The opinion of the court was delivered by: GLASSER
HONORABLE I. LEO GLASSER, United States District Judge:
Defendant Abraham Srulowitz was convicted by a jury in this district on both counts of an indictment. Count one charged a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq., while count two charged mail fraud, id. § 1341. The court of appeals reversed the conviction on the mail fraud count and dismissed that count for insufficiency of evidence. Additionally, it vacated the RICO conviction and remanded to this court for further proceedings on that count. United States v. Srulowitz, 785 F.2d 382 (2d Cir. 1986).
The court of appeals held that Srulowitz was entitled, on remand, "to pursue a statute of limitations defense related to the propriety of the sealing of the indictment." Id. at 391. This he now does. The statute of limitations argument arises from a somewhat atypical fact pattern, much of which is summarized in the opinion of the court of appeals, id. at 390-91.
The grand jury indicted Srulowitz on May 11, 1983. The RICO count alleged four predicate acts, see 18 U.S.C. § 1961(5), each of which involved allegedly fraudulent mailings. Of the four predicate acts, only two involved mailings alleged to have taken place after May 11, 1978 and thus within the five-year limitations period fixed by 18 U.S.C. § 3282. The court of appeals held that the government failed at trial to offer evidence that a letter of September 23, 1978, which also provided the basis for the mail fraud count, was ever mailed. See Srulowitz, supra, 785 F.2d at 387 ("no rational juror could have concluded beyond a reasonable doubt that the [letter of September 23] had been mailed"). Accordingly, the only remaining allegation of a mailing within the limitations period concerns a letter of June 6, 1978.
Ostensibly, a June 6, 1978 letter, coming as it does after the crucial date of May 11, 1978, would be within the limitations period, if only barely. But, at the government's request, the Srulowitz indictment was sealed by a magistrate and was not unsealed until July 12, 1983. In this connection, the general rule on the federal statute of limitations is:
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.
18 U.S.C. § 3282 (emphasis added).
The issue before the court is whether the indictment of Srulowitz was "found" on May 11, 1983, when voted by the grand jury, or on July 12, 1983, when unsealed,. If the indictment was not found until it was unsealed, there remains no predicate act within the five-year limitations period, because the June 6, 1978 letter preceded the July 12, 1983 unsealing of the indictment by more than five years. Under that circumstance, the court would be constrained to dismiss the RICO count, which is all that remains of the indictment. See Srulowitz, supra, 785 F.2d at 390-91.
II. CONTENTIONS OF THE PARTIES
The court thus turns to the question of when the indictment was found. Citing United States v. Southland Corp., 760 F.2d 1366, 1379-80 (2d Cir.), cert. denied, 474 U.S. 825, 106 S. Ct. 82, 88 L. Ed. 2d 67 (1985), the court of appeals noted that it had
ruled that the date on which an indictment is "found" within the meaning of § 3282 is the date on which it is returned, rather than the later date of unsealing, when the exercise of a sound ...