from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:16-CR-00042-JHP-1)
L. Wyatt of Wyatt Law Office, Oklahoma City, Oklahoma, for
Epperley, Assistant United States Attorney (Brian Kuester,
United States Attorney, and Melody Noble Nelson, Assistant
United States Attorney, with her on the brief), Muskogee,
Oklahoma, for Plaintiff-Appellee.
PHILLIPS, EBEL, and MORITZ, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
federal grand jury indicted Steven DeLia on one count of
healthcare fraud. See 18 U.S.C. § 1347. But the
government filed the indictment outside the ordinarily
applicable statute of limitations-that is, more than five
years after DeLia's charged conduct occurred.
See 18 U.S.C. § 3282(a). Even so, for two
independent reasons, the government argues that the
indictment was timely: (1) that the Wartime Suspension of
Limitations Act suspended the limitations period from running
in this case, see 18 U.S.C. § 3287; and (2)
that DeLia waived his asserted statute-of-limitations
defense. We reject both reasons and conclude that the
prosecution is time-barred. Exercising jurisdiction under 28
U.S.C. § 1291, we reverse and remand with instructions
to vacate DeLia's conviction and dismiss the indictment.
2009, DeLia, then a licensed physician, opened a medical
clinic in Sallisaw, Oklahoma, practicing family medicine and
psychiatry. He also served as a member of the United States
Army Reserve. In mid-2010, DeLia learned that the Army would
deploy him to Afghanistan, so he began preparing the clinic
for his absence.
time, DeLia's staff included two licensed practical
nurses, LeeAnn Dewberry and Jennifer Campney, and one
physician's assistant, Susan Davis (PA Davis). Under
Oklahoma law, licensed practical nurses cannot prescribe
Schedule II controlled substances. See Okla. Stat.
tit. 59 § 567.4a; Okla. Stat. tit. 63 § 2-312(C).
But Oklahoma law permits physician's assistants to
prescribe Schedule II controlled substances if acting under a
physician's supervision and if the controlled substance
is administered onsite. Okla. Stat. tit. 59 § 519.6(D).
his clinic open while he was deployed, DeLia signed pads of
blank prescription forms for the clinic staff's use. This
enabled the clinic staff to write prescriptions by simply
completing the prescription forms with the patient's
name, the drug, and the dosage. In total, DeLia signed about
5, 000 blank prescriptions to prepare the clinic for his
four-month deployment. PA Davis used the signed prescription
forms to write prescriptions for Schedule II controlled
substances. Among those receiving her prescriptions for
Schedule II controlled substances were DeLia's
pain-management patients, a group making up a significant
portion of DeLia's practice. Though DeLia looked for a
physician to supervise PA Davis during his deployment, he
failed to obtain one.
mid-October 2010, DeLia left Sallisaw to visit family before
reporting to Fort Benning at month's end. Appellant's
App. vol. 3 at 632:5-9. In early November, the Army sent
DeLia from Fort Benning to Kuwait and then to Afghanistan.
two weeks after Delia left Sallisaw, the Oklahoma Board of
Medical Licensure (the Board) learned from an anonymous
caller that DeLia was out of state and that his office staff
was prescribing controlled substances with DeLia's
pre-signed, blank prescription forms. In addition, the
Oklahoma State Pharmacy Board received calls from pharmacists
reporting that they had received new prescriptions for
Schedule II controlled substances from DeLia, who they
believed was not in Oklahoma.
Board investigators traveled to DeLia's clinic where they
questioned the clinic staff. According to the Board's
records, DeLia was PA Davis's sole supervising physician.
PA Davis confirmed this to investigators. While at the
clinic, investigators confiscated 5, 625 blank pre-signed
prescriptions and a sign-out log showing that the
clinic's staff had already used 4, 330 pre-signed
prescriptions between March 1, 2010 and November 3, 2010.
Even before the Army told DeLia that it would deploy him in
October, DeLia had pre-signed blank prescriptions for use
when he was out of the clinic, including while he was
vacationing. DeLia had also previously allowed clinic staff
to use pre-signed, blank prescription forms to prescribe
controlled substances even when he was working in the
clinic-to increase office efficiency.
February 2011, DeLia returned to Sallisaw. In December 2011,
the Board filed a disciplinary action against DeLia, alleging
that he had engaged in unprofessional conduct by pre-signing
prescription forms for his staff to use while he was gone and
by directing PA Davis to provide healthcare services despite
his failure to secure for her a supervising physician. Okla.
Stat. tit. 59 § 519.6(A). In March 2012, DeLia
surrendered his medical license in lieu of prosecution by the
January 2016, DeLia met with federal prosecutors and signed a
waiver of the applicable statute of limitations for
"offenses, including but not limited to, conspiracy to
commit health care fraud, health care fraud and money
laundering." Appellant's App. vol. 1 at 34-36. In
the waiver, DeLia acknowledged knowing that he was a target
of a federal grand-jury investigation related to "his
conduct causing false claims to be filed and for receiving
health care payments from Medicare, Medicaid, and Tricare for
services not provided from 2010 through 2011."
Appellant's App. vol. 1 at 34 ¶ 1. The waiver
further stated that DeLia desired to "extend" the
applicable statute of limitations. Id. at 34 ¶
2. Specifically, the waiver stated that DeLia had been
"advised that if, in fact, the statute of limitations as
to any of the specified offenses were to expire during the
period agreed upon," the waiver "would extend the
period during which he could be prosecuted for such criminal
violations." Id. at 35 ¶ 3. DeLia agreed
to waive the statute of limitations "for the period from
the date of his execution of this Waiver [January 5, 2016]
through and including July 31, 2016." Id. at 36
15, 2016, a federal grand jury indicted DeLia on one count of
healthcare fraud, see 18 U.S.C. §
1347. The indictment alleged that
"[b]eginning February 1, 2010, and continuing through
November 9, 2010" DeLia had "devised and executed a
scheme to defraud the Oklahoma Medicaid program by causing
the filing of false claims and receiving Medicaid payments
for medical services not rendered by a qualified medical
professional." Id. at 15-16. Three months
before trial, DeLia moved to dismiss the indictment, arguing
that the statute of limitations had expired. The district
court denied DeLia's motion, concluding that the
indictment was timely because the Suspension Act had tolled
the statute of limitations. The case proceeded to trial.
the government presented its case, DeLia moved for the
district court to reconsider his motion to dismiss based on
the statute of limitations. The district court denied
DeLia's motion. The jury convicted DeLia of healthcare
fraud. DeLia appealed the district court's denial of his
motion to dismiss and his conviction.
appeal, DeLia argues that the district court erred in ruling
that the statute of limitations hadn't expired. First,
DeLia argues that the Suspension Act applies to war-related
frauds against the federal government, not to healthcare
fraud against a state agency. Second, he argues that the
government cannot use a waiver to revive an already-expired
limitations period. Third, DeLia argues that even if a waiver
could revive an already-expired limitations period, the
waiver would be unenforceable because he didn't knowingly
execute it, meaning he didn't know when he signed the
waiver that the statute of limitations had already expired
for what would ultimately be the charged
conduct. We address each of these arguments after
identifying our standard of review and discussing the
applicable criminal statute of limitations.
Standard of Review
review de novo a district court's interpretation and
application of a statute of limitations. Barnes v. United
States, 776 F.3d 1134, 1139 (10th Cir. 2015). And we
review de novo the question of whether a defendant's
express waiver of the statute of limitations is ...