The opinion of the court was delivered by: Diamond, J.
Acting within the statute of limitations, the grand jury charged Defendant, Martin Kuper, with mail fraud. Apparently acting outside the limitations period, the grand jury subsequently returned a Superseding Indictment, adding new mail fraud Counts. Even though the new and original charges arise from the same criminal conspiracy, Defendant argues that the new charges are time-barred because they do not "relate back" to the original charges. I do not agree. Accordingly, I deny Defendant's Motion to Dismiss the Superseding Indictment.
The grand jury based all charges in this case on the alleged efforts of Defendant, his son-in- law Steven Rockman, and Jeffrey Foster to defraud Tierney Communications through the submission of phony invoices. On March 23, 2005, the grand jury charged Defendant, Rockman, and Foster with five Counts of mail fraud and aiding and abetting. Doc No. 1; 18 U.S.C. §§ 1341, 2. Each Count was based on a separate payment check Tierney Communications mailed in connection with the scheme to defraud. Foster pled guilty in June 2006; Rockman pled guilty in February 2007. On March 6, 2007, Defendant moved to dismiss the Indictment with prejudice for violation of the Speedy Trial Act. (Doc. No. 62.) On March 19, 2007, I dismissed the Indictment without prejudice.
Doc. No. 71; 18 U.S.C. § 3161. Defendant appealed my refusal to bar his reindictment; the Third Circuit dismissed the appeal, ruling that my Order was interlocutory. Doc. Nos. 72, 73, 81; United States v. Kuper, 522 F.3d 302 (3d Cir. 2008). The Circuit issued its mandate on May 16, 2008. On July 10, 2008, the grand jury issued a Superseding Indictment, charging Defendant with eleven new Counts of mail fraud and aiding and abetting (in addition to the five original Counts). Doc. No. 84; 18 U.S.C. §§ 1341, 2. The grand jury based each new mail fraud Count on a separate check mailed in connection with the scheme to defraud Tierney Communications.
At Defendant's request, I stayed this matter pending his appeal of the Third Circuit's ruling. (Doc. Nos. 85, 86.) On October 6, 2008, the Supreme Court denied certiorari. Kuper v. United States, 129 S.Ct. 267 (2008). On March 10, 2009, Defendant filed the instant Motion to Dismiss, arguing that with its Superseding Indictment, the grand jury impermissibly "increased, broadened and enhanced the charges." (Doc. No. 99 at 4.) Defendant also seeks a hearing so that I may reconsider my decision to dismiss the original Indictment without prejudice. The Government responded on March 27, 2009. (Doc. No. 105.)
Because the Superseding Indictment was returned within 60 days of the issuance of the Circuit's mandate, the Parties apparently agree that the new Indictment was timely within the meaning of 18 U.S.C. § 3288, which provides:
Whenever an indictment... is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment or information becomes final... which new indictment shall not be barred by any statute of limitations.
(Doc. No. 99 at 3-4; Doc. No. 105 at 8.)
The Parties also apparently agree that: 1) a five year limitations period applies here (18 U.S.C. § 3282); and 2) the events giving rise to the new mail fraud Counts occurred more than five years before the return of the Superseding Indictment. Thus, the Government's compliance with § 3288 notwithstanding, the new charges may be time-barred unless they relate back to those brought in the original Indictment. See United States v. Italiano, 894 F.2d 1280, 1283 (11th Cir. 1990) ("[A]n untimely indictment can only be saved by the section 3288 exception" if it relates back to "the original charges 'tolled' by the previous indictment."). A second indictment relates back if it "does not materially broaden or substantially amend the charges in the first [indictment]." United States v. Oliva, 46 F.3d 320, 324 (3d Cir. 1995); see also United States v. Ross, 77 F.3d 1525, 1537 (7th Cir. 1996) ("[A] superseding indictment that supplants a still-pending original indictment relates back to the original indictment's filing date so long as it neither materially broadens nor substantially amends the charges initially brought against the defendant."); United States v. Grady, 544 F.2d 598, 602 (2d Cir. 1976) (same).
The Circuits agree that a superseding or new indictment does not materially broaden or substantially amend original charges if the first indictment provided fair notice of the new charges. The Eleventh Circuit has observed:
Notice to the defendant is the central policy underlying the statutes of limitation. If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows that he ...