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 whom
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 and of David Murray and Bernard
Mintz, suspecting them of having submitted false statements
in connection with an employee benefit plan. The government
notified counsel for all three men that it was conducting the
investigation and that it intended to charge the three with
criminal violations of 18 U.S.C. 1027 (1988) (ERISA) and 18
U.S.C. 644 (1988). Among the violations under
investigation were a false statement allegedly submitted to
the department on January 20, 1988, and an act of
embezzlement allegedly occurring on February 19, 1988. Since
the violations were subject to a five-year statute of
limitations, 18 U.S.C. 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, defendant Spector and the two
others (whom we shall collectively call "defendants,"
although this appeal relates to Spector only) asked the
government to delay seeking an indictment in order to give
them more time to investigate and additional opportunity to
persuade the government to modify its position on certain
issues. 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,
-2-
2
1993, in exchange for the defendants' agreement to waive a
statute of limitations defense for charges brought on or
before March 5, 1993 (thereby effectively extending the
limitations period until March 5). The agreement provided
that it would be effective "upon execution by all parties,"
and was in fact signed by all parties. The agreement went on
to state "that further extensions of this agreement may be
agreed to subsequently, but only by a further writing signed
by all parties."
As the new March 5 deadline approached, defendants
again sought to extend the period before the government
brought an indictment. Defendants executed another written
agreement on March 5. Under the terms of the second
agreement, the government stated that it had not yet brought
an indictment against defendants and would forebear from
doing so until April 9, 1993. In 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 by Murray, Spector and
Mintz, and their respective counsel and the United States by
its 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, the grand jury returned an
initial twenty-seven count indictment against defendants. On
-3-
3
September 1, 1993, the grand jury returned a seven count
superseding indictment. Nearly a year later, on August 15,
1994, Spector moved to dismiss the two counts of the
indictment that were based on the false statement and
embezzlement described above. Spector argued that the second
extension of the statute of limitations was not binding,
since it was not signed by the government. Without the
extension provided by the second agreement, Spector argued,
the 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 agreed and dismissed the two
counts as time-barred. Although it found the first extension
to be binding, the district court determined that the second
extension was ineffective, having been an offer that
explicitly required the government's signature for
acceptance, and not permitting alternative forms of
acceptance. The court rejected the government's contention
that an oral agreement existed, 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 the second extension
was unreasonable, given that the first extension expressly
provided that any additional extensions had to be in writing
-4-
4
and signed by all parties. The government now appeals,
pursuant to 18 U.S.C. 3731 (1988).
A statute of limitations defense is a waivable
affirmative defense, not a jurisdictional bar to prosecution.
See Acevedo-Ramos v. United States, 961 F.2d 305, 307 (1st
Cir.), cert. denied, 113 S. Ct. 299 (1992). Failure to raise
the defense in a timely manner can result in its waiver, as
can an unqualified guilty plea or other, similar "action[]
obviously constitut[ing] a waiver of the time limitation."
Id. at 309. Most relevantly for present purposes, several
federal 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 a written waiver in exchange for the
government's agreement not to indict before a certain time,
in hopes that further discussion may result in a more
favorable disposition or prevent an indictment altogether.
1. See also United States v. Del Percio, 870 F.2d 1090,
1093-94 (6th Cir. 1989); United States v. Meeker, 701 F.2d
685, 687-88 (7th Cir.), cert. denied, 464 U.S. 826 (1983).
See generally Case Comment, Waiver of the Statute of
Limitations in Criminal Prosecutions: United States v. Wild,
90 Harv. L. Rev. 1550, 1555 (1977).
-5-
5
The courts have enforced such agreements where voluntarily
and knowingly made, finding that they do not violate the
policies underlying the statute of limitations.
The issue in this appeal is whether the district
court erred in holding that, because of the government's
failure to sign, the second agreement was not an effective
waiver of defendant's rights under the statute of
limitations. It is undisputed that if the second agreement
is found binding, the defendant may not assert his statute of
limitations defense. If not, however, both parties agree
that the defendant may assert 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. Reviewing the district court's
decision on this issue of 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 holding that the
second agreement was ineffective and did not constitute a
waiver of the defendant's statute of limitations defense.
The two agreements carefully and explicitly set forth the
conditions under which the extensions of the limitations
period would become effective. The first extension would
become effective "upon execution by all parties;" the second
extension would become effective "upon execution by Murray,
Spector, and Mintz, and their respective counsel and the
-6-
6
United States by its counsel." The agreements go so far as
to specify that acceptance by one of the defendants would be
made by fax. Both agreements limited the extensions to
definite time periods. Further extensions of the limitations
period were permissible, "but only by a further writing
signed by all parties." One obvious reason for spelling out
these requirements in such detail was to remove all doubt as
to the exact steps by which defendants' partial waiver of
rights and the government's agreement to forbear would become
effective. Creating such a road map told both parties
precisely what each had to do and what each would receive in
exchange, thus minimizing the risk (or so it might be hoped)
of a future dispute over the consummation and meaning of the
agreement. Unfortunately, the government failed to meet the
explicit condition provided to effectuate the second
extension: it failed to sign the document. Thus, by the
plain terms of the second agreement, the extension was not
effective. Where the parties have so deliberately set forth
in writing the conditions necessary to make their agreement
effective, we think it inadvisable for a court to condone
deviation from one of the explicit terms, absent some good
reason to do so.
We find unpersuasive the government's argument that
contract or estoppel principles warrant enforcement of the
agreement, despite the government's failure to comply with
-7-
7
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 application will insure the defendant what is
reasonably due him."). But those principles do not help the
government here.2 The second agreement expressly called for
acceptance of the offer in the form of a signature by the
government attorney. It did not provide for any other form
of acceptance, whether orally3 or through performance. See
Restatement (Second) of Contracts 30 (1979). 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. That
promise provided reassurance and certainty that he would not
be indicted prior to the time period set forth in the
2. As in United States v. Papaleo, 853 F.2d 16, 19 n.3 (1st
Cir. 1985), we need not attempt to decide whether, when and
to what degree local contract law is or may strictly be
applicable to such agreements, since the result here would be
the same regardless.
3. The government argues that Spector's alleged failure to
request a signed copy of the agreement reflects his
understanding that an agreement existed. But this is pure
speculation. Just as the record is devoid of any suggestion
that the defendant sought return of a signed copy of the
contract, it is also devoid of any suggestion that the
government ever informed the defendant that it accepted the
terms of the agreement and was going to forbear from
indicting him.
-8-
8
agreement. The government's estoppel argument is similarly
without merit. The government could not reasonably have
relied upon the defendant's offer to extend the statute of
limitations a second time, in the face of the express
language in the second agreement conditioning the waiver on
the signature of all parties and the express language in the
first agreement allowing extensions only in writing and
signed by all parties. The government has provided no
evidence of any other statements or conduct by the defendant
that could provide a separate basis for an estoppel.
Accordingly, the second agreement, by its terms,
was not effective and the defendant was entitled to assert
his statute of limitations defense. The district court
properly dismissed the two counts of the indictment as
untimely. We recognize that the government's failure to sign
the 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 that we are not saying that, to be
enforced, an agreement to extend the statute of limitations
must be made in writing, or must be signed by the government.
See, e.g., United States v. Doyle, 348 F.2d 715, 718-19 (2d
Cir.) (suggesting that an implicit agreement may be
sufficient to waive the statute of limitations defense),
cert. denied, 382 U.S. 843 (1965). 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 terms, absent
good reason to do otherwise.
-9-
9
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 some good reason to depart.5
That policy is more likely to increase rather than diminish
the utility of such agreements. Were we to accept too
lightly deviations from the explicit language, we would
undermine the certainty the parties hope to achieve. See
also Correale v. United States, 479 F.2d 944, 947 (1st Cir.
1979) ("[T]he most meticulous standards of both promise and
performance must be met by prosecutors engaging in plea
bargaining.") The latter is particularly true where, as
here, the government subsequently seeks specific performance
of the defendant's agreement to waive a defense.
Affirmed.
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 into them, thereby possibly harming
defendants seeking to postpone an imminent indictment. To
the contrary, we are signaling that agreements like this will
be enforced as written, giving the parties more rather than
less control over the situation. All the government had to
do to protect itself in this case was to sign the form in
accordance with the agreed-upon terms.
-10-
10