VIII. Defenses
Sixth Circuit
• 18 U.S.C. § 3282 - Statute of Limitations
U.S. v. Grenoble, 04-3469 (6/29/05)
> Defendant was charged with conspiracy to commit
wire fraud, and the indictment alleged that the last overt act occurred
in January 1997. In March 2000, the government requested that the five
year statute of limitations (SOL) under 18 U.S.C. § 3282 be tolled
pursuant to §3292 because the government sought to obtain records
from Canada. The government received the records in November 2001, and
then indicted defendant in December 2002. At trial, the district court
granted the government’s motion to strike the allegation that the
last overt act occurred in January 1997, and held that the last overt
act had occurred in August 1996. Defendant argued on appeal that the
SOL had expired on the conspiracy charge prior to indictment.
* Holding: The court held that the SOL had not
expired. First, the court found that the district court properly ruled
that the last overt act occurred in August 1996, the date the last of
the funds were obtained from the victims. The January 1997 acts were
merely acts of concealment where defendant talked on the phone to
victims to try to lull them into the belief that their funds were safe.
“Lulling” calls are not normally overt acts that are part
of a conspiracy for SOL purposes. Second, the court held that the SOL
was effectively tolled by the government’s request for foreign
documents. The tolling provision in the statute, §3292(a)(1),
allows for tolling of the SOL, but limits the amount of time that can
be tolled to six months if the government receives the foreign
documents prior to what would have been the expiration date of the SOL.
The court ruled that, because the district
court found that the last overt act occurred in August 1996, the SOL
would have expired in August 2001. The government received the foreign
documents in November 2001, after the SOL would have expired. Thus, the
six month tolling limitation was not applicable and the indictment was
timely filed. If, however, January 1997 (as originally alleged in the
indictment) was the date of the last overt act, then foreign documents
would have been received within the SOL time period, and time could
have only been tolled for six months, thus making the indictment
untimely. Accordingly, the district court ruling was affirmed.
• Statute of Limitations
U.S. v. Watford, 05-6184 (11/14/06)
> Defendant was indicted for possession of crack
cocaine, in an unspecified amount, with the intent to distribute. After
the statute of limitations expired, the government obtained several
superceding indictments in response to Apprendi and Blakely that
increased the quantity of the crack and the penalty provision under
Title 21. Defendant moved for dismissal of the charge based upon the
statute of limitations and the district court denied the motion.
Defendant appealed.
* Holding: For statute of limitation purposes, a
superceding indictment relates back to the time of the filing of the
original indictment unless the superceding indictment
“broadens” the charge in the original indictment. The
critical inquiry is whether the original indictment provided notice of
the charges such that the defendant can prepare his defense. In the
case, the court held that, because the original indictment indicated
that defendant faced a mandatory minimum sentence of 10 years, he was
on notice from the beginning that the government intended to prove that
he possessed more than 50 grams of crack cocaine. Thus, the court found
no broadening of the indictment when the government later superceded to
add the actual drug amounts. Therefore, the court affirmed the district
court ruling.
• 18 USC § 3282 - Statute of Limitations
U.S. v. Grenier, 06-4473 (1/22/08)
> Defendant was charged with making false
statements to the SEC under 18 USC § 1001. The basis for the
prosecution was a letter that defendant both faxed and mailed to the
SEC on July 10, 2001. The mailed letter was received by the SEC on the
following day, July 11. The government obtained an indictment against
defendant on July 11, 2006. Defendant moved to dismiss the indictment
on statute of limitation grounds, and the district court granted the
motion because the government was outside the five year limitations
period by one day. The government appealed.
* Holding: Pursuant to § 3282, the statute of
limitations for a false statement prosecution is five years. The
statute of limitations begins to run on the date that all of the
elements of the crime charged have occurred. In the case, the court
held that the crime of making a false statement occurred on July 11,
2001, the day that defendant mailed and faxed the letter. The court
dismissed the government’s claim that the SEC did not have
“jurisdiction” over the matter, under § 1001, until it
received the letter. Further, the court found unpersuasive the
government’s argument that a false statement offense was not
complete until the statement was received by the government.
Accordingly, the district court ruling was affirmed.
• Statute of Limitations
U.S. v. Schaffer, 09-3053 (11/12/09)
> Defendant was charged with conspiracy to commit
computer fraud based on his agreement to access a government
contractor’s computer system. Defendant moved to dismiss based on
the statute of limitations and claimed that all of the overt acts in
furtherance of the conspiracy occurred outside the five year
limitations period. Defendant claimed that his receipt of payment for
the stolen information was not in furtherance of the conspiracy. The
district court disagreed, and defendant appealed.
* Holding: The court held that the date of the last
overt act in furtherance of a conspiracy begins the five year statute
of limitations clock. The court found that defendant’s
participation in the conspiracy was contingent on him receiving payment
for the information he stole because defendant had negotiated the fee
for his services. Thus, the act of receiving the money and giving the
undercover agents the password to access the information was an act in
furtherance of the conspiracy. Because it occurred within five years of
indictment, the district court’s ruling was affirmed.