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Time-bars: RICO-criminal and civil-federal and state.


A. History and Justifications

At common law, the king could bring a criminal prosecution at any time, as the rule was nullum tempus occurit regi. (51) The first American criminal statute of limitations appeared in the Colony of Massachusetts in 1652. (52) The First Congress passed a similar law applicable to federal offenses in 1790. (53) This first federal criminal statute of limitations set a short limitations period--two years for non-capital offenses and three years for capital offenses (willful murder and forgery excepted). (54) Congress has extended this general period over the years, (55) and now, various crimes specify a different, usually longer, limitations period. (56)

Criminal statutes of limitations limit the exposure of an individual to prosecution to a certain period following the commission of the crime. (57) The purpose of criminal statutes of limitations is to balance the interest of the government in prosecuting crimes against the interest of the defendant in not having to answer "overly stale criminal charges" (58) along with general considerations of fairness and efficiency. (59) The state possesses a strong interest in prosecuting crimes for the protection and maintenance of society, and in recent years, legislators have placed more emphasis on just deserts as a justification for criminal punishment as well as on victims' rights. (60) Statutes of limitations by their nature prevent punishment, sometimes "arbitrarily" (61) allowing a criminal to escape prosecution. Thus, many people mistakenly see statutes of limitations as only preventing criminals from receiving their just deserts and as a barrier to vindicating victims' fights.

If the government's interest in prosecuting crimes, and the goals of just deserts and victims' rights were the only considerations, statutes of limitations might well be "arbitrary," but other weighty considerations argue in favor of having time-bars to prosecution. (62) As time passes after the commission of a crime, and "basic facts ... [are] obscured by the passage of time," (63) just deserts is no longer a valid consideration, and victims' rights are problematic. In fact, the presumption is that a "fair"--either in the sense of accurate or consistent with a proper balance between the power of the state and the individual in a free society--trial is not possible. (64) Even if a fair trial were possible, when a long time passes between the commission of a crime and its prosecution, the perpetrator may have reformed his life and become a productive member of society, or changed so drastically that he is, at least arguably, in a psychological sense, not the "same" person who committed the crime. (65) In that case, a prosecution is arguably unfair, and might do more harm than good. (66)

Statutes of limitations benefit society as well as the accused. They encourage "law enforcement officials promptly to investigate suspected criminal activity," (67) to devote their limited resources to solving recent crimes that pose an immediate threat to society, because of repetition, as from recidivists come most offenses. (68) Statutes of limitations also incentivize law enforcement efficiency by keeping stale cases out of over-taxed court systems (69) and providing a bright-line rule guiding when a prosecutor can and cannot bring a case. (70) Finally, statutes of limitations offer repose to society, the alleged perpetrator, and the victim. (71) In the United States, most jurisdictions have statutes of limitations that bar prosecution after the stated period elapses. (72) In determining the appropriate period of limitations, when the limitations period should accrue, and when it should toll, courts, and legislatures ought to take into account the factors that militate for and against having a period of limitations for any set period. Every extension of the limitations period, every tolling rule, and every accrual rule that starts the limitations period running later tends to undermine the purposes of having statutes of limitations in the first place. (73) The public interest demands thoughtful care.

B. Determining the Limitations Period for Criminal RICO

1. Federal RICO

An examination of RICO and its legislative history sadly reveals that it does not contain a provision for a statute of limitations specifically designed to take into account the unique character of a RICO investigation and prosecution. (74) Thus, the catchall five-year statute for non-capital federal offenses governs criminal RICO cases. (75) This statute, too, requires liberal interpretation of repose, (76) a policy not necessarily in accordance with the unique character of RICO.

Before courts reached the consensus that RICO was governed by the catchall five-year period, courts held that, where the racketeering activity under [section] 1961(1)(a) must be "chargeable under [s]tate law," the state statute of limitations should apply. (77) This contention was a misinterpretation of RICO. Courts correctly read "chargeable" to incorporate only the substantive definitions of state law, not statutes of limitation, or other procedural rules. (78) A contrary holding would make the definition of pattern, which includes a ten-year period, "meaningless." (79)

2. State RICO

Following the enactment of federal RICO, many states enacted their own RICO statutes. (80) Of the thirty-five state RICO statutes that create criminal offenses, thirteen contain a limitations period, or another part of the code specifies a limitations period (usually five years). (81) Another nineteen "little RICO" statutes do not specify a limitations period. Determining the limitations period for these statutes, then, is similar to determining the limitations period for the federal statute--courts should apply the state's catchall criminal statute of limitations unless the legislature unequivocally intended otherwise. (82)

C. Determining the Point of Accrual

1. Accrual and Commencement of Prosecution in Criminal Cases

Criminal statutes of limitations accrue when the perpetrator commits the crime and run until the government commences the prosecution. Thus, determining whether a prosecution is timely involves two questions (83): First, when did the perpetrator commit the offense; and second, when did the government begin the prosecution? If the government does not begin the prosecution within the statutorily prescribed period after the commission of the crime, then the statute bars prosecution.

When an offense was "committed" is not always obvious. While courts generally consider most offenses committed when they are complete, (84) certain offenses are continuing offenses. (85) For continuing offenses, the statute of limitations does not begin to run when the perpetrator has satisfied each of the elements of the offense. Rather, the statute of limitations begins to run when the criminal course of conduct ends. Conspiracy is an example. In United States v. Kissel, the Court held that a conspiracy is a continuing offense that does not terminate until the co-conspirators abandon it or achieve their aim. (86) In later cases, the Court held that a conspiracy continues until the defendant shows the contrary by, for example, abandonment, (87) and that frustration, as well as success or abandonment, could terminate a conspiracy. (88) Thus, for a conspiracy prosecution where you do not have to show an overt act, (89) the statute of limitations does not begin to run until the conspirators abandon it, something frustrates the goals of the conspiracy, the conspirators accomplish their goals, or withdraw from the conspiracy. (90) For a conspiracy prosecution where an overt act is an element of the crime, the statute begins to run at the completion of the last overt act by any one of the co-conspirators. (91)

After determining when the perpetrator committed the offense, the next question one must answer is whether the prosecutor timely initiated the prosecution. To answer this question, you must know what, by law, triggers the beginning of a prosecution. A prosecution generally begins when the grand jury indicts the suspect or when the prosecutor issues an information. (92) Nevertheless, depending on the jurisdiction, a prosecutor may commence a prosecution in several other ways: by filing a complaint, (93) by issuing a warrant, (94) or by the return of a presentment. (95) Once the prosecutor commences the prosecution, the statute of limitations tolls. (96)

2. Accrual Problems in Criminal RICO Cases

In RICO litigation, the point at which the limitations period begins to run depends on which section of RICO is the basis for the charge.

a. Pattern Violations

Section 1962(c) prohibits the operation of an enterprise through a pattern of racketeering activity. (97) Because [section] 1962(c), if it requires a pattern, is a continuing offense, the statute of limitations runs from the last predicate act of racketeering in the pattern. (98) Thus, where one predicate act of racketeering in a pattern of racketeering falls within the period of limitations, the entire pattern of racketeering is subject to prosecution, even though earlier acts of racketeering might not be subject to prosecution as separate offenses. (99) Where no act of racketeering occurs within the period of limitations, courts properly reverse convictions. (100) Where multiple parties engage in racketeering offenses, the statute of limitations for each defendant runs from the last act of racketeering he commits, the cases wrongfully teach, not from the last act of racketeering committed by any member of the group. (101)

b. Use/Investment Violations and Acquisition/Maintenance Violations

Section 1962(a) prohibits the use or investment of income derived from a pattern of racketeering. (102) Use or investment occurs after the pattern of racketeering from which the perpetrator derived income. Accordingly, the period of limitations runs, not from the last act of racketeering in the pattern, but from the use or investment. (103) Unless the violation of [section] 1962(a) requires some element beyond the act of use or investment, the offense is complete with the use or investment.

Section 1962(b), on the other hand, prohibits the acquisition or maintenance of an interest in an enterprise through a pattern of racketeering. (104) Here, the crucial element is the "acquisition or maintenance" of an interest in an enterprise. Accordingly, the period of limitations would run, not from the last act of racketeering in the pattern, but from the last act of "acquisition or maintenance." No court of appeals case exists involving the accrual of the statute of limitations under [section] 1962(b). Nevertheless, in United States v. Castellano, (105) the district court reasonably suggested in some circumstances that [section] 1962(b) could be a continuing offense. (106) If so, the limitations period would not accrue until the criminal course of conduct ceases. If not, the limitations period would accrue when all the elements of the offense were otherwise satisfied.

C. Conspiracy

Section 1962 (d) prohibits conspiracies to violate any of the provisions of subsections (a), (b), or (c). (107) Section 1962(d) does not require the commission of an overt act. (108) Accordingly, the period of limitations does not run until the conspiratorial purposes have been abandoned or accomplished. (109) Subsections (a), (b), and (c) are subject to the general conspiracy statute (110) that requires an overt act. (111) If the government charged a defendant with conspiracy to violate subsections (a), (b), or (c) under the general statute, the period of limitations would run from the last overt act done to affect the objective (or abandonment, frustration, or withdrawal) of the conspiracy. (112) This last overt act would not necessarily be an act of racketeering, because it is a completed offense, and an overt act can be innocent in itself. (113)

When determining whether a prosecution is timely, you have to take into account not only the length of the limitations period and when it accrues, but also any rules that toll the running of the limitations period. For example, the government can commence a RICO conspiracy prosecution under [section] 1962 (d) more than five years after the conspiracy has terminated if a tolling rule suspends the running of the limitations period.

D. Tolling of Criminal Statutes of Limitations

1. Federal Tolling Rules

Federal law reflects two major tolling rules. The first is that the commencement of a prosecution tolls the limitations period. (114) This rule is significant, because if the government later dismisses a timely indictment (or information), it can still obtain a new indictment not barred by the statute of limitations. (115) Similarly, if the government discovers a problem with the initial indictment, it can obtain a superseding indictment (116) that is not time barred, so long as it does, not broaden or substantially amend the charges from the original indictment. (117)

The second major federal tolling rule has existed since the first federal statute of limitations. (118) It provides, "No statute of limitations shall extend to any person fleeing from justice." (119) The justification for this rule is that a person who leaves the jurisdiction where the crime is committed or goes into hiding to avoid prosecution should not benefit from his wrongful flight. (120) Still, a person who flees from justice does not completely forfeit the protection of the statute of limitations. If that person openly returns and resumes his life, he is no longer "fleeing from justice," and the statute of limitations no longer tolls. (121) Courts generally interpret the phrase "fleeing from justice" broadly. (122) An intent requirement tempers that broad interpretation. Most of the courts of appeals hold that, for a person to be "fleeing from justice" within the meaning of the statute, the person must act with the intent to avoid arrest or prosecution. (123)

Two other federal statutory tolling rules only apply in special circumstances. First, when the United States is at war, the statute of limitations for certain crimes involving "war frauds of a pecuniary nature or of a nature concerning property" (124) is suspended "until 5 years after the termination of hostilities." (125) Second, when evidence of a crime is (or reasonably appears to be) in a foreign country, the district court can suspend the running of the statute of limitations while the United States attempts to obtain the evidence through an official request. (126) Under this tolling provision, suspension cannot exceed more than three years. (127)

2. State Tolling Rules

Tolling rules for criminal statutes of limitations vary from state to state, but several common tolling provisions deserve mention. As on the federal level, when the government commences a prosecution, the statute of limitations tolls. (128) If a court later dismisses the indictment, the government can re-indict without regard to the statute of limitations, (129) or if the first indictment is defective in some way, the government can issue a timely superseding indictment. (130) In many states, criminal statutes of limitations also toll when the accused is absent from the state, (131) is not 'usually and publicly' a resident within the state, (132) is fleeing from justice, (133) or when the accused conceals himself. (134) Some states toll certain criminal statutes of limitations until the discovery of the crime, especially for crimes that are difficult to detect. (135) Finally, some states have special statutes, similar to tolling provisions that allow the federal government to prosecute certain offenses long after the usual limitations period has run based on the government's possession of identifying DNA evidence. (136)
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Title Annotation:II. Statutes of Limitations in Criminal RICO Cases, p. 1616-1663
Author:Blakey, G. Robert
Publication:Notre Dame Law Review
Date:Apr 1, 2013
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