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April 30, 1998


The opinion of the court was delivered by: SHADUR


 This Court's March 30, 1998 memorandum opinion and order ("Opinion") dealt with the several issues raised by the Fed. R. Crim. P. 12(b) motion of Michael Yashar ("Yashar") for dismissal of the one-count indictment that had charged him with having been a ghost payroller during the period from September 1, 1991 to September 1, 1992 in violation of 18 U.S.C. § 666. *fn1" Opinion at 6-7 concluded by stating that this Court would dismiss the indictment if the facts as to the amounts that had been received by Yashar and as to the times that he received them were as he had represented. When the United States then immediately confirmed that Yashar had accurately stated the underlying facts, this Court dismissed the indictment with prejudice on March 31.

 Now the United States has served notice of the proposed presentment of its written Motion to Reconsider the Decision To Dismiss the Indictment. That motion's effort to salvage someone's having blown the statute of limitations on this Section 666 prosecution *fn2" is unpersuasive, and the motion is denied.

 Here the clue to what this Court believes is a mistaken government perspective can be found in the very first sentence of the Argument section of its current motion:

The statute of limitations (18 U.S.C. § 3282) bars prosecution for any non-capital "offense" committed more than 5 years before the return of the indictment.

 But that statute defines limitations not by focusing on what happened more than five years before the indictment's return, but rather on what happened (or did not happen) within the five years preceding the finding of the indictment. Here is the actual language of Section 3282:

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

 And that "within five years" focus, although in other contexts it might strike the reader as reflecting only the most subtle of distinctions, demonstrates why none of the multiple examples that are advanced by the government supports the indictment here.

 In every instance the question posed by Section 3282 is whether the "offense" defined by the relevant substantive statute was "committed" within the limitations time frame. Thus in (say) a bank fraud scheme indictable under Section 1344, the critical question is whether an "execution" of the scheme took place within the five years preceding the indictment--that is the "offense" for purposes of Section 3282. And so United States v. Longfellow, 43 F.3d 318 (7th Cir. 1994)--a case sought to be relied upon by the government--actually supports this Court's analysis rather than the government's position ( id. at 325). And the same is of course true as to the cases dealing with mail fraud (Section 1341), wire fraud (Section 1343), conspiracy prosecutions and the like--all of which the United States seeks to point to as situations where the statute of limitations' watershed is straddled by a defendant's conduct, and where the indictment is found to be timely: In every instance a criminal offense must have occurred within the five-year statutory period. *fn3"

 Again as the Opinion pointed out, Section 666 criminalizes not simply fraudulent or other prohibited conduct as such, but only such conduct that involves the taking of "property valued at $ 5,000 or more." By the express language and structure of the statute, that amount of taking is an essential element of the indictable "offense" that under Section 3282 must have been committed within the five-year time frame antedating the return of the indictment--or in this instance, because of the severely time-limited waiver of limitations that Yashar signed, must have been committed within the under-one-month period ended September 1, 1992--if the indictment is to survive.

 None of the cases cited by the government deals with a comparable situation in which a "no" answer must be given to the question whether the defendant committed the criminal offense, as defined by the operative statute, within the five-year period that is defined by Section 3282. But "no" is the answer to that question here, and that negative answer commands the dismissal of the indictment as time-barred.

 In sum, nothing that has been advanced in the United States' current submission calls for a change in the Opinion or in the conclusion that it reached. This Court denies the government's motion to reconsider that decision.

 Milton I. Shadur

 Senior United States ...

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