C. Counts One Through Twelve and Thirteen Through Fourteen Violate the Statute of Limitations as to Defendants FedEx Corp. and FedEx Services The initial indictment in this matter was filed on July 17, 2014, see Dkt. #1, so under 18 U.S.C. § 3282 the statute of limitations stretched back only to July 2009. Yet, as detailed in Part II.A, supra, each of Counts One through Twelve and Fourteen through Fifteen allege purported crimes that — by the express terms of the superseding indictment itself — concluded before the end of 2008.

BACKGROUND A. The Statute of Limitations The governing statute of limitations provides that, “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found . . . within five years next after such offense shall have been committed.” 18 U.S.C. § 3282(a). At the government’s request, the defendant voluntarily extended this limitations period to approximately seven years.1 Accordingly, for charges in the original indictment, including Counts 4 and 5, the limitations period reaches back to April 17, 2007.

Nor can the two research grants support the conviction: They were outside the limitations period. Under 18 U.S.C. §3282, the Government had to prove that Mr. Silver committed the charged offenses within five years of the indictment. Mr. Silver approved the first grant on July 5, 2005, GX 367-1, and approved the second on November 30, 2006, GX 284.

Viewing that record as a whole, no reasonable jury could infer that there was any sort of agreement between Dr. Taub and Mr. Silver to exchange referrals for official acts – particularly given that many of the official acts on which the Government relies are outside the statute of limitations. 18 U.S.C. §3282. Even if Dr. Taub had believed he was agreeing to exchange referrals for official acts, there is no evidence that Mr. Silver shared Dr. Taub’s belief or was even aware of it.

(b) It is Not Unusual for Limitations Periods to Have Exceptions for Absent Defendants Congress has continued up to the modern day with its use of provisos conditioning statutes of limitations on a defendant’s presence in the United States, and not only in Section 2462. The exception to the 1790 criminal limitations period is present today in 18 U.S.C. § 3290, which conditions the catchall criminal limitations period of 18 U.S.C. § 3282 with a carve out for fugitives. There are separate catchall limitations periods set forth in 28 U.S.C. §§ 2415 and 2416 applicable to government suits in contract, tort, and to recover money wrongly paid, each of which contains its own “provided” clauses to limit, condition, or make exceptions to the general limitations period.

65 See U.S. v. Morison, 844 F.2d 1057 (4th Cir. 1988) (affirming conviction). 66 18 U.S.C. § 3282. 67 See U.S. v. Blizzard, 812 F.Supp. 79 (E.D. Va. 1993), aff'd, 27 F.3d 100 (4th Cir. 1994).

A. Applicable Law The statute of limitations for the crimes charged in this case is five years. See 18 U.S.C. § 3282. The filing of an indictment tolls the limitations period for the charges contained in the indictment, see United States v. Grady, 544 F.2d 598, 601 (2d Cir. 1976), and a superseding indictment relates back to the date of the original indictment as long as the superseding indictment does not “broaden or substantially amend the original charges,” United States v. Gengo, 808 F.2d 1, 3 (2d Cir. 1986).

Accordingly, the government requests that the court either strike or decline to consider the affidavit in ruling on defendants’ motion to dismiss.2 II. Defendants’ Conspiracy Continued into the Limitations Period Under 18 U.S.C. § 3282, an indictment for a non-capital offense must be brought within five years “after such offense shall have been committed.” For purposes of § 3282, an offense is “committed” when it is “completed . . ., that is, when each element of that offense has occurred.” United States v. Yashar, 166 F3.d 873, 875 (7th Cir. 1999) (citing Toussie v. United States, 397 U.S. 112, 115 (1970), United States v. McGoff, 831 F.2d 1071, 1078 (D.C. Cir. 1987)).

BACKGROUND A. The Statute of Limitations The relevant statute of limitations with respect to the charged crimes provides for an indictment to be returned within five years of the offense conduct. See 18 U.S.C. 3282(a). Because of the tolling agreement between the government and PG&E, the limitations period for the original indictment is approximately seven years, reaching back to April 17, 2007, and for charges in the superseding indictment, back to July 29, 2007.

Section 3282 provides that “[e]xcept as otherwise provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found...within five years next after such offense shall have been committed.” 18 U.S.C. § 3282 (emphasis added). The right to be free from trial and prosecution is clear from the plain language of the statute.