The opinion of the court was delivered by: GRIESA
Defendant Sindona makes the following motion with respect to the indictment:
(1) To dismiss the indictment on the basis of the 5-year limitation in 18 U.S.C. § 3282;
(2) To dismiss Count 1 the conspiracy count because it is duplicitous;
(3) To dismiss the indictment for violation of Fed.R.Crim.P. 6(d), unless the Government makes a showing of nonviolation.
The applicable statute of limitations, 18 U.S.C. § 3282, 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."
The indictment against defendant Sindona was filed March 19, 1979. If the bar of § 3282 is applicable, it would apply to allegations of offenses committed before March 19, 1974.
The indictment contains 99 counts. Count 1 the conspiracy count alleges a conspiracy starting in January 1969 and extending, in the familiar phraseology of conspiracy counts, "up to and including the date of the filing of this Indictment." Actually the specific allegations of wrongdoing in Count 1 cover the period from July 1972 to March 31, 1974. Thus Count 1 charges a conspiracy commencing prior to March 19, 1974 and extending after that date.
Most, but not all, of the substantive counts allege offenses committed before March 19, 1974. However, Counts 36-38, 75, 80, 82, 83, 84-94, and 96-99 allege offenses committed after that date.
Although the Sindona statute of limitations motion speaks generally of the entire indictment being barred, presumably the motion does not in fact cover the substantive counts alleging offenses committed after the limitation date. As to the conspiracy count, neither side has briefed the question of how the statute of limitations applies to an allegation of conspiracy commencing before the limitation date and continuing thereafter.
The question which has been argued on the present motion is whether certain waivers of the statute of limitations, executed by defendant Sindona and his attorneys, are or are not effective as a matter of law. The Government contends that they are. Defendant Sindona contends that § 3282 is a categorical bar of all prosecutions for offenses committed more than five years before an indictment, and that this bar cannot be waived.
The fact of the waivers is undisputed. Thirteen written waivers were executed by defendant Sindona, and witnessed by the two attorneys then representing him John J. Kirby, Jr., Esq., and Robert Kasanof, Esq. on various dates from June 30, 1977 to February 21, 1979. An affidavit submitted by the Government states that the first four waivers were prepared by the Government and signed by defendant Sindona and his counsel; that the remaining nine waivers were prepared by defendant Sindona's counsel; that each waiver was preceded by discussion between counsel for both sides and determined to be in the mutual interest of both parties; that in March 1979 defendant Sindona sought further deferral of the filing of the indictment and expressed the desire to the Government to further waive the statute of limitations and allow additional investigation. The Government, of course, did not defer the matter further, and proceeded to obtain the indictment of March 19, 1979.
The decisions in this circuit run counter to defendant Sindona's argument that the limitation of § 3282 cannot be waived. United States v. Parrino, 203 F.2d 284, 286-87 (2d Cir. 1953), Cert. denied, 348 U.S. 840, 75 S. Ct. 46, 99 L. Ed. 663 (1954), held, in effect, that a guilty plea was a waiver of the defense of the statute of limitations. In a later proceeding in the same case, the Court of Appeals reaffirmed that the defense of statute of limitations could be waived by a plea of guilty, where such waiver was deliberate and intentional. United States v. Parrino, 212 F.2d 919, 922 (2d Cir. 1953), Cert. denied, 348 U.S. 840, 75 S. Ct. 46, 99 L. Ed. 663 (1954). United States v. Doyle, 348 F.2d 715, 718-19 (2d Cir.), Cert. denied, 382 U.S. 843, 86 S. ...