The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
On August 17, 1982 a grand jury of this district returned the captioned indictment against Gerald E. Lee and George G. Davis. Lee and Davis were charged in one count of conspiracy to enrich themselves through fraud, and Lee in two counts of violating 18 U.S.C. § 2314. Lee has pleaded guilty. Davis awaits trial on the conspiracy count, scheduled to begin on April 2, 1984. It is expected that Lee, now cooperating with the Government, will testify against him.
The date of the latest overt act alleged in the conspiracy count is November 22, 1977. The statute of limitations on that count accordingly expired on November 22, 1982. 18 U.S.C. § 3282; United States v. Culoso, 461 F. Supp. 128, 131 (S.D.N.Y. 1978), aff'd mem., 607 F.2d 999 (2d Cir. 1979).
The indictment was sealed upon its return, and unsealed on September 15, 1983. On March 21, 1984 Davis moved pursuant to Rule 6(e), F.R.Crim.P., to dismiss the indictment. Alternatively he moves pursuant to Rule 13 to consolidate trial of the captioned indictment with that of Indictment No. 83 Cr. 551, currently pending before Judge Conner.
I treat these motions in order. Motions to Dismiss the Indictment
Davis's motion to dismiss arises from the fact that, while the indictment was timely filed, it was sealed and not made public until after the end of the statutory limitations period.
Sealing an indictment is sanctioned by Rule 6(e)(4), which provides in pertinent part:
"The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial." The complications that arise when the statute of limitations runs out while the indictment is sealed were most recently considered by the Second Circuit in United States v. Muse, 633 F.2d 1041 (2d Cir. 1980) (en banc).
The Government contends that, in the circumstances of the case when viewed in the light of Muse, there is no merit to Davis's motion. Initially, however, the Government attacks the motion as untimely.
It is true, as the Government stresses, that the Court set a deadline of November 17, 1983 for pre-trial motions. That action was taken pursuant to Rule 12(c). Rule 12(f) provides that a party's failure "to raise defenses or objections or to make requests" by the specified time "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." As noted infra, Davis's claim of prejudice resulting from delay in unsealing the indictment relates to the death of two allegedly exculpatory witnesses. Counsel for Davis did not become aware of the death of one of these witnesses, one Jerry Shanks, until early December, 1983. Counsel for defendant has also recently recovered from serious illness. I accept the Government's contention that, notwithstanding these factors, the instant motion could have been made earlier. But I conclude that good cause has been shown for defendant's failure to make this particular argument on or before November 17, 1983, the Rule 6(c) deadline; and that sufficient cause exists to excuse the actual date of filing of the motion to dismiss. Accordingly I proceed to a consideration of its merits.
The "obvious purpose" of Rule 6(e)(4) "is to prevent the requirement of an indictment from serving as a public notice that would enable the defendant to avoid arrest." Muse, supra, at 1043. And, as Muse makes clear, where there are co-defendants, good faith efforts to arrest one of them will justify the sealing of an indictment as to all. The power to seal an indictment, Judge Newman wrote for the en banc court in Muse, "is based on the legitimate prosecutorial needs of the Government to capture those properly indicted for criminal activity." Ibid.
The case at bar turns upon the Government's efforts to capture Davis's co-defendant, Lee. It is common ground that prior to August 17, 1982, when the grand jury returned the indictment, Lee had departed these shores for Ireland. In these circumstances, Davis argues, the Government cannot be heard to argue that the indictment was sealed in order to facilitate or ensure Lee's arrest. The Government's real reason for sealing the indictment, Davis suggests, was to permit completion of a grand jury investigation into another and more elaborate fraudulent scheme, involving Davis, Lee, and two other defendants. It is this indictment, returned by the grand jury in September, 1983, that is presently pending before Judge Conner. Such tactical considerations, Davis argues, cannot be condoned in derogation of his own right to timely trial under the captioned indictment.
If Davis had accurately identified the reason why the prosecutor sealed the indictment, there would be authority for dismissal. United States v. Heckler, 428 F. Supp. 269 (S.D.N.Y. 1976); United States v. Sherwood, 38 F.R.D. 14 (D.Conn. 1964), aff'd sub. nom. United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 15 L. Ed. 2d 84, 86 S. Ct. 89 (1965). But I reject Davis's argument because I cannot accept its basic premise.It is true that Lee had fled to Ireland before the indictment was filed. However, the Government retained a lively interest in his "capture," to use Judge Newman's word in Muse. I am satisfied by AUSA Denton's representations in this case that the Government reasonably believed its prospects of capturing Lee were better if Lee were to travel outside Ireland. In furtherance of that assessment, the Government requested and obtained the assistance of Interpol. The Government also reasonably believed that if Lee learned that he had been indicted by a grand jury here, he would be more likely to keep to ground in Ireland. Therefore the indictment was sealed. The accuracy of the Government's assessment appears to be confirmed by the fact that arrangements were ultimately made for Lee's return to the United States from a country other than Ireland.
In these circumstances, I hold that the Government procured the sealing of the indictment in aid of precisely that "legitimate prosecutorial need" contemplated by Rule 6(e)(4) and sanctioned by a line of appellate authority beginning with United States v. Michael, 180 F.2d 55, 56-57 (3rd Cir. 1949), cert. denied, 339 U.S. 978, 70 S. Ct. 1023, 94 L. Ed. 1383 (1950), of which Muse, supra, is the most recent expression in this Circuit.
That holding does not end the inquiry. As Muse observes, the Court must balance "adequate recognition of the legitimate interests of both prosecution and the defendant." Id. at 1043. The defendant's interest is in avoiding a stale prosecution. His primary protection is the five-year statute of limitations, as enacted in 18 U.S.C. § 3282. Muse considered the interaction of that statute and the sealing of an indictment for the indicated legitimate prosecutorial need. In Muse, the Second Circuit en banc undertook to:
". . . provide guidance for determining how much protection should be afforded a defendant when an indictment is returned within the limitations period but maintained under seal until that period has run in order to serve the ...