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
The opinion of the court was delivered by: 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. § 2255, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Because we find insufficient grounds for withholding application of the statute of limitations, we will affirm the order of the district court.
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. § 924(c). *fn1 Prior to trial, Midgley entered into a plea agreement with the government in which he agreed to plead guilty to the count of violating § 924(c) in exchange for dismissal of the remaining counts of the indictment. *fn2 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" a firearm within the meaning of § 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, Midgley filed a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence in light of Bailey. Although the government conceded that 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 § 2255 motion but refused to reinstate the dismissed counts. In a Memorandum 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.
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. § 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 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 § 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 facts *fn3 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. § 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 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 ...