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United States v. Frediani

United States Court of Appeals, Eleventh Circuit

June 22, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
STEVEN FREDIANI, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:13-cr-60045-RNS-2.

For United States of America, Plaintiff - Appellee: Cary Oren Aronovitz, Assistant U.S. Attorney, Kathleen Mary Salyer, Wifredo A. Ferrer, Harriett Galvin, U.S. Attorney's Office, Miami, FL; Marc Anton, U.S. Attorney's Office, Fort Lauderdale, FL.

For Steven Frediani, Defendant - Appellant: Richard Francis Della Fera, Entin & Della Fera, PA, Fort Lauderdale, FL; Steven Frediani, Lexington, KY.

Before WILLIAM PRYOR, JULIE CARNES, and SILER,[*] Circuit Judges.

OPINION

Page 1197

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether hostilities related to the use military of force against terrorists and Iraq, as authorized by Congress, have " terminat[ed]" under the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287. Seven years after Steven Frediani committed the crimes, a federal grand jury indicted him on one count of conspiracy to commit aircraft parts fraud, id. § § 38(a)(1)(C), (a)(3), and two substantive counts of aircraft parts fraud, id. § 38(a)(1)(C). Frediani moved to dismiss the substantive counts of the indictment as untimely, id. § 3282(a). The district court denied his motion because, when Congress authorized the " use of the Armed Forces," the Act tolled the statute of limitations for frauds against the United States until the " termination of hostilities as proclaimed by a Presidential Proclamation, with notice to Congress, or by a concurrent resolution of Congress," id. § 3287. On appeal, Frediani argues that the " hostilities" related to the " use of the Armed Forces" " terminat[ed]" over a decade ago, id., so the Act does not toll the statute of limitations for his crimes. Frediani also argues that the district court abused its discretion when it admitted " other act" evidence under Federal Rule of Evidence 404(b). Because the plain language of the Act requires a Presidential proclamation or a concurrent resolution of Congress to end the tolling of the limitations period and the district court did not

Page 1198

abuse its discretion when it admitted the " other act" evidence, we affirm Frediani's convictions.

I. BACKGROUND

Glenn Nichols served as the president and chief executive officer of InstoComp, Inc., and Frediani served as its sales manager. InstoComp submitted bids for contracts with the Department of Defense that involved the sale of microcircuits for military aircraft. Nicholas and Frediani ran the day-to-day operations at InstoComp.

In 2005, InstoComp submitted a bid for a contract to supply microcircuits to the Defense Supply Center in Columbus, Ohio. The Supply Center requested a certification that the parts met specifications and were traceable to the manufacturer. In February 2006, Nichols sent a counterfeit certificate of conformance that purportedly came from a supplier called Zilog, Inc. The Supply Center then awarded the contract to InstoComp.

Also in February 2006, InstoComp submitted a bid for another contract to sell microcircuits to the Supply Center, supposedly by procuring the parts from a company called Microsemi. The Supply Center again requested a certificate of conformance from InstoComp. Nichols again sent a counterfeit certificate.

On one occasion when InstoComp won a contract to provide a specific part from a specific vendor, that vendor notified the Supply Center that it was impossible for InstoComp to provide the parts at the price that InstoComp had quoted the government. The Supply Center notified the Defense Criminal Investigate Service, which began to investigate the contracts that InstoComp had been awarded. The Service found that parts supplied by InstoComp failed tests and were nonconforming.

The Service interviewed Frediani, who admitted that he had produced counterfeit certificates that Nichols then sent to the Supply Center. Frediani also provided the Service with electronic chat logs in which he and Nichols discussed their counterfeiting process. The Service conducted a warranted search of Frediani's home and found copies of fraudulent certificates. During the search, Frediani admitted that he knew that Nichols sent the counterfeits to the government. He also admitted that he knew that the parts InstoComp provided to the government were not always the approved parts.

In February 2013, a federal grand jury returned a three count indictment against Frediani and Nichols for conspiracy to commit aircraft parts fraud, 18 U.S.C. § § 38(a)(1)(C), (a)(3), and two substantive counts of aircraft parts fraud, id. § 38(a)(1)(C). Nichols signed a plea agreement, but Frediani moved to dismiss the substantive counts of the indictment on the ground that the statute of limitations for those crimes had expired. He argued that, because the crimes occurred over seven years before the indictment, the indictment was not returned within the five-year statute of limitations for federal crimes, id. § 3282. The government responded that the Wartime Suspension of Limitations Act, id. § 3287, tolled the period of limitations until five years after the cessation of hostilities in Iraq and Afghanistan, which neither the President nor Congress had yet proclaimed. The district court denied Frediani's motion.

Before trial, the government filed a notice of intent to introduce evidence of 34 other contracts awarded to InstoComp where the military received non-conforming parts. The government asserted that the evidence was " inextricably intertwined" with evidence of the ...


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