Statute of Limitations
Statutes of Limitation Operate as a Complete Defense Â
by Nick Lofing
The defendants have raised a statute of limitations defense in the pretrial proceedings and will continue to use this defense to direct the evidence presented to the jury. Statutes of limitations are “deadlines” for charging a person with an offense. Once a person has completed all the elements of an offense, the government must prosecute the person within the window created by the applicable statute of limitations. If the government lets the window of time pass, the person can raise the statute of limitations as a complete defense, regardless of guilt.
Some may wonder why statutes of limitations even exist. The policies underlying statutes of limitations include protection against prosecution for acts done in the distant past and protection from the loss of evidence caused by the passage of time.Â
Typically, the statutes of limitations periods begin when all the elements of a criminal offense have been completed. Conspiracy, however, is often treated as a continuing offense, meaning the offense continues beyond the initial acts. Determining when a conspiracy ends often depends on the scope of the underlying agreement. For example, if the underlying agreement was to defraud the government for one week or in one defined instance, the statute of limitations would be easy to set. But here, where the government alleges an ongoing conspiracy agreement to defraud the government, the jury will have to determine the duration of the agreed upon conspiracy. Once the scope of the agreement has been determined, the jury must the find whether an overt act fell within the applicable period of limitations.Â
Generally, the statute of limitations begins to run for a conspiracy once the last overt act in furtherance of the conspiracy agreement was committed. However, if a defendant withdraws, by taking some affirmative step to disengage from the conspiracy, the statute of limitations begins to run for that defendant. Also, the government must prove that each subsequent overt act was in furtherance of the original conspiracy agreement and not a distinct and separate conspiracy to cover up the original conspiracy.Â
For conspiracy and the Clean Air Act violations, the statute of limitations period is five years from the date of the indictment. The general statute of limitation for non-capital federal criminal offenses, 18 U.S.C. § 3282(a), applies because Congress has not set a specific statute of limitations for conspiracy or Clean Air Act violations. Here, the grand jury indicted the defendants on February 3, 2005. So the date five years prior, February 3, 2000, would be the “cut-off” date. In this case, however, the statute of limitations date was tolled 97 days earlier, because the U.S. Attorney’s Office entered into three tolling agreements with the Defendant before filing the indictment. The first of these tolling agreements was entered on November 3, 2004. So the statute of limitations period applicable to this case begins five years prior, or November 3, 1999. This date carries great importance and will be referenced often throughout the trial.Â
Because the statute of limitations operates as a complete defense, the government must prove 1) that each conspirator remained in agreement to the objects of the conspiracy and 2) that an overt act was committed AFTER November 3, 1999. In other words, if a defendant can raise a reasonable doubt that the defendant withdrew from the agreement before November 3, 1999, that defendant will be acquitted. Likewise, if the government cannot prove any conspirator committed an overt act after November 3, 1999, the defendants will be acquitted. This statute of limitations defense will be contentious because most of the acts alleged happened prior to the mine’s closing in 1990 and not within the five-year statute of limitations period. However, these pre-1999 acts are relevant because they tend to prove the existence of the conspiracy agreement and will help the jury determine the scope, duration and terms of the underlying agreement.Â
The statute of limitations defense is also an important defense to the Clean Air Act charges of counts II-IV. As discussed above, the five-year general statute of limitation from 18 U.S.C. § 3282(a) applies. Because of the tolling agreement, the November 3, 1999 date marks the statute of limitations period for the Clean Air Act violations as well. This means the government must prove that each charged defendant committed all the elements of the Clean Air Act violations since November 3, 1999. The elements of Clean Air Act charges are discussed on the Government Case webpage.
MOTION TO EXCLUDE EVIDENCE OF CONDUCT THAT ALLEGEDLY PLACED ANOTHER PERSON IN IMMINENT DANGER BEFORE NOVEMBER 3, 1999.
by Paul Nicol
WR Grace specifically addressed the Clean Air Act’s knowing endangerment provision and argued that the Government should not be allowed to present evidence that the Defendants may have “placed another person in imminent danger before November 3, 1999.” Quoting the District Court’s Continuing Offense Order from 2006 WR Grace argued that the knowing endangerment provision “is complete and may be prosecuted at the first instant that another person is placed in imminent danger, regardless of how long the endangerment lasts.”
Specifically, WR Grace contended that “the Government must prove conduct that first placed another person in imminent danger after November 3, 1999. WR Grace pointed out that the Government has acknowledged this difficulty because it previously argued that “knowing endangerment was a continuing offense.” WR Grace asserted that even the Government’s new theory that “four types of actions caused third parties to release asbestos through their normal human activities” still fails because “the first instance that someone was allegedly endangered by those activities” would have been before November 3, 1999. WR Grace argued that this theory would “create liability in perpetuity, with a new crime being committed every time a third party’s activities resulted in the release of asbestos.”
In addition to its statute of limitations claim WR Grace contended that Rule 403 bars the evidence because the probative value of the evidence is outweighed by the danger of prejudice and this evidence might confuse the jury.