[author: Arnold Castillo]

Introduction

The COVID-19 pandemic has collided with the constitutional requirement that “infamous” crimes be charged by a grand jury. For the first time in United States history, grand juries in federal courts have been suspended because of the pandemic.[i] This has resulted in a significant controversy arising before federal courts across the country including two contradictory opinions in the Southern District of Florida:

• U.S. v. B.G.G., Case No. 20-80063-cr-Middlebrooks
• U.S. v. Lauren Rosecan, Case No. 20-cr-80052-Ruiz

This paper will focus on the conflict that these two cases present to illustrate the dilemma that federal prosecutors are facing due to the suspension of grand juries, which has resulted in the inability to secure indictments and prosecutors filing criminal informations. We will explore the arguments that arise out of the application of the statute of limitations, 18 USC §§ 3231-3301, the Federal Rules of Criminal Procedure – Rule 6 and 7, Supreme Court decisions going back to 1885, and the Fifth Amendment of the U.S. Constitution.

Brief History and Purpose of the Grand Jury

The first sentence of the Fifth Amendment reads, in part, as follows:

“No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury…”

The grand jury has stood between the prosecutor and the accused as the sole protection against a “hasty, malicious, and oppressive prosecution” for centuries.[ii] In 1734, New York publisher, Peter Zenger, was charged by the King’s New York Governor with seditious libel. The case was brought before two colonial grand juries which, one after the other, refused to indict Zenger. The Governor then brought Zenger to trial on an information, a charging instrument issued by the prosecutor alone. Zenger sat in jail for over a year before he was tried and acquitted. It was this case that led to George Mason, James Madison, and the other authors of the Bill of Rights to insist on grand jury indictments for prosecution to prevent the abuse of governmental power.

For 230 years, through wars, natural disasters and civil strife, grand juries have continued to hear evidence and return indictments. However, in 2020, grand juries were suspended due to the pandemic, as it was impossible to assemble 23 people for grand jury service or even a quorum of 16 people.[iii] Accordingly, federal crimes could no longer be indicted, and defendants already charged and in jail on complaints could not have their cases brought before a citizen panel of grand jurors. Congress refused the Department of Justice’s proposal to toll or suspend[iv] the statute of limitations, 18 USC §§ 3231-3301, while the clock continued to run on investigations. Fearing the statute of limitations would expire, federal prosecutors needed to find a way to institute a criminal charge for an infamous crime and toll the statute of limitations (see 18 USC §§ 3288 and 3289) until grand juries could begin hearing cases again.

The Infamous Crime

The Supreme Court in Mackin v. U.S., 117 US 348, 350-352 (1886) held that all crimes punishable by imprisonment are infamous. The Federal Rules of Criminal Procedure further refined this constitutional requirement in 1944 in Rule 7 (a)(1) as follows:

“An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable by either death or imprisonment for more than one year.”

With no redress available within the definition of an infamous crime, federal prosecutors then examined Rule 7 (b) of the Federal Rules of Criminal Procedure which is entitled “waiving indictment” and reads as follows:

“An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant, in open court and after being advised of the nature of the charges and of the defendant’s rights, waives prosecution by indictment.”

With no apparent recourse to the waiver requirement, federal prosecutors took the position that a prosecution could be “instituted” by filing an information without an open court waiver of indictment, which effectively would toll the statute of limitations. In doing so, prosecutors relied on the language of title 18 USC § 3282 (a) which reads as follows:

“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 after such offense shall have been committed.”

Using this unconstitutional interpretation of “institute,” prosecutors began filing an “un-waived” information before the court to charge violations of felonies to toll the statute of limitations. Prosecutors could then subsequently dismiss the information when the grand jury returned to service and presumably file an indictment within six months of the date of the dismissal of the information in keeping with 18 USC § 3288, or within six months of the expiration of the applicable statute of limitations pursuant to 18 USC § 3289.

Conflicting Rulings – U.S. Southern District of Florida

In 2021, contradictory decisions were reached by two federal district court judges in the Southern District of Florida concerning the use of an un-waived information to toll the statute of limitations. Both cases are before the 11th Circuit Court of Appeals.

1. U.S. v Lauren Rosecan

In U.S. v Lauren Rosecan, case No. 20-cr-80052, the defendant, Rosecan, moved to dismiss the charging information with prejudice because it was filed without the defendant’s waiver of the right to indictment by a grand jury. U.S. District Court Judge Rodolfo A. Ruiz II denied that motion to dismiss the charging information with prejudice holding that the filing of an un-waived information properly “instituted” the criminal action within the meaning of 18 USC § 3282.

Judge Ruiz’s opinion in Rosecan is supported by the Seventh Circuit in U.S. v. Burdis-Dana, 149 F3d 741 (7^th Cir. 1998) where the court held that the absence of a waiver does not make the filing of an information a nullity. Judge Ruiz held that an information is “instituted” when it is properly filed, regardless of the defendant’s waiver.

Siding with government, Judge Ruiz held that “the plain language of §3282 only requires that the ‘information’ be ‘instituted’ to satisfy the statute of limitations. The terms ‘prosecuted’ and ‘instituted’ are not equivalent, and an information is ‘instituted’ when it is properly filed, regardless of the defendant’s waiver.”

2. U.S. v. B.G.G.

In U.S. v. B.G.G., case No. 20-80063-cr-Middlebrooks, the court held that the government’s option to dismiss its un-waived information would be granted, but with prejudice preventing further prosecution because an un-waived information cannot validly institute a prosecution under 18 USC § 3282, and the prosecution couldn’t properly file a superseding indictment.

The opinion from U.S. District Court Judge Donald M. Middlebrooks is supported by U.S. v. Machado, No. Crim. A. 04-10282 RW3, 2005, a federal district court opinion in Massachusetts. The judge in Machado held that a court in possession of a waiver-less information has nothing. An information without a waiver is a nullity.

Relying on that rationale, Judge Middlebrooks concluded that “because the information was not accompanied by a waiver of indictment, and because the government did not subsequently obtain a waiver prior to the limitations period’s expiration, the information was not instituted for purposes of §3282.”

The judge further held that using the information to extend the statute of limitations period would be “inconsistent” with the Fifth Amendment and FRCP 7. Examining the legislative history of §3288, he said that “although the statute permits tolling of the statute of limitations periods specifically for felonies, Congress did not intend to create a means to bypass the statute of limitations altogether by filing a defective information.”

The United States Supreme Court has held for 135 years that a court has no jurisdiction over a defendant charged with an “infamous” crime who is not indicted by a grand jury (see Ex Parte Wilson, 114 US 417, 422 (1885)). This constitutional mandate has been followed in federal courts up to the present day. In U.S. v. Montgomery, 628 F2d 414, 416 (5^th Cir. 1980), the court held “unless there is a valid waiver of indictment, the lack of an indictment in a federal felony case is a deficit going to the jurisdiction of the court”. This opinion was followed in U.S. v. Moore, 37 F3d 169, 173 (5^th Cir. 1994).

Judge Middlebrooks, in U.S. v B.G.G., further asserted that if the prosecution “institutes” a charge for an “infamous” crime in a court that does not have jurisdiction to hear the charge, how does the defendant answer that charge? Specifically: “The purpose of the (Fifth) Amendment was to limit the powers of the legislature, as well as of the prosecuting officers of the United States.”[v]

This invites the question of whether Congress can enact legislation - pursuant to 18 USC §3282, §3288 and §3289 that permits the “institution” of felony charges that cannot be answered due the lack of jurisdiction of any court.

Conclusion

With the pandemic continuing to impact the ability of the court to empanel a grand jury, the question of whether the federal government can or should be allowed to circumvent an indictment by the filing of an un-waived information for an infamous crime will continue to be settled before various courts, likely with contradictory results. If it is impossible to assemble a grand jury, how is justice to be conducted? The Supreme Court must resolve the divided issue of how a prosecution is instituted.

This prosecutorial tactic has the potential to progress to every federal criminal case whether there exists a national health emergency or not. The statutes of limitations are designed to prevent the overreaching of the government along with FRCP 7(b) on the waiver of indictments by defendants. By taking proactive and effective steps at the beginning of a federal investigation, white-collar defense practitioners can protect the constitutional rights of their clients.

Acknowledgments

We would like to thank Richard Gregorie, William Marquardt, and Arnold Castillo for providing insight and expertise that greatly assisted in this research.

References