United States v. DeLia , 906 F.3d 1212 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 29, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7051
STEVEN WILLIAM DELIA,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:16-CR-00042-JHP-1)
_________________________________
Robert L. Wyatt of Wyatt Law Office, Oklahoma City, Oklahoma, for Defendant-
Appellant.
Linda Epperley, Assistant United States Attorney (Brian Kuester, United States Attorney,
and Melody Noble Nelson, Assistant United States Attorney, with her on the brief),
Muskogee, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before PHILLIPS, EBEL, and MORITZ, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
A federal grand jury indicted Steven DeLia on one count of healthcare fraud. See
18 U.S.C. § 1347. But the government filed the indictment outside the ordinarily
applicable statute of limitations—that is, more than five years after DeLia’s charged
conduct occurred. See 18 U.S.C. § 3282(a). Even so, for two independent reasons, the
government argues that the indictment was timely: (1) that the Wartime Suspension of
Limitations Act suspended the limitations period from running in this case, see 18 U.S.C.
§ 3287; and (2) that DeLia waived his asserted statute-of-limitations defense. We reject
both reasons and conclude that the prosecution is time-barred. Exercising jurisdiction
under 28 U.S.C. § 1291, we reverse and remand with instructions to vacate DeLia’s
conviction and dismiss the indictment.
BACKGROUND
In 2009, DeLia, then a licensed physician, opened a medical clinic in Sallisaw,
Oklahoma, practicing family medicine and psychiatry. He also served as a member of the
United States Army Reserve. In mid-2010, DeLia learned that the Army would deploy
him to Afghanistan, so he began preparing the clinic for his absence.
At that time, DeLia’s staff included two licensed practical nurses, LeeAnn
Dewberry and Jennifer Campney, and one physician’s assistant, Susan Davis (PA Davis).
Under Oklahoma law, licensed practical nurses cannot prescribe Schedule II controlled
substances. See Okla. Stat. tit. 59 § 567.4a; Okla. Stat. tit. 63 § 2-312(C). But Oklahoma
law permits physician’s assistants to prescribe Schedule II controlled substances1 if
acting under a physician’s supervision and if the controlled substance is administered
onsite. Okla. Stat. tit. 59 § 519.6(D).
1
Under Oklahoma law, “Schedule II includes substances with the following
characteristics: 1. High potential for abuse; 2. Currently accepted medical use in the
United States, or currently accepted medical use with severe restrictions; and 3. The
abuse of the substance may lead to severe psychic or physical dependence.” Okla.
Stat. tit. 63 § 2-205.
2
To keep his clinic open while he was deployed, DeLia signed pads of blank
prescription forms for the clinic staff’s use. This enabled the clinic staff to write
prescriptions by simply completing the prescription forms with the patient’s name, the
drug, and the dosage. In total, DeLia signed about 5,000 blank prescriptions to prepare
the clinic for his four-month deployment. PA Davis used the signed prescription forms to
write prescriptions for Schedule II controlled substances. Among those receiving her
prescriptions for Schedule II controlled substances were DeLia’s pain-management
patients, a group making up a significant portion of DeLia’s practice. Though DeLia
looked for a physician to supervise PA Davis during his deployment, he failed to obtain
one.
In mid-October 2010, DeLia left Sallisaw to visit family before reporting to Fort
Benning at month’s end. Appellant’s App. vol. 3 at 632:5–9. In early November, the
Army sent DeLia from Fort Benning to Kuwait and then to Afghanistan.
About two weeks after Delia left Sallisaw, the Oklahoma Board of Medical
Licensure (the Board) learned from an anonymous caller that DeLia was out of state and
that his office staff was prescribing controlled substances with DeLia’s pre-signed, blank
prescription forms. In addition, the Oklahoma State Pharmacy Board received calls from
pharmacists reporting that they had received new prescriptions for Schedule II controlled
substances from DeLia, who they believed was not in Oklahoma.
Two Board investigators traveled to DeLia’s clinic where they questioned the
clinic staff. According to the Board’s records, DeLia was PA Davis’s sole supervising
physician. PA Davis confirmed this to investigators. While at the clinic, investigators
3
confiscated 5,625 blank pre-signed prescriptions and a sign-out log showing that the
clinic’s staff had already used 4,330 pre-signed prescriptions between March 1, 2010 and
November 3, 2010. Even before the Army told DeLia that it would deploy him in
October, DeLia had pre-signed blank prescriptions for use when he was out of the clinic,
including while he was vacationing. DeLia had also previously allowed clinic staff to use
pre-signed, blank prescription forms to prescribe controlled substances even when he was
working in the clinic—to increase office efficiency.
In February 2011, DeLia returned to Sallisaw. In December 2011, the Board filed
a disciplinary action against DeLia, alleging that he had engaged in unprofessional
conduct by pre-signing prescription forms for his staff to use while he was gone and by
directing PA Davis to provide healthcare services despite his failure to secure for her a
supervising physician. Okla. Stat. tit. 59 § 519.6(A). In March 2012, DeLia surrendered
his medical license in lieu of prosecution by the Board.
In January 2016, DeLia met with federal prosecutors and signed a waiver of the
applicable statute of limitations for “offenses, including but not limited to, conspiracy to
commit health care fraud, health care fraud and money laundering.” Appellant’s App.
vol. 1 at 34–36. In the waiver, DeLia acknowledged knowing that he was a target of a
federal grand-jury investigation related to “his conduct causing false claims to be filed
and for receiving health care payments from Medicare, Medicaid, and Tricare for services
not provided from 2010 through 2011.” Appellant’s App. vol. 1 at 34 ¶ 1. The waiver
further stated that DeLia desired to “extend” the applicable statute of limitations. Id. at 34
¶ 2. Specifically, the waiver stated that DeLia had been “advised that if, in fact, the
4
statute of limitations as to any of the specified offenses were to expire during the period
agreed upon,” the waiver “would extend the period during which he could be prosecuted
for such criminal violations.” Id. at 35 ¶ 3. DeLia agreed to waive the statute of
limitations “for the period from the date of his execution of this Waiver [January 5, 2016]
through and including July 31, 2016.” Id. at 36 ¶ 8.
On June 15, 2016, a federal grand jury indicted DeLia on one count of healthcare
fraud, see 18 U.S.C. § 1347.2 The indictment alleged that “[b]eginning February 1, 2010,
and continuing through November 9, 2010” DeLia had “devised and executed a scheme
to defraud the Oklahoma Medicaid program by causing the filing of false claims and
receiving Medicaid payments for medical services not rendered by a qualified medical
professional.” Id. at 15–16. Three months before trial, DeLia moved to dismiss the
indictment, arguing that the statute of limitations had expired. The district court denied
DeLia’s motion, concluding that the indictment was timely because the Suspension Act
had tolled the statute of limitations. The case proceeded to trial.
After the government presented its case, DeLia moved for the district court to
reconsider his motion to dismiss based on the statute of limitations. The district court
denied DeLia’s motion. The jury convicted DeLia of healthcare fraud. DeLia appealed
the district court’s denial of his motion to dismiss and his conviction.3
2
The indictment also included a forfeiture allegation for any proceeds
obtained from the charged offense.
3
Because we conclude that the prosecution is time-barred, we don’t decide the
other issues DeLia raises on appeal—whether the district court violated his Sixth
5
DISCUSSION
On appeal, DeLia argues that the district court erred in ruling that the statute of
limitations hadn’t expired. First, DeLia argues that the Suspension Act applies to war-
related frauds against the federal government, not to healthcare fraud against a state
agency. Second, he argues that the government cannot use a waiver to revive an already-
expired limitations period. Third, DeLia argues that even if a waiver could revive an
already-expired limitations period, the waiver would be unenforceable because he didn’t
knowingly execute it, meaning he didn’t know when he signed the waiver that the statute
of limitations had already expired for what would ultimately be the charged conduct.4 We
address each of these arguments after identifying our standard of review and discussing
the applicable criminal statute of limitations.
I. Standard of Review
We review de novo a district court’s interpretation and application of a statute of
limitations. Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015). And we
review de novo the question of whether a defendant’s express waiver of the statute of
limitations is enforceable. United States v. Flood, 635 F.3d 1255, 1258 (10th Cir. 2011).
Amendment right to self-representation and whether the government presented
sufficient evidence to sustain his conviction.
4
The government charged DeLia for his acts from February 1, 2010 through
November 9, 2010. The waiver declares that DeLia knows he is a target of a grand
jury investigation for making false claims and taking unearned healthcare payments
“from 2010 through 2011.” If the government had charged DeLia for acts committed
between January 5, 2011 (five years before the waiver) and July 31, 2011 (five years
before the waiver’s agreed end date), the indictment would have been timely for that
conduct. In other words, the waiver here added roughly seven months to the
applicable statute of limitations.
6
II. The Statute of Limitations
The government had five years from DeLia’s alleged criminal conduct to indict
him. See 18 U.S.C. § 3282(a).5 A “statute of limitations reflects a legislative judgment
that, after a certain time, no quantum of evidence is sufficient to convict.” Stogner v.
California, 539 U.S. 607, 615 (2003). This time limit “is designed to protect individuals
from having to defend themselves against charges when the basic facts may have become
obscured by the passage of time and to minimize the danger of official punishment
because of acts in the far-distant past.” Toussie v. United States, 397 U.S. 112, 114–15
(1970). Statutes of limitations also encourage law enforcement to promptly investigate
suspected criminal activity. Id. at 115.
A statute of limitations “provides a nonjurisdictional defense, not a jurisdictional
limit.” Musacchio v. United States, 136 S. Ct. 709, 718 (2016). So a defendant must
affirmatively and timely raise a statute-of-limitations defense. Id. at 717–18. When a
defendant does so, “the Government then bears the burden of establishing compliance
with the statute of limitations by presenting evidence that the crime was committed
within the limitations period or by establishing an exception to the limitations period.” Id.
at 718.
Here, the indictment charged DeLia with criminal conduct occurring between
February 1, 2010 through November 9, 2010. So absent an exception, the statute of
5
The general statute of limitations for non-capital criminal offenses provides
that “[e]xcept 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(a).
7
limitations would have expired on November 9, 2015. But the government didn’t file the
indictment until June 15, 2016. To excuse its delay, the government argues two
independent positions: (1) that the Suspension Act tolled the statute of limitations, and (2)
that, even if the statute of limitations did expire, DeLia waived his statute-of-limitations
defense.6
A. Wartime Suspension of Limitations Act
“When the United States is at war or Congress has enacted a specific authorization
for the use of the Armed Forces,” the Suspension Act suspends the statute of limitations
for certain offenses “until 5 years after the termination of hostilities.” 18 U.S.C. § 3287.
Congress enacted the Suspension Act to guard against the increased potential of fraud
against the federal government during wartime by giving the government more time to
discover and prosecute such offenses. See Kellogg Brown & Root Servs., Inc. v. United
States, ex rel. Carter, 135 S. Ct. 1970, 1973, 1975 (2015); Bridges v. United States, 346
U.S. 209, 218 (1953). The Suspension Act “creates an exception to a longstanding
congressional ‘policy of repose’ that is fundamental to our society and our criminal law.”
Bridges, 346 U.S. at 215–16. So the statute “should be ‘narrowly construed,’” and any
ambiguity should be “‘interpreted in favor of repose.’” Kellogg, 135 S. Ct. at 1978
(quoting Bridges, 346 U.S. at 216).
In September 2001, Congress specifically authorized the use of military force
“against those responsible for the [September 11, 2001] attacks launched against the
6
The waiver of the statute of limitations that DeLia executed doesn’t reference
the Suspension Act.
8
United States.” Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat.
224 (2001). And in October 2002, Congress specifically authorized the use of military
force in Iraq. Authorization for Use of Military Force Against Iraq Resolution of
2002, Pub. L. No. 107–243, 116 Stat. 1498. Hostilities end within the meaning of the
Suspension Act only when “proclaimed by a Presidential proclamation, with notice to
Congress, or by a concurrent resolution of Congress.” 18 U.S.C. § 3287.
DeLia acknowledges that the Suspension Act tolls the statute of limitations for
some criminal offenses and that, for those offenses, the tolling continues until the
President or Congress proclaims the termination of hostilities. But DeLia disputes that the
Suspension Act applies to his charged offense—defrauding a state healthcare benefit
program. The Suspension Act applies to any offense:
(1) involving fraud or attempted fraud against the United States or any
agency thereof in any manner, whether by conspiracy or not, or
(2) committed in connection with the acquisition, care, handling, custody,
control or disposition of any real or personal property of the United States,
or (3) committed in connection with the negotiation, procurement, award,
performance, payment for, interim financing, cancelation, or other
termination or settlement, of any contract, subcontract, or purchase order
which is connected with or related to the prosecution of the war or directly
connected with or related to the authorized use of the Armed Forces, or
with any disposition of termination inventory by any war contractor or
Government agency.
18 U.S.C. § 3287.
Offenses involving fraud covered by the Suspension Act are “limited strictly to
offenses in which defrauding or attempting to defraud the United States is an
9
essential ingredient of the offense charged.” Bridges, 346 U.S. at 221.7 In Bridges,
the Court held that the Suspension Act didn’t apply to offenses charging knowingly
making a false statement under oath in naturalization proceedings, because the
offenses didn’t “involve the defrauding of the United States in any pecuniary manner
or in a manner concerning property.” Id.
By contrast, in United States v. Grainger, 346 U.S. 235, 237, 241–45 (1953),
the Court held that the Suspension Act did apply to false claims for wool purchases
from a federal agency (the Commodity Credit Corporation), because defrauding the
federal government was “an essential ingredient of the offenses charged.”
To determine whether the Suspension Act applies, we must evaluate the elements
of the charged offense. Bridges, 346 U.S. at 222–23. Here, DeLia was charged with
7
The government argues that the current Suspension Act is “very different”
from the version the Supreme Court interpreted in Bridges. Appellee’s Response Br.
at 37. Previous versions of the Suspension Act applied to only fraud against the
federal government or any agency thereof. See Act of Aug. 24, 1942, ch. 555, 56 Stat.
747–48. In 1944, Congress amended the Suspension Act to include offenses
committed in connection with war-related government contracts, § 19(b), 58 Stat. 667
(1944), and offenses committed in connection with surplus property, § 28, 58 Stat.
781 (1944). Again, in 1948, Congress amended the Suspension Act to apply to
offenses: (1) involving fraud against the federal government or an agency thereof;
(2) committed in connection with the federal government’s property; or
(3) committed in connection with war-related government contracts. § 3287, 62 Stat.
828 (1948). Finally, in 2008, Congress amended the Suspension Act to suspend
statutes of limitations not only when the “United States is at war” but also when
“Congress has enacted a specific authorization for the use of the Armed Forces.”
§ 855, 122 Stat. 4545 (2008). Congress also lengthened the suspension period from
three to five years after hostilities end. Id. And Congress required notice of any
Presidential proclamation terminating hostilities. Id. So the differences between the
current Suspension Act and the version of the statute at issue in Bridges don’t impact
our interpretation of what constitutes fraud against the federal government under the
statute.
10
healthcare fraud under 18 U.S.C. § 1347, which makes it unlawful to “defraud any health
care benefit program . . . in connection with the delivery of or payment for health care
benefits, items, or services.” A “health care benefit program” is “any public or private
plan or contract . . . under which any medical benefit, item, or service is provided to any
individual.” 18 U.S.C. § 24(b).
DeLia argues that the Suspension Act doesn’t apply to § 1347, because Congress
enacted the Suspension Act to combat war-related fraud. And, he says, the charged
offense involves not war-related fraud against the federal government, but healthcare
fraud against a state agency.
The government responds that the Suspension Act applies because Medicaid is a
federal-state partnership that involves a substantial expenditure of federal funds.8 From
there, the government argues that the charged offense fits into two of the three offense
categories covered by the Suspension Act—first, offenses involving fraud against the
federal government; and second, offenses committed in connection with the federal
government’s property (here, federal funds). We conclude that the government has failed
to establish that the Suspension Act applies to the charged offense.
8
Though the government’s arguments reference Medicaid fraud, the
government charged DeLia with healthcare fraud under 18 U.S.C. § 1347. A separate
criminal statute addresses fraud against a federal healthcare program. See 42 U.S.C.
§ 1320a-7b.
11
Though the government argues that Medicaid fraud9 constitutes fraud against the
United States or a federal agency, the charged offense—healthcare fraud—contains no
element requiring proof that DeLia defrauded the federal government. Instead, § 1347
requires proof that DeLia defrauded a “health care benefit program.” The district court
instructed the jury that the government had to prove four elements beyond a reasonable
doubt:
First: the defendant devised a scheme or artifice to defraud a health
care benefit program in connection with the delivery of or payment for
health care benefits, items or services;
Second: the defendant executed or attempted to execute this scheme
or artifice to defraud;
Third: the defendant acted knowingly and willfully with the intent to
defraud; and
9
The district court cited one case in which a court applied the Suspension Act
to an offense involving Medicaid fraud. United States v. Delia, No. 16-CR-42-JHP,
2016 WL 4385999, at *3 (Aug. 17, 2016) (citing United States v. Planned
Parenthood Gulf Coast, Inc., 21 F. Supp. 3d 825, 827–28, 837 (S.D. Tex. 2014)
(applying the Suspension Act to a False Claims Act claim alleging that the defendant
had fraudulently billed Medicaid for blood tests)). In addition, we found two cases
applying the Suspension Act to offenses involving Medicaid fraud. See United States
v. Saber Health Care Grp., No. 1:13 CV 197, 2015 WL 12766495, at *1, 5 (N.D.
Ohio Mar. 12, 2015) (applying the Suspension Act to a False Claims Act claim
alleging that the defendant submitted fraudulent claims to Medicaid for patients
admitted for thirty-day bed holds); United States ex rel. Paulos v. Stryker Corp., No.
11-0041-CV-W-ODS, 2013 WL 2666346, at *1, 15 (W.D. Mo. June 12, 2013)
(applying the Suspension Act to a False Claims Act claim alleging that the defendant
marketed its pain pumps for uses that the FDA declined to approve then sought
reimbursement for those unapproved uses from Medicaid and other programs), aff’d
on other grounds, 762 F.3d 688 (8th Cir. 2014). But each of these cases involved
civil False Claims Act violations. The False Claims Act imposes liability on anyone
who knowingly defrauds the federal government. See 32 U.S.C. § 3729. By contrast,
the healthcare fraud statute the government charged DeLia under makes it unlawful
to defraud a “health care benefit program.” 18 U.S.C. § 1347. Further, the Supreme
Court has since held that the Suspension Act applies to only criminal offenses, and
doesn’t extend to civil False Claims Act claims. Kellogg, 135 S. Ct. at 1978.
12
Fourth: the scheme to defraud employed false or fraudulent
pretenses, representations, or promises.
Appellant’s App. vol. 1 at 135. Nothing required the jury to find that DeLia had
defrauded the federal government or a federal agency. In fact, the indictment alleged
that DeLia had executed a scheme “to defraud money and property owned by and under
the custody and control of the Oklahoma Health Care Authority, a health benefit
program.” Appellant’s App. vol. 1 at 16.
At trial, the government presented evidence that the healthcare benefit program
DeLia defrauded was the Oklahoma Health Care Authority (“the Authority”). This
evidence included testimony from the Authority’s employees and DeLia’s former
office staff. One Authority employee, Amy Bradt, testified about the provider
agreement that DeLia and the Authority had signed, which required DeLia to provide
medical services in accordance with his license and to comply with the rules and
regulations of the Authority. Another Authority employee, Jean Krieske, testified
about the supervision requirements for physician’s assistants and their prescriptive
authority, particularly the limited circumstances in which they can prescribe
Schedule II controlled substances.
PA Davis, who had served as DeLia’s physician’s assistant during the time
period alleged in the indictment, testified about using the pre-signed prescription
forms to prescribe Schedule II controlled substances that she knew she couldn’t
lawfully prescribe. PA Davis also testified that she had no supervising physician
while DeLia was deployed. Finally, Justin Etchieson, a data analyst at the Oklahoma
13
Attorney General’s Office Medicaid Fraud Control Unit, testified about the claims
that the Authority had paid for services provided at DeLia’s clinic and for Schedule II
prescriptions.
The government also presented evidence that the Authority is a state agency.
Bradt testified that the Authority is “the state Medicaid agency,” meaning it is the “one
state agency that processes and pays Medicaid claims[.]” Appellant’s App. vol. 1 at
204:17–22. And Etchieson testified that the Authority is “the state agency that
administers the Medicaid program.” Appellant’s App. vol. 2 at 548:12–15. So the
charged offense involved fraud against a state agency, not the federal government or a
federal agency.10
Faced with this fact, the government argues that the Suspension Act applies
because the federal government partly funds Oklahoma’s Medicaid program. We have
already concluded that the charged offense doesn’t have as an element fraud against the
federal government, so we next analyze the government’s argument in the context of the
second category of offenses, those committed in connection with the federal
government’s property. See 18 U.S.C. § 3287.
10
The government argues that if we accept DeLia’s argument that the offense
involves fraud against a state agency, not the federal government or federal agency,
“no federal program which partners with or passes through a state source would
qualify as a fraud victim under the WSLA (perhaps even those federally & state
funded programs directly related to the military).” Appellee’s Response Br. at 35. We
disagree. The government’s delay in charging caused its present difficulties. If the
government wishes to take advantage of the extra time afforded to it by the
Suspension Act, it should ensure that its charged offense requires proof that the fraud
was against the federal government. Further any military- or war-related offenses
could also fit under the Suspension Act’s third category, offenses committed in
connections with war-related government contracts. See 18 U.S.C. § 3287.
14
At trial, Bradt testified that the Authority uses federal and state funds to satisfy
claims. But the government wasn’t required to prove that the funds the federal
government distributes to the Authority continue to belong to the federal government.
Instead, the indictment alleged that the offense involved money and property owned by
the Authority. At trial, the government presented evidence that the offense involved
claims submitted to and paid by the Authority.
Though the Authority receives federal funds, that fact alone is insufficient to bring
the charged offense within the scope of the Suspension Act. The charged offense must be
committed in connection with the federal government’s property, see 18 U.S.C. § 3287, a
fact that the government wasn’t required to prove for the jury to find DeLia guilty of the
charged offense. And the government cites no authority for the proposition that
defrauding a program partially funded by federal money qualifies as an offense
committed in connection with the federal government’s property. Accepting the
government’s argument would require us to expand the scope of the Suspension Act
beyond any court’s previous constructions of the statute.11
11
The Supreme Court’s most recent decision addressing the Suspension Act held
that the statute is limited to criminal offenses. Kellogg, 135 S. Ct. at 1978. And the
decision reaffirmed that courts must narrowly construe the statute. Id. We have located
few circuit-court decisions applying the Suspension Act to toll the limitation periods for
charged offenses, and none tolling the five-year limitation period in which to indict
charges under § 1347. See United States v. Melendez-Gonzalez, 892 F.3d 9, 12, 15 (1st
Cir. 2018) (applying the Suspension Act to charges involving fraudulent recruitment
practices for the National Guard); United States v. Frediani, 790 F.3d 1196, 1198, 1200–
01 (11th Cir. 2015) (applying the Suspension Act to charges involving bids for contracts
with the Department of Defense related to military aircrafts); United States v. Loman, 597
F. App’x 518, 519, 522–23 (10th Cir. 2015) (applying the Suspension Act to charges
involving a kickback scheme at an Air Force base); United States v. Pfluger, 685 F.3d
15
 We conclude that the Suspension Act does not apply to the charged offense.
Interpreting the Suspension Act to extend beyond offenses against the federal
government and its agencies would be inconsistent with the narrow construction we must
give the statute and wouldn’t serve the statute’s purpose—providing the federal
government with additional time to discover and prosecute offenses against it during
wartime.
B. Waiver
We have previously held “that defendants can expressly waive the bar to
prosecution established by the statute of limitations.” United States v. Flood, 635 F.3d
1255, 1258 (10th Cir. 2011). For a waiver to be enforceable, the defendant must
knowingly and voluntarily execute the waiver. See id. at 1259. DeLia argues that his
waiver of the statute of limitations is unenforceable because he didn’t know that the
statute of limitations governing the charged conduct had already expired before he signed
the waiver.
After examining the waiver’s language, we conclude that DeLia didn’t waive his
right to enforce the expired portion of the statute of limitations applying to his charges.
So we agree with DeLia that he did not knowingly waive his right to assert the statute of
481, 482, 485 (5th Cir. 2012) (applying the Suspension Act to charges involving frauds
committed in connection with war-related government contracts); United States v. Lurie,
222 F.2d 11, 13, 15 (7th Cir. 1955) (applying the Suspension Act to charges involving
fraud against the federal government related to the sale of surplus property); United
States v. Witherspoon, 211 F.2d 858, 859, 863 (6th Cir. 1954) (same); United States v.
Gottfried, 165 F.2d 360, 362, 368 (2d Cir. 1948) (applying the Suspension Act to charges
involving making a false statement to the Office of Price Administration and conspiracy
to defraud the federal government related to the purchase of sugar).
16
limitations, but we do so for a reason one step back in the analysis—we hold that by the
waiver’s own terms DeLia did not waive, knowingly or unknowingly, the statute of
limitations for the charges the government elected to pursue.
When determining the scope of a waiver, we “must strictly construe any
ambiguities in the agreement against the government (the drafter) and in favor of the
defendant.” United States v. Gordon, 480 F.3d 1205, 1207 (10th Cir. 2007). “This means
waivers should be narrowly construed.” Id. Narrow construction of a waiver of the
statute-of-limitations defense is also appropriate because criminal statutes of limitations
are “to be liberally interpreted in favor of repose.” United States v. Reitmeyer, 356 F.3d
1313, 1317 (10th Cir. 2004) (quoting United States v. Marion, 404 U.S. 307, 322 n.14
(1971)).
Here, the waiver purports to extend the limitations period, not to revive an already
expired limitations period. The waiver states that DeLia “understands that absent such a
waiver the United States would be prohibited from prosecuting him for violations of
certain criminal offenses . . . after a period of five years has elapsed from the last date of
the violations.” Appellant’s App. vol. 1 at 35 ¶ 3. The waiver next states that DeLia had
been “advised that if, in fact, the statute of limitations as to any of the specified offenses
were to expire during the period agreed upon in this document, this Waiver would extend
the period during which he could be prosecuted.” Id. (emphasis added). The language
“after a period of five years has elapsed” and “were to expire” indicates that the statute of
limitations had not yet expired. Likewise, DeLia agreed to waive the statute of limitations
for a specified period—“from the date of his execution of this Waiver [January 5, 2016]
17
through and including July 31, 2016.” Id. at 36 ¶ 8. Along the same line, the waiver
speaks of DeLia’s tolling “the applicable statute of limitations effective as of the date of
his execution of this waiver [January 5, 2016], through and including July 31, 2016.” Id.
at 35 ¶ 3. This time period further suggests that the waiver excludes any statute of
limitations that had already expired when DeLia executed the waiver. Especially when
we narrowly construe the waiver against the government, we conclude that this language
defeats any government argument that this waiver in fact revived an already-expired
limitations period.
For the charged crime, the statute of limitations expired before DeLia signed the
waiver. Accordingly, the time period charged in the indictment did not fall within the
scope of the agreed extension—January 5, 2011 until July 31, 2011. So the statute of
limitations expired on November 9, 2015. That being so, we hold that DeLia has a right
to assert his winning statute-of-limitations defense.
CONCLUSION
For the foregoing reasons, we reverse the district court’s denial of DeLia’s motion
to dismiss and remand with instructions to vacate DeLia’s conviction and dismiss the
indictment.
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