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Limitations Case Analysis

The decision raises a number of issues that attorneys need to be aware of whenever an indictment is filed at the eleventh hour before expiration of the statute of limitations.

In its discussion of the sufficiency of the evidence, the court stated, “Caldwell does not challenge the [jury] instruction; he contends only that the instruction makes it cloudy on which date the jury did in fact rely.”

The court does not say, but presumably, Caldwell failed to object to the jury instruction, and that is why he did not challenge it on appeal. When a defendant fails to object to a jury instruction, review on appeal is for plain error. U.S. v. Gee, 226 F.3d 885, 894 (7th Cir. 2000). “Reversal is proper only if the instructions as a whole are insufficient to inform the jury correctly of the applicable law and the jury is thereby misled.” U.S. v. Madoch, 149 F.3d 596, 599 (7th Cir. 1998).

Even on plain error review, however, this is would be close case, if Caldwell had challenged the instruction.

The standard jury instruction in the Seventh Circuit regarding date of offense states as follows: “The indictment charges that the offense was committed ‘on or about’ [Sept. 18, 1998]. The government must prove that the offense happened reasonably close to that date but is not required to prove that the alleged offense happened on that exact date.”

Obviously, Sept. 16, 1998, is “reasonably close to” Sept. 18, 1998, yet is outside the statute of limitations. The jury instruction on these facts is clearly “insufficient to inform the jury correctly of the applicable law.”

However, it is not clear that the jury was misled. The warrant was executed and the guns found on Sept. 18; nothing in the opinion suggests that Caldwell had been on vacation or otherwise away from his home in the days preceding the warrant’s execution. Even with a proper instruction, it seems likely the jury would have returned a verdict of guilty.

Had Caldwell made a proper objection at trial, reversal would have been required because, as noted, the instruction permitted the jury to make a finding of guilty based on conduct outside the limitation period.

Even though the affirmance of the conviction appears correct, however, the statute of limitations issue suggests that the enhancement for possessing a firearm in connection with drug trafficking should have been reversed, if Caldwell had made a proper objection.

It is no stretch to conclude from the evidence that Caldwell did possess the guns in connection with heroin trafficking.

However, no heroin was found when the warrant was executed on Sept. 18, 1998. On Sept. 17, 1998, Young told police that he had been buying heroin from Caldwell for the previous six months and that, on the previous day (Sept. 16, 1998), he paid Caldwell $10,000 as a partial payment for heroin Sept. 16, 1998, however, is outside the limitations period.

There is no evidence in the record to suggest that on either Sept. 17, 1998, or Sept. 18, 1998, Caldwell was actively engaged in trafficking heroin. As a result, the enhancement should not have been used.

Related Links

7th Circuit Court of Appeals

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Conviction upheld despite erroneous instruction

Consider the following case from the D.C. Circuit, U.S. v. Hart, 324 F.3d 740 (D.C.Cir. 1003). The court there affirmed application of U.S.S.G. 2K2.1(b)(5), holding that use of a gun in a prior homicide qualified as “another felony offense,” that could enhance a sentence for a felon in possession charge, even though the homicide occurred months prior to the defendant’s arrest for unlawful possession of the firearm.

Suppose, however, that, although the possession of the firearm occurred within the limitations period, the homicide had occurred outside it. In such a case, the enhancement would be clearly improper.

Even though a homicide is a one-time event, while drug trafficking is generally a continuing offense, the distinction is irrelevant; absent some evidence of heroin trafficking by Caldwell on one of the two days within the limitation period, the enhancement was improper.

Had Caldwell extended his statute of limitations argument to the sentencing issue, the court would have been required to vacate the sentence enhancement.

– David Ziemer

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David Ziemer can be reached by email.

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