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October 24, 1995


The opinion of the court was delivered by: GETTLEMAN

 On April 13, 1994, a Chicago Sun-Times reporter notified the United States Postal Service that mail was located under the porch of a house at 1834 South Troy, Chicago, Illinois (the "house"). *fn1" Acting on this tip, postal inspectors retrieved approximately 768 pieces of identifiable mail that were designated for delivery in October 1987 and March 1988. Three canvas mailbags were also discovered under the porch.

 Investigation revealed that: defendant Rufus Cunningham had owned the house from at least May 1986 to July 1993; defendant "controlled" the house until at least August 1992; defendant had been a letter carrier for the Postal Service from May 1986 to September 1991; and the mail discovered under the porch had been assigned to defendant for delivery in October 1987 and March 1988.

 On March 23, 1995, the grand jury returned a two count indictment against defendant, charging him with violating 18 U.S.C. § 1703(a) ("§ 1703(a)") by unlawfully secreting, detaining and delaying the United States mail. On June 26, 1995, this court dismissed the indictment because it was returned beyond the five year limitations period contained in 18 U.S.C. § 3282. The court concluded that because the actions proscribed by § 1703(a) are not "continuing offenses," the statute began to run at the time the postal employee failed to deliver the mail on its designated date. United States v. Cunningham, 891 F. Supp. 460, 463-464 (N.D. Ill. 1995) ("Cunningham I").

 The government did not take an appeal from the decision in Cunningham I. Instead, on July 26, 1995, the grand jury returned a new two count indictment against defendant charging him with violating 18 U.S.C. § 1708 ("§ 1708") by "concealing and unlawfully having in his possession United States mail . . . which mail had been stolen, taken, embezzled, and abstracted, knowing the same to have been stolen, taken, embezzled, and abstracted."

 Not surprisingly, defendant has moved to dismiss the second indictment on the same limitations grounds that succeeded in Cunningham I. In addition, defendant argues that the indictment should be dismissed because it is the product of vindictive prosecution. For the reasons set forth below, defendant's motion is denied without prejudice.


 18 U.S.C. § 3282 provides that "except as otherwise provided by law, no person shall be prosecuted . . . for any offense . . . unless the indictment is found . . . within five years next after such offense shall have been committed." Defendant argues that the indictment, which was returned on July 26, 1995, can be sustained only if it charges a violation occurring after July 26, 1990. Here, the two counts of the indictment allege that the pieces of mail in question were postmarked for delivery on October 27, 1987, and March 23, 1988, and in the possession of defendant on those dates. Therefore, according to defendant, the indictment was returned outside the statute of limitations period and must be dismissed.

 The government argues that a violation of 18 U.S.C. § 1708 is a "continuing offense" that began for Count I on or about October 17, 1987, and for Count II on or about March 23, 1988, and continued until at least August 1992, when defendant allegedly last exercised possession and control over the residence where the mail was found. Therefore, according to the government, the statute of limitations did not begin to run until approximately three years before the instant indictment was returned.

 In Cunningham I, this court noted the following principles (891 F. Supp. at 462):

As a general rule, statutes of limitation begin to run when the crime is complete. Pendergast v. United States, 317 U.S. 412, 418, 87 L. Ed. 368, 63 S. Ct. 268 (1943). A criminal offense is generally complete and the limitations period begins to run when each element of the offense has occurred. Those crimes labeled as "continuing offenses," however, function as exceptions to this general rule. United States v. Beard, 713 F. Supp. 285, 290 (S.D. Ind. 1989). Such exceptions should not be created lightly, for by enacting 18 U.S.C. § 3282 Congress "has declared a policy that the statute of limitations should not be extended 'except as otherwise provided by law.'" Toussie v. United States, 397 U.S. 112, 115, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970) (quoting 18 U.S.C. § 3282).
As noted in Toussie, these principles indicate that the doctrine of continuing offenses should be applied only in limited circumstances since "the tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term." Id. This does not mean, however, that a particular offense should never be construed as continuing. It means only that such a result should not be reached 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. Id.

 In determining whether the continuing offense exception is applicable in the instant case, this court, once again, is ever mindful of the Supreme Court's mandate that this exception must be interpreted narrowly, because a statute of limitations is designed to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has intended to punish, and that criminal limitations statutes are to be liberally construed in favor of repose. Toussie, 397 U.S. at 114-115.

 At the outset, the court notes that there are no reported decisions that have expressly addressed the question of whether § 1708 describes a continuing offense. ...

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