                                                                        [PUBLISH]

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                 IN THE UNITED STATES COURT OF APPEALS
                                                                           FILED
                           FOR THE ELEVENTH CIRCUIT               U.S. COURT OF APPEALS
                           ___________________________              ELEVENTH CIRCUIT
                                                                        MAR 26, 2001
                                   No. 99-4190                       THOMAS K. KAHN
                                                                          CLERK
                           ___________________________

                         D.C. Docket No. 98-10007-CR-KMM


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                          versus


DAVID RATCLIFF,

                                                                Defendant-Appellant.

                          ____________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                         ____________________________
                                  (March 26, 2001)

Before CARNES and MARCUS, Circuit Judges, and HAND*, District Judge.

CARNES, Circuit Judge:



       *
      Honorable William Brevard Hand, U.S. District Judge for the Southern District of
Alabama, sitting by designation.
      David Ratcliff was convicted of conspiring to import marijuana in violation

of 21 U.S.C. §§ 952(a) and 963, and of conspiring to possess marijuana with the

intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846. His

convictions were based on a superseding indictment which Ratcliff argues should

have been dismissed as barred by the applicable five-year statute of limitations, 18

U.S.C. § 3282. Ratcliff admits that the initial indictment brought against him was

timely, but maintains that it did not toll the statute of limitations with respect to the

superseding indictment, which was brought outside of the limitations period,

because the superseding indictment materially broadened or substantially amended

the initial indictment. We agree.

                                 I. BACKGROUND

                           A. PROCEDURAL HISTORY

      On April 8, 1998, a federal grand jury sitting in the Southern District of

Florida returned a three-count indictment against Ratcliff and co-defendant Albert

Channell. In the indictment, the government charged Ratcliff and Channell with

conspiracies “[b]eginning in or about late 1992, and continuing through April

1993" to import marijuana (Count I), and to possess marijuana with the intent to

distribute it (Count II). The defendants were also charged with attempting to

import marijuana “[o]n or about April 7, 1993” (Count III). Other than the dates of


                                            2
the alleged criminal activity and the allegation that the crimes took place at Key

West, Florida, the indictment was devoid of factual detail.

      Pursuant to the initial indictment, Ratcliff was arrested on April 10, 1998.

At his initial appearance, the Assistant United States Attorney described the

indictment against Ratcliff as follows:

      This defendant is charged in a three-count indictment with narcotics
      offenses for having participated in the attempted smuggling, and
      having conspired to smuggle approximately 3,000 pounds of
      marijuana some five years ago.

The AUSA then went on to describe the alleged attempt to smuggle marijuana

from Jamaica to the Florida Keys in 1993. He made no mention of any efforts by

Ratcliff or anyone else to smuggle drugs into the United States before late 1992.

      Following Ratcliff’s arrest, the government continued its investigation and

learned of Ratcliff’s involvement in several drug smuggling ventures that had

taken place in the 1980s. On August 19, 1998, a grand jury returned a superseding

indictment against Ratcliff and Channell. Count III remained unchanged, still

charging Ratcliff and Channell with attempted importation of marijuana on or

about April 7, 1993. Counts I and II, however, no longer charged the defendants

with two conspiracies occurring in 1992 and 1993, but instead charged Ratcliff

(but not Channell) with two conspiracies “[b]eginning in 1980 and continuing



                                          3
through 1993.” The new Counts I and II charged Ratcliff with violating the same

statutes as the first two counts of the initial indictment had charged.

      After the superseding indictment was handed down in August of 1998,

Ratcliff moved the district court to dismiss it on statute of limitations grounds. He

pointed out that the superseding indictment was returned more than five years after

the alleged criminal actions that it charged, and he argued that the statute of

limitations had not been tolled by the existence of the initial indictment because the

superseding one broadened and substantially amended the two conspiracy counts

of the initial indictment.

      Ratcliff also made a motion for a bill of particulars with respect to the

superseding indictment. In response to that motion, the government identified

fourteen individuals whom it alleged had participated in the conspiracies charged

in Counts I and II of the superseding indictment. Co-defendant Channell was not

included as one of those fourteen co-conspirators, even though he had been

charged with conspiracy in the initial indictment and even though he was charged

with attempted importation of marijuana in Count III of both indictments.

      Before the trial of Ratcliff and Channell started, Ratcliff again argued to the

court that the superseding indictment was untimely and should have been




                                           4
dismissed on statute of limitations grounds. The district court rejected that

argument, again denying Ratcliff’s motion to dismiss.

      On the morning of the second day of trial, Channell agreed to plead guilty to

the misdemeanor offense of attempted possession of marijuana and to testify as a

witness against Ratcliff. That prompted Ratcliff to move for a mistrial because of

Channell’s change of plea and the fact that he would be testifying despite not

having been sequestered. The district court denied Ratcliff’s motion for a mistrial.



      Before the jury was instructed, Ratcliff again brought up the statute of

limitations issue, and he requested that the jury be told that it must find that a

criminal act was committed within five years before the date of the superseding

indictment, instead of within five years before the initial indictment. The district

court again rejected Ratcliff’s position, ruling that the superseding indictment

related back to the initial indictment for statute of limitations purposes. Ratcliff

objected to that jury instruction, and he renewed his objection.

      After more than a day of deliberations, the jury indicated that it was unable

to come to agreement on Count III of the indictment, which charged attempted

importation in April 1993, but that it had reached a unanimous decision on the two

conspiracy counts. The court instructed the jury to complete the verdict form with


                                           5
respect to the first two counts and to return for additional deliberations on Count

III. The jury did so, and eventually reached a verdict on that count as well. The

jury found Ratcliff guilty of both conspiracy counts (Counts I and II), but acquitted

him on Count III, which is the only count in the superseding indictment that had

remained unchanged from the initial indictment.

      During the sentencing hearing, Ratcliff argued to the district court that only

events from 1992-93 should be considered for purposes of the sentencing

guidelines because, he argued, the evidence at trial indicated that the activities

from the 1980s were part of a different conspiracy and prosecution of them was

barred by the statute of limitations. The district court rejected this argument and,

based on the combined amount of drugs involved in all of the drug smuggling

ventures from the 1980s through 1993, sentenced Ratcliff to 210 months of

incarceration, 5 years of supervised release, and a $200 assessment.

                             B. FACTUAL HISTORY

      This case grew out of an investigation of a dead body found in the water off

of Key West in April of 1993. During the sentencing hearing, the government

explained the genesis of the case against Ratcliff as follows:

      This case started out, we indicted in April 1998 only as a result of this
      defendant’s refusal to cooperate in 1993 with Detective Phil Harrold
      of the Monroe County Sheriff’s Office who was conducting a
      homicide investigation due to the discovery of the body of Mark
                                           6
      Cotter at Gulf Stream.

      The detective was conducting not a drug investigation, but a homicide
      investigation, discovered the reasons and wherefores of the death of
      Mark Cotter and the disappearance of the crew member aboard the
      vessel LITTLE JOE. This defendant chose then in 1993 to lie to
      detective Harrold about his knowledge of those events . . . .

While investigating the events surrounding the death of Mark Cotter, law

enforcement authorities uncovered evidence of a plot to smuggle marijuana into

the country from Jamaica in 1993 using a boat named the Little Joe.

      Although the government argues that several earlier drug smuggling

ventures from the 1980s were part of the same conspiracy with the Little Joe

episode in 1992-93, the government clearly was focused only on the Little Joe

incident when the initial indictment was returned. The initial indictment itself

reflects that focus, alleging as it does conspiracies “[b]eginning in or about late

1992, and continuing through April 1993.” Furthermore, an affidavit in support of

a search warrant, signed by the case agent on the same day that the initial

indictment was returned, focuses strictly on the Little Joe incident in 1992 and

1993 in explaining the probable cause for searching Ratcliff’s residence. And

finally, if there were any doubt as to the subject of the initial indictment, it would

be dispelled by the prosecuting attorney’s account, during the sentencing hearing,

of what the initial indictment had covered, or not covered:


                                           7
      We indicted the case in April 1998, some five years [after the
      investigation of the death of Mark Cotter and the surrounding
      circumstances]. Again, Mr. Ratcliff had the opportunity to resolve the
      issues. He was charged with that one count, attempted importation of
      marijuana from Jamaica. He wasn’t charged with what he was
      eventually convicted of on the superseding indictment. He could have
      resolved that one charge then when he was indicted just for the one
      attempted smuggling. Again, he chose not to.

      The case proceeded as cases will. We reindicted when we had
      sufficient evidence through the testimony of Eddie Roberts to include
      all the smuggling ventures of Mr. Ratcliff had involved himself with
      his friends and family from all over Key West for the last 13 years,
      1980 to 1993.

(emphasis added). In those comments, the government admitted that the facts

underlying the conspiracies charged in the initial indictment were not the same as

those underlying the charges on which Ratcliff was convicted.

      The initial indictment covered only one incident of attempted drug

smuggling, but the superseding indictment, and the evidence presented at trial,

went considerably further. While the initial indictment alleged incidents that

occurred from late 1992 through April 1993, a period of only six or seven months,

the superseding indictment charged Ratcliff with participating in conspiracies

spanning 13 years. At trial, the government presented evidence indicating that

Ratcliff became involved in drug-smuggling beginning in 1980. The evidence

showed that the smuggling ventures that occurred in the 1980s were part of a three-

way partnership between Defendant Ratcliff, Eddie Roberts, and the defendant’s

                                         8
brother Frank Ratcliff. Eight government witnesses, including Roberts,1 testified

concerning the smuggling activities which took place between 1980 and 1989.

According to those witnesses, Ratcliff was involved in seven smuggling ventures

during that time period.

       According to the evidence at trial, all but one of the smuggling attempts in

the 1980s were organized and carried out in pretty much the same way.2 Two

people would take an airplane to Jamaica, where they would pick up large

quantities of marijuana. The marijuana would then be dropped from the plane into

a designated spot in the ocean, where it would be picked up by other members of

the conspiracy waiting below in a boat. The marijuana was then brought back to

Key West and divided up among the co-conspirators. With the exception of the

first venture in 1980, which only involved 80-100 pounds of marijuana, most of

other episodes in the 1980s each involved attempts to import approximately 800

pounds of marijuana. The evidence at trial showed that at least fifteen individuals

       1
        In a case not involving Ratcliff, Eddie Roberts was convicted in 1995 of engaging in a
continuing criminal enterprise in violation of 21 U.S.C. § 848, and he was sentenced to 240
months of incarceration. In exchange for his cooperation in this case, the government agreed to
move for a reduction in Roberts’ sentence, and its motion was subsequently granted. Ratcliff
contends that the government’s deal with Roberts was unlawful, and that Ratcliff’s conviction
should be reversed on that basis. Because we find that the conviction is due to be reversed for
other reasons, we do not reach this issue.
       2
         The only operation which did not follow the usual pattern involved the use of a boat
named the Miss Pixie to import approximately 1200 pounds of marijuana from Jamaica in 1985.
The Miss Pixie episode differed from the others in that it involved a larger quantity of drugs and
did not employ the use of an airplane.

                                                9
were co-conspirators in the various drug-smuggling operations in the 1980s. None

of the co-conspirators from the 1980s who testified indicated that Ratcliff had

participated in drug-smuggling after 1989.

      The government’s evidence concerning the 1993 Little Joe venture, the one

clearly covered by the initial indictment, was more limited. The only witnesses to

testify concerning Ratcliff’s involvement in smuggling in 1992 and 1993 were

Philip Beaty and Albert Channell. Channell, Ratcliff’s co-defendant who pleaded

guilty during the trial to a misdemeanor attempted possession charge, testified that

he first discussed smuggling with Ratcliff starting in the middle of 1992. He

related how Ratcliff purchased the Little Joe to use in the venture, and that the boat

was stored at Ratcliff’s house so repairs could be made on it. According to

Channell, Ratcliff arranged to have Jerry Nulisch captain the Little Joe, and the

profits from the venture were to be split among Ratcliff, Frank Ratcliff, Nulisch,

and himself.

      Beaty testified that he had observed the Little Joe at Ratcliff’s house, and

that he saw Ratcliff performing repairs on the boat. Beaty also said that Ratcliff

had informed him the Little Joe would be used to “run a load from Jamaica.”

Beaty testified he wanted to invest in the Little Joe venture, but had not been

permitted to do so. On cross-examination, Beaty admitted that within a week of


                                          10
the discovery of Cotter’s body in 1993, he had written a letter which was

discovered in a trash can at his house by police officers. The letter stated that the

Little Joe venture was one of Beaty’s smuggling ventures and that Beaty had lost a

boat. Beaty said that the statements in the letter were lies written to convince other

individuals with whom he was engaged in drug transactions to pay him money that

they owed him.

      The government also put forward circumstantial evidence concerning the

Little Joe venture. Darlene Gircsis testified she sold the Little Joe to Ratcliff, even

though the title to the boat indicated that Harold Gircsis had sold the boat to

Nulisch. Paul Layman, a Senior Special Agent with the Customs Department,

presented evidence that Ratcliff had traveled on an Air Jamaica flight from Jamaica

to Miami on April 14, 1993, two days after Mark Cotter’s dead body was found in

the ocean. Agent Layman also testified about several photographs seized from

Ratcliff’s home which depicted various scenes in Jamaica, marijuana plants, a

building containing marijuana, and a crashed aircraft engine. Ratcliff appeared in

some of those photographs.

      Frank Ratcliff, the only defense witness, admitted that he and the defendant

had been involved in drug-smuggling throughout the 1980s, but he insisted that

neither of them had been involved in drug smuggling since 1989. Frank further


                                          11
testified that he worked closely with his brother and would have been aware if

Ratcliff had begun smuggling again after 1989. He stated that Ratcliff had

purchased the Little Joe in 1992 in order to fix it up and sell it. Frank Ratcliff

further testified that Channell was supposed to purchase the Little Joe from Ratcliff

to use for fishing. He testified that neither he nor Ratcliff had conspired with

Channell to smuggle drugs on the Little Joe.

      The evidence at trial shows the breadth of the conspiracy charges brought

against Ratcliff. Instead of conspiracies spanning only six or seven months in

1992 and 1993, as charged in the initial indictment, the government sought to

prove Ratcliff’s involvement in drug-smuggling over the course of thirteen years.

Instead of one incident of smuggling, the government presented evidence that

Ratcliff was involved in at least eight drug smuggling ventures (the Little Joe and

seven others). Instead of a conspiracy involving, at most, five individuals, the

government proved that Ratcliff conspired with, at least, fifteen other people.

Instead of a conspiracy involving the attempted importation of 1,500 pounds of

marijuana, the government proved that Ratcliff was involved in the importation or

attempted importation of approximately 6,800 pounds of marijuana.

                                 II. DISCUSSION




                                          12
      The issue before us is a narrow one: whether the superseding indictment

returned in this case materially broadened or substantially amended the two

conspiracy counts (Counts I and II) of the initial indictment. If so, it was untimely

and should be dismissed. The parties agree that the statute of limitations applicable

to the charges against Ratcliff is five years, as set out in 18 U.S.C. § 3282. They

also agree that Ratcliff’s proven criminal activity ended, at the latest, by April of

1993; that the initial indictment was returned within the limitations period on April

8, 1998; and that the superseding indictment was returned on August 19, 1998.

The parties part company, however, on the issue of whether the initial indictment

tolled the statute of limitations with respect to the superseding indictment, thereby

making it timely.

      In discussing statutes of limitations, this Court has recognized that “[t]he

purpose of the statutory bar is to protect defendants from ‘having to defend

themselves against charges when the basic facts may have become obscured by the

passage of time . . .’” United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir.

1990) (quoting Toussie v. United States, 397 U.S. 112, 114-15, 90 S. Ct. 858, 860

(1970)). “Statutes of limitations, both criminal and civil, are to be liberally

interpreted in favor of repose.” United States v. Phillips, 843 F.2d 438, 443 (11th

Cir. 1988) (citations omitted). “In the criminal law area, such an interpretation


                                          13
protects the defendants’ right to be free from defending against overly stale

criminal charges.” Id. The policies underlying statutes of limitations are

“grounded in concepts of due process.” United States v. O’Bryant, 998 F.2d 21, 24

(1st Cir. 1993).

      Although “[t]he statutory bar applies to all indictments whether they are

original indictments, superseding indictments or new indictments,” we recognized

in United States v. Italiano, that “[i]n certain circumstances, the filing of an

indictment may serve to toll the statute of limitations for purposes of filing a

superseding or new indictment after the limitations period has expired.” 894 F.2d

1280, 1282 (11th Cir. 1990). We held that:

      A superseding indictment brought after the statute of limitations has
      expired is valid so long as the original indictment is still pending and
      was timely and the superseding indictment does not broaden or
      substantially amend the original charges.

Id. (citations omitted). See also United States v. Edwards, 777 F.2d 644, 649-50

(11th Cir. 1985) (holding that superseding indictment that did not broaden original

indictment was not barred); Phillips, 843 F.2d at 442 n.2 (same). Our sister circuits

that have addressed this issue have reached similar conclusions. See O’Bryant,

998 F.2d at 23 (1st Cir. 1993) (“[A] superseding indictment which supplants a

timely-filed indictment, still pending, is itself to be regarded as timely vis-a-vis a

given defendant so long as it neither materially broadens nor substantially amends

                                           14
the charges against the defendant.”); United States v. Smith, 197 F.3d 225, 228-29

(6th Cir. 1999) (same); United States v. Schmick, 904 F.2d 936, 940-41 (5th Cir.

1990) (same); United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990) (same);

United States v. Jones, 816 F.2d 1483, 1487 (10th Cir. 1987) (same); United States

v. Friedman, 649 F.2d 199, 203-04 (3d Cir. 1981) (same); United States v. Grady,

544 F.2d 598, 601-02 (2d Cir. 1976) (same).

      Given our precedent, the result in this case turns on whether the superseding

indictment against Ratcliff “broaden[ed] or substantially amend[ed] the original

charges.” Italiano, 894 F.2d at 1282 (citations omitted). In making this

determination, we are guided by Italiano’s discussion of the policy considerations

underlying the statute of limitations:

      Notice to the defendant is the central policy underlying the statutes of
      limitation. If the allegations and charges are substantially the same in
      the old and new indictments, the assumption is that the defendant has
      been placed on notice of the charges against him. That is, he knows
      that he will be called to account for certain activities and should
      prepare a defense.

Id. at 1283. See also Smith, 197 F.3d at 229 (“Notice to the defendants of the

charges, so that they can adequately prepare their defense, is the touchstone in

determining whether a superseding indictment has broadened the original

indictment.”). In determining whether a defendant had notice of the charges

against him, we do not confine our inquiry to the statutes under which the

                                         15
defendant was charged. “For purposes of the statute of limitations, the ‘charges’ in

the superseding indictment are defined not simply by the statute under which the

defendant is indicted, but also by the factual allegations that the government relies

on to show a violation of the statute.” Italiano, 894 F.2d at 1282. Indeed, as we

explained in Italiano, “the crucial inquiry is whether approximately the same facts

were used as the basis of both indictments.” Id. at 1285.

      When we compare the facts underlying the initial and the superseding

indictments in this case, we readily conclude that the superseding indictment

materially broadened or substantially amended the two conspiracy charges (Counts

I and II). As we have already discussed, the differences in scope between the

conspiracy charges in the initial and in the superseding indictments are dramatic.

The most obvious difference, and the primary one appearing on the face of the

indictments, is the change in the time period of the alleged conspiracies -- a change

which expanded the length of the conspiracies by at least twelve years. The

superseding indictment required Ratcliff to defend himself against a conspiracy

involving at least eight separate smuggling ventures with fifteen or more co-

conspirators, instead of just the one episode with five co-conspirators charged in

the initial indictment. The combined object of the various activities encompassed

by the superseding indictment was the importation of approximately 6,800 pounds


                                          16
of marijuana, while the (unsuccessful) activity encompassed in the initial

indictment involved, at most, 1,500 pounds of marijuana.

      This is not a case in which “the superseding indictment contains slightly

more detail in terms of overt acts.” O’Bryant, 998 F.2d at 24 (holding that

superseding indictment’s inclusion of additional details concerning overt acts

involved in conspiracy did not materially broaden or substantially amend charges).

Instead, the amended charges contained in the superseding indictment substantially

broadened the scope of the charged conspiracies and dramatically altered the case

against which Ratcliff had to defend himself. The government itself acknowledged

this fact when it conceded at the sentencing hearing that:

      We indicted the case in April 1998 . . . . [Ratcliff] was charged with
      that one count, attempted importation of marijuana from Jamaica. He
      wasn’t charged with what he was eventually convicted of on the
      superseding indictment.

(emphasis added). That concession, and the facts which compel it, defeats the

government’s position.

      Not willing to admit defeat, the government puts forward arguments that the

changes made by the superseding indictment were immaterial. First, it argues that

the initial indictment provided Ratcliff with sufficient notice of the charges on

which he was convicted. We disagree. Although the initial indictment put Ratcliff

on notice of the statutes under which he was to be convicted, nothing in the initial
                                          17
indictment indicated to Ratcliff that he might have to defend against the two broad,

multi-year conspiracy charges on which he was eventually convicted. To the

contrary, the only factual allegations in the initial indictment clearly informed

Ratcliff that the conspiracies with which he was charged began “in or about late

1992, and continu[ed] through April 1993." We do not believe that the initial

indictment provided Ratcliff with notice that he was actually charged with a

thirteen-year-long conspiracy (or two) involving numerous transactions that had

occurred long before the dates alleged in that indictment.

      We find equally unavailing the government’s argument that the charges were

not broadened because there was a “continuity of object” between the charges, i.e.,

all conspiracy charges involved the attempted importation of marijuana, and a

continuity of participants between the charged conspiracies. While such

considerations are relevant to deciding whether charges have been materially

broadened or substantially amended, they are not determinative in this case. As for

the continuity of object between the charged conspiracies, we do not agree that

once a single drug-smuggling conspiracy is charged, the government is free to

come back and argue that the charge encompasses all other drug conspiracies –

regardless of the underlying facts or relation to the original charge – simply

because the “object” of the conspiracies is the same. In Italiano, we made clear


                                          18
that we do not concern ourselves with the formalities of charges such as the

statutes involved or the “objectives of [a] scheme.” Italiano, 894 F.2d at 1285.

“[T]he crucial inquiry,” we explained, “is whether approximately the same facts

were used as the basis of both indictments.” Id. In that case, the defendant

“implie[d] that the object of the scheme determine[d] the nature of the facts

underlying the scheme,” and we disagreed. Id.

      Similarly, the continuity of participants does not persuade us that the

changes to the conspiracy counts against Ratcliff were immaterial or insubstantial.

The government contended at oral argument that there was substantial overlap of

participants between the drug-smuggling transactions of the 1980s charged in the

superseding indictment and the Little Joe episode in 1992-93, which was charged

in the initial indictment. It stated that Nulisch, Frank Ratcliff, Danny Bosco, and

Philip Beaty (none of whom were charged in either indictment) were all involved

during both time periods. The degree of overlap in co-conspirators is not as

substantial as the government suggests, however. Of the seven ventures from the

1980s, the evidence showed that Nulisch (the captain of the Little Joe), was

involved in only one (as captain of the Miss Pixie in 1985). As for Frank Ratcliff,

the government admitted that it had no knowledge of his involvement in the Little

Joe venture (the one covered by the initial indictment) prior to Channell’s


                                         19
testimony at trial implicating him. The extent of Bosco’s alleged involvement in

the Little Joe venture is his notarization of the sale documents related to the boat,

which the government alleged were falsified in order to protect Ratcliff. Finally,

the only evidence concerning Beaty indicates that, although he expressed interest

in participating in the Little Joe venture, he was not permitted to do so.

      The alleged involvement of these individuals in the smuggling activities

from both the 1980s and from 1993 does not defeat Ratcliff’s statute of limitations

argument. There was some overlap of participants between the conspiracies

charged in the initial and superseding indictments, but that does not mean that the

conspiracy counts were not materially broadened or substantially amended by the

superseding indictment, which is the dispositive issue. Even going beyond the

evidence and assuming that all of those individuals were intimately involved in

smuggling drugs with Ratcliff from 1980 through 1993, that does not change the

fact that the conspiracies for which Ratcliff was convicted had a much broader

scope than did the charges in the initial indictment.

      Next, the government argues that the notice concern underlying the statute

of limitations was satisfied by the pre-trial discovery that took place in this case.

Pre-trial discovery conducted after the limitations period has run does not affect the

statute of limitation analysis.


                                           20
      Finally, the government argues that Ratcliff was not prejudiced by the

superseding indictment because the evidence of his smuggling activities from the

1980s would have been admissible, pursuant to Rule 404(b) of the Federal Rules of

Evidence, even if the charges had been limited to the Little Joe venture charged in

the initial indictment. Here again, the government’s argument improperly

discounts the policies underlying statutes of limitations. Statutes of limitations are

not rules of evidence. Instead, they exist in order “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,” and “to protect

individuals 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, 114-15, 90 S. Ct. 858, 860 (1970). It is one thing to be faced with

evidence of criminal activity for which one cannot be convicted, and quite another

to face conviction and punishment for that activity. But for the superseding

indictment, Ratcliff could not have been convicted of a crime involving his drug-

smuggling activities in the 1980s. Because of the superseding indictment, he was

convicted and sentenced to over seventeen years in prison based in large part on




                                          21
those activities. That result was not permissible in light of the statute of

limitations, 18 U.S.C. § 3282.3

                                    III. CONCLUSION

       This is one of those frustrating cases in which an indictment charged a

defendant with serious crimes which, for the most part, he admits having

committed, but for which he cannot be punished in light of our holding. “If the

guilty go free, that is regrettable.” United States v. Chica, 14 F.3d 1527, 1533

(11th Cir. 1994). But it would be more regrettable if we failed to follow the law

and permitted Ratcliff to be punished for conspiracies charged against him in an

indictment returned outside of the statute of limitations period. See Allen v.

Thomas, 161 F.3d 667, 673 (11th Cir. 1998) (“Under our system of justice,

however, even those who have committed horrible crimes are entitled to the benefit

of the law. The defining characteristic of our rule of law is that it applies to those

who are evil as well as those who are saintly, to criminals as well as the

law-abiding, to murderers, kidnappers, and robbers, as well as the rest of us.”).

       Because we find that the superseding indictment against Ratcliff was

returned outside of the limitations period and because we conclude that it

       3
         Ratcliff also argues on appeal that the his sentence violated Apprendi v. New Jersey, ___
U.S. ____, 120 S. Ct. 2348 (2000), and that the district court improperly instructed the jury to
return a partial verdict and to continue deliberating on the remaining count. Because we reverse
on the basis of the statute of limitations, we do not reach these issues.

                                               22
materially broadened and substantially amended Counts I and II of the initial

indictment, we VACATE the judgment against Ratcliff, REVERSE the district

court’s denial of Ratcliff’s motion to dismiss, and REMAND with instructions for

the district court to dismiss Counts I and II of the superseding indictment.4




       4
          Because Ratcliff was acquitted on Count III of the superseding indictment, and because
that count is identical to the same count of the initial indictment, he may not be tried on Count III
of the initial indictment. As to whether Ratcliff may now be tried on Counts I and II of the
initial indictment, neither side has briefed that issue. Accordingly, we leave that issue to the
district court in the first instance on remand and imply no view concerning it.

                                                 23
