain            issues.  The defendants entered into a written agreement with            the government, under which the government agreed not to file            an  information or to seek  an indictment before February 26,                                         -2-                                          2            1993, in exchange  for the defendants'  agreement to waive  a            statute  of limitations  defense  for charges  brought on  or            before  March  5,  1993  (thereby  effectively  extending the            limitations period  until March  5).  The  agreement provided            that it would  be effective "upon execution  by all parties,"            and was in fact signed by all parties.  The agreement went on            to state "that  further extensions of  this agreement may  be            agreed to subsequently, but only by a  further writing signed            by all parties."                      As the new March 5 deadline approached,  defendants            again  sought  to extend  the  period  before the  government            brought an indictment.   Defendants executed another  written            agreement  on March  5.    Under  the  terms  of  the  second            agreement, the government stated that  it had not yet brought            an  indictment  against defendants  and  would  forebear from            doing  so until April 9,  1993.  In  exchange, the defendants            agreed to extend the limitations period until April 16, 1993.            Like the first agreement,  the second agreement provided that            it would be effective "upon execution  by Murray, Spector and            Mintz,  and their respective counsel and the United States by            its  counsel."   However,  unlike the  first agreement,  this            second  agreement,  though  signed  by defendants  and  their            counsel, was not signed by counsel for the government.                      On  April  16, 1993,  the  grand  jury returned  an            initial twenty-seven count indictment against defendants.  On                                         -3-                                          3            September  1,  1993, the  grand jury  returned a  seven count            superseding indictment.   Nearly a year later, on  August 15,            1994,  Spector  moved  to  dismiss  the  two  counts  of  the            indictment  that  were  based  on  the  false  statement  and            embezzlement described above.  Spector argued that the second            extension  of the  statute  of limitations  was not  binding,            since  it  was not  signed by  the  government.   Without the            extension provided by  the second agreement, Spector  argued,            the  two counts were barred by the statute of limitations, as            they were handed down  after March 5, 1993, the  deadline set            by the first extension.                      The  district court  agreed and  dismissed  the two            counts as time-barred.  Although it found the first extension            to be binding, the district  court determined that the second            extension  was  ineffective,   having  been  an  offer   that            explicitly   required   the   government's    signature   for            acceptance,  and   not   permitting  alternative   forms   of            acceptance.  The  court rejected the  government's contention            that  an  oral  agreement   existed,  holding  that  such  an            agreement would be contrary to the plain terms of the written            agreements.     The   district   court   also  rejected   the            government's argument based upon promissory estoppel, finding            that any reliance  by the government on  the second extension            was unreasonable,  given that the  first extension  expressly            provided that any  additional extensions had to be in writing                                         -4-                                          4            and  signed  by all  parties.   The  government  now appeals,            pursuant to 18 U.S.C.   3731 (1988).                      A  statute of  limitations  defense is  a  waivable            affirmative defense, not a jurisdictional bar to prosecution.            See Acevedo-Ramos  v. United States,  961 F.2d 305,  307 (1st            ___ _____________     _____________            Cir.), cert. denied, 113 S. Ct. 299 (1992).  Failure to raise                   ____________            the defense in  a timely manner can result  in its waiver, as            can an  unqualified guilty  plea or other,  similar "action[]            obviously  constitut[ing] a waiver  of the  time limitation."            Id. at 309.   Most relevantly  for present purposes,  several            ___            federal  courts of appeals have held that an individual under            investigation may,  in order  to delay indictment,  expressly            waive a statute of limitations defense prior to trial, indeed            prior to indictment, so long as that waiver is made knowingly            and  voluntarily.  See, e.g., United States v. Wild, 551 F.2d                               ___  ____  _____________    ____            418, 422-24 (D.C.  Cir.), cert. denied, 431 U.S. 916 (1977).1                                      ____________            In these cases, like the present, the defendant has typically            entered   into  a   written  waiver   in  exchange   for  the            government's agreement  not to indict before  a certain time,            in hopes  that  further  discussion  may  result  in  a  more            favorable  disposition or  prevent an  indictment altogether.                                            ____________________            1.   See  also United  States v.  Del Percio, 870  F.2d 1090,                 _________ ______________     __________            1093-94 (6th  Cir. 1989); United  States v. Meeker,  701 F.2d                                      ______________    ______            685, 687-88 (7th  Cir.), cert. denied,  464 U.S. 826  (1983).                                     ____________            See  generally  Case  Comment,   Waiver  of  the  Statute  of            ______________                   ____________________________            Limitations in Criminal Prosecutions: United States v.  Wild,            ____________________________________________________________            90 Harv. L. Rev. 1550, 1555 (1977).                                         -5-                                          5            The courts have  enforced such  agreements where  voluntarily            and  knowingly made,  finding that  they  do not  violate the            policies underlying the statute of limitations.                      The issue  in this  appeal is whether  the district            court  erred in  holding  that, because  of the  government's            failure to  sign, the second  agreement was not  an effective            waiver   of  defendant's   rights   under   the  statute   of            limitations.  It is undisputed  that if the second  agreement            is found binding, the defendant may not assert his statute of            limitations  defense.   If not,  however, both  parties agree            that  the defendant may assert  the defense and  that the two            counts  of the  indictment were  properly dismissed  as time-            barred, since they were handed down after the deadline set by            the first agreement.          Reviewing the  district court's            decision on  this issue of  law de  novo, Thrifty  Rent-A-Car                                            ________  ___________________            System,  Inc. v. Thrifty Cars, Inc., 831 F.2d 1177, 1181 (1st            _____________    __________________            Cir. 1987), we sustain the district court's  holding that the            second  agreement was  ineffective and  did not  constitute a            waiver  of the  defendant's statute  of  limitations defense.            The  two agreements  carefully and  explicitly set  forth the            conditions  under which  the  extensions  of the  limitations            period  would become  effective.   The first  extension would            become effective "upon execution  by all parties;" the second            extension would  become effective "upon  execution by Murray,            Spector,  and Mintz,  and  their respective  counsel and  the                                         -6-                                          6            United  States by its counsel."   The agreements go so far as            to  specify that acceptance by one of the defendants would be            made  by fax.    Both agreements  limited  the extensions  to            definite time periods.  Further extensions of the limitations            period  were  permissible, "but  only  by  a further  writing            signed  by all parties."  One obvious reason for spelling out            these  requirements in such detail was to remove all doubt as            to  the exact steps  by which  defendants' partial  waiver of            rights and the government's agreement to forbear would become            effective.    Creating  such a  road  map  told both  parties            precisely what each had to do  and what each would receive in            exchange,  thus minimizing the risk (or so it might be hoped)            of  a future dispute over the consummation and meaning of the            agreement.  Unfortunately, the  government failed to meet the            explicit   condition  provided   to  effectuate   the  second            extension:  it failed  to sign  the document.   Thus,  by the            plain  terms of the  second agreement, the  extension was not            effective.   Where the parties have so deliberately set forth            in writing  the conditions necessary to  make their agreement            effective, we  think it  inadvisable for a  court to  condone            deviation from  one of the  explicit terms, absent  some good            reason to do so.                      We find unpersuasive the government's argument that            contract or  estoppel principles warrant  enforcement of  the            agreement,  despite the  government's failure to  comply with                                         -7-                                          7            its plain language.  We assume that principles of contract or            estoppel may sometimes be useful in analyzing agreements like            this, cf.  United States  v. Baldacchino,  762 F.2d  170, 179                  ___  _____________     ___________            (1st Cir. 1985) ("Though  a matter of criminal jurisprudence,            plea bargains are subject  to contract law principles insofar            as  their  application  will  insure the  defendant  what  is            reasonably  due him.").  But those principles do not help the            government here.2  The  second agreement expressly called for            acceptance  of the offer  in the form  of a  signature by the            government attorney.  It  did not provide for any  other form            of acceptance,  whether orally3 or through  performance.  See                                                                      ___            Restatement (Second) of Contracts   30 (1979).  The defendant            was entitled not merely to forbearance from indictment, which            he received, but to have  the government's binding promise to                                                               _______            forbear from indicting him,  which he did not receive.   That            promise provided reassurance and  certainty that he would not            be  indicted  prior  to the  time  period  set  forth in  the                                            ____________________            2.   As in United States v. Papaleo, 853 F.2d 16, 19 n.3 (1st                       _____________    _______            Cir. 1985), we need  not attempt to decide whether,  when and            to  what  degree local  contract law  is  or may  strictly be            applicable to such agreements, since the result here would be            the same regardless.              3.   The government argues that Spector's alleged failure  to            request  a   signed  copy  of  the   agreement  reflects  his            understanding that an  agreement existed.   But this is  pure            speculation.   Just as the record is devoid of any suggestion            that  the defendant  sought return  of a  signed copy  of the            contract,  it  is  also devoid  of  any  suggestion that  the            government ever  informed the defendant that  it accepted the            terms  of  the  agreement  and  was  going  to  forbear  from            indicting him.                                         -8-                                          8            agreement.  The  government's estoppel argument is  similarly            without  merit.   The  government could  not reasonably  have            relied upon  the defendant's offer  to extend the  statute of            limitations  a  second  time,  in  the  face  of  the express            language in  the second agreement conditioning  the waiver on            the  signature of all parties and the express language in the            first  agreement  allowing  extensions only  in  writing  and            signed  by  all  parties.   The  government  has  provided no            evidence of  any other statements or conduct by the defendant            that could provide a separate basis for an estoppel.                      Accordingly,  the second  agreement, by  its terms,            was not  effective and the  defendant was entitled  to assert            his  statute  of limitations  defense.    The district  court            properly  dismissed  the  two  counts of  the  indictment  as            untimely.  We recognize that the government's failure to sign            the  agreement  was  likely  the result  of  some  unintended            clerical error.   Nevertheless, where  the government reaches            an agreement  with a potential criminal  defendant, and where            both parties  expressly establish, in writing,4  the terms of                                            ____________________            4.   We  emphasize  that  we  are  not  saying  that,  to  be            enforced, an  agreement to extend the  statute of limitations            must be made in writing, or must be signed by the government.            See, e.g., United States  v. Doyle, 348 F.2d 715,  718-19 (2d            ___  ____  _____________     _____            Cir.)  (suggesting  that   an  implicit   agreement  may   be            sufficient  to  waive  the statute  of  limitations defense),            cert. denied, 382 U.S. 843  (1965).  We say only that,  where            ____________                                            _____            the  parties themselves have chosen to set forth the terms in            _____________________________________________________________            writing, it makes sense  to hold them to those  terms, absent            _______            good reason to do otherwise.                                         -9-                                          9            their  bargain and map out the conditions under which it will            be effective, we think the parties are best held to the plain            terms of that agreement, absent  some good reason to depart.5            That policy  is more likely to increase  rather than diminish            the  utility of  such  agreements.   Were  we to  accept  too            lightly  deviations  from  the explicit  language,  we  would            undermine the  certainty the  parties hope  to achieve.   See                                                                      ___            also Correale v. United  States, 479 F.2d 944, 947  (1st Cir.            ____ ________    ______________            1979) ("[T]he  most meticulous standards of  both promise and            performance  must  be met  by  prosecutors  engaging in  plea            bargaining.")   The  latter  is particularly  true where,  as            here, the government  subsequently seeks specific performance            of the defendant's agreement to waive a defense.                      Affirmed.                      ________                                                         ____________________            5.   We do not see our opinion as making agreements like this            so  difficult to enforce as to cause the government to become            reluctant  to  enter  into  them,  thereby  possibly  harming            defendants seeking  to postpone  an imminent indictment.   To            the contrary, we are signaling that agreements like this will            be enforced as written,  giving the parties more  rather than            less control over the  situation.  All the government  had to            do  to protect itself  in this case  was to sign  the form in            accordance with the agreed-upon terms.                                         -10-                                          10
