        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    United States v. Titterington, et al.       No. 03-5829
    ELECTRONIC CITATION: 2004 FED App. 0207P (6th Cir.)
                File Name: 04a0207p.06                    Newsom, ASSISTANT UNITED STATES ATTORNEY,
                                                          Memphis, Tennessee, for Appellant. Robert W. Ritchie,
                                                          Wade V. Davies, Stephen Ross Johnson, RITCHIE, FELS &
UNITED STATES COURT OF APPEALS                            DILLARD, Knoxville, Tennessee, Richard M. Carter,
                                                          MARTIN, TATE, MORROW & MARSTON, Memphis,
               FOR THE SIXTH CIRCUIT                      Tennessee, Richard M. Steingard, Los Angeles, California,
                 _________________                        Glen G. Reid, Jr., WYATT, TARRANT & COMBS,
                                                          Memphis, Tennessee, Kemper B. Durand, THOMASON,
 UNITED STATES OF AMERICA ,         X                     HENDRIX, HARVEY, JOHNSON & MITCHELL,
          Plaintiff-Appellant,       -                    Memphis, Tennessee, William D. Massey, Lorna S.
                                     -                    McClusky, MASSEY & McCLUSKEY, Memphis,
                                     -  No. 03-5829       Tennessee, for Appellees.
              v.                     -
                                      >                     SUTTON, J., delivered the opinion of the court, in which
                                     ,
 RICHARD TITTERINGTON, et            -                    BOGGS, C. J., joined. NELSON, J. (p. 14), delivered a
 al.,                                -                    separate opinion concurring in the judgment and in the
           Defendants-Appellees. -                        opinion of the court.
                                     -                                        _________________
                                    N
         Appeal from the United States District Court                             OPINION
      for the Western District of Tennessee at Memphis.                       _________________
      No. 02-20165—Bernice B. Donald, District Judge.
                                                             SUTTON, Circuit Judge. As this case comes to the court,
                 Argued: April 20, 2004                   all agree that a federal indictment need not specifically state
                                                          that the charged offenses occurred within the pertinent
            Decided and Filed: July 6, 2004               statute-of-limitations period; it suffices that the indictment
                                                          alleges facts establishing that the offense occurred within the
 Before: BOGGS, Chief Judge; NELSON and SUTTON,           limitations period. What happens, however, when the
                  Circuit Judges.                         Government obtains permission to toll the limitations period?
                                                          Must the Government in that setting specifically allege that
                   _________________                      the limitations period has been tolled or otherwise allege that
                                                          the indictment covers offenses that occurred within the
                       COUNSEL                            extended limitations period? The district court said yes; we
                                                          say no. Contrary to the views of the district court, we
ARGUED: Dan L. Newsom, ASSISTANT UNITED                   conclude that the statute of limitations is an affirmative
STATES ATTORNEY, Memphis, Tennessee, for Appellant.       defense that the Government need not specifically plead in a
Robert W. Ritchie, RITCHIE, FELS & DILLARD,               criminal indictment. We therefore reverse the district court’s
Knoxville, Tennessee, for Appellees. ON BRIEF: Dan L.

                            1
No. 03-5829          United States v. Titterington, et al.     3    4     United States v. Titterington, et al.        No. 03-5829

judgment in favor of the defendants and remand the case for         evidence of an offense is in a foreign country” and requesting
further proceedings.                                                that the limitations period be extended. Id. § 3292(a)(1).
                                                                    Under this second statute, if “the court finds by a
                               I.                                   preponderance of the evidence that an official request has
                                                                    been made for such evidence and that it reasonably appears
  In January 1996, the FBI began an investigation of the            . . . that such evidence is . . . in such foreign country,” the
defendants in this case—Richard Titterington, Geoffrey              court must “suspend the running of the statute of limitations”
Feldman, Sherrie-Lee Doreen Cave, Robert Murray Bohn,               until “the foreign court or authority takes final action on the
Stacy Layne Beavers and Michael Elliot Cole—regarding               request,” but for no longer than three years. Id. § 3292(a)(1),
their involvement with a Barbados-based entity known as             (b) & (c)(1). As the Barbados court appeared nowhere near
IDM. According to the United States, the defendants and             taking “final action” in the evidentiary matter, the district
IDM ran an international lottery operation, which defrauded         court granted the motion to suspend the statute of limitations
United States citizens of more than $100 million. Believing         for up to three years.
that IDM’s Bridgetown, Barbados headquarters held evidence
of this criminal conduct, the Office of International Affairs of      On May 8, 2002, a federal grand jury returned an 89-count
the Department of Justice obtained a warrant from the               indictment against the six defendants involved in this appeal
Barbados government in June 1996 to search IDM’s                    and 11 other co-defendants who remain outside United States
headquarters. Barbados authorities, assisted by the FBI,            jurisdiction and for whom extradition requests have been
executed the warrant on July 12, 1996, seizing approximately        lodged with various countries. The indictment charged the
140 boxes of evidence that were “significant to the . . . on-       defendants with violations of 18 U.S.C. § 1962(c)
going FBI investigation.” JA 498.                                   (substantive RICO), 18 U.S.C. § 1962(d) (RICO conspiracy)
                                                                    and 18 U.S.C. § 1341 (mail fraud). In addition, the
  After the search, IDM officials challenged the validity of        indictment charged that one of the defendants, Feldman,
the warrant. A local Barbados court ordered that the evidence       violated 18 U.S.C. § 545 (smuggling).
remain in Barbados pending a hearing as well as any appeal,
then placed the evidence under seal, which in this instance            Defendants moved to dismiss the indictment, arguing that
meant locking the 140 boxes of evidence in a jail cell. The         an indictment must allege that an offense occurred within the
evidence remained in the jail cell at the time the district court   applicable statute-of-limitations period. The district court
entered judgment in this case, and it remains there today.          (through the same judge who granted the Government’s
                                                                    tolling motion) granted the defendants’ motion to dismiss.
   Claiming that the evidence it needed to prosecute these          “[T]o be facially sufficient,” the court noted, an indictment
defendants was itself in prison, the United States filed an ex      must “contain each essential element of each offense
parte motion in federal district court on December 9, 1998, to      charged,” must “provide notice to the defendant of the
toll the limitations period for these alleged criminal offenses.    charges against him” and must provide “information
Under the mail fraud, RICO and anti-smuggling statutes, a           sufficient to protect the defendant against double jeopardy.”
five-year limitations period generally governs criminal             JA 500–01. At the same time, the court added, an indictment
allegations under these provisions. See 18 U.S.C. § 3282(a).        need not “negate defensive matters . . . nor . . . anticipate
But a separate federal statute permits the Government “before       affirmative defenses.” JA 501. Recognizing that one might
return of an indictment” to file an application “indicating that    naturally think of the statute of limitations as a “defense” that
No. 03-5829          United States v. Titterington, et al.    5    6     United States v. Titterington, et al.        No. 03-5829

falls outside of the pleading requirements for a facially valid    amend. V, and the defendant “shall enjoy the right . . . to be
indictment, the district court nonetheless concluded that “the     informed of the nature and cause of the accusation,” U.S.
statute of limitations cannot be construed as a mere               Const. amend. VI. Consistent with these constitutional
affirmative defense or defensive matter” because in this           commands, Rule 7(c)(1) of the Federal Rules of Criminal
Circuit the statute-of-limitations argument may be made for        Procedure says that an “indictment or information must be a
the first time on appeal. See United States v. Crossley, 224       plain, concise, and definite written statement of the essential
F.3d 847, 858 (6th Cir. 2000). Construing the statute of           facts constituting the offense charged.” An indictment
limitations as a “jurisdictional bar” and finding no allegation    complies with all of these requirements, the Supreme Court
in the indictment that the crimes occurred within the              has held, if it (1) “contains the elements of the offense
limitations period or that the limitations period had been         charged,” (2) “fairly informs a defendant of the charge against
tolled, the court held that it lacked “jurisdiction over this      which he must defend” and (3) “enables him to plead an
matter” and that “the indictment must be dismissed.” JA            acquittal or conviction in bar of future prosecutions for the
501–02. The Government appealed.                                   same offense.” Hamling v. United States, 418 U.S. 87, 117
                                                                   (1974).
                              II.
                                                                      While an indictment must satisfy these three notice-related
                              A.                                   requirements, “[i]t has never been thought that an indictment,
                                                                   in order to be sufficient, need anticipate affirmative defenses.”
  The appropriate standard for reviewing a district court’s        United States v. Sisson, 399 U.S. 267, 288 (1970). “[A]n
decision whether to dismiss an indictment is not entirely          indictment . . . founded on a general provision defining the
clear. As the parties observe, we have treated the issue           elements of an offense . . . need not negative the matter of an
differently at different times, in some cases describing our       exception made by a proviso or other distinct clause . . . . [I]t
task as abuse-of-discretion review, in other cases describing      is incumbent on one who relies on such an exception to set it
our task as de-novo review. Compare, e.g., United States v.        up and establish it.” McKelvey v. United States, 260 U.S.
DeZarn, 157 F.3d 1042, 1046 (6th Cir. 1998) (de novo), with        353, 357 (1922); see Evans v. United States, 153 U.S. 584,
United States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001)      590 (1894) (“Neither in criminal nor in civil pleading is [the
(abuse of discretion). In this case, as in many cases involving    Government] required to anticipate or negative a defense.”).
an allegedly flawed indictment and as the parties themselves
here agree, the distinction does not make a difference, as an         In addition to giving general guidance that the elements of
error of law compels a reversal under either standard of           a criminal charge must be in the indictment while allegations
review. See United States v. Taylor, 286 F.3d 303, 305 (6th        negating the elements of an affirmative defense need not be,
Cir. 2002) (“[A]n erroneous legal determination is always an       the Supreme Court has held that a statute-of-limitations claim
abuse of discretion.”).                                            falls on the affirmative-defense side of the line. In United
                                                                   States v. Cook, 84 U.S. 168 (1872), a grand jury indicted a
                              B.                                   paymaster in the Army under an act of Congress making it a
                                                                   crime to embezzle public funds. A different statute imposed
  In federal court, a criminal defendant “shall [not] be held to   a two-year limitations period on the offense but also provided
answer for a capital, or otherwise infamous crime, unless on       that the limitations period did not “extend to any person or
a presentment or indictment of a Grand Jury,” U.S. Const.          persons fleeing from justice.” Id. at 173. Arguing that “it
No. 03-5829          United States v. Titterington, et al.      7    8    United States v. Titterington, et al.        No. 03-5829

appears on the face of the indictment . . . that the crime           within the exception [to the limitations period].” 84 U.S. at
charged . . . was committed more than two years before the           179–80. Nor, as in Cook, would a “different rule [] apply . . .
indictment,” the paymaster “demurred” to the                         even if the statute of limitations did not contain any
indictment—which is to say, he admitted the allegations in           exception,” id. at 180, as time is not an essential element of a
the indictment, then argued that he could not be convicted           mail-fraud, RICO or smuggling offense. As Cook makes
even if they were true. Id. at 172.                                  clear, the statute of limitations for mail-fraud, RICO and
                                                                     smuggling prosecutions does not impose a pleading
   The Supreme Court rejected the argument, holding that a           requirement on the Government, but merely creates an
defendant may not “by demurrer [] set up the statute of              affirmative defense for the accused.
limitations as a defence” just “because another act of
Congress provides that no person shall be prosecuted, tried,                                          III.
or convicted of the offence unless [] indict[ed] . . . within two
years.” Id. at 178. “Accused persons may avail themselves               Defendants raise several challenges to this conclusion, all
of the statute of limitations by special plea [i.e., by raising an   unconvincing. At oral argument, defendants claimed that
affirmative defense] or by evidence under the general issue          Cook is a relic of common-law pleading and has no
[i.e., by presenting evidence at trial],” the Court explained,       application to the modern Federal Rules of Criminal
“but courts . . . will not quash an indictment because it            Procedure. But to say that Cook does not control because it
appears on its face that it was not found within the                 spoke of “demurrers,” “special pleas” and “evidence under
[limitations] period . . . as such a proceeding would deprive        the general issue” instead of using the up-to-date terminology
the prosecutor of the right to reply or give evidence, as the        of the Federal Rules gives too much credit to linguistic trends
case may be, that the defendant fled from justice and was            and too little credit to the stability of the law. All of these
within the exception [to the limitations period].” Id. at            antiquated terms of course have modern analogues, just as
179–80. Nor would a “different rule [] apply . . . if the statute    today’s terminology is apt one day to have future analogues
of limitations did not contain any exception,” the Court             of its own. In this case, for example, a pretrial motion
continued, because time is not an element of the offense. Id.        alleging a “defect in the indictment” under the Federal Rules,
at 180; see also Biddinger v. Comm’r of Police, 245 U.S. 128,        see Fed. R. Crim. P. 12(b)(3)(B), represents the modern
135 (1917) (“The statute of limitations is a defense and must        equivalent of a “demurrer” because both pleadings serve to
be asserted on the trial by the defendant in criminal cases.”).      attack the facial validity of the indictment. See United States
                                                                     v. Ponto, 454 F.2d 657, 660 (7th Cir. 1971) (“In 1946, the
  More than a century later, Cook remains good law and               Federal Rules of Criminal Procedure abolished the use of
governs the outcome of this dispute. In this case, as in Cook,       common law procedures such as a demurrer and plea in
the statute defining the offenses does not contain a statute of      abatement and substituted in their place the motion to dismiss
limitations, but “another act of Congress” does. As in Cook,         the indictment under Rule 12.”). Because a demurrer and a
that other act sets forth a limitations period, which contains an    motion alleging a defect in the indictment perform the same
exception. And, as in Cook, a court may not dismiss an               core function, Cook’s essential holding—that the statute of
indictment just “because it appears on its face that it was not      limitations concerns an affirmative defense (which need not
found within the [limitations] period” because to do so              be pled), not an element of the offense (which must be
“would deprive the prosecutor of the right to reply or give          pled)—has continuing currency under the Federal Rules. See
evidence, as the case may be, that the defendant . . . was           United States v. Parrino, 203 F.2d 284, 287 (2d Cir. 1953) (L.
No. 03-5829           United States v. Titterington, et al.      9    10    United States v. Titterington, et al.         No. 03-5829

Hand, J.) (“Rule 12(a) abolished all defensive pleadings              time in the proceedings, even initially on appeal,” does not
except ‘not guilty,’ and provided that ‘defenses . . . which          mean that the rules governing the timeliness of a creditor’s
heretofore could have been raised’ by demurrer ‘shall be              objection “have the same import as provisions governing
raised only by motion to dismiss.’ From that it follows that,         subject-matter jurisdiction.” A “critical difference” between
since the question decided in United States v. Cook [] could          subject-matter jurisdiction and the timing rules at issue in
not be raised by demurrer under the old practice, it may not          Kontrick, the Court explained, is that the former “cannot be
now be raised by motion to dismiss and, if so, it must be             expanded to account for parties’ litigation conduct” and the
raised by the plea of ‘not guilty.’”).                                latter can be. Id. at 916. Courts “have more than occasionally
                                                                      used the term ‘jurisdictional’ to describe emphatic time
   The defendants next argue that, no matter what Cook says,          prescriptions,” the Court noted, but the label “can be
this Circuit has determined that the statute of limitations           confounding” because such prescriptions do not generally
contained in 18 U.S.C. § 3282 is not merely defensive but is          affect personal or subject-matter jurisdiction. Id. at 915
“jurisdictional,” which supports the district court’s ruling. As      (quotation and citation omitted); see also Scarborough v.
defendants correctly observe, United States v. Crossley, 224          Principi, 124 S. Ct. 1856, 1858 (2004).
F.3d 847, 858 (6th Cir. 2000), held that “absent an explicit
waiver, the statute of limitations [under § 3282] presents a bar        In challenging the district court’s jurisdiction over this
to prosecution that may be raised for the first time on appeal.”      criminal indictment, the defendants make a similar mistake.
Relying on Crossley and echoing the district court’s reliance         The federal courts’ subject-matter jurisdiction to hear federal
on Crossley, defendants argue that the statute of limitations         criminal prosecutions comes from 18 U.S.C. § 3231, which
must be jurisdictional because a defendant may raise it for the       grants “[t]he district courts of the United States . . . original
first time on appeal, which in turn means that the Government         jurisdiction . . . of all offenses against the laws of the United
must plead the statute of limitations in order to vest the            States.” A true jurisdictional problem—say, the Federal
district court with “jurisdiction” over the indictment.               Government prosecutes a defendant for a non-federal
                                                                      crime—cannot be waived or altered by the parties’ conduct
   Crossley does not support this string of inferences. It does       during the proceeding. As mail fraud, RICO and smuggling
not say anything about what an indictment must contain, let           are “offenses against the United States,” however, § 3231
alone mention the Supreme Court’s Cook decision. Nor does             grants the district courts jurisdiction—the power to hear the
it say that a statute of limitations is “jurisdictional.”             case—no matter how much time elapsed between the criminal
                                                                      conduct and the criminal indictment and no matter what the
  Although Crossley says that the statute of limitations may          Government ultimately proves or fails to prove. See United
be raised for the first time on appeal, not every issue that may      States v. Rayborn, 312 F.3d 229, 231 (6th Cir. 2002) (holding
be raised for the first time on appeal is jurisdictional. Just this   that the interstate-commerce requirement of the federal arson
Term, the Supreme Court highlighted the flaw in this                  statute “is not jurisdictional in the sense that it affects a
reasoning. In Kontrick v. Ryan, 124 S. Ct. 906, 915 (2004),           court’s subject-matter jurisdiction, i.e., a court’s constitutional
the Court observed that just because “[a] litigant generally          or statutory power to adjudicate a case”); Hugi v. United
may raise a court’s lack of subject-matter jurisdiction at any        States, 164 F.3d 378, 380 (7th Cir. 1999) (“Subject-matter
time in the same civil action, even initially at the highest          jurisdiction in every federal criminal prosecution comes from
appellate instance,” and just because “a debtor may challenge         18 U.S.C. § 3231, and there can be no doubt that Article III
a creditor’s objection to a discharge as untimely . . . at any        permits Congress to assign federal criminal prosecutions to
No. 03-5829          United States v. Titterington, et al.     11    12    United States v. Titterington, et al.        No. 03-5829

federal courts. That’s the beginning and the end of the              Cotton, “defects in an indictment do not deprive a court of its
‘jurisdictional’ inquiry.”).                                         power to adjudicate a case” and thus are not “jurisdictional.”
                                                                     535 U.S. at 630–31.
   Were the statute of limitations jurisdictional in the sense
that defendants claim, moreover, an individual could not                Neither does Crossley say that because failing to prove
explicitly waive its protection, see United States v. Cotton,        compliance with the statute of limitations establishes a “bar
535 U.S. 625, 630 (2002) (“subject-matter jurisdiction . . . .       to prosecution,” pleading the statute of limitations must be
can never be forfeited or waived”), which Crossley itself says       mandatory (even if it is not jurisdictional). The Double
a defendant can do and which many defendants desire to do.           Jeopardy Clause and the Ex Post Facto Clause also establish
For example: some defendants plead guilty to a time-barred           a bar to criminal prosecution. Yet no case to our knowledge
lesser offense with a shorter limitation period in exchange for      mandates that indictments must allege that the Government
the Government dropping charges on a greater offense with            did not previously prosecute the defendant for the same
a longer limitation period; other defendants request jury            offense or that the defendant completed the crime after
instructions on a time-barred lesser offense to avoid giving         Congress criminalized the conduct. If these constitutional
the jury an all-or-nothing-at-all choice. See Spaziano v.            defenses do not alter the normal rules for pleading crimes, it
Florida, 468 U.S. 447, 454–57 (1984) (suggesting that a              is hard to understand why this statutory defense should do so.
capital defendant has a due process right to a jury instruction
on a time-barred lesser included offense so long as he waives          The Tenth Circuit’s decision in United States v. Gammill,
the statute of limitations for that offense). All of this explains   421 F.2d 185 (1970), does not suggest otherwise. There, the
why the federal courts of appeals that have addressed this           court held that a district court lacked authority to amend an
issue uniformly agree that the statute of limitations provides       indictment that omitted the year in which the alleged crime
an affirmative defense that the defendant may waive. See             took place, without first submitting the new indictment to a
United States v. Soriano-Hernandez, 310 F.3d 1099, 1103–04           grand jury. Id. at 186. Here, in marked contrast, the
(8th Cir. 2002); United States v. Najjar, 283 F.3d 1306, 1309        indictment does mention the year in which the alleged crimes
(11th Cir. 2002); Acevedo-Ramos v. United States, 961 F.2d           took place and that year falls within the eight-year limitations
305, 307 (1st Cir. 1992); United States v. Cooper, 956 F.2d          period (five years plus three years) under 18 U.S.C. §§ 3282
960, 962 (10th Cir. 1992); United States v. Arky, 938 F.2d           & 3292.
579, 581–82 (5th Cir. 1991); United States v. DeTar, 832
F.2d 1110, 1114 (9th Cir. 1987); United States v. Karlin, 785           Even if a run-of-the-mill indictment need not mention the
F.2d 90, 92–93 (3d Cir. 1986); United States v. Meeker, 701          statute of limitations, defendants argue that “tolling” cases are
F.2d 685, 687–88 (7th Cir. 1983); United States v. Walsh, 700        different and require the Government to allege that “the
F.2d 846, 855–56 (2d Cir. 1983); United States v. Williams,          limitations period for this crime was tolled for three years” or
684 F.2d 296, 299–300 (4th Cir. 1982); United States v. Wild,        perhaps that “the prosecution would comply with the statute
551 F.2d 418, 421–25 (D.C. Cir. 1977).                               of limitations as computed under 18 U.S.C. §§ 3282 & 3292.”
                                                                     But the defendants offer no pertinent authority for this
  Had Crossley said what the defendants claim it said—a              proposition and fail to explain why Cook, which itself
court lacks subject-matter jurisdiction if the indictment does       involved an exception to the statute of limitations (for a
not plead the statute of limitations—Crossley no longer              fleeing felon), does not squarely control the outcome of this
would be good law. As the Supreme Court recently held in             case.
No. 03-5829        United States v. Titterington, et al.   13   14   United States v. Titterington, et al.       No. 03-5829

                            IV.                                                   ____________________
  For the foregoing reasons, we reverse the district court’s                        CONCURRENCE
judgment dismissing the indictment and remand the case for                        ____________________
further proceedings consistent with this opinion.
                                                                  DAVID A. NELSON, Circuit Judge, concurring. I fully
                                                                concur in the judgment and in Judge Sutton’s opinion for the
                                                                court. Perhaps it would not be amiss, however, for me to add
                                                                a word on the question of our standard of review, given the
                                                                tension between my unqualified assertion in United States v.
                                                                Powell, 823 F.2d 996, 1001 (6th Cir. 1987), that “[w]e review
                                                                a district court’s refusal to dismiss an indictment only for
                                                                abuse of discretion” and my unqualified concurrence in Judge
                                                                Rosen’s opinion in United States v. DeZarn, 157 F.3d 1042
                                                                (6th Cir. 1998), which asserted that “[t]he sufficiency of the
                                                                indictment is reviewed de novo.” Id at 1046.
                                                                   I suppose a pedant could claim that Powell is not directly
                                                                in point here, the case at bar not being one that gives us
                                                                occasion to “review a district court’s refusal to dismiss an
                                                                indictment . . . .” But were it not for the fact that, as Judge
                                                                Sutton has generously pointed out, “an erroneous legal
                                                                determination is always an abuse of discretion,” see United
                                                                States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002), I would
                                                                be hard pressed to deny that the logic of my statement in
                                                                Powell is at odds with the logic of Judge Rosen’s statement
                                                                in DeZarn. And I am at a loss to know what I could have
                                                                been thinking of when I said what I said in Powell; the Powell
                                                                statement (which I must have expunged from my memory in
                                                                the ensuing decade) now strikes me as wide of the mark,
                                                                while Judge Rosen’s statement in DeZarn strikes me now —
                                                                as it did when I concurred in it — as right on target.
