United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Court Judge.
Memorandum Opinion and Order addresses the issues left open
in the court's decision of April 10, 2019, which denied
in large part Defendant Azam Doost's Combined Rule 29 and
33 Motion, ECF No. 105. See Mem. Op. and Order, ECF
No. 129 [hereinafter Mem. Op.]. What remains for the court to
determine is whether Defendant is entitled to dismissal of
the false statements (Counts Twelve through Fourteen) and
money laundering (Counts Sixteen through Twenty-Three)
charges on the ground that those counts are time barred.
See Id. at 29-33. The court did not previously
resolve this question because (1) it lacked any evidence as
to why defense counsel did not timely move to dismiss those
counts, and (2) it granted Defendant an opportunity to
respond to the government's contention that the charges
were timely under the second and third prongs of the Wartime
Suspension of Limitations Act, 18 U.S.C. § 3287.
Id. at 32. With the benefit of additional briefing
from the parties, the court now denies Defendant's motion
in its entirety.
proceeding to the merits, the court clarifies a procedural
aspect of its prior decision. When the court previously
addressed Defendant's contention that the statute of
limitations barred all but two counts of the indictment, the
court evaluated that claim under the “good cause”
standard of Federal Rule of Criminal Procedure 12(c)(3).
See Mem. Op. at 17-18. Both parties agreed that the
“good cause” standard applied because Defendant
had not moved to dismiss the indictment before the deadline
for pre-trial motions. See Def.'s Combined Rule
29 and 33 Motions, ECF No. 105, at 30-31 [hereinafter
Def.'s Mot.]; Gov't Opp'n to Def.'s Mot., ECF
No. 106, at 26-27 [hereinafter Gov't Opp'n].
Defendant asserted as “good cause” that his trial
counsel was constitutionally ineffective by not moving to
dismiss the indictment as time barred. Def.'s Mot. at 30.
Demonstrating “good cause” therefore required
Defendant to establish the two prongs of an ineffectiveness
claim: (1) trial counsel's conduct was objectively
unreasonable, and (2) had counsel filed a timely motion to
dismiss, there is a reasonable probability that Defendant
would have prevailed on such motion. See United States v.
Weathers, 493 F.3d 229, 237-38 (D.C. Cir. 1999)).
parties' shared position that the “good
cause” standard must apply rested on a
misreading of Rule 12. In Defendant's motion, relying on
Rule 12(b)(3)(B), he asserted that “[a] defendant
generally must move to dismiss an indictment on
limitation grounds before trial, otherwise their request
is untimely.” Def.'s Mot. at 30 (emphasis added).
But Rule 12(b)(3)(B) does not require a defendant to
challenge an indictment on limitations grounds before trial.
Rule 12(b)(3) lists “defenses, objections, and
requests” that “must be raised by pretrial
motion, ” but a motion attacking the indictment as
untimely is not one of them. See Fed. R.
Crim. P. 12(b)(3). Indeed, the Advisory Committee
specifically “dropped” reference to the statute
of limitations from “the nonexclusive list in [Rule
12](b)(3)(A) to permit further debate over the treatment of
such claims.” Id. (advisory committee note to
parties' misreading of Rule 12(b)(3) is potentially
consequential. The “good cause” standard is
rooted in Rule 12(c)(3), which provides that “[i]f a
party does not meet the deadline for making a Rule
12(b)(3) motion, the motion is untimely. But a court may
consider the defense, objection, or request if the party
shows good cause.” Fed. R. Crim. P. 12(c)(3) (emphasis
added). The rules thus expressly tie the “good
cause” standard to motions listed under Rule 12(b)(3),
and a motion to dismiss on limitations grounds is not one of
them. That leaves open the question of what standard ought to
apply when considering dismissal of an indictment on
limitations grounds for the first time after trial. One
circuit court has held that there is no standard of review,
and that a defendant waives his statute of
limitations defense if he raises it for the first time after
trial. See United States v. Lewis, 774 F.3d 837, 845
(5th Cir. 2014). The court so found even if the “facts
surrounding [the defendant's] statute of limitations
defense are not in dispute.” Id. The rationale
for this rule is that a statute-of-limitations defense
potentially raises questions of fact, and if a defendant
waits until after trial to raise it, the prosecution is
deprived of the opportunity to put forward evidence to rebut
the defendant's argument. See Id. In extending
this rationale to instances where the facts are not in
dispute, the court determined a bright-line rule “is
preferable to a case-by-case determination.”
court need not, however, decide whether to follow the Fifth
Circuit's approach in Lewis, because the
government here has not argued waiver. So, the court will use
the “good cause” standard that the government
says applies. Therefore, for purposes of this case, to
establish “good cause” Defendant must show that
his trial counsel was ineffective in failing to challenge the
indictment as time barred. See Mem. Op. at 17-18.
previous decision, the court held that sub-clause (1) of the
Wartime Suspension of Limitations Act (“WSLA”)
could not operate to extend the limitations period on the
false statements and money laundering offenses because
neither required proof of “fraud . . . against the
United States” as an element of the offense. Mem. Op.
at 28-30. The court explained, however, that Defendant had
more work to do to secure dismissal of those counts.
Defendant still had to (1) demonstrate that trial
counsel's decision not to challenge the false statements
and money laundering counts as untimely was “not
objectively reasonable, ” Weathers, 493 F.3d
at 237, and (2) show that the WSLA's other two
sub-clauses do not enlarge the limitations period.
See Mem. Op. at 31-33. The court does not reach the
first of these inquiries, because Defendant runs aground on
criminal cases, the statute of limitations is not
jurisdictional, but an affirmative defense. See Smith v.
United States, 568 U.S. 106, 112 (2013); United
States v. Wild, 551 F.2d 418, 421 (D.C. Cir. 1977).
“The Government need not allege the time of the offense
in the indictment . . . and it is up to the defendant to
raise the limitations defense.” Smith, 568
U.S. at 112. If there is conflicting evidence on the
limitations issue, “the question of whether the
government instituted the prosecution . . . in a timely
manner becomes an issue for the jury to determine. At that
point, the jury must be properly instructed to determine
whether the . . . offense occurred outside the limitations
period.” United States v. Wilson, 26 F.3d 142,
158 (D.C. Cir. 1994) (cleaned up and citations omitted). A
court that takes a fact question away from the jury
concerning a limitations defense commits error. See
Id. at 159 (holding that the trial court committed error
by deciding a limitations issue before trial and should have
“permit[ed] the government to prove at trial”
that the offense was committed within the statutory period).
In this case, if defense counsel had moved to dismiss the
false statements and money laundering counts before trial,
Defendant would not have prevailed. Instead, the court would
have left it to the jury to decide whether those counts were
untimely, because timeliness is a question of fact.
third sub-clause of the WSLA suspends the statute of
limitations for any offense “committed in connection
with the negotiation, procurement, award, performance,
payment for, interim financing, cancellation, 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 authorized use of the Armed Forces.” 18 U.S.C.
§ 3287(3). The wording of sub-clause (3) is decidedly
broad, as it reaches transactions “connected with or
related to” war efforts. Defendant does not dispute
that the $15.8 million loan he received from the Overseas
Private Investment Corporation (“OPIC”) to
develop, maintain, and operate a marble mine in
Chesti-i-Sharif, Afghanistan is the type of transaction
covered by sub-clause (3) of the WSLA. Rather, he contends
that the OPIC loan was not “connected with or related
to the prosecution of the war, ” thereby rendering
sub-clause (3) inapplicable. Defendant emphasizes the
commercial nature of the loan, and that his “business
operations in Afghanistan wholly lack any indications of the
pursuit of violence, force, or armed conflict.”
Def.'s Sur-Reply to Gov't's Opp'n, ECF No.
133, at 8-9. As he puts it: “Doost was a peacemaker
clothed with nothing but the private pursuit of a business
endeavor. . . . [T]here was no ‘rational nexus'
between Doost's conduct and the Authorized Use of
Military Force.” Id.
government takes a different view. It contends that
“reconstruction efforts, like the OPIC money in support
of the marble industry, were important components in the
endeavor to stabilize Afghanistan, that is, those efforts are
related to the authorized use of the Armed Forces.”
Gov't's Reply to Def.'s Reply in Support of
Def.'s Mot. [hereinafter Gov't's Reply], ECF No.
125, at 12-13. The government's position rests on some
evidence. It cites to portions of the National Defense
Authorization Act for 2009, which included both amendments to
the WSLA and provisions relating to reconstruction and
stabilization in Afghanistan. See Id. at 12. The
government also cites to an Army Field Manual that speaks to
integrating civilian and military activities to combat
counterinsurgency movements. See Id. at 13 n.12.
And, importantly, it cites an email from Colonel Thomas H.
Brittain, a senior military officer in Afghanistan, that
links Defendant's marble mine to the United States'
campaign in Afghanistan. Id. at 13 n.13. Colonel
Brittain wrote to OPIC asking for a meeting “to discuss
the way ahead with the Doost marble factory and mining
operations.” See Id. (citing Def.'s Mot.,
Ex. 35, ECF No. 105-35 [hereinafter Def.'s Ex. 35]). In
explaining the need for a meeting, Colonel Brittain observed:
“[T]he Doost marble operations are a key to stability
in” the western provinces of Afghanistan. Def.'s
Ex. 35.Thus, according to at least one military
official, Defendant's marble mining business was
important to the United States' war effort in
“conflicting evidence, ” Wilson, 26 F.3d
at 158, forecloses Defendant from satisfying the second prong
of his ineffectiveness claim-a “reasonable
probability” that, had his counsel moved to dismiss the
false statements and money laundering counts as untimely, the
motion would have succeeded, Weathers, 493 F.3d at
238. If counsel had filed such a motion, the court would not
have granted it. Binding precedent would have directed a
different course: allowing the jury to decide. Because
Defendant cannot make out an ...