The opinion of the court was delivered by: STEWART
Defendants Anthony Provenzano, Salvatore Briguglio, Harold Konigsberg and George Vangelakos have been charged with violating 18 U.S.C. § 1201. The two counts of the indictment charge 1) that the defendants conspired "[from] on or about the 1st day of January, 1961 up to and including on or about October 1, 1961" to kidnap Anthony Castellito, then Secretary-Treasurer of Local 560 of the International Brotherhood of Teamsters, for the purpose of murdering him, and 2) that defendants kidnapped Castellito by taking him from New Jersey to New York for the purpose of murdering him "on or about June 5, 1961." This indictment was handed up by the Grand Jury on June 22, 1976.
Defendants have moved for dismissal of the indictment on the ground that it is barred by the statute of limitations.
There are two sections of the United States Code that set forth the statutes of limitation applicable to criminal offenses. The first, 18 U.S.C. § 3281 applies to "[capital] offenses" and provides
An indictment for any offense punishable by death may be found at any time without limitation...
The second, 18 U.S.C. § 3282 applies to "[offenses] not capital" and 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.
Since the indictment in the instant case was returned some fifteen years after the alleged offenses were committed, it is time-barred unless § 3281 governs. In order for § 3281 to apply, the offense must be "capital," which traditionally has meant "punishable by death." To determine whether a violation of § 1201 may be considered capital now, we must analyse the particular transitions which the death penalty provision of the kidnap statute has gone through since 1961.
In 1961, 18 U.S.C. § 1201 read in pertinent part
(a)... Whoever knowingly transports in interstate or foreign commerce any person who has been unlawfully... kidnapped... and held for ransom or reward or otherwise... shall be punished (1) by death if the kidnapped person has not been liberated unharmed and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.
(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall ...