Chicago Federal Court | SOL | Federal Criminal Statute of Limitations | US Attorney Rockford

The statute of limitations defense for federal crimes

December 5, 2010

A criminal charge is like a civil lawsuit in one respect, the time limit for filing against the defendant. The federal statute of limitations that applies to criminal charges says that once 5 years has passed from the commission of the offense, the federal government is barred from filing charges.

The federal statute of limitations is 18 USC 3282, and it provides the following:

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.

See 18 USC 3282(a).

The purpose of the statute of limitations is to protect defendants from having to defend themselves against charges concerning events that took place long in the past. Evidence they would use to prove their innocence may no longer be available through no fault of their own. It would arguably be a violation of due process for a prosecution to take place in these circumstances.

The statute of limitations is a complete defense to a criminal charge, but failure to raise it prior to trial is a waiver and the prosecution would be allowed to proceed.

To prevail on a statute of limitations defense, the defendant must show that the date of filing of the criminal complaint (also called an information) or indictment by the grand jury was beyond the 5-year period.

The general 5-year limitation established by 18 USC 3282 has exceptions. Federal law says that the general 5-year statute of limitations applies in every case unless there is specific statute concerning the offense.

For capital crimes (eg, death penalty cases), the United States Attorney is not subject to any statute of limitations. 18 USC 3281. Terrorism is not subject to any statute of limitations where the offense caused death or serious bodily harm, or threatened the same. 18 USC 3286. Likewise, sex offenses in which a child was the victim are also not restricted by any statute of limitations. 18 USC 3283.

Tax offenses have their own statute of limitations. An offense against the Internal Revenue Service is governed by 26 USC 6531. Federal tax law says that prosecutions for tax crimes such as tax evasion, 26 USC 7201, or failure to file a tax return, 26 USC 7203, must begin within 6 years after the date of the offense.

Major fraud against the United States has its own statute of limitations. The charge of major fraud against the US is established by 18 USC 1031, and must involve at least $1,000,000. A person is guilty of this offense where he knowingly defrauds the federal government in any grant, contract, subcontract, subsidy, loan, guarantee, insurance, or other form of federal assistance. The sentence can be 10 years in federal prison. The statue of limitations for major fraud against the US is 7 years from the date of the offense.

There are circumstances where the statute of limitations will be extended by the court after petition by the US Attorney. These are the possible scenarios:

  • Original charges were dismissed. 18 USC 3288 and 3289. Federal prosecutors can reinstate charges for an additional 6 months after the statute of limitations has run.
  • The offense took place in a foreign country, or evidence is located in foreign territory. 18 USC 3292.

Banks and other financial institutions have special protection under federal criminal laws. The following offenses against banks have a 10-year statute of limitations:

  • Bank fraud (scheme or artifice to defraud a financial institution). 18 USC 1344.
  • Mail fraud (using the mails for a scheme or artifice to defraud). 18 USC 1341.
  • Wire fraud (using wire, radio, or television in a scheme or artifice to defraud). 18 USC 1343.
  • Violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 USC 1962, that is predicated on bank fraud under 18 USC 1344.
  • Receipt of commissions or gifts for procuring loans. 18 USC 215.
  • Theft, embezzlement, or misapplication by bank officer or employee. 18 USC 656.
  • Embezzling funds from a federal financial institution. 18 USC 657.
  • Falsifying bank records (reports, entries or transactions). 18 USC 1005.
  • Falsifying records of a federal financial institution (reports, entries or transactions). 18 USC 1006.
  • Falsifying, forging, or counterfeiting a statement to the Federal Deposit Insurance Corporation (FDIC). 18 USC 1007.
  • Making a false statement or report, or overvaluing assets for a federal loan. 18 USC 1014.
  • Making a false statement or report, or overvaluing assets as it relates to insurance and a financial institution. 18 USC 1033.

See 18 USC 3293.

Federal law has also replaced the statute of limitations of 5 years with a 10-year period for immigration offenses:

  • Using false or fraudulent citizenship papers. 18 USC 1423.
  • Impersonating another as an applicant, declarant, petitioner, or witness in citizenship or naturalization proceedings. 18 USC 1424.
  • Obtaining citizenship or naturalization illegally. 18 USC 1425.
  • Manufacture, sale, distribution, or reproduction of false, forged, fraudulent, or counterfeit citizenship or naturalization papers. 18 USC 1426.
  • Sale of otherwise legal naturalization or citizenship papers. 18 USC 1427.
  • Failing to surrender canceled naturalization certificate. 18 USC 1428.
  • Issuing a passport without authority. 18 USC 1541.
  • Making a false statement in an application for a passport. 18 USC 1542.
  • Falsifying, forging, counterfeiting, mutilating, or altering a passport. 18 USC 1543.
  • Using a passport belonging to another person. 18 USC 1544.

See 18 USC 3291.

Conspiracy crimes have an exception to the 5-year statute of limitation. In conspiracies prosecuted under 18 USC 371, such as conspiracies to commit a federal offense or conspiracies to defraud the United States, the statute of limitations begins to run on the date of the last action taken to further or enable the conspiracy. The same rule applies to conspiracies to defraud the federal government by making a false claim under 18 USC 286, and drug trafficking conspiracies prosecuted under 21 USC 846.

The statute of limitations is also tolled indefinitely for the following offenses because the commission of these offenses is said to happen in a continuing and uninterrupted manner:

  • Escape from federal custody. 18 USC 751.
  • Flight to avoid prosecution. 18 USC 1073.
  • Failure to report for sentencing. 18 USC 3146(a).
  • Re-entering the United States illegally after deportation. 8 USC 1326(a).
  • Possession of counterfeit money. 18 USC 472.
  • Regardless of the offense, a person who is a fugitive from justice is not protected by any statute of limitations for that offense. 18 USC 3290.

Similarly, the period is tolled indefinitely under the following circumstances:

  • In bankruptcy fraud, where the debtor concealed assets, the 5-year period does not begin until the debts have been discharged. 18 USC 3284.
  • In cases of defrauding the United States, if the fraud was related to a contract, property, or other claim with the Department of Defense (eg, Navy, Air Force, Marines, or Army) and the US is at war, the statute of limitations does not begin to run until after hostilities have ended. 18 USC 3287.

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