But the appellate panel got it wrong. The question in Najjar was this: Can a limitations defense be waived in a plea agreement? The Siegelman case had nothing to do with a plea agreement. Najjar does not address the same issues that are raised on the Siegelman appeal. As lawyers like to say, the two cases are not "apposite."
Other cases cited by the 11th Circuit involve instances where a limitations defense was raised for the first time on appeal. It's undisputed that raising such a defense for the first time on appeal is improper. But Siegelman did not do that.
He raised the defense in a post-trial Rule 29 motion, which the 11th Circuit has found is proper. In fact, those very circumstances were present in Phillips v. U.S., 843 F.2d 438, 441-43 (11th Cir. 1988). In Phillips, a motion was filed after trial, and the 11th Circuit ordered a judgment of acquittal based on the statute of limitations.
The Phillips court stated the following:
Other cases cited by the 11th Circuit involve instances where a limitations defense was raised for the first time on appeal. It's undisputed that raising such a defense for the first time on appeal is improper. But Siegelman did not do that.
He raised the defense in a post-trial Rule 29 motion, which the 11th Circuit has found is proper. In fact, those very circumstances were present in Phillips v. U.S., 843 F.2d 438, 441-43 (11th Cir. 1988). In Phillips, a motion was filed after trial, and the 11th Circuit ordered a judgment of acquittal based on the statute of limitations.
The Phillips court stated the following:
Statutes of limitations, both criminal and civil, are to be liberally interpreted in favor of repose. United States v. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468, 480 n. 14 (1971); United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055, 1059 (1968); United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932). In the criminal law area, such an interpretation protects the defendants' right to be free from defending against overly stale criminal charges. As the Supreme Court observed in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161 (1970):
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation 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. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
On the Siegelman appeal, the 11th Circuit completely reversed itself, failing to follow its own precedent in Phillips.
And it butchered two fundamental legal concepts:
(1) Siegelman and Scrushy had to defend themselves against allegations that had become so obscure that the prosecution couldn't provide any specificity on the dates involved.
(2) The prosecution was lazy and tardy in its investigation--and federal judges let them get away with it.
How nuts is the 11th Circuit's finding?
Imagine that you are charged in your town with jaywalking, which has a one-year statute of limitations. You get to court and find that the prosecution's complaint doesn't say when you jaywalked, it doesn't say where you jaywalked, it doesn't say who witnessed you jaywalking.
You tell the judge, "How am I supposed to defend myself against this?" The judge says, "I don't know, but you're going to have to. Good luck."
That's essentially what Don Siegelman and Richard Scrushy faced. The prosecution failed in its duty at every step. And both trial and appellate judges let them get away with it.
This is scary stuff, folks. And there is more to come.
(To be continued)
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