Appeals from the United States District Court for the Southern District of Mississippi. D.C. DOCKET NUMBER CR-S91-00040-04(P). JUDGE Charles W. Pickering, Sr.
Before Smith, Duhe and Wiener, Circuit Judges.
In this criminal appeal, Defendants-Appellants LaRa Sharpe, Mike Gillich, Jr., Kirksey McCord Nix, and John Ransom appeal their convictions under 18 U.S.C. § 371 for conspiracy to violate the fraud-by-wire statute*fn1 and the murder-for-hire statute,*fn2 and for substantive wire fraud violations. Nix and Gillich also appeal their convictions for substantive violation of the murder-for-hire statute. Although the Appellants raise a number of issues on appeal, we address only one: whether the sealed indictment tolled the statute of limitations. We conclude that a properly sealed indictment does indeed toll the statute of limitations, absent a showing of substantive and actual prejudice. As no such showing has been made in the instant case, there was no error, and we affirm. Having heard the arguments of counsel, studied their appellate briefs, and reviewed the record and the pertinent case law on all remaining issues, and having found no reversible error, we also affirm as to each of them, albeit without Discussion.
The underlying conspiracy in this case was masterminded by Kirksey M. Nix while serving a life sentence in the state prison at Angola, Louisiana. Nix orchestrated a scam operation to defraud homosexuals of money, using both telephone and telegraph services, in hopes of obtaining funds sufficient to buy his way out of prison. The scam involved the placement of magazine advertisements seeking homosexual liaisons. When an interested person would respond, Nix or one of his associates would pretend to be in financial difficulties. The victim would be asked to wire money to one of Nix's associates in order to relieve the financial difficulties. Afterwards, then, the liaison could take place.
In perpetrating this scam, Nix enlisted the aid of several individuals outside the confines of prison. These supporting players included: (1) Mike Gillich, Jr., owner and operator of the Golden Nugget, a night club and strip joint in Biloxi, Mississippi; (2) John Ransom, a parolee from a Georgia prison; (3) LaRa Sharpe, Nix's girlfriend and a paralegal; (4) Peter Halat, mayor of Biloxi and an attorney (also the employer of Sharpe and former law partner of Vincent Sherry), who acted as a trustee for a firm trust account maintained by Nix; (5) Arthur Mitchell and Robert Hallal, former prisonmates of Nix in Angola and participants in the scam (presented as government witnesses); and (6) various other participants in the scam, most notably Kellye Dawn Nix (Nix's stepdaughter and wife) and Juanda Jones, Sharpe's mother (who also testified for the government).
Sometime in 1986, Nix discovered (or thought he discovered) that $200,000 of the money he had entrusted to Gillich and Halat in Biloxi was missing. Nix apparently suspected Mississippi state Judge Vincent Sherry, former law partner to Halat. Judge Sherry purportedly was aware of Halat's involvement with Gillich. Moreover, Judge Sherry's wife, Margaret, a reform mayoral candidate, was also aware of the connection and had promised to shut down Gillich's Golden Nugget night club, the place to which Nix's funds were sent. The government alleged at trial that Nix, with the assistance of various scam participants, including Sharpe and her mother who travelled to Jackson to meet Ransom, hired him to kill the Sherrys. On September 14, 1987, the Sherrys were killed in their home.
On May 15, 1991, the grand jury issued the following sealed indictments: (1) Count I charged all four defendants with conspiracy under 18 U.S.C. § 371 to violate the wire fraud statute (18 U.S.C. § 1343) and the murder-for-hire statute (18 U.S.C. § 1958(a)); (2) Count II charged all four defendants with a substantive violation of wire fraud; (3) Nix, Gillich, and Ransom were charged in Count III violating the murder-for-hire statute, including aiding and abetting, by travelling from Louisiana to Mississippi to arrange the murder; (4) Count IV charged Nix, Gillich, and Ransom with a violation of the murder-for-hire statute, based on Ransom's interstate travel from Georgia to Mississippi. The indictments were returned within the five year statute of limitations (measured from the day of the last overt act of the conspiracy), but were not unsealed until May 21, 1991, five years and five days after the last overt act.
The defendants made numerous pre-trial motions, including one for dismissal based on a statute of limitations violation. The court denied that motion, finding no statute of limitation problem. At the Conclusion of the trial the jury returned a verdict of guilty for all four defendants on Counts I and II. Nix and Gillich were found guilty on the Count III, travel in aid of murder-for-hire, but Ransom was acquitted. Additionally, Nix, Gillich, and Ransom were acquitted on the Count IV murder-for-hire charge.
The only issue requiring Discussion in this case is whether the statute of limitations ran on the mail fraud count because the indictment, although returned within the limitations period, was not unsealed until five days after the limitations period had expired. Although this issue is res nova in our circuit, we are guided by the decisions of the First, Second, Fourth, Eighth, Ninth, and Eleventh Circuits, which are in agreement on the rule. As discussed below, we adopt the constant jurisprudence ...