United States of America v. Richard Titterington

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0207P (6th Cir.)
File Name: 04a0207p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
RICHARD TITTERINGTON, et
al.,
Defendants-Appellees.
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No. 03-5829
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20165—Bernice B. Donald, District Judge.
Argued: April 20, 2004
Decided and Filed: July 6, 2004
Before: BOGGS, Chief Judge; NELSON and SUTTON,
Circuit Judges.
_________________
COUNSEL
ARGUED: Dan L. Newsom, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellant.
Robert W. Ritchie, RITCHIE, FELS & DILLARD,
Knoxville, Tennessee, for Appellees. ON BRIEF: Dan L.
2 United States v. Titterington, et al. No. 03-5829
Newsom, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellant. Robert W. Ritchie,
Wade V. Davies, Stephen Ross Johnson, RITCHIE, FELS &
DILLARD, Knoxville, Tennessee, Richard M. Carter,
MARTIN, TATE, MORROW & MARSTON, Memphis,
Tennessee, Richard M. Steingard, Los Angeles, California,
Glen G. Reid, Jr., WYATT, TARRANT & COMBS,
Memphis, Tennessee, Kemper B. Durand, THOMASON,
HENDRIX, HARVEY, JOHNSON & MITCHELL,
Memphis, Tennessee, William D. Massey, Lorna S.
McClusky, MASSEY & McCLUSKEY, Memphis,
Tennessee, for Appellees.
SUTTON, J., delivered the opinion of the court, in which
BOGGS, C. J., joined. NELSON, J. (p. 14), delivered a
separate opinion concurring in the judgment and in the
opinion of the court.
_________________
OPINION
_________________
SUTTON, Circuit Judge. As this case comes to the court,
all agree that a federal indictment need not specifically state
that the charged offenses occurred within the pertinent
statute-of-limitations period; it suffices that the indictment
alleges facts establishing that the offense occurred within the
limitations period. What happens, however, when the
Government obtains permission to toll the limitations period?
Must the Government in that setting specifically allege that
the limitations period has been tolled or otherwise allege that
the indictment covers offenses that occurred within the
extended limitations period? The district court said yes; we
say no. Contrary to the views of the district court, we
conclude that the statute of limitations is an affirmative
defense that the Government need not specifically plead in a
criminal indictment. We therefore reverse the district court’s

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No. 03-5829 United States v. Titterington, et al. 3
judgment in favor of the defendants and remand the case for
further proceedings.
I.
In January 1996, the FBI began an investigation of the
defendants in this case—Richard Titterington, Geoffrey
Feldman, Sherrie-Lee Doreen Cave, Robert Murray Bohn,
Stacy Layne Beavers and Michael Elliot Cole—regarding
their involvement with a Barbados-based entity known as
IDM. According to the United States, the defendants and
IDM ran an international lottery operation, which defrauded
United States citizens of more than $100 million. Believing
that IDM’s Bridgetown, Barbados headquarters held evidence
of this criminal conduct, the Office of International Affairs of
the Department of Justice obtained a warrant from the
Barbados government in June 1996 to search IDM’s
headquarters. Barbados authorities, assisted by the FBI,
executed the warrant on July 12, 1996, seizing approximately
140 boxes of evidence that were “significant to the . . . on-
going FBI investigation.” JA 498.
After the search, IDM officials challenged the validity of
the warrant. A local Barbados court ordered that the evidence
remain in Barbados pending a hearing as well as any appeal,
then placed the evidence under seal, which in this instance
meant locking the 140 boxes of evidence in a jail cell. The
evidence remained in the jail cell at the time the district court
entered judgment in this case, and it remains there today.
Claiming that the evidence it needed to prosecute these
defendants was itself in prison, the United States filed an ex
parte motion in federal district court on December 9, 1998, to
toll the limitations period for these alleged criminal offenses.
Under the mail fraud, RICO and anti-smuggling statutes, a
five-year limitations period generally governs criminal
allegations under these provisions. See 18 U.S.C. § 3282(a).
But a separate federal statute permits the Government “before
return of an indictment” to file an application “indicating that
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evidence of an offense is in a foreign country” and requesting
that the limitations period be extended. Id. § 3292(a)(1).
Under this second statute, if “the court finds by a
preponderance of the evidence that an official request has
been made for such evidence and that it reasonably appears
. . . that such evidence is . . . in such foreign country,” the
court must “suspend the running of the statute of limitations”
until “the foreign court or authority takes final action on the
request,” but for no longer than three years. Id. § 3292(a)(1),
(b) & (c)(1). As the Barbados court appeared nowhere near
taking “final action” in the evidentiary matter, the district
court granted the motion to suspend the statute of limitations
for up to three years.
On May 8, 2002, a federal grand jury returned an 89-count
indictment against the six defendants involved in this appeal
and 11 other co-defendants who remain outside United States
jurisdiction and for whom extradition requests have been
lodged with various countries. The indictment charged the
defendants with violations of 18 U.S.C. § 1962(c)
(substantive RICO), 18 U.S.C. § 1962(d) (RICO conspiracy)
and 18 U.S.C. § 1341 (mail fraud). In addition, the
indictment charged that one of the defendants, Feldman,
violated 18 U.S.C. § 545 (smuggling).
Defendants moved to dismiss the indictment, arguing that
an indictment must allege that an offense occurred within the
applicable statute-of-limitations period. The district court
(through the same judge who granted the Government’s
tolling motion) granted the defendants’ motion to dismiss.
“[T]o be facially sufficient,” the court noted, an indictment
must “contain each essential element of each offense
charged,” must “provide notice to the defendant of the
charges against him” and must provide “information
sufficient to protect the defendant against double jeopardy.”
JA 500–01. At the same time, the court added, an indictment
need not “negate defensive matters . . . nor . . . anticipate
affirmative defenses.” JA 501. Recognizing that one might
naturally think of the statute of limitations as a “defense” that

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No. 03-5829 United States v. Titterington, et al. 5
falls outside of the pleading requirements for a facially valid
indictment, the district court nonetheless concluded that “the
statute of limitations cannot be construed as a mere
affirmative defense or defensive matter” because in this
Circuit the statute-of-limitations argument may be made for
the first time on appeal. See United States v. Crossley, 224
F.3d 847, 858 (6th Cir. 2000). Construing the statute of
limitations as a “jurisdictional bar” and finding no allegation
in the indictment that the crimes occurred within the
limitations period or that the limitations period had been
tolled, the court held that it lacked “jurisdiction over this
matter” and that “the indictment must be dismissed.” JA
501–02. The Government appealed.
II.
A.
The appropriate standard for reviewing a district court’s
decision whether to dismiss an indictment is not entirely
clear. As the parties observe, we have treated the issue
differently at different times, in some cases describing our
task as abuse-of-discretion review, in other cases describing
our task as de-novo review. Compare, e.g., United States v.
DeZarn, 157 F.3d 1042, 1046 (6th Cir. 1998) (de novo), with
United States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001)
(abuse of discretion). In this case, as in many cases involving
an allegedly flawed indictment and as the parties themselves
here agree, the distinction does not make a difference, as an
error of law compels a reversal under either standard of
review. See United States v. Taylor, 286 F.3d 303, 305 (6th
Cir. 2002) (“[A]n erroneous legal determination is always an
abuse of discretion.”).
B.
In federal court, a criminal defendant “shall [not] be held to
answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury,” U.S. Const.
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amend. V, and the defendant “shall enjoy the right . . . to be
informed of the nature and cause of the accusation,” U.S.
Const. amend. VI. Consistent with these constitutional
commands, Rule 7(c)(1) of the Federal Rules of Criminal
Procedure says that an “indictment or information must be a
plain, concise, and definite written statement of the essential
facts constituting the offense charged.” An indictment
complies with all of these requirements, the Supreme Court
has held, if it (1) “contains the elements of the offense
charged,” (2) “fairly informs a defendant of the charge against
which he must defend” and (3) “enables him to plead an
acquittal or conviction in bar of future prosecutions for the
same offense.” Hamling v. United States, 418 U.S. 87, 117
(1974).
While an indictment must satisfy these three notice-related
requirements, “[i]t has never been thought that an indictment,
in order to be sufficient, need anticipate affirmative defenses.”
United States v. Sisson, 399 U.S. 267, 288 (1970). “[A]n
indictment . . . founded on a general provision defining the
elements of an offense . . . need not negative the matter of an
exception made by a proviso or other distinct clause . . . . [I]t
is incumbent on one who relies on such an exception to set it
up and establish it.” McKelvey v. United States, 260 U.S.
353, 357 (1922); see Evans v. United States, 153 U.S. 584,
590 (1894) (“Neither in criminal nor in civil pleading is [the
Government] required to anticipate or negative a defense.”).
In addition to giving general guidance that the elements of
a criminal charge must be in the indictment while allegations
negating the elements of an affirmative defense need not be,
the Supreme Court has held that a statute-of-limitations claim
falls on the affirmative-defense side of the line. In United
States v. Cook, 84 U.S. 168 (1872), a grand jury indicted a
paymaster in the Army under an act of Congress making it a
crime to embezzle public funds. A different statute imposed
a two-year limitations period on the offense but also provided
that the limitations period did not “extend to any person or
persons fleeing from justice.” Id. at 173. Arguing that “it

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No. 03-5829 United States v. Titterington, et al. 7
appears on the face of the indictment . . . that the crime
charged . . . was committed more than two years before the
indictment,” the paymaster “demurred” to the
indictment—which is to say, he admitted the allegations in
the indictment, then argued that he could not be convicted
even if they were true. Id. at 172.
The Supreme Court rejected the argument, holding that a
defendant may not “by demurrer [] set up the statute of
limitations as a defence” just “because another act of
Congress provides that no person shall be prosecuted, tried,
or convicted of the offence unless [] indict[ed] . . . within two
years.” Id. at 178. “Accused persons may avail themselves
of the statute of limitations by special plea [i.e., by raising an
affirmative defense] or by evidence under the general issue
[i.e., by presenting evidence at trial],” the Court explained,
“but courts . . . will not quash an indictment because it
appears on its face that it was not found within the
[limitations] period . . . as such a proceeding would deprive
the prosecutor of the right to reply or give evidence, as the
case may be, that the defendant fled from justice and was
within the exception [to the limitations period].” Id. at
179–80. Nor would a “different rule [] apply . . . if the statute
of limitations did not contain any exception,” the Court
continued, because time is not an element of the offense. Id.
at 180; see also Biddinger v. Comm’r of Police, 245 U.S. 128,
135 (1917) (“The statute of limitations is a defense and must
be asserted on the trial by the defendant in criminal cases.”).
More than a century later, Cook remains good law and
governs the outcome of this dispute. In this case, as in Cook,
the statute defining the offenses does not contain a statute of
limitations, but “another act of Congress” does. As in Cook,
that other act sets forth a limitations period, which contains an
exception. And, as in Cook, a court may not dismiss an
indictment just “because it appears on its face that it was not
found within the [limitations] period” because to do so
“would deprive the prosecutor of the right to reply or give
evidence, as the case may be, that the defendant . . . was
8 United States v. Titterington, et al. No. 03-5829
within the exception [to the limitations period].” 84 U.S. at
179–80. Nor, as in Cook, would a “different rule [] apply . . .
even if the statute of limitations did not contain any
exception,” id. at 180, as time is not an essential element of a
mail-fraud, RICO or smuggling offense. As Cook makes
clear, the statute of limitations for mail-fraud, RICO and
smuggling prosecutions does not impose a pleading
requirement on the Government, but merely creates an
affirmative defense for the accused.
III.
Defendants raise several challenges to this conclusion, all
unconvincing. At oral argument, defendants claimed that
Cook is a relic of common-law pleading and has no
application to the modern Federal Rules of Criminal
Procedure. But to say that Cook does not control because it
spoke of “demurrers,” “special pleas” and “evidence under
the general issue” instead of using the up-to-date terminology
of the Federal Rules gives too much credit to linguistic trends
and too little credit to the stability of the law. All of these
antiquated terms of course have modern analogues, just as
today’s terminology is apt one day to have future analogues
of its own. In this case, for example, a pretrial motion
alleging a “defect in the indictment” under the Federal Rules,
see Fed. R. Crim. P. 12(b)(3)(B), represents the modern
equivalent of a “demurrer” because both pleadings serve to
attack the facial validity of the indictment. See United States
v. Ponto, 454 F.2d 657, 660 (7th Cir. 1971) (“In 1946, the
Federal Rules of Criminal Procedure abolished the use of
common law procedures such as a demurrer and plea in
abatement and substituted in their place the motion to dismiss
the indictment under Rule 12.”). Because a demurrer and a
motion alleging a defect in the indictment perform the same
core function, Cook’s essential holding—that the statute of
limitations concerns an affirmative defense (which need not
be pled), not an element of the offense (which must be
pled)—has continuing currency under the Federal Rules. See
United States v. Parrino, 203 F.2d 284, 287 (2d Cir. 1953) (L.

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No. 03-5829 United States v. Titterington, et al. 9
Hand, J.) (“Rule 12(a) abolished all defensive pleadings
except ‘not guilty,’ and provided that ‘defenses . . . which
heretofore could have been raised’ by demurrer ‘shall be
raised only by motion to dismiss.’ From that it follows that,
since the question decided in United States v. Cook [] could
not be raised by demurrer under the old practice, it may not
now be raised by motion to dismiss and, if so, it must be
raised by the plea of ‘not guilty.’”).
The defendants next argue that, no matter what Cook says,
this Circuit has determined that the statute of limitations
contained in 18 U.S.C. § 3282 is not merely defensive but is
“jurisdictional,” which supports the district court’s ruling. As
defendants correctly observe, United States v. Crossley, 224
F.3d 847, 858 (6th Cir. 2000), held that “absent an explicit
waiver, the statute of limitations [under § 3282] presents a bar
to prosecution that may be raised for the first time on appeal.”
Relying on Crossley and echoing the district court’s reliance
on Crossley, defendants argue that the statute of limitations
must be jurisdictional because a defendant may raise it for the
first time on appeal, which in turn means that the Government
must plead the statute of limitations in order to vest the
district court with “jurisdiction” over the indictment.
Crossley does not support this string of inferences. It does
not say anything about what an indictment must contain, let
alone mention the Supreme Court’s Cook decision. Nor does
it say that a statute of limitations is “jurisdictional.”
Although Crossley says that the statute of limitations may
be raised for the first time on appeal, not every issue that may
be raised for the first time on appeal is jurisdictional. Just this
Term, the Supreme Court highlighted the flaw in this
reasoning. In Kontrick v. Ryan, 124 S. Ct. 906, 915 (2004),
the Court observed that just because “[a] litigant generally
may raise a court’s lack of subject-matter jurisdiction at any
time in the same civil action, even initially at the highest
appellate instance,” and just because “a debtor may challenge
a creditor’s objection to a discharge as untimely . . . at any
10 United States v. Titterington, et al. No. 03-5829
time in the proceedings, even initially on appeal,” does not
mean that the rules governing the timeliness of a creditor’s
objection “have the same import as provisions governing
subject-matter jurisdiction.” A “critical difference” between
subject-matter jurisdiction and the timing rules at issue in
Kontrick, the Court explained, is that the former “cannot be
expanded to account for parties’ litigation conduct” and the
latter can be. Id. at 916. Courts “have more than occasionally
used the term ‘jurisdictional’ to describe emphatic time
prescriptions,” the Court noted, but the label “can be
confounding” because such prescriptions do not generally
affect personal or subject-matter jurisdiction. Id. at 915
(quotation and citation omitted); see also Scarborough v.
Principi, 124 S. Ct. 1856, 1858 (2004).
In challenging the district court’s jurisdiction over this
criminal indictment, the defendants make a similar mistake.
The federal courts’ subject-matter jurisdiction to hear federal
criminal prosecutions comes from 18 U.S.C. § 3231, which
grants “[t]he district courts of the United States . . . original
jurisdiction . . . of all offenses against the laws of the United
States.” A true jurisdictional problem—say, the Federal
Government prosecutes a defendant for a non-federal
crime—cannot be waived or altered by the parties’ conduct
during the proceeding. As mail fraud, RICO and smuggling
are “offenses against the United States,” however, § 3231
grants the district courts jurisdiction—the power to hear the
case—no matter how much time elapsed between the criminal
conduct and the criminal indictment and no matter what the
Government ultimately proves or fails to prove. See United
States v. Rayborn, 312 F.3d 229, 231 (6th Cir. 2002) (holding
that the interstate-commerce requirement of the federal arson
statute “is not jurisdictional in the sense that it affects a
court’s subject-matter jurisdiction, i.e., a court’s constitutional
or statutory power to adjudicate a case”); Hugi v. United
States, 164 F.3d 378, 380 (7th Cir. 1999) (“Subject-matter
jurisdiction in every federal criminal prosecution comes from
18 U.S.C. § 3231, and there can be no doubt that Article III
permits Congress to assign federal criminal prosecutions to

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No. 03-5829 United States v. Titterington, et al. 11
federal courts. That’s the beginning and the end of the
‘jurisdictional’ inquiry.”).
Were the statute of limitations jurisdictional in the sense
that defendants claim, moreover, an individual could not
explicitly waive its protection, see United States v. Cotton,
535 U.S. 625, 630 (2002) (“subject-matter jurisdiction . . . .
can never be forfeited or waived”), which Crossley itself says
a defendant can do and which many defendants desire to do.
For example: some defendants plead guilty to a time-barred
lesser offense with a shorter limitation period in exchange for
the Government dropping charges on a greater offense with
a longer limitation period; other defendants request jury
instructions on a time-barred lesser offense to avoid giving
the jury an all-or-nothing-at-all choice. See Spaziano v.
Florida, 468 U.S. 447, 454–57 (1984) (suggesting that a
capital defendant has a due process right to a jury instruction
on a time-barred lesser included offense so long as he waives
the statute of limitations for that offense). All of this explains
why the federal courts of appeals that have addressed this
issue uniformly agree that the statute of limitations provides
an affirmative defense that the defendant may waive. See
United States v. Soriano-Hernandez, 310 F.3d 1099, 1103–04
(8th Cir. 2002); United States v. Najjar, 283 F.3d 1306, 1309
(11th Cir. 2002); Acevedo-Ramos v. United States, 961 F.2d
305, 307 (1st Cir. 1992); United States v. Cooper, 956 F.2d
960, 962 (10th Cir. 1992); United States v. Arky, 938 F.2d
579, 581–82 (5th Cir. 1991); United States v. DeTar, 832
F.2d 1110, 1114 (9th Cir. 1987); United States v. Karlin, 785
F.2d 90, 92–93 (3d Cir. 1986); United States v. Meeker, 701
F.2d 685, 687–88 (7th Cir. 1983); United States v. Walsh, 700
F.2d 846, 855–56 (2d Cir. 1983); United States v. Williams,
684 F.2d 296, 299–300 (4th Cir. 1982); United States v. Wild,
551 F.2d 418, 421–25 (D.C. Cir. 1977).
Had Crossley said what the defendants claim it said—a
court lacks subject-matter jurisdiction if the indictment does
not plead the statute of limitations—Crossley no longer
would be good law. As the Supreme Court recently held in
12 United States v. Titterington, et al. No. 03-5829
Cotton, “defects in an indictment do not deprive a court of its
power to adjudicate a case” and thus are not “jurisdictional.”
535 U.S. at 630–31.
Neither does Crossley say that because failing to prove
compliance with the statute of limitations establishes a “bar
to prosecution,” pleading the statute of limitations must be
mandatory (even if it is not jurisdictional). The Double
Jeopardy Clause and the Ex Post Facto Clause also establish
a bar to criminal prosecution. Yet no case to our knowledge
mandates that indictments must allege that the Government
did not previously prosecute the defendant for the same
offense or that the defendant completed the crime after
Congress criminalized the conduct. If these constitutional
defenses do not alter the normal rules for pleading crimes, it
is hard to understand why this statutory defense should do so.
The Tenth Circuit’s decision in United States v. Gammill,
421 F.2d 185 (1970), does not suggest otherwise. There, the
court held that a district court lacked authority to amend an
indictment that omitted the year in which the alleged crime
took place, without first submitting the new indictment to a
grand jury. Id. at 186. Here, in marked contrast, the
indictment does mention the year in which the alleged crimes
took place and that year falls within the eight-year limitations
period (five years plus three years) under 18 U.S.C. §§ 3282
& 3292.
Even if a run-of-the-mill indictment need not mention the
statute of limitations, defendants argue that “tolling” cases are
different and require the Government to allege that “the
limitations period for this crime was tolled for three years” or
perhaps that “the prosecution would comply with the statute
of limitations as computed under 18 U.S.C. §§ 3282 & 3292.”
But the defendants offer no pertinent authority for this
proposition and fail to explain why Cook, which itself
involved an exception to the statute of limitations (for a
fleeing felon), does not squarely control the outcome of this
case.

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No. 03-5829 United States v. Titterington, et al. 13
IV.
For the foregoing reasons, we reverse the district court’s
judgment dismissing the indictment and remand the case for
further proceedings consistent with this opinion.
14 United States v. Titterington, et al. No. 03-5829
____________________
CONCURRENCE
____________________
DAVID A. NELSON, Circuit Judge, concurring. I fully
concur in the judgment and in Judge Sutton’s opinion for the
court. Perhaps it would not be amiss, however, for me to add
a word on the question of our standard of review, given the
tension between my unqualified assertion in United States v.
Powell, 823 F.2d 996, 1001 (6th Cir. 1987), that “[w]e review
a district court’s refusal to dismiss an indictment only for
abuse of discretion” and my unqualified concurrence in Judge
Rosen’s opinion in United States v. DeZarn, 157 F.3d 1042
(6th Cir. 1998), which asserted that “[t]he sufficiency of the
indictment is reviewed de novo.” Id at 1046.
I suppose a pedant could claim that Powell is not directly
in point here, the case at bar not being one that gives us
occasion to “review a district court’s refusal to dismiss an
indictment . . . .” But were it not for the fact that, as Judge
Sutton has generously pointed out, “an erroneous legal
determination is always an abuse of discretion,” see United
States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002), I would
be hard pressed to deny that the logic of my statement in
Powell is at odds with the logic of Judge Rosen’s statement
in DeZarn. And I am at a loss to know what I could have
been thinking of when I said what I said in Powell; the Powell
statement (which I must have expunged from my memory in
the ensuing decade) now strikes me as wide of the mark,
while Judge Rosen’s statement in DeZarn strikes me now —
as it did when I concurred in it — as right on target.

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