Monday, November 29, 2021

Can prosecutors get an automatic 6 month extension under the statute of limitations for any reason they want?

 That's the issue in United States v. B.G.G., which I will be arguing in the 11th Circuit in January.  I will be defending Judge Middlebrooks' order, which Jay Weaver covers in this lengthy Herald article.  The Herald is covering the issue again because since B.G.G. was decided, Judges Ruiz and Altman have issued orders coming out the other way.  From the Herald:

When the coronavirus pandemic gripped the nation, the federal court system also largely ground to a halt. Not only did trials get postponed but grand juries could no longer meet to consider indicting criminal defendants. In South Florida, as idle criminal cases ranging from healthcare to financial fraud piled up, prosecutors did what some critics called an end-run around the grand jury process — normally a critical step before charging defendants. They filed a document known as an “information” to avoid missing the five-year deadline to bring charges under the statute of limitations — but without obtaining the constitutionally required consent of defendants to give up their right to be charged by a grand jury indictment. This story is a subscriber exclusive Now, a federal appeals court is going to hear oral arguments in January that will spotlight conflicting decisions on this crucial matter by U.S. district court judges in South Florida: Two found that prosecutors in the U.S. Attorney’s Office acted lawfully, but one concluded they did not when they filed an information as a place keeper to stay within the statute of limitations without the approval of the defendant. Much is riding on the outcome in the 11th U.S. Circuit Court of Appeals — which covers the states of Florida, Georgia and Alabama — because a ruling could decide whether about 10 defendants will still face charges for crimes that both sides acknowledge happened more than five years ago. “Three judges in our district have written thoughtful opinions addressing an issue brought about by the pandemic and caused by the absence of grand juries,” prominent Miami white-collar defense attorney Jon Sale told the Miami Herald. “These decisions are a law professor’s delight,” said Sale, a former federal prosecutor in the Southern Districts of New York and Florida. “They look to the meaning of words going all the way back to the times of our Founding Fathers. It is up to the Eleventh Circuit to resolve the relationship between the plain meaning of a statute and the Fifth Amendment’s guarantee of the right to be charged by a grand jury within the statute of limitations.” 

13 comments:

  1. Anonymous5:02 PM

    Team DMM

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  2. Anonymous5:07 PM

    Team RAR (adopted by Team RKA)

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  3. Anonymous5:39 PM

    Are you saying RKA just cut and pasted?

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  4. Please post the 3 opinions. Thanks.

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  5. Anonymous6:46 PM

    5:07 definitely no cut and paste. Both get to the same place using a textualist approach. Just different stylistically while having to address different arguments from the parties. All 3 orders are solid. Should make for interesting OA.

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  6. Anonymous6:57 PM

    RKA's opinion is anything but a cut and paste job. The order is an amazing read even if you disagree with him. It's a 30 page deep dive into the statute and arguments. Exactly what you expect from a district judge. Same with Middlebrooks' order... really well done and thoughtful (and nice to see that a judge actually backs the defense when there is a close question, as it should be). Ruiz, on the other hand, just parrots the conclusory language that other judges have said about the statute. Nothing original. If you want to see the real debate, check out DMM v. RKA. RAR's analysis is the actual cut and paste job.

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  7. Anonymous8:54 AM

    Technically it's called a "copy and paste" job. Your welcome.

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  8. Anonymous11:15 AM

    Not a surprise. DMM and RKA are true scholars.

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  9. Anonymous12:38 PM

    Are you saying RAR is not?

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  10. Anonymous6:35 PM

    Having received several Ruiz orders, the guy can flat-out write and knows what he is doing. I don't want "true scholars." I want great judges. And he is one of them. Has been for a long time.

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  11. Anonymous6:39 PM

    Not sure why the RKA fan club is upset. Or why this blog cares as long as we have judges explaining themselves with clear writing. I looked at the orders after all this hullabaloo. There's no cut and paste anywhere. Ruiz explained it inside 10 pages and got to the point about the text of the statute. I still think DMM is right. But let's see what the 11th says.

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  12. Anonymous6:41 PM

    Is this blog designed to promote discourse or attack sitting judges who are universally well-respected? This isn't a competition no matter how bad some want it to be.

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  13. Anonymous10:20 AM

    RKA is consistently thoughtful, thorough, and compelling. As is Middlebrooks. This is a conflict between two GOOD judges.

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