Opinion
Crim. No. 00-26-B-S.
December 12, 2000.
RECOMMENDED DECISION ON DEFENDANT'S MOTION TO DISMISS
The Defendant seeks dismissal of numerous counts (thirty of the ninety counts alleged) of the Superseding Indictment charging wire fraud and mail fraud. Defendant asserts that each of the challenged counts is barred by the five year statute of limitations of 18 U.S.C. § 3282. I now recommend that the Court DENY the motion.
Discussion
All of the challenged counts involve a scheme or artifice to defraud by the use of mail or wire. In such cases, if the counts relate to a "financial institution" there is a ten-year statute of limitation, see 18 U.S.C. § 3293; in the case of any other alleged victim there is a five-year statute of limitation, see id. § 3282. For purposes of this motion, the Government concedes that the shorter limitation is applicable. Nevertheless, even though the scheme began outside the five year limitation, each of the disputed counts also alleges a mailing that occurred within the five year period. Courts have uniformly held that evidence of schemes begun outside the statute of limitation is not barred if there is also evidence of an act of mailing occurring within the five year period. See, e.g., United States v. Ashdown, 509 F.2d 793, 797-98 (5th Cir. 1975); United States v. Andreas, 458 F.2d 491, 491 (8th Cir. 1972); United States v. Blosser, 440 F.2d 697, 699 (10th Cir. 1971). Therefore, as to each of the challenged counts the Government will have the burden of proving that a mailing or other prohibited act that was part of the scheme to defraud occurred within the five-year period in order to establish an essential element of the offense. However, there is no basis for a dismissal of the count at this time.
Defendant in his Reply to the Government's Response to his Motion to Dismiss does not dispute the case law or precedent relied upon by the Government. Rather, he argues that the Motion should be treated as a "Motion in Limine" and addressed at the time of trial. Clearly, if the Government's proof fails on any of these counts, the Defendant can move for acquittal after the presentation of evidence pursuant to Rule 29, Fed.R.Crim.P.
Conclusion
Based upon the foregoing, I recommend that the Court DENY the Motion to Dismiss.
NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.