                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-4255
                                    ___________

United States of America,               *
                                        *
             Plaintiff - Appellee,      *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * Western District of Missouri.
Patricia A. Grimmett,                   *
                                        *
             Defendant - Appellant.     *
                                   ___________

                              Submitted: May 13, 1998
                                  Filed: August 5, 1998
                                   ___________

Before BEAM, LOKEN, and MURPHY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

      Patricia A. Grimmett pled guilty to one count of conspiracy to distribute
marijuana in violation of 21 U.S.C. § 846, conditioned on her right to appeal the denial
of her pretrial motion to dismiss based on the statute of limitations. She argues on
appeal that she withdrew from the conspiracy more than five years before the
indictment and that the district court erred by denying her motion to dismiss the drug
charge as time barred and by not holding an evidentiary hearing on the issue. She also
seeks in the alternative to appeal the failure to apply the safety valve provisions, 18
U.S.C. § 3553(f) and USSG § 5C1.2, to reduce her sentence. We remand for further
proceedings on the statute of limitations issue.
       Grimmett pled guilty to participating in the conspiracy by keeping records for her
boyfriend, Elmont Kerns, who supplied drugs for the conspiracy. She also admitted
receiving drugs for Kerns once and helping him count drug proceeds on another
occasion. Grimmett says her involvement in the conspiracy ended immediately after
Kerns was killed on June 27, 1989 on orders of Dennis Moore, Sr., who was in charge
of drug distribution for the conspiracy and who owed a debt to Kerns. After the
murder, Grimmett went to the police and informed them about the drug activities and
led them to locations where drug money and records were found. A few years later,
she was interviewed by agents from the Drug Enforcement Administration about Kerns’
drug dealings.

       Grimmett was charged in the superseding indictment with one count of
conspiracy to distribute marijuana in a conspiracy beginning in January 1980 and
continuing until November 14, 1994. She failed to appear for a hearing on her bond,
and a warrant issued. She was arrested in Florida on December 27, 1996, waived a
removal hearing, and was returned to Missouri. She subsequently moved to dismiss
the indictment against her on the ground that it was barred by the five year statute of
limitations for noncapital offenses. See 18 U.S.C. § 3282.

      The motion to dismiss was based on her contention that the five year limitations
period had expired before the issuance of the indictment on November 14, 1994,
because the period had started to run when she withdrew from the conspiracy after
Kerns was murdered on June 27, 1989. She requested an evidentiary hearing on her
statute of limitations claim, but her motion was denied without one. The magistrate
judge reasoned that withdrawal is not an available defense to a drug conspiracy charge
under 21 U.S.C. § 846, which does not require proof of an overt act, and that the
indictment alleged a conspiracy that continued into the limitations period. He also
noted that a defense of withdrawal is considered “a fact question for the jury to decide
in the context of the entire case rather than on a pretrial motion.” He did not discuss
any distinction between withdrawal as a bar to prosecution under the statute of

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limitations and withdrawal as a substantive defense to a conspiracy charge. The district
court adopted the report and recommendation of the magistrate judge and denied the
motion to dismiss without any findings of fact or additional legal discussion related to
the statute of limitations issue.

      After denial of the motion to dismiss, a plea agreement was negotiated and
Grimmett pled guilty to failure to appear, 18 U.S.C. § 3146, and to conspiracy, 21
U.S.C. § 846, conditioned on her right to appeal the denial of her motion to dismiss
based on the statute of limitations. The agreement concerning the plea to the drug
conspiracy provided in part:

      The defendant agrees that this Court has jurisdiction and authority to
      impose any sentence up to the statutory maximum established for the
      offense and expressly waives the right to appeal her sentence, directly or
      collaterally, on any ground except for an upward departure by the
      sentencing judge, a sentence in excess of the statutory maximum or a
      sentence in violation of law apart from the sentencing guidelines.

At the sentencing hearing, Grimmett asked the court to apply the safety valve
provisions in the Mandatory Minimum Sentencing Reform Act, see 18 U.S.C. §
3553(f), and in the sentencing guidelines, see USSG § 5C1.2, which permit a sentence
below the statutory minimum if the defendant meets certain criteria. The district court
ruled that Grimmett did not satisfy the required criterion that the offense not have
resulted in death or serious bodily injury to any person because of Kerns’ murder by
coconspirators. See USSG § 5C1.2(3). Grimmett was sentenced to 120 months for the
drug conspiracy, the statutory minimum, and one consecutive month for the failure to
appear.

       The main focus of Grimmett’s appeal relates to the statute of limitations, but she
also seeks to appeal the length of her sentence. Grimmett claims that the district court
erred in considering only the time period alleged in the conspiracy count instead of


                                          -3-
whether she withdrew from the conspiracy more than five years before the date the
indictment was returned. She argues that when a coconspirator withdraws from a
continuing conspiracy, the statute of limitations begins to run as to that coconspirator
on the date of withdrawal and that she is entitled to an evidentiary hearing to show the
date of her withdrawal. She also contends that the district court erred by not giving her
the benefit of the safety valve sentencing option since Kerns’ death was neither caused
by nor reasonably foreseeable to her.1

       The government responds that the motion to dismiss was properly denied
because the indictment was valid on its face, that withdrawal is an affirmative defense
that must be raised at trial, and that a withdrawal defense is not available for drug
conspiracy charges. As to the sentencing issue, the government maintains that
Grimmett waived her right in the plea agreement to appeal an issue such as the
applicability of the safety valve and that she conceded at her sentencing hearing that
she could not overcome the qualifying requirement that no death or serious bodily
injury have resulted from the conspiracy.2 Grimmett replies that she did not concede
the safety valve issue or waive it in her plea agreement which preserved her right to
appeal a “violation of law apart from the sentencing guidelines.”



       1
        Grimmett bases her foreseeability argument on the commentary to USSG §
5C1.2(3). The commentary states that “offense” refers to “the offense of conviction
and all relevant conduct,” see USSG § 5C1.2, comment. (n.3), and relevant conduct is
defined in USSG § 1B1.3(a) in part as “all acts . . . willfully caused by the defendant”
and “all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.”
       2
          The hearing transcript reveals the following. In response to the court’s question,
“how do you get around what the third subsection of 5C1.2 says?” Grimmett’s counsel
said “Can’t, Your Honor.” The court replied: “I know. But from the evidence I heard
during the trial and based on the information that’s in the presentence investigation
report . . . the death of Elmont Kerns was one very regrettable result of the conspiracy
. . . . [S]o I do not believe that 5C1.2 applies.” Sentencing Hearing Transcript at 19-20.

                                            -4-
        The denial of a motion to dismiss an indictment on statute of limitations grounds
is reviewed de novo. See United States v. Dolan, 120 F.3d 856, 864 (8th Cir. 1997).
The general rule is that an individual conspirator can commence the running of the
statute of limitations as to that individual by affirmatively withdrawing from the
conspiracy. See United States v. Antar, 53 F.3d 568, 582 (3d Cir. 1995); United States
v. Salerno, 868 F.2d 524, 534 n.4 (2d Cir. 1989); In re Corrugated Container Antitrust
Litigation, 662 F.2d 875, 886 (D.C. Cir. 1981). The government cites cases holding
that withdrawal cannot be a defense to a conspiracy charge under a statute like 21
U.S.C. § 846 that does not require proof of an overt act, see United States v. Francis,
916 F.2d 464, 466 (8th Cir. 1990); United States v. Nicoll, 664 F.2d 1308, 1315 (5th
Cir. 1982), but those cases do not deal with a statute of limitations bar. They support
the general rule that a defendant may not raise withdrawal as an affirmative defense to
a conspiracy charge where no overt act is necessary. They do not address withdrawal
as a statute of limitations issue.

        Even where withdrawal is not an available defense to conspiracy, withdrawal can
be a bar to prosecution or conviction if it took the defendant’s participation outside the
limitations period. See United States v. Gornto, 792 F.2d 1028, 1033 (11th Cir. 1986);
see also United States v. Nava-Salazar, 30 F.3d 788, 799 (7th Cir. 1994)
(“[w]ithdrawal does not absolve a defendant from his membership in the conspiracy”
under 21 U.S.C. § 846 but it may be raised “with the defense of statute of limitations”)
(quoting United States v. Read, 658 F.2d 1225, 1232-33 (7th Cir. 1981)). If Grimmett
can show that she affirmatively disavowed the conspiracy more than five years before
the indictment by “making a clean breast to the authorities or by communicating her
withdrawal in a manner reasonably calculated to reach coconspirators,” United States
v. Askew, 958 F.2d 806, 812-13 (8th Cir. 1992), the statute would have run. See
Gornto, 792 F.2d at 1033. The cited cases recognize the distinction between a statute
of limitations challenge based on a withdrawal claim and withdrawal as a substantive
defense to a conspiracy charge; the former may be pursued even when the latter is
unavailable.

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       A statute of limitations bar is generally considered “capable of determination
without the trial of the general issue” and may properly be raised before trial. See Fed.
R. Crim P. 12(b) advisory committee’s note to subdivision (b)(1) and (2); see also
Jaben v. United States, 333 F.2d 535, 538 (8th Cir. 1964). Grimmett is not offering
withdrawal as a defense to the crime of conspiracy, and the issue of potential bar by the
statute of limitations claim does not go to the question of guilt or innocence which is
the general issue for trial. See United States v. Ayarza-Garcia, 819 F.2d 1043, 1048
(11th Cir. 1987); see also United States v. Weller, 401 U.S. 254, 260 (1971) (“special
plea in bar” does not deny that defendant committed the acts alleged or that the acts
were a crime but affirms that prosecution is barred because of an extraneous factor,
such as the statute of limitations). Grimmett’s statute of limitations issue was a proper
subject for a pretrial motion to dismiss under Fed. R. Crim. P. 12(b), and the motion
should not have been denied without fuller consideration.

       It is not possible to determine from the record on appeal whether Grimmett’s
argument that her prosecution is time barred turns on disputed issues of fact. The
government has not disputed Grimmett’s factual contentions about her alleged
withdrawal, and the magistrate judge did not indicate that he had found a factual
dispute in the record, only that the defense of withdrawal is generally a subject for trial.
It may be that the statute of limitations issue can be determined on remand as a matter
of law, but there could be significant issues of fact such as whether Grimmett continued
illegal drug activities or when she went to the authorities. The rules provide that a
court may make findings of fact in order to rule on a pretrial motion, see Fed. R. Crim.
P. 12(g), but if there are factual issues “inevitably bound up with evidence about the
alleged offense itself,” they may need to be deferred to trial. United States v. Wilson,
26 F.3d 142, 159 (D.C. Cir. 1994); see Fed. R. Crim. P. 12(e); United States v.
Williams, 644 F.2d 950, 953 (2d Cir. 1981); United States v. Barletta, 644 F.2d 50, 58
(1st Cir. 1981); see also United States v. Covington, 395 U.S. 57, 60 (1969). Here,
Grimmett gave up her right to a jury trial by pleading guilty so if there were a factual
dispute that could not be resolved by the court and she wished to continue to press the

                                            -6-
statute of limitations issue, she would have to move to vacate her guilty pleas and seek
to proceed to trial on the original charges. It would then be up to the district court to
decide whether such a motion should be granted. For all these reasons the record needs
to be more fully developed, and we remand for that purpose.

       Since the issues raised in the motion to dismiss based on the statute of limitations
were not fully considered, the order of the district court denying the motion is reversed,
the judgment is vacated, and the case is remanded for further proceedings consistent
with this opinion.3

LOKEN, Circuit Judge, dissenting.

      I agree with the major legal premise underlying the court’s decision in this case
-- a conspirator commences the running of the statute of limitations as to her by
affirmatively withdrawing from a conspiracy to distribute drugs in violation of 21
U.S.C. § 846. However, that premise leads the court to reverse only because it
mischaracterizes the district court’s ruling. Therefore, I respectfully dissent.

        Patricia Grimmett filed a motion to dismiss the indictment as time-barred by the
five-year statute of limitations in 18 U.S.C. § 3282. Her motion alleged withdrawal
from the conspiracy after Elmont Kerns was murdered4 and concluded by asking the
district court to “schedule a factual hearing to establish on the record the facts alleged
by movant in support of her motion.” The magistrate judge issued a Report and


      3
        Because of this disposition, it is not necessary to determine Grimmett’s
alternative argument about being entitled to the safety valve at sentencing, but it
appears that she waived this issue in her plea agreement and that she would not qualify
under the required criteria, see 18 U.S.C. § 3553(f)(1)-(5); USSG § 5C1.2(1) -(5).
      4
        For additional background regarding the underlying conspiracy, see United
States v. Moore, No. 97-2603 (8th Cir. Jun. 26, 1998).

                                           -7-
Recommendation suggesting that the motion be denied. The district court adopted the
Report and Recommendation, noting that the court agreed with the magistrate judge’s
conclusions of law. Thereafter, Grimmett entered into a plea agreement, paragraph 3
of which provided: “The defendant reserves the right to appeal the adverse ruling she
received regarding her motion to dismiss indictment based on statute of limitations.”

       The court reverses based on its view that the magistrate judge recommended
denial of Grimmett’s motion because “withdrawal is not an available defense to a drug
conspiracy charge under 21 U.S.C. § 846,” without “fully consider[ing]” the statute of
limitations issue. I conclude that is an unfair characterization of the operative
paragraph of the magistrate judge’s Report and Recommendation:

              The conspiracy statute under which Defendant Grimmett is
      charged, 21 U.S.C. § 846, does not require proof of an overt act. United
      States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995). Thus, the defense
      of withdrawal is unavailable in this case. Furthermore, the issue of
      withdrawal from a conspiracy, even when it is available as a defense, is
      a fact question for the jury to decide in the context of the entire case
      rather than as pretrial motion. United States v. Jimenez, 622 F.2d 753,
      755-56 (5th Cir. 1980). “With respect to conspiracy statutes that do not
      require proof of an overt act, the indictment satisfies the requirements of
      the statute of limitations if the conspiracy is alleged to have continued into
      the limitations period.” United States v. Coia, 719 F.2d 1120, 1124 (11th
      Cir. 1983) (citations omitted), [cert. denied, 466 U.S. 973 (1984).]

(Emphasis added.) A fair reading of that paragraph is that the motion to dismiss was
denied at least in part because it turned upon a disputed issue of fact, Grimmett’s
alleged withdrawal from the conspiracy. Indeed, it is apparent from the district court
record that Grimmett’s counsel so understood it. The magistrate judge’s Memorandum
of Matters Discussed and Action Taken at Pretrial Conference, filed the same day as
his Report and Recommendation, recites that defense counsel announced that at trial
“the defendant will rely on the defenses of statute of limitations and general denial.”

                                           -8-
In other words, defense counsel understood that the magistrate judge’s
recommendation, if adopted by the district court, would not preclude proof of a statute
of limitations/withdrawal defense at trial.

       Viewed in this procedural context, the district court’s denial of Grimmett’s
motion to dismiss was correct. There can be no doubt that withdrawal from a
conspiracy is a fact intensive issue that is submitted to the jury. See United States v.
United States Gypsum Co., 438 U.S. 422, 462-65 (1978); United States v. Gornto, 792
F.2d 1028, 1033 (11th Cir. 1986); Jimenez, 622 F.2d at 755-58. Indeed, there is a split
among the circuits on the question whether withdrawal is an element of the
government’s case because it goes to the issue of membership in the conspiracy, or an
affirmative defense that the defendant must prove. See United States v. MMR Corp.,
907 F.2d 489, 499-500 (5th Cir. 1990), cert. denied, 499 U.S. 936 (1991). If it is an
element of the government’s case -- an issue we need not address -- a defendant
unquestionably has a Fifth and Sixth Amendment right to have it submitted to the jury.
See United States v. Gaudin, 115 S. Ct. 2310 (1995). Thus, it was neither error nor
an abuse of discretion for the district court to deny Grimmett’s request for a pretrial
evidentiary hearing on this issue, and then to deny the motion to dismiss because it
turned on a disputed issue of fact. As the Eleventh Circuit said in United States v.
Coia, 719 F.2d at 1125 (cited by the magistrate judge):

      The district court should approach with delicacy and circumspection the
      question of whether to dismiss a case on the ground that, at trial, the
      proof, as a matter of law, would fail to establish the commission of the
      charged offense within the limitations period.

       In these circumstances, I conclude that Grimmett’s appeal on this issue fails for
two reasons. First, in the plea agreement she reserved only the right to appeal the
district court’s ruling on her motion to dismiss, and that ruling was correct. Second,
further litigation of Grimmett’s claim of withdrawal is foreclosed by her guilty plea,


                                          -9-
which “comprehend[ed] all of the factual and legal elements necessary to sustain a
binding, final judgment of guilt.” United States v. Broce, 488 U.S. 563, 569 (1989).
I further conclude that Grimmett does not qualify for a safety valve sentencing
departure. Accordingly, I would affirm.

      A true copy.

            ATTEST:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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