New York Federal Criminal Practice Blog

Recently in the Statute of Limitations category:


In another notable decision from the FCPA prosecution of Frederic Bourke that just ended in conviction last Friday (see also here and here), SDNY Judge Scheindlin denied Bourke's motion for a judgment of acquittal in United States v. Kozeny, 2009 WL 1940897 (S.D.N.Y. July 6, 2009).  

Of particular note is her rejection of Bourke's challenge to his money laundering conspiracy conviction as time-barred because his last transfer of funds outside the U.S. occurred outside the relevant statute of limitations period.  Quoting the Second Circuit's decision in United States v. Mennuti, 679 F.2d 1032 (2d Cir. 1982), the court pointed out that "where the object of the conspiracy is economic, the conspiracy 'continues until the conspirators receive their anticipated economic benefits.'" Here, "a reasonable jury could infer that the conspiracy had not terminated by [the date of the last payment], because the privatization [of Azerbaijan's state oil company] had not occurred at that time and no returns had been made on the investments."  

Bourke's lawyers argued that "tying the money laundering conspiracy to the underlying substantive violation 'would render the statute of limitations essentially indeterminate.'"  Judge Scheindlin disagreed. "That is not the case here. It would be reasonable to conclude that the conspiracy ended when Kozeny and his co-conspirators abandoned their attempts at encouraging the privatization of SOCAR or when they ceased paying bribes to Azeri officials."

When is a recurring offense a "continuing" offense for statutes of limitations purposes?  Not when the offense consists of repeated acts of fraudulent conversion of pension checks sent to one's deceased father, a court ruled in United States v. Rivlin, 07CR 524 (SHS), 2007 WL 4276712 (S.D.N.Y. December 5, 2007). 

The defendant, charged with a violation of 18 U.S.C. § 664 (embezzlement from a pension fund), moved to dismiss the portion of the indictment that charged him with embezzlement beyond the applicable five-year statute of limitations.  Analyzing the "continuing offense" doctrine, which is an exception to the statutory time bar, the court granted the motion, ruling in a case of first impression in the Second Circuit, that the statute of limitations began to run upon the completion of each individual act of embezzlement.  Unlike traditional examples of continuing offenses - conspiracy, escape, kidnapping and crimes of possession - "the embezzlement of money from an employee benefit fund is not inherently a prolonged course of conduct" (emphasis in original).  Accordingly, the court held "a violation of 18 U.S.C. § 664 is not a continuing offense, regardless of how many times an individual defendant may have violated the statute or whether the defendant was engaged in an on-going course of criminal conduct."

This may however be a pyrrhic victory for Rivlin, since he faces the distinct possibility that all acts of embezzlement will be admitted at trial under Fed.R.Evid. 404(b) and, in the event of a conviction, at sentencing as relevant conduct. 

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