                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-1998

United States v. Midgley
Precedential or Non-Precedential:

Docket 97-7402




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Filed April 23, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7402

UNITED STATES OF AMERICA,

       Appellant

v.

RAYMOND M. MIDGLEY

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 91-cr-00169)

Argued January 29, 1998

Before: SCIRICA, ROTH and RENDELL, Circuit Judges

(Opinion filed April 23, 1998)

       David M. Barasch
       United States Attorney
       Bruce Brandler (Argued)
       Assistant U.S. Attorney
       U.S. Attorney's Office, Federal
        Building
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108
       Attorneys for Appellant
       James V. Wade, Esquire
       Federal Public Defender
       Daniel I. Siegel, Esquire (Argued)
       Assistant Federal Public Defender
       Middle District of Pennsylvania
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101
       Attorneys for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

The United States appeals from an order entered by the
U.S. District Court for the Middle District of Pennsylvania,
denying a motion to reinstate dismissed counts of an
indictment against the appellee, Raymond Midgley. The
government had dismissed the counts after Midgley pled
guilty to one charge of the indictment pursuant to a plea
agreement. Midgley subsequently made a successful
collateral attack on his conviction. The district court denied
reinstatement of the dismissed counts on the grounds that
the statute of limitations had run. In seeking reversal, the
government asks us to resolve a conflict among our district
courts as to whether dismissed counts of an indictment
may be reinstated under these circumstances. The district
court had jurisdiction under 28 U.S.C. S 2255, and we have
appellate jurisdiction pursuant to 28 U.S.C. S 1291.
Because we find insufficient grounds for withholding
application of the statute of limitations, we will affirm the
order of the district court.

I. FACTS

On September 3, 1991, a federal grand jury returned an
indictment against Raymond Midgley, charging six counts
of controlled substance and firearms violations. Included in
the indictment was a charge that Midgley had used or
carried a firearm during and in relation to a drug trafficking
crime in violation of 18 U.S.C. S 924(c).1 Prior to trial,
_________________________________________________________________

1. An investigation had revealed that Midgley was involved in drug
trafficking, and that he carried firearms during drug sales. During

                               2
Midgley entered into a plea agreement with the government
in which he agreed to plead guilty to the count of violating
S 924(c) in exchange for dismissal of the remaining counts
of the indictment.2 The agreement contained no provision
for waiver of Midgley's statute of limitations defense as to
the counts to be dismissed. Midgley entered his guilty plea
and was sentenced on October 5, 1992, to five years
imprisonment, the statutory minimum. The government
dismissed the remaining counts of the indictment on the
same day. Midgley was incarcerated on October 23, 1992,
and commenced service of his sentence.

On December 6, 1995, the United States Supreme Court
held in Bailey v. United States, 516 U.S. 137 (1995), that in
order to establish that a defendant "used" afirearm within
the meaning of S 924(c), the government must show not
mere possession, but active employment of the firearm by
the defendant. On May 23, 1996, some 5 years and 3
months after commission of his offenses, Midgleyfiled a
motion pursuant to 28 U.S.C. S 2255 to vacate his sentence
in light of Bailey. Although the government conceded that
_________________________________________________________________

execution of a search warrant at his residence, a handgun was found
among drugs and drug paraphernalia. The sixth count of Midgley's
indictment charged a violation of 18 U.S.C. S 924(c)(1), which provides:

       Whoever, during and in relation to any crime of violence or drug
       trafficking crime . . . for which he may be prosecuted in a court
of
       the United States, uses or carries a firearm, shall, in addition to
the
       punishment provided for such crime of violence or drug trafficking
       crime, be sentenced to imprisonment for five years. . . .

2. Count I charged that Midgley distributed heroin on or about December
14, 1990, in violation of 21 U.S.C. S 841(a)(1). Count II charged that
Midgley distributed marijuana on or about February 10, 1991, in
violation of 21 U.S.C. S 841(a)(1). Count III charged that Midgley
distributed L.S.D. on or about February 11, 1991, in violation of 21
U.S.C. S 841(a)(1). Count IV charged that Midgley possessed marijuana
with the intent to distribute on or about February 11, 1991, in violation
of 21 U.S.C. S 841(a)(1). Count V charged that Midgley, a previously
convicted felon, possessed a .38 caliber handgun on or about February
11, 1991, in violation of 18 U.S.C. S 922(g)(1). Count VI, to which
Midgley had pled guilty, charged that he violated 18 U.S.C. S 924(c) by
using and carrying a firearm during and in relation to a drug trafficking
crime on or about February 11, 1991.

                               3
Bailey required Midgley's sentence to be vacated, it
requested that the court reinstate the dismissed counts of
his original indictment. The U.S. District Court for the
Middle District of Pennsylvania, Kosik, J., granted Midgley's
S 2255 motion but refused to reinstate the dismissed
counts. In a Memorandum Opinion dated March 11, 1997,
No. 96-7494, we affirmed the order but stated that the
disposition was "without prejudice to whatever rights the
government may have to pursue in the district court its
application to reinstate the dismissed counts of Midgley's
indictment and without prejudice to Midgley's right to raise
the statute of limitations in opposition to that motion or a
new indictment." On March 21, 1997, the government filed
a motion to reinstate the dismissed counts which the
district court denied on July 31, 1997. The government
now appeals.

II. DISCUSSION

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).

The general federal statute of limitations applies to all
offenses charged in Midgley's indictment. That statute
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.

18 U.S.C. S 3282 (1994). On appeal, the government asks
us to hold that this statute does not prevent reinstatement
of any or all of the five dismissed counts of the original
indictment against Midgley, notwithstanding that more
than five years have elapsed since the commission of the
underlying offenses. The government argues alternatively
that (1) the literal terms of the statute do not apply to
counts which are brought within five years, dismissed, and
then reinstated; (2) the statute should be tolled under
principles of contract law and equity because Midgley
breached the plea agreement; and (3) the statute should be

                               4
tolled as a matter of policy in order to prevent abuse of the
plea bargain process. Whether the statute of limitations
prevents reinstatement of dismissed counts of an
indictment when the defendant's guilty plea conviction is
vacated is a question of first impression before this Court.

Two district judges in the Middle District of Pennsylvania
have addressed this issue prior to the case sub judice, with
contrary results. In United States v. Gaither, 925 F. Supp.
50 (M.D. Pa. 1996) (Rambo, C.J.), the defendant, pursuant
to a written plea agreement, pled guilty in 1990 to violating
S 924(c). In 1996, after the defendant's conviction was
vacated under Bailey, the government sought to reinstate a
dismissed count of the original indictment. Despite
sympathy for the government's position that the defendant
would "reap a windfall" by evading the dismissed charge,
the court maintained that the "overwhelming concern" of
the policy underlying the statute of limitations was
protection of the accused. For this reason, the court
refused to toll the statute. 925 F. Supp. at 53-54. Only
weeks later, however, in United States v. Viera, 931 F.
Supp. 1224 (M.D. Pa. 1996) (Caldwell, J.), another judge in
the same district held on nearly identical facts3 that the
government could reinstate dismissed charges after
expiration of the limitation period where the government
was "not at fault" and "the defendant has upset what the
government reasonably understood to be a final disposition
of a criminal matter." 931 F. Supp. at 1230-31.

Much of the analysis in Gaither was embraced by the
Second Circuit in United States v. Podde, 105 F.3d 813 (2d
Cir. 1997), vacating United States v. Reguer, 901 F. Supp.
525 (E.D.N.Y. 1995). In Podde, nearly nine years after the
alleged misconduct, the defendant's guilty plea conviction
for structuring financial transactions under 31 U.S.C.
S 5313 was reversed. The government then sought to
reinstate dismissed charges of conspiracy and wire fraud.
Podde, 105 F.3d at 815. In vacating a district court order
_________________________________________________________________

3. In Viera, after the defendant's conviction was vacated in light of
Bailey, the government in 1996 requested reinstatement of two
dismissed counts based on acts committed in May of 1990. 931 F. Supp.
at 1226.

                               5
permitting reinstatement, the Second Circuit rejected
arguments similar to those offered by the government here
in favor of the rule that the statute of limitations applies to
counts of an indictment dismissed pursuant to a plea
agreement and that the statute is not tolled following
vitiation of the agreement merely because the government
"acts diligently and without fault." Id. at 819.

A. Applicability of the Statute of Limitations

Section 3282 itself does not indicate whether the
limitation period applies to reinstated counts of an
indictment which was originally "found" within five years.
The government maintains that a district court may simply
vacate the order dismissing the original indictment, at
which point "the indictment becomes pending as though it
had never been dismissed." In this posture, the statute of
limitations would be inapplicable on its face, and the result
that follows would comport with the policy objectives
behind the statute. We disagree with both contentions.

A statute of limitations "limit[s] exposure to criminal
prosecution to a certain fixed period of time following the
occurrence of " criminal acts. Toussie v. United States, 397
U.S. 112, 114 (1970). Limitations are "designed to protect
individuals from having to defend themselves against
charges when the basic facts may have become obscured by
the passage of time and to minimize the danger of official
punishment because of acts in the far-distant past." Id. at
114-15. "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) (emphasis in original).

In order to adhere to this mandate and still determine
that a dismissed indictment is "found" within the meaning
of S 3282, it would be necessary to conclude that a
defendant could never be prejudiced in his defense by the
delay in prosecution that occurs between the times of
dismissal and reinstatement. Yet this proposition is
inherently unsound, because any statute of limitations
incorporates an "irrebuttable presumption" that, beyond

                               6
the period of limitation, "a defendant's right to a fair trial
would be prejudiced." United States v. Marion, 404 U.S.
307, 322 (1971). Absent a statute of limitations, an
indefinite suspension of prosecution impairs a defendant's
constitutional rights and prolongs the defendant's "anxiety
and concern" over the pending charges. See Klopfer v. North
Carolina, 386 U.S. 213, 222 (1966) (holding State's nolle
prosequi procedure to be an unconstitutional violation of
right to speedy trial where statute of limitations was tolled
during pendency).

Other circuit courts faced with this issue have held that
the terms of S 3282 do apply to dismissed counts of an
indictment which was brought within the limitation period.
Podde, 105 F.3d at 818 (holding that "the statute of
limitations begins to run again once an indictment is
dismissed"); United States v. Davis, 487 F.2d 112, 118 (5th
Cir. 1973) (applying Klopfer, and holding that dismissal of
criminal charges "does not impair the protection afforded
by the statute of limitations," which is a defendant's
"primary protection" against prosecutorial delay). We agree
that, for purposes of S 3282, counts of an indictment do not
survive a dismissal. We therefore reject the government's
position that the statute does not apply to reinstatement of
dismissed counts.

This conclusion is particularly compelling when we
examine the policy goals served by a statute of limitations.
The government argues that reinstatement of the dismissed
counts would be faithful to the policy concerns underlying
the statute because (1) the initial indictment against
Midgley fulfilled the objective of providing notice to the
defendant, (2) no concerns of prosecutorial unfairness or
dilatory conduct are implicated, and (3) any remaining
concerns involving protection of the defendant do not apply
where the defendant "created the problem."4
_________________________________________________________________

4. Bailey was decided in December of 1995, approximately three months
prior to the expiration of the limitation period applicable to Midgley's
dismissed counts. The government suggests that it is no coincidence that
Midgley delayed filing his S 2255 petition until May of 1996, three
months after the limitation period had run. We express no opinion as to
whether Midgley's delay "created the problem" here.

                               7
The government is correct that giving notice to the
defendant and discouraging prosecutorial delay are both
important policies served by a statute of limitations. We do
not disagree that those goals would still be fulfilled were
reinstatement of the dismissed charges permitted here. Yet
in terms of policy, our primary focus must be upon the
defendant. While the Supreme Court stated in Toussie that
"several considerations" formed the policy basis of a statute
of limitations, it explained first that the limitation protects
the accused "from having to defend themselves against
charges when the basic facts may have become obscured by
the passage of time," and added that the time limit "may
also have the salutary effect of encouraging law
enforcement officials promptly to investigate suspected
criminal activity." Toussie, 397 U.S. at 114-15 (internal
quotations and citations omitted) (emphasis added).

Following Toussie, the Court instructed us in Marion that

       the 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 justice; they are made for
       the repose of society and the protection of those who
       may during the limitation have lost their means of
       defence.

Marion, 404 U.S. at 322 (internal quotations, citations,
brackets, ellipses and footnotes omitted).

In evaluating Toussie and Marion, the Second Circuit
concluded that the statute of limitations "exists primarily to
protect the rights of the defendant," and the fact that a
defendant's guilty plea conviction was later vacated by a
Supreme Court decision "in no way affects the fact that his
defense to the original charges may have been jeopardized
by the passage of time." 105 F.3d at 819-20. We agree that
the primary purpose of the statute of limitations is to
protect the ability of the accused to present an effective
defense to the charges against him. Consequently, applying

                               8
the terms of S 3282 to dismissed counts of an indictment
best fulfills that objective.5

B. Tolling

The government next argues that, even if the statute of
limitations applies to reinstated counts, the statute should
be tolled because Midgley breached his plea bargain
agreement. In exchange for Midgley's guilty plea to one
charge, the United States dismissed the five other charges
it now seeks to reinstate. According to the government, by
successfully moving to vacate his guilty plea conviction,
Midgley has "revoked his acceptance" of the plea agreement
and the government should be free to withdraw its part of
the bargain. See United States v. Reguer, 901 F. Supp. 525,
529 (E.D.N.Y. 1995), vacated, United States v. Podde, 105
F.3d 813 (2d Cir. 1997). The government thus seeks an
equitable restoration of the parties to the status quo ante by
a tolling of the statute of limitations from the time of the
dismissal order.

We have observed that criminal statutes of limitations are
subject to tolling, suspension, and waiver. United States v.
Levine, 658 F.2d 113, 119-121 (3d Cir. 1981). Equitable
tolling of a statute of limitations may apply where a
complaint succeeds a filing deadline through either the
complainant's benign mistake or an adversary's
misconduct. Irwin v. Department of Veterans Affairs, 498
U.S. 89, 96 (1990). "[E]quitable tolling may be appropriate
if (1) the defendant has actively misled the plaintiff, (2) if
the plaintiff has "in some extraordinary way" been
prevented from asserting his rights, or (3) if the plaintiff has
timely asserted his rights mistakenly in the wrong forum."
Kocian v. Getty Refining & Marketing Co., 707 F.2d 748,
753 (3d Cir. 1983) (citations omitted). Although the doctrine
of equitable tolling is most typically applied to limitation
periods on civil actions, see Irwin, 498 U.S. at 95, "there is
no reason to distinguish between the rights protected by
_________________________________________________________________

5. Because we hold that the dismissed counts may not be reinstated, we
need not reach the issue of whether facts admitted to by Midgley in his
guilty plea to Count VI might constitute admissions as to elements of
these other offenses.

                               9
criminal and civil statutes of limitations." Powers v.
Southland Corp., 4 F.3d 223, 233 (3d Cir. 1993).

Federal courts invoke the doctrine of equitable tolling
"only sparingly," and will not toll a statute because of "what
is at best a garden variety claim of excusable neglect" on
the part of the defendant. Irwin, 498 U.S. at 96. Absent a
showing of intentional inducement or trickery by the
defendant, a statute of limitations should be tolled only in
the "rare situation where equitable tolling is demanded by
sound legal principles as well as the interests of justice."
Alvarez-Machain v. United States, 96 F.3d 1246, 1251 (9th
Cir. 1996) (tolling two-year limitation period for actions
against the U.S. under the Federal Tort Claims Act where
the plaintiff, a foreign national, had been incarcerated in
the U.S. for over two years); Lewis v. United States, 985 F.
Supp. 654, 657 (S.D. W. Va. 1997) (finding circumstances
"sufficiently extraordinary" to warrant equitable tolling of
new one-year statute of limitations for relief under 28
U.S.C. S 2255 where information charging defendant was
"negligently and carelessly prepared" and the government
delayed other remedial action). Thus, the government's
tolling argument here depends on a finding that Midgley's
"breach" of the plea agreement, if indeed it can be so
characterized, prevented the government in an
"extraordinary way" from exercising its right to prosecute
him on the dismissed counts.

In our consideration of tolling, we find it unnecessary to
engage, as other courts have, in an analysis of the
defendant's conduct under contract principles. See, e.g.,
Podde, 105 F.3d at 820 (finding defendant certainly voided,
and may well have breached, the plea agreement, yet
remaining "suspicious of the application of contract law
doctrine in favor of the prosecution"); United States v.
Anderson, 514 F.2d 583, 587 (7th Cir. 1975) (finding
vacated conviction removed "condition precedent" to
government's agreement not to prosecute on dismissed
charges); Gaither, 926 F. Supp. at 51-52 (finding
defendant's successful collateral attack on sentence more
analogous to a discharge of performance by supervening
impracticability). A party aggrieved by a breach of contract
is not entitled per se to relief from a statutory limitation

                               10
period. Even assuming that Midgley "breached" his
agreement here, equitable tolling is appropriate only if the
breach constituted an "extraordinary" interference with the
government's ability to assert its rights.

Midgley alone did not create the situation of which the
government complains. Had it not been for the Supreme
Court's decision in Bailey, he would have had no
opportunity to "breach" his plea agreement while avoiding
prosecution on the remaining charges. While the
government makes much of Midgley's three month delay in
filing his S 2255 petition, we cannot say that Midgley did
not simply take advantage of a serendipitous circumstance
created by others. Although Midgley may in fact have
frustrated the government's purpose, he did not solely by
his own design contrive a "rare situation where equitable
tolling is demanded by sound legal principles."

Moreover, our conclusion here does not depend upon an
evaluation of the relative equity or good faith exhibited by
the parties. Congress has the authority to make a"good
faith" exception to S 3282, yet has declined to do so. See
Podde, 105 F.3d at 820; Gaither, 926 F. Supp. at 54. While
the government has pursued its rights here with diligence
and good faith, it is not entitled to equitable tolling of the
statute of limitations merely because it is without fault.

C. Potential for Abuse

Lastly, the United States contends that if we fail to create
an exception to the statute under the circumstances of this
case, defendants will be encouraged to "sit on their rights
until the statute has expired on the remaining charges,"
thus encouraging "gamesmanship of a most offensive
nature."6 Although it stops short of accusing Midgley
himself of bad faith, the government maintains that Midgley
"created the statute of limitations problem" here by delaying
the filing of his S 2255 motion until after the expiration of
_________________________________________________________________

6. The government borrows this phrase from United States ex rel.
Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), where it was held that
reinstatement of an indictment should be permitted during the
limitations period.

                                11
the five-year period. The government urges that the inequity
of Midgley's tactics, compared to its own diligence in
prosecution, warrants tolling of the statute from at least the
date of the Bailey decision. While we agree that the
government has not been at all dilatory and that Midgley
has in fact upset what the government "reasonably
understood to be a final disposition of the matter," we
nonetheless decline to fashion a tolling rule on this basis.

First, as the Podde court observed, the government may
seek to include a clause in future plea agreements whereby
the defendant waives the statute of limitations defense as to
dismissed counts if the defendant withdraws or challenges
the guilty plea after the limitations period on the original
charges has expired.7 Podde, 105 F.3d at 821. The
government may also in the future negotiate a guilty plea to
more than one count. Moreover, the "potential for abuse"
complained of here is now substantially reduced because of
a recent statutory amendment imposing a limitation period
for petitions brought under 28 U.S.C. S 2255.8 Because a
_________________________________________________________________

7. See Levine, 658 F.2d at 120-21 ("It is also possible for a defendant
knowingly and intelligently to waive the statute of limitations, thus
sanctioning a later indictment which, absent such a waiver, would be
untimely"); United States v. Meeker, 701 F.2d 685, 688 (7th Cir. 1983)
("The purposes of a time bar are not offended by a knowing and
voluntary waiver of the defense by the defendant"). The validity of such
waivers is not, however, a question before us, and we will not, therefore,
decide it.

8. The Antiterrorism and Effective Death Penalty Act of 1996 adds the
following to 28 U.S.C. S 2255:

       A 1-year period of limitation shall apply to a motion under this
       section. The limitation period shall run from the latest of --

       (1) the date on which the judgment of conviction becomes final;

       (2) the date on which the impediment to making a motion created
       by governmental action in violation of the Constitution or laws of
the
       United States is removed, if the movant was prevented from making
       a motion by such governmental action;

       (3) the date on which the right asserted was initially recognized
by
       the Supreme Court, if that right has been newly recognized by the
       Supreme Court and made retroactively applicable to cases on
       collateral review; or

                               12
habeas petition must now be filed not later than one year
after an intervening change in the law, it is only when less
than one year remains of the limitation period on the
dismissed counts that a defendant can delay filing until
after this limitation period has run.

Finally, we must not forget that "criminal limitation
statutes are to be liberally interpreted in favor of repose."
Toussie, 397 U.S. at 115 (quoting United States v. Habig,
390 U.S. 222, 227 (1968)). Section 3282 establishes a fixed
limitation period with no exception. However tempting it
may be to create equitable exceptions to bright line rules,
we must concur with Chief Judge Rambo's observation in
Gaither that "the very existence of a statute of limitations
entails the prospect that wrongdoers will benefit," and that
this reason alone cannot serve as the basis for an exception
to the statute. Ultimately, the clear and unambiguous rule
afforded by the criminal statute of limitations is preferable
to a shifting standard based on the perceived equity of the
defendant's conduct. While Congress and the courts may
continue to weigh competing policy interests concerning the
administration of justice, the unqualified limitation period
of S 3282 reflects a balance that has already been struck.

III. 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
_________________________________________________________________

       (4) the date on which the facts supporting the claim or claims
       presented could have been discovered through the exercise of due
       diligence.

Pub. L. No. 104-132, S 105, 110 Stat. 1214, 1220 (codified as amended
at 28 U.S.C. S 2255) (Apr. 24, 1996) (emphasis added).

                               13
