Statute of Limitations

Smith v. United States, 133 S Ct. 714 (2013)

If a defendant claims that he withdrew from a conspiracy outside the statute of limitations period, he has the burden of proving, by a preponderance of the evidence, this defense.

United States v. Mergen, 764 F.3d 199 (2d Cir. 2014)

The defendant’s cooperation agreement contained ambiguous language about a waiver of the statute of limitations for certain offenses. The Second Circuit held that the ambiguity had to be construed against the government and the statute of limitations barred the prosecution of various offenses not specifically identified in the agreement.

United States v. Grimm, 738 F.3d 498 (2d Cir. 2013)

The defendants were charged with bid-rigging. The conspiratorial agreement occurred more than five years prior to the return of the indictment. Though some of the contract payments occurred within five years of the indictment, the Second Circuit held that these payments were not sufficient to bring the conspiracy within the statute of limitations.

United States v. Rojas, 718 F.3d 1317 (11th Cir. 2013)

The offense of marriage fraud is completed when the marriage occurs – it is not a continuing offense. Therefore, the statute of limitations begins to run on the date of the marriage.

United States v. Franco-Samtiago, 681 F.3d 1 (1st Cir. 2012)

The defendant was charged with being a member of a conspiracy that participated in five armed robberies. Only the last robbery occurred within five years of the return of the indictment. The government agreed that the defendant had no involvement in the first three robberies. The evidence was sufficient to demonstrate his participation in the fourth. After he was convicted of the conspiracy count, the government conceded at sentencing that he was not involved in the fifth robbery. The First Circuit concluded that the defendant only agreed to participate in one conspiracy and that he could not be held responsible for participating in the overarching conspiracy that involved several other defendants and the other four robberies. Though he agreed to join the conspiracy, the conspiracy that he agreed to join only involved the one robbery that occurred outside the statute of limitations.

United States v. Jenkins, 633 F.3d 788 (9th Cir. 2011)

The government must submit a sworn affidavit when it seeks to toll the statute of limitations pursuant to 18 U.S.C. § 3292 (tolling the limitations period during the government’s effort to obtain evidence in a foreign country). See also United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004).

United States v. Borman, 559 F.3d 150 (3rd Cir. 2009)

The statute of limitations expired on one of the conspiracy counts in the indictment. The conspiracy to receive bribes from contractors in exchange for an award of public benefits was accomplished when the last bribe was received. The fact that the bribes were disguised as “loans” and that the defendant refused to repay the “loan” on a later date did not extend the life of the conspiracy.

United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008)

Determining when a conspiracy ends is important in numerous contexts, including a defense that the statute of limitations has expired; a claim that a co-conspirator statement was not made during the course of a conspiracy and, as in this case, in deciding which version of the Sentencing Guidelines to apply (i.e., a possible Ex Post Facto claim). In this case, the conspirator forged certain documents that enabled them to receive money as the beneficiary of another person who died. The forgery and receipt of the money occurred in 2001. When questioned by the police about these events in 2006, the conspirators lied. The D. C. Circuit held that the conspiracy ended in 2001 when the objects of the conspiracy were achieved. See generally Grunewald v. United States, 353 U.S. 391 (1957); Krulewitch v. United States, 336 U.S. 440 (1949); Lutwak v. United States, 344 U.S. 604 (1953).

United States v. Seale, 542 F.3d 1033 (5th Cir. 2008)

The defendant allegedly committed the offense of kidnapping in 1964. He was indicted in 2007. Though at the time of the offense, there was no statute of limitations, because kidnapping was considered to be a capital offense in 1964, when the death penalty was eliminated as an option for kidnapping cases (in 1972), the five-year limitations period became applicable. 18 U.S.C. § 3282. The five-year statute of limitations barred the prosecution in this case. EN BANC RECONSIDERATION GRANTED, 550 F.3d 377 and this decision was affirmed without opinion by the en banc court which divided 9-9.

United States v. Grenier, 513 F.3d 632 (6th Cir. 2008)

The defendants faxed a false statement to the SEC on July 10. A copy of the statement was mailed and received by the SEC on July 11. The statute of limitations period began on July 10.

United States v. Kozeny, 541 F.3d 166 (2d Cir. 2008)

If the government intends to toll the statute of limitations pursuant to 18 U.S.C. § 3292 to facilitate the acquisition of evidence in a foreign country, the government must apply for tolling prior to the expiration of the statute of limitations.

United States v. Gunera, 479 F.3d 373 (5th Cir. 2007)

The agents were aware of the defendant’s presence in the country more than five years prior to the filing of the charges and the illegal reentry charge, therefore, was barred by the statute of limitations. The defendant reentered illegally and then applied for temporary protected status. More than five years later, the charges were filed.

United States v. Arias, 431 F.3d 1327 (11th Cir. 2005)

The defendant introduced sufficient evidence to warrant an instruction on the law of withdrawal from the conspiracy – and thus a statute of limitations defense. The defendant, a doctor, was charged with conspiring with others to defraud Medicare. More than five years prior to the indictment, he wrote a letter to Medicare, stating that he no longer would be a Medicare provider at the facility where the crime was being committed, thus signaling his withdrawal from the conspiracy to other conspirators who had previously relied on his participation in the program as a means to commit the crime.

United States v. Atiyeh, 402 F.3d 354 (3rd Cir. 2005)

The government’s request to toll the statute of limitations for the purpose of obtaining foreign evidence (18 U.S.C. § 3292) must be made before the statute of limitations otherwise expires.

United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004)

The government may apply for suspension of the statute of limitations when it seeks evidence located outside the country. 18 U.S.C. § 3292(a)(1). In this case, the Eleventh Circuit holds that an unsworn application submitted to a foreign government does not adequately establish that evidence of the charged offense is actually located in the foreign country. Therefore, because the government did not make an adequate showing under § 3292(a)(1), the indictment in this case was dismissed on statute of limitations grounds.

United States v. Dunne, 324 F.3d 1158 (10th Cir. 2003)

Making a false statement is not a continuing offense for statute of limitations purposes.

United States v. Reitmeyer, 356 F.3d 1313 (10th Cir. 2004)

When a defendant files a false claim with the government, the clock starts ticking on the statute of limitations. A Major Fraud Act violation is not a continuing offense that includes the period of time when the fruits of the crime are received. The offense makes it a crime to “execute a scheme” to defraud. The execution occurs when the fraudulent claim is submitted.

United States v. Midgley, 142 F.3d 174 (3rd Cir. 1998)

As part of a plea agreement, the government dismissed certain counts of the indictment. Three years later, while in custody, the defendant filed a successful collateral attack of his conviction. The Third Circuit held that the government could not reinstate the dismissed counts in anticipation of a new trial. The Statute of Limitations had expired in the interim and the government was not entitled to have the trial court simply “re-instate” the dismissed counts, notwithstanding the expiration of the statute of limitations. Nor was the statute “equitably tolled” during the pendency of the defendant’s incarceration absent a showing of intentional inducement or trickery by the defendant.

United States v. Gilbert, 136 F.3d 1451 (11th Cir. 1998)

In a bankruptcy fraud concealment of assets case, the statute of limitations does not begin to run until the debtor is discharged or denied a discharge. 18 US.C. § 3284. Here, the court held that if the defendant converts the corporate bankruptcy from a Chapter 11 to a Chapter 7, thus precluding discharge, the statute of limitations begins to run at that time. The prosecution in this case was barred by the statute of limitations.

United States v. Meador, 138 F.3d 986 (5th Cir. 1998)

The statute of limitations is tolled during the time that the government is pursuing evidence in a foreign country. 18 U.S.C. § 3292(b). The tolling period ends when "final action" is taken by the foreign country in response to a request for assistance. In this case, the court decided that "final action" occurs when the foreign government regards its efforts as complete and communicates that fact to the United States.

United States v. Grimmett, 150 F.3d 958 (8th Cir. 1998)

The defendant filed a pretrial motion to dismiss on the grounds that she withdrew from the drug conspiracy more than five years prior to the return of the indictment. The trial court denied the motion, holding that this was a fact question for the jury. The Eighth Circuit reversed: First, the court held that withdrawal from a drug conspiracy starts the statute of limitations clock, even though no overt act is required under 21 U.S.C. § 846. Second, the court held that a statute of limitations defense may be raised by a pretrial motion. If there are no disputed factual issues, then the judge should rule on the motion. If there are disputed factual issues (for example, whether the defendant continued to participate in the conspiracy), the judge may resolve the factual issue, or may defer to the trial jury.

United States v. Spector, 55 F.3d 22 (1st Cir. 1995)

The defendant urged the prosecutor not to indict him, agreeing in writing to an extension of the statute of limitations for several days. As the next deadline approached, the defendant again agreed in writing to an extension of the statute, but, while the government orally agreed, no agent of the government ever signed the extension. The terms of the agreement provided that it would be effective upon being signed by the parties. The government’s failure to sign this agreement was a fatal error and, when the indictment was returned several weeks later, it was barred by the statute of limitations.

United States v. O’Bryant, 998 F.2d 21 (1st Cir. 1993)

A superseding indictment which supplants a timely filed indictment, still pending, is itself regarded as timely vis-a-vis a given defendant so long as it neither materially broadens nor substantially amends the charges against the defendant. In other words, the superseding indictment relates back to the filing date of the original indictment so long as a strong chain of continuity links the earlier and later charges.

United States v. Podde, 105 F.3d 813 (2d Cir. 1997)

The defendant was charged with wire fraud and conspiracy. He later entered a guilty plea to CTR violations (as the law was understood pre-Ratzlaf). The plea was accepted and the defendant was sentenced. Seven years later, after the Supreme Court decided Ratzlaf v. United States, 510 U.S. 135 (1994), the defendant successfully moved to withdraw his guilty plea. The government re-indicted the defendant on the original charges. The Second Circuit concluded that the re-indictment was barred by the statute of limitations.

United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994)

The defendants were charged with bankruptcy fraud. 18 U.S.C. §152. Generally, the statute of limitations is five years. However, for cases involving concealment of a bankruptcy estate’s assets, the limitations period does not begin until the debtor has been discharged, or a discharge is denied. 18 U.S.C. §3284. In this case, the defendants were charged with making a false declaration in order to conceal assets. This is a different offense than concealing assets. Therefore, the §3284 extended limitations period did not apply, and the limitation period began at the time the false declaration was made, which was more than five years prior to the return of the indictment. The indictment should have been dismissed. Criminal statutes of limitations are liberally construed in favor of repose, and no offense should be construed as continuing a limitations period unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.

United States v. Manges, 110 F.3d 1162 (5th Cir. 1997)

The conspiracy count in this mail fraud indictment was time-barred. The statute of limitations in a conspiracy case runs from the last overt act committed by a member of the conspiracy. In this case, though there was a mailing within the previous five years, the mail was posted by someone other than the defendant. This mailing was sufficient to support a mail fraud conviction, but was not an overt act committed by a member of the conspiracy. Therefore, the conspiracy count was time-barred.

United States v. Craft, 105 F.3d 1123 (6th Cir. 1997)

A statute of limitations defense may be decided by the trial court prior to trial pursuant to Rule 12(b), Fed.R.Crim.P. In this case, the defendant was charged with obstruction of justice and conspiracy to defraud the United States by creating fictitious documents to resurrect a civil action. The only act that occurred within five years of the indictment, however, was the filing of a notice of appeal which challenged the dismissal of the civil action (despite the use of the fraudulent documents). The filing of the notice of appeal was not an overt act in furtherance of the conspiracy and, therefore, the statute of limitations barred this prosecution.

United States v. Payne, 978 F.2d 1177 (10th Cir. 1992)

Defendant was charged with false representations of social security numbers. The last time the defendant presented the false social security number to a payor was more than five years prior to the indictment. Though the payor continued to rely on that number thereafter, the offense is not a “continuing crime” and therefore the statute of limitations barred this prosecution. See Toussie v. United States, 397 U.S. 112 (1970). The offense is complete when the last representation is made, not when the number is last used by someone to whom the representation is made.

United States v. Edwards, 968 F.2d 1148 (11th Cir. 1992)

Because there was conflicting evidence as to when a drug importation offense was completed, the trial court committed reversible error in refusing to give an instruction on the statute of limitations defense.