The opinion of the court was delivered by: CEDARBAUM
In February 1989, agents of the United States Customs Service seized a number of checks that the government alleges had been sent to Panama by Koh in furtherance of a money-laundering scheme. An investigation ensued, and on March 8, 1989, Koh signed an agreement with the government. The agreement provided that the government would accept a plea of guilty by Koh to two counts of failing to file reports on exporting monetary instruments and that Koh would cooperate in the government's investigation of the money-laundering conspiracy. The agreement is in the form of a four-page, single-spaced letter from Assistant United States Attorney Peter Sobol to Samuel Weissman, Koh's attorney at the time. In the middle of the third page, the agreement provides:
Should Myung S. Koh commit any further crimes or should it be determined that he has given false, incomplete, or misleading testimony or information, or should he otherwise violate any provision of this Agreement, Myung S. Koh shall thereafter be subject to prosecution for any federal criminal violation of which this Office has knowledge . . . . Such prosecutions which are not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced against Myung S. Koh in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of any such prosecution. It is the intent of this Agreement to waive any and all defenses based on the statute of limitations with respect to any prosecutions which are not time-barred on the date this Agreement is signed.
(Ex. A to Not. of Mot. at 3.)
Over the next six years, through late 1995, Koh cooperated with the government in its investigation of the alleged money-laundering conspiracy. During those six years, he never entered a guilty plea pursuant to the agreement.
Accordingly, the agreement was never brought before a court and Koh was never questioned as to whether he had knowingly and voluntarily entered the agreement.
In January 1996, the government declared the agreement void due to Koh's alleged commission of further crimes in breach of the agreement. An indictment was filed in February 1996.
It is undisputed that the crimes charged in Counts One through Three of the indictment are barred by the five-year statute of limitations contained in 18 U.S.C. § 3282, unless the waiver of the statute of limitations defense contained in the plea agreement is valid. It is clear that the statute of limitations is a waivable affirmative defense. United States v. Walsh, 700 F.2d 846, 855-56 (2d Cir. 1983), cert. denied, 464 U.S. 825, 78 L. Ed. 2d 102, 104 S. Ct. 96 (1983). Although the statute of limitations is not a constitutional right but a defense created by statute, both sides agree that a waiver of the statute of limitations must be knowing and voluntary to be enforceable. See, e.g., United States v. Heidecke, 900 F.2d 1155, 1161-62 (7th Cir. 1990) (affirming district court's holding after evidentiary hearing that defendant's waiver of statute of limitations was knowing and voluntary); United States v. Levine, 658 F.2d 113, 124 n.17 (3d Cir. 1981) (waivers of limitations statutes should be made with advice of counsel and with understanding of consequences); United States v. Wild, 179 U.S. App. D.C. 232, 551 F.2d 418, 424-25 (D.C. Cir. 1977), cert. denied, 431 U.S. 916, 53 L. Ed. 2d 226, 97 S. Ct. 2178 (1977); see also United States v. Ready, 82 F.3d 551, 556-57 (2d Cir. 1996) (waiver of right to appeal sentence).
Neither the government nor the defendant has pointed to any case that addresses the question of which party has the burden of proof on the issue of whether a defendant's waiver of the statute of limitations is knowing and voluntary. The issue appears to be one of first impression. At oral argument, the government stated that once a defendant raises the issue by offering some affirmative evidence, the government has the burden of proof.
(Tr. of Oral Arg. dated 5/28/97 at 3, 20-21.) I agree. The primary purpose of a statute of limitations is to protect the defendant who may have lost his means of defense as a result of the passage of time. United States v. Podde, 105 F.3d 813, 819 (2d Cir. 1997). Before the government may deprive the defendant of this important protection, it should be required to prove the existence of a knowing and voluntary waiver. Cf. United States v. Lynch, 92 F.3d 62, 65 (2d Cir. 1996) (government must prove waiver of Miranda rights). In this case, it is unnecessary to decide exactly what evidence the defendant must proffer in order to shift the burden of proof to the government. Although initially, counsel for Koh represented to the court that Koh could not recall whether he knowingly and voluntarily waived the statute of limitations, Koh subsequently submitted an affidavit stating that he did not know or understand the consequences of the waiver. (Tr. of Oral Arg. dated 5/28/97 at 14, 20; Ex. A to Patel Letter dated 6/4/97.) This affidavit clearly raises the issue of whether the waiver was knowing and voluntary. Accordingly, the government bears the burden of proof.
The evidence that has been submitted to the court in this matter is not extensive. The plea agreement was signed in March 1989 at a meeting at the office of Assistant United States Attorney Peter Sobol. Only Sobol, Weissman and Koh were present. Sobol does not think that he explained the terms of the agreement to Koh and has no present recollection of the events that occurred at the meeting. (Riopelle Aff. at 2-3.) Moreover, it is Sobol's usual practice not to explain the terms of plea agreements to defendants. (Id. at 3.) Weissman, Koh's counsel at the time, has submitted an affidavit stating that he "[does] not specifically recall discussing the statute of limitations issue with Mr. Koh" and that "any such discussion would have been brief and would have concerned possible prosecution for acts committed more than 5 years prior to the signing of the agreement." (Attach. to Not. of Mot.) He also states that "Mr. Koh was not advised either by me or Mr. Sobol that the waiver of the statute of limitations in the agreement could be applied prospectively." (Id.)
Koh's recollection of the events that occurred at the meeting is similarly vague. In the first affidavit that he submitted to the court in connection with this motion, he stated only that he had not been advised by either Weissman or Sobol that the plea agreement contained a waiver of the statute of limitations defense. (Attach. to Not. of Mot.) He did not affirmatively state that he had not understood the waiver. In his second affidavit, however, Koh stated that "prior to signing the March 1989 agreement, [he] did not know or understand that there was a 5-year ...