USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1987

UNITED STATES,

Appellant,

v.

MICHAEL R. SPECTOR,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and John R. Gibson,* Senior Circuit Judge.

____________________

____________________

Peter E. Papps, First

______________

Assistant United States Attorney, with w

Paul M . Gagnon, United States Attorney, was on brief for appellant

_______________
Douglas J. Miller,
__________________

with whom

Hall, Morse, Anderson, Miller

_______________________________

Spinella, P.C. was on brief for appellee.

______________

____________________

May 26, 1995

____________________

____________________

*Of the Eighth Circuit, sitting by designation.

CAMPBELL,

Senior

Circuit

Judge.

In

the

early

______________________

1990s, the U.S. Department of Labor began an investigation of

defendant

Michael Spector

Mintz, suspecting them

and of

David Murray

of having submitted

in connection with an employee

and Bernard

false statements

benefit plan.

The government

notified counsel for all three men that it was conducting the

investigation

and that it intended

criminal violations of 18 U.S.C.

U.S.C.

644

(1988).

investigation were

the

department

to charge the three with

1027 (1988) (ERISA) and 18

Among

the

a false statement

on

January

20,

violations

allegedly submitted to

1988,

and

an

embezzlement allegedly occurring on February 19, 1988.

the

violations

were

limitations, 18 U.S.C.

subject

to

under

five-year

act

of

Since

statute

of

3282 (1988), the limitations periods

for

the two violations above

were to expire

on January 20,

and February 19, 1993, respectively.

On January 15, 1993,

others

(whom

although

this

government

them more

persuade

issues.

we

shall

defendant Spector and the two

collectively

appeal relates

to delay seeking

to

Spector

to modify

"defendants,"

only) asked

an indictment in

time to investigate and

the government

call

the

order to give

additional opportunity to

its position

on certain

The defendants entered into a written agreement with

the government, under which the government agreed not to file

an

information or to seek

an indictment before February 26,

-22

1993, in exchange

statute

before

for the defendants'

of limitations

March

5,

limitations period

that it would

1993

defense

(thereby

until March

for charges

brought on

effectively

5).

The

be effective "upon execution

and was in fact signed by all parties.

to state "that

agreement to waive

further extensions of

or

extending the

agreement provided

by all parties,"

The agreement went on

this agreement may

be

agreed to subsequently, but only by a

further writing signed

by all parties."

As the new March 5 deadline approached,

again

sought

to extend

brought an indictment.

agreement

on March

5.

the

period

before the

indictment

doing

Under

the

against defendants

so until April 9,

government

Defendants executed another

terms

agreement, the government stated that

an

defendants

1993.

the

second

it had not yet brought

and

In

of

written

would

forebear from

exchange, the defendants

agreed to extend the limitations period until April 16, 1993.

Like the first agreement,

the second agreement provided that

it would be effective "upon execution

Mintz,

its

by Murray, Spector and

and their respective counsel and the United States by

counsel."

However,

unlike the

first agreement,

this

second

agreement,

though

signed

by defendants

and

their

counsel, was not signed by counsel for the government.

On

April

16, 1993,

jury returned

an

initial twenty-seven count indictment against defendants.

On

-33

the

grand

September

1,

1993, the

grand jury

superseding indictment.

1994,

Spector

indictment

moved

that

were

of the

since

was not

it

to

dismiss

based

statute

the

on

the

the

two

August 15,

counts

false

of

the

statement

and

Spector argued that the second

of limitations

signed by

extension provided by

seven count

Nearly a year later, on

embezzlement described above.

extension

returned a

the

was not

government.

binding,

Without the

the second agreement, Spector

argued,

two counts were barred by the statute of limitations, as

they were handed down

after March 5, 1993, the

deadline set

by the first extension.

The

district court

counts as time-barred.

agreed and

dismissed

the two

Although it found the first extension

to be binding, the district

court determined that the second

extension

was

ineffective,

explicitly

required

acceptance,

and

acceptance.

The

that

an

oral

having

the

not

been

government's

permitting

offer

signature

alternative

court rejected the

agreement

an

existed,

forms

that

for

of

government's contention

holding

that

such

an

agreement would be contrary to the plain terms of the written

agreements.

The

district

court

also

rejected

the

government's argument based upon promissory estoppel, finding

that any reliance

by the government on

was unreasonable,

given that the

provided that any

additional extensions had to be in writing

-44

the second extension

first extension

expressly

and

signed

by all

parties.

The

pursuant to 18 U.S.C.

3731 (1988).

limitations

statute of

government

defense is

now appeals,

waivable

affirmative defense, not a jurisdictional bar to prosecution.

See Acevedo-Ramos
___ _____________

v. United States,
_____________

961 F.2d 305,

Cir.), cert. denied, 113 S. Ct. 299 (1992).

____________

the defense in

a timely manner can result

307 (1st

Failure to raise

in its waiver, as

can an

unqualified guilty

obviously

constitut[ing] a waiver

Id. at 309.
___

federal

plea or other,

Most relevantly

similar "action[]

of the

time limitation."

for present purposes,

several

courts of appeals have held that an individual under

investigation may,

in order

to delay indictment,

expressly

waive a statute of limitations defense prior to trial, indeed

prior to indictment, so long as that waiver is made knowingly

and

voluntarily.

See, e.g., United States v. Wild, 551 F.2d

___ ____ _____________
____

418, 422-24 (D.C.

Cir.), cert. denied, 431 U.S. 916 (1977).1

____________

In these cases, like the present, the defendant has typically

entered

into

written

government's agreement

waiver

in

exchange

not to indict before

for

the

a certain time,

in hopes

favorable

that

further

disposition or

discussion

may

prevent an

result

in

more

indictment altogether.

____________________

1.

See also United States v.

_________ ______________

1093-94 (6th

F.2d 1090,

Cir. 1989); United States v. Meeker,

______________
______

685, 687-88 (7th

See generally
______________

Del Percio, 870

__________

Cir.), cert. denied,

____________
Case

Comment,

464 U.S. 826

701 F.2d
(1983).

Waiver of the Statute of

____________________________

Limitations in Criminal Prosecutions: United States v. Wild,

____________________________________________________________
90 Harv. L. Rev. 1550, 1555 (1977).

-55

The courts have

and

enforced such

knowingly made,

agreements where

finding that

they

voluntarily

do not

violate the

policies underlying the statute of limitations.

The issue

court

erred in

failure to

waiver

of

limitations.

in this

holding

that, because

sign, the second

defendant's

appeal is whether

the district

of the

government's

agreement was not

an effective

rights

It is undisputed

under

the

statute

that if the second

of

agreement

is found binding, the defendant may not assert his statute of

limitations

that

defense.

If not,

the defendant may assert

however, both

parties agree

the defense and

that the two

counts

of the

indictment were

properly dismissed

as time-

barred, since they were handed down after the deadline set by

the first agreement.

decision on

Reviewing the

this issue of

district court's

law de novo, Thrifty Rent-A-Car

________ ___________________

System, Inc. v. Thrifty Cars, Inc., 831 F.2d 1177, 1181 (1st
_____________
__________________

Cir. 1987), we sustain the district court's

second

agreement was

waiver

of the

The

defendant's statute

two agreements

conditions

period

ineffective and

carefully and

under which

would become

the

effective.

did not

constitute a

limitations defense.

explicitly set

extensions

become effective "upon execution

extension would

of

holding that the

of the

The first

forth the

limitations

extension would

by all parties;" the second

become effective "upon

execution by Murray,

Spector,

and Mintz,

and

their respective

counsel and

the

-66

United

to

made

States by its counsel."

The agreements go so far as

specify that acceptance by one of the defendants would be

by fax.

Both agreements

definite time periods.

limited

the extensions

to

Further extensions of the limitations

period

were

signed

by all parties."

these

to

permissible, "but

only

by

a further

writing

One obvious reason for spelling out

requirements in such detail was to remove all doubt as

the exact steps

by which

defendants' partial

waiver of

rights and the government's agreement to forbear would become

effective.

Creating

such a

precisely what each had to do

exchange,

of

road

map

told both

parties

and what each would receive in

thus minimizing the risk (or so it might be hoped)

a future dispute over the consummation and meaning of the

agreement.

explicit

extension:

plain

Unfortunately, the

condition

it failed

terms of the

provided

to sign

government failed to meet the

to

effectuate

the document.

second agreement, the

the

second

Thus,

by the

extension was not

effective.

Where the parties have so deliberately set forth

in writing

the conditions necessary to

effective, we

think it

deviation from

make their agreement

inadvisable for a

one of the

court to

explicit terms, absent

condone

some good

reason to do so.

We find unpersuasive the government's argument that

contract or

agreement,

estoppel principles warrant

despite the

enforcement of

government's failure to

-77

the

comply with

its plain language.

We assume that principles of contract or

estoppel may sometimes be useful in analyzing agreements like

this, cf.
___

United States
_____________

v. Baldacchino,
___________

762 F.2d

170, 179

(1st Cir. 1985) ("Though

a matter of criminal jurisprudence,

plea bargains are subject

to contract law principles insofar

as

their

reasonably

application

due him.").

government here.2

acceptance

will

The

defendant

what

is

But those principles do not help the

second agreement expressly called for

of the offer

government attorney.

insure the

It

in the form

of a

signature by the

did not provide for any

other form

of acceptance,

whether orally3 or through

Restatement (Second) of Contracts

performance.

30 (1979).

See
___

The defendant

was entitled not merely to forbearance from indictment, which

he received, but to have

the government's binding promise to

_______

forbear from indicting him,

which he did not receive.

promise provided reassurance and

be

indicted

prior

to the

time

That

certainty that he would not

period

set

forth in

the

____________________

2.

As in United States v. Papaleo, 853 F.2d 16, 19 n.3 (1st

_____________
_______

Cir. 1985), we need

to

what

not attempt to decide whether,

degree local

contract law

is

or may

when and

strictly be

applicable to such agreements, since the result here would be

the same regardless.

3.

The government argues that Spector's alleged failure

request

signed

understanding that an

copy

of

the

agreement

agreement existed.

reflects

But this is

to
his
pure

speculation.
that

Just as the record is devoid of any suggestion

the defendant

contract,

it

is

government ever
terms

of

the

sought return
also devoid

of

of a
any

signed copy

suggestion that

informed the defendant that

agreement

and

was

of the

going

the

it accepted the
to

forbear

from

indicting him.

-88

agreement.

without

The

merit.

relied upon

government's estoppel argument is

The

government could

the defendant's offer

similarly

not reasonably

to extend the

have

statute of

limitations

language in

the second agreement conditioning

the

second

time,

in

the

face

of

the express

the waiver on

signature of all parties and the express language in the

first

agreement

signed

by

all

evidence of

allowing

parties.

extensions only

in

The

has

government

writing

and

provided no

any other statements or conduct by the defendant

that could provide a separate basis for an estoppel.

Accordingly,

was not

his

untimely.

the

effective and the

statute

properly

the second

defendant was entitled

of limitations

dismissed

the

agreement, by

two

defense.

counts of

its terms,

to assert

The district

the

court

indictment

as

We recognize that the government's failure to sign

agreement

was

likely

the result

of

some

unintended

clerical error.

Nevertheless, where

the government reaches

an agreement

with a potential criminal

defendant, and where

both parties

expressly establish, in writing,4

the terms of

____________________

4.

We

emphasize

enforced, an

that

we

are

not

agreement to extend the

saying

that,

to

be

statute of limitations

must be made in writing, or must be signed by the government.

See, e.g., United States
___ ____ _____________
Cir.)

(suggesting

sufficient

to

v. Doyle, 348 F.2d 715,

_____

that

waive

an

implicit

the statute

cert. denied, 382 U.S. 843

____________

(1965).

of

agreement

718-19 (2d
may

be

limitations defense),

We say only that,

where
_____

the parties themselves have chosen to set forth the terms in

_____________________________________________________________
writing, it makes sense
_______

to hold them to those

good reason to do otherwise.

-99

terms, absent

their

bargain and map out the conditions under which it will

be effective, we think the parties are best held to the plain

terms of that agreement, absent

That policy

the

is more likely to increase

utility of

lightly

such

deviations

undermine the

some good reason to depart.5

agreements.

from

Were

the explicit

certainty the

rather than diminish

we to

accept

language,

we

parties hope

to achieve.

also Correale v. United States, 479 F.2d 944, 947

____ ________
______________

too

would

See
___

(1st Cir.

1979) ("[T]he

performance

bargaining.")

most meticulous standards of

must

be met

The

here, the government

latter

by

prosecutors

is particularly

both promise and

engaging in

true where,

____________________

as

subsequently seeks specific performance

of the defendant's agreement to waive a defense.

Affirmed.
________

plea

5.

We do not see our opinion as making agreements like this

so

difficult to enforce as to cause the government to become

reluctant

to

enter

defendants seeking

into

them,

to postpone

thereby

possibly

harming

an imminent indictment.

To

the contrary, we are signaling that agreements like this will

be enforced as written,

giving the parties more

less control over the

situation.

do

in this case

to protect itself

All the government

was to sign

accordance with the agreed-upon terms.

-1010

rather than
had to

the form in