                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2000

United States v. Gilchrist
Precedential or Non-Precedential:

Docket 99-3052




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Recommended Citation
"United States v. Gilchrist" (2000). 2000 Decisions. Paper 123.
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Filed June 6, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3052

UNITED STATES OF AMERICA,
       Appellant

v.

WILLIAM GILCHRIST

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 96-cr-00094-1)
District Judge: Honorable William W. Caldwell

Submitted Under Third Circuit LAR 34.1(a)
September 10, 1999

Before: ROTH and WEIS, Circuit Judges
SHADUR1, District Judge

(Filed: June 6, 2000)



_________________________________________________________________
1. Honorable Milton I. Shadur, United States District Court Judge for the
Northern District of Illinois, sitting by designation.
OPINION OF THE COURT

ROTH, Circuit Judge.

The government appeals from an order entered by the
U.S. District Court for the Middle District of Pennsylvania,
denying a motion to reinstate a dismissed indictment
against appellee Gilchrist. Pursuant to a plea agreement,
the indictment was dismissed on the motion of the
government in exchange for Gilchrist's guilty plea to a
lesser count. After sentencing, Gilchrist successfully
withdrew his guilty plea, and the district court denied the
government's motion to reinstate the dismissed indictment
on the grounds that the statute of limitations had expired.

We find that we have jurisdiction over this criminal
appeal by the government pursuant to 18 U.S.C. S 3731.
We also find that the appellant fails to offer sufficient
reason why the statute of limitations should not be applied.
We will, therefore, affirm the order of the district court.

I. Factual and Procedural History

Defendant-appellee William Gilchrist was indicted in April
1996, for engaging in commercial bribery in violation of the
Travel Act, 18 U.S.C. S 1952(a)(3), and for conspiracy to
engage therein, 18 U.S.C. S 371. Gilchrist, an operator of a
trucking company, was charged with paying kickbacks to a
Welch's Foods transportation manager in order to continue
receiving a share of Welch's trucking business. On
December 9, 1996, a binding plea agreement was executed
between Gilchrist and the government pursuant to Rule
11(e)(1)(C) of the Federal Rules of Criminal Procedure. The
agreement provided the following: (1) the government
agreed not to prosecute Gilchrist on the two charges; (2)
Gilchrist agreed to plead guilty to the lesser charge of
misprision of a felony, 18 U.S.C. S 4; (3) the government
agreed to stipulate to a sentence of 9 months of
incarceration, 1 month home detention, a $10,000fine, and
a $50 assessment;2 and (4) if the district court rejected the
stipulated sentence or imposed a more severe penalty,
_________________________________________________________________

2. Under the indictment, Gilchrist stood to face 10 years incarceration,
a period of supervised release, a $500,000 fine, and a $100 assessment.
United States v. Gilchrist, 130 F.3d 1131, 1132 (3d Cir. 1997), cert.
denied, 523 U.S. 1023 (1998).

                               2
Gilchrist would have the right to withdraw his plea
agreement and plead anew. On December 11, 1996, the
parties also filed a joint Stipulation Pursuant to Plea
Agreement, which provided that the facts in the Stipulation
were the only facts that Gilchrist admitted.

Gilchrist pled guilty to misprision in December 1996. On
April 22, 1997, the original indictment was dismissed. At
sentencing on the same day, the district court imposed a
sentence identical to that provided in the plea agreement
with the addition of 12 months of supervised release.
Gilchrist did not object at the hearing, but three days later
moved the district court to correct sentence pursuant to
Fed. R. Crim. P. 35(c). Because the district court failed to
rule on the motion within 7 days, Gilchrist filed a notice of
appeal to this court in May 1997.

On appeal, Gilchrist sought to withdraw his guilty plea,
arguing that the plea agreement was breached because the
terms of his sentence were more severe than those specified
in the plea agreement. We reversed and remanded the case
to the district court with instructions to impose the
sentence described in the plea agreement or to allow the
withdrawal of the guilty plea. United States v. Gilchrist, 130
F.3d 1131 (3d Cir. 1997), cert. denied, 523 U.S. 1023
(1998).

On remand, the district court set a re-sentencing date.
The re-sentencing, however, never took place because the
district court on October 9, 1998, granted Gilchrist's
renewed motion to withdraw his guilty plea. The district
court found that the record was devoid of evidence of active
concealment, i.e., there was an insufficient factual basis for
the misprision plea. The government on October 19, 1998,
moved to reinstate the original indictment, requesting that
the parties be restored to the pre-plea agreement status
quo. Gilchrist opposed the motion on the grounds that the
statute of limitations had expired on the dismissed
indictment on or about June 30, 1997. The district court
agreed with Gilchrist and denied the government's motion
on December 21, 1998. The government now appeals.

II. Jurisdiction

As an initial matter, we turn to the question of whether
this court has jurisdiction to hear an appeal by the

                               3
government in a criminal prosecution. It has long been held
that the government cannot take an appeal in a criminal
case unless Congress expressly grants that right. United
States v. Martin Linen Supply Co., 430 U.S. 564 (1977);
United States v. Jenkins, 420 U.S. 358 (1975); United States
v. Sanges, 144 U.S. 310 (1892). We ourselves have
reaffirmed the "well-settled rule that an appeal by the
prosecution in a criminal case is not favored and must be
based upon express statutory authority." Government of the
Virgin Islands v. Hamilton, 475 F.2d 529, 530 (3d Cir.
1973). The government argues that statutory authority for
this appeal, and hence our jurisdiction over it, is found in
18 U.S.C. S 3731. We agree.

The Criminal Appeals Act, 18 U.S.C. S 3731, as amended
in 1970, provides the following:3

       In a criminal case an appeal by the United States shall
       lie to a court of appeals from a decision, judgment, or
       order of a district court dismissing an indictment or
       information or granting a new trial after verdict or
       judgment, as to any one or more counts, except that no
       appeal shall lie where the double jeopardy clause of the
       United States Constitution prohibits further
       prosecution.

       . . .

       The appeal in all such cases shall be taken within
       thirty days after the decision, judgment or order has
       been rendered and shall be diligently prosecuted.

       . . .

       The provisions of this section shall be liberally
       construed to effectuate its purposes.

In deciding whether an order of the district court denying
the reinstatement of an indictment is an appealable order
within the meaning of S 3731, we must "give effect to
Congress's intent" with respect to the question at issue.
Idahoan Fresh v. Advantage Produce Inc., 157 F.3d 197,
202 (3d Cir. 1998). To discern congressional intent, we first
_________________________________________________________________

3. The 1970 amendment to 18 U.S.C. S 3731 was passed as Title III of
the Omnibus Crime Control Act of 1970, Pub.L. 91-644, 84 Stat. 1890.

                               4
look to the plain language of the statute. Id . (". . .every
exercise of statutory interpretation begins with the plain
language of the statute itself.") (citations omitted); see also
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc. , 447
U.S. 102, 108 (1980) ("We begin with the familiar canon of
statutory construction that the starting point for
interpreting a statute is the language of the statute itself.").
On its face, the language of S 3731 is ambiguous as to
whether it applies to an order denying the reinstatement of
an indictment. On the one hand, such an order is not
specified in the statute. But on the other hand, what is
listed may be merely illustrative and not exhaustive, given
that the statute expressly forbids its application only when
double jeopardy is implicated.

An inquiry into the legislative history and the underlying
legislative intent of the statute provides more guidance. The
substance of 18 U.S.C. S 3731 was most recently amended
in 1970.4 The pre-1970 amendment version of S 3731 (1964
ed., Supp.V) authorized an appeal by the government in
criminal cases "[f]rom a decision or judgment setting aside,
or dismissing any indictment or information, or any count
thereof except where a direct appeal to the Supreme Court
of the United States is provided by this section." Although
the language of the statute seemed to capture a very broad
range of circumstances, it was generally interpreted as
authorizing an appeal to a court of appeals only when the
decision setting aside or dismissing an indictment or
information was based upon the invalidity of construction
of the statute upon which the indictment was founded. See,
e.g., United States v. Apex Distributing Co. , 270 F.2d 747,
755 (9th Cir. 1959) (government may, under S 3731, appeal
an order dismissing an indictment or information"only
where the order was based upon a defect in the indictment
or information, or in the institution of the prosecution.");
United States v. Nardolillo, 252 F.2d 755, 757-58 (1st Cir.
1958) (government cannot appeal from a dismissal where
dismissal was based on the government's failure to comply
with discovery order).
_________________________________________________________________

4. There were further amendments to 18 U.S.C.S 3731 in 1984, 1986,
and 1994. These amendments do not concern us here because they were
technical in nature and do not affect our analysis.

                               5
Dissatisfaction with this limited ability of the government
to appeal in criminal cases was partly what prompted
Congress to undertake the amendment of S 3731 in 1970.5
"[T]he terminology of the Criminal Appeals Act, as
interpreted today, does not provide for an appeal by the
United States to any court in a large variety of cases where
the dismissal is based on grounds having nothing to do
with any defect in the indictment or the construction or
invalidity of the underlying statute." S. Rep. No. 91-1296,
at 5 (1970). "S.3132 [1970 amendment] will afford the
Government the right of appeal from the dismissal of a
criminal prosecution in all cases where the decision
rendered by the district judge does not result in an
acquittal after jeopardy. As a result, review of a lower court
dismissal will be precluded only where the double jeopardy
clause of the Constitution mandates it. . . . The amended
Criminal Appeals Act is intended to be liberally construed
so as to effectuate its purpose of permitting the
Government to appeal from dismissals of criminal
prosecutions by district courts in all cases where the
Constitution permits. . . ." Id. at 18 See also H.R. Conf.Rep.
No. 91-1768 at 21 (1970); 116 Cong. Rec. 35659 (1970)
(remarks of Sen. Hruska).

With this legislative history and underlying legislative
intent of S 3731 in mind, the U.S. Supreme Court has
_________________________________________________________________

5. Congress also identified as a major problem of S 3731 the requirement
that certain appeals could only be taken to the Supreme Court. "Under
the current act, appeals from dismissals lie to the courts of appeals only
where the dismissal of an indictment or information results from a
finding of some defect therein, or an error of some sort in the
institution
of the prosecution itself such as an irregularity in the grand jury
proceedings. All other appealable dismissals must be taken directly to
the Supreme Court. . . . The present statutory division of appeals from
dismissals between the Supreme Court and the courts of appeals has
. . .proven difficult to apply and often results in far too much judicial
time and effort being absorbed in deciding the threshold question of the
court in which the appeal properly belongs." S. Rep. No. 91-1296 at 13,
15 (1970). This problem was resolved by amendingS 3731 to provide for
all appeals to be taken to the court of appeals,"except where a ground
for the decision is a holding of invalidity of an Act of Congress and the
case is considered of general public importance." S. Rep. No. 91-1296 at
18 (1970).

                               6
consistently construed S 3731 to authorize all appeals
whenever the Constitution would permit. Serfass v. United
States, 420 U.S. 377, 387 (1975). "In light of the language
of the present version of S 3731 including the admonition
that its `provisions shall be liberally construed to effectuate
its purposes,' and of its legislative history, it is clear to us
that Congress intended to authorize an appeal to a court of
appeals in this kind of case so long as further prosecution
would not be barred by the Double Jeopardy Clause." Id.
The purpose of S 3731 was to "remove all statutory barriers
to Governmental appeals and to allow appeals whenever the
Constitution would permit." United States v. Wilson, 420
U.S. 332, 337 (1975); see also, United States v. Scott, 437
U.S. 82, 84-85 (1978).

Appellee Gilchrist argues that S 3731 is inapplicable here
because the government, and not Gilchrist, moved for the
dismissal of the indictment in the first instance. But
nothing turns on such a distinction. It still remains that
the government fulfilled the requirements of S 3731: upon
the district court's denial of the government's motion to
reinstate the original indictment, the governmentfiled a
timely notice of appeal with this court. We therefore find
that the government's appeal was authorized by S 3731.6

III. Applicability of Statute of Limitations

We now turn to the merits of this appeal and consider
whether the statute of limitations applies to an indictment
that was dismissed under a plea agreement, thereby
barring its reinstatement after the limitations period has
expired. Our review of a district court's legal determinations
and its application of legal precepts to facts is plenary.
Epstein Family Partnership v. Kmart Corp., 13 F.3d 762,
766 (3d Cir. 1994).

We considered this very issue in United States v. Midgley,
142 F.3d 174 (3d Cir. 1998), where we were presented with
a fact pattern closely resembling that before us here. The
_________________________________________________________________

6. Because we have jurisdiction pursuant to S 3731, we do not reach the
merits of the government's alternative argument for jurisdiction based on
the Collateral Order Doctrine.

                                7
defendant in Midgley entered into a plea agreement with
the government pursuant to which he agreed to plead guilty
to one count of a six-count indictment in exchange for the
dismissal of the remaining counts. The plea agreement
contained no waiver of the statute of limitations defense as
to the counts to be dismissed. While incarcerated for the
one count to which he pled guilty and after the statute of
limitations had run for the dismissed counts, Midgley filed
a motion to vacate his sentence on the grounds that the
conduct to which he pled guilty did not constitute a
criminal offense under a United States Supreme Court
decision that was announced while he was incarcerated.
Midgley's motion was granted and the governmentfiled a
motion to reinstate the dismissed counts. The district court
denied the government's request.

On appeal, we affirmed the judgment of the district court.
Nothing in 18 U.S.C. S 3282, the general federal statute of
limitations, we concluded, suggests that it does not apply to
counts of an indictment dismissed pursuant to a plea
agreement.7 We were especially mindful that to hold
otherwise would subvert the policy objective animating the
statute. A statute of limitations first and foremost protects
the accused "from having to defend themselves against
charges when the basic facts may have become obscured by
the passage of time. . . ." Toussie v. United States, 397 U.S.
112, 114 (1970). "Limitations statutes. . .are intended to
foreclose the potential for inaccuracy and unfairness that
stale evidence and dull memories may occasion in an
unduly delayed trial." United States v. Levine, 658 F.2d
113, 127 (3d Cir. 1981). "[T]he applicable statute of
limitations is the primary guarantee against bringing overly
stale criminal charges. Such statutes represent legislative
assessments of relative interests of the State and the
defendant in administering and receiving justice. . . ."
United States v. Marion, 404 U.S. 307, 322 (1971) (internal
quotations, citation bracket, ellipses, and footnotes
_________________________________________________________________

7. 18 U.S.C. S 3282 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."

                               8
omitted). Criminal limitations statutes, therefore, are "to be
liberally interpreted in favor of repose." United States v.
Habig, 390 U.S. 222, 227 (1968). In light of the
extraordinarily important purpose served by a statute of
limitations--protecting the accused from a situation where
his right to a fair trial would be prejudiced--we concluded
in Midgley that S 3282 "establishes a fixed limitation period
with no exception," and that, therefore, the reinstatement of
the dismissed counts was barred. 142 F.3d at 174.

The government here attempts to circumvent our
conclusion in Midgley by arguing that the reinstatement of
the original indictment against Gilchrist is permitted
pursuant to l8 U.S.C. S 3289, which provides, in pertinent
part, that:

       whenever an indictment or information charging a
       felony is dismissed for any reason before the period
       prescribed by the applicable statute of limitations has
       expired, and such period will expire within six calendar
       months of the date of the dismissal of the indictment
       or information, a new indictment may be returned in
       the appropriate jurisdiction within six calendar months
       of the expiration of the applicable statute of limitations,
       or, in the event of an appeal, within 60 days of the date
       the dismissal of the indictment or information becomes
       final. . . .

(emphasis added). The government contends that this case
falls within the latter scenario contemplated byS 3289
where an order of a dismissal is appealed. We see no merit
in this argument. We conclude that S 3289 is directed at a
count that is appealed. The dismissed counts here were not
the subject of the prior appeal. Moreover, neither Gilchrist
nor the government ever appealed the April 22, 1997 Order
dismissing the original indictment. The thirty days appeal
period provided by 18 U.S.C. S 3731 for the dismissed
counts of the indictment expired on May 22, 1997, and the
government cannot now be allowed to re-litigate the original
dismissal. The fact that one count survived that dismissal
date and was appealed does not resuscitate the dismissed
counts. We accordingly find that Midgley is controlling and

                                9
that S 3282 bars the government from reinstating the
indictment against Gilchrist.8

We do not reach our ruling without considering the
possibility that it might encourage defendants to delay
acting on their rights until the statute of limitations has
expired on their dismissed counts. But, as we noted in
Midgley, the government may foreclose such a possibility by
including in future plea agreements a clause that requires
the defendant to waive the statute of limitations defense as
to dismissed counts if the defendant, after the period of
limitations has expired on the original charges, withdraws
or challenges the guilty plea. 142 F.3d at 174; see also
United States v. Podde, 105 F.3d 813, 821 (2d Cir. 1997),
vacating United States v. Reguer, 901 F.Supp. 525 (E.D.N.Y.
1995). The government may also negotiate with the
defendant a guilty plea for more than one count. Id. To be
sure, such prophylactic measures place an additional
burden on the government, but that burden is slight when
considered alongside the defendant's paramount right to
present an effective defense to the charges against him.
Section 3289 creates a fixed limitation period to protect
precisely that right and we see no need to make an
exception here.

Finally, we do not consider the government's equitable
tolling argument because the issue was raised for the first
time in its brief to us; it was not raised in the motion that
was before the district court. An argument not raised in the
district court is not properly preserved for appellate review.
In re City of Philadelphia Litig., 158 F.3d 723, 727 (3d Cir.
1998).
_________________________________________________________________

8. Both parties mistakenly consider the statute of limitations to have
expired on June 30, 1997. That assumption, however, fails to recognize
the statute was tolled from the date the original indictment was returned
on April 2, 1996, until it was dismissed on April 22, 1997--a period of
one year and twenty days. See United States v. Stansfield, 171 F.3d 806,
813 n.3 (3d Cir. 1999). But the tolling does not change the result here
because even the extended period had expired before the government
moved to reinstate the previously dismissed counts on October 19, 1998.

                               10
IV. Conclusion

For the foregoing reasons, we will affirm the order of the
district court denying the government's motion to reinstate
charges against the appellee.

A True Copy:
Teste:

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

                               11
