Five Year Statute Limitations.

18 U.S.C. § 3282 is the general federal statute of limitations. As part of Congress’s substantive law, Section 3282 establishes the default limitations period for criminal charges that, if convicted, do not carry the possibility of a death sentence.

Section 3282 applies to all federal crimes unless another statute expressly provides a different limitation period. As a result, the five-year statute of limitations applies to most (but not all) federal charges.

Section 3282 also only applies to certain types of federal charges. For example, certain federal offenses that are deemed “covered” under Section 3282 (such as federal felonies that do not carry a death sentence) trigger the five-year federal statute of limitations. In contrast, Section 3282, which has been the default federal limitations rule since 1948, does not apply to federal charges that are deemed to have a permanent statute of limitations or that have an established limitation period of 10, 15, or 20 years (or longer, depending on the offense).

To satisfy Section 3282(a), an indictment must be found or an information instituted within five years after the offense was committed, unless another statute provides a different limitations period.

The clock that governs Section 3282’s five-year rule typically starts ticking the moment that the alleged offense was committed (or is completed). However, this statement is overly simplistic, and it can be misleading in most cases. Federal statute limitations are complex and can be affected by tolling or other exceptions, and, if you are under investigation for a federal offense, you should not assume that you are safe just because the federal statute of limitations is five years for most offenses (or because five years have passed since the offense occurred).

Which federal offenses follow longer deadlines or no deadline at all?

As discussed, 18 U.S.C. § 3282 is the general federal statute of limitations, providing a five-year window for prosecution for noncapital offenses. However, there are various federal statutes that expressly establish different limitations periods (if any), and a number of federal offenses that either carry extended limitations periods or have no limitations period at all. Examples include (but are not limited to):

• Capital offenses, 18 U.S.C. § 3281 expressly makes no statute of limitations applicable to offenses punishable by death. This means the federal government can prosecute the individual at any time, even if it has been 30 or 40 years since the offense occurred.
• Terrorism offenses, Several federal terrorism offenses carry eight-year limitation periods under 18 U.S.C. § 3286. Furthermore, certain terrorism offenses, such as those that result in death or serious bodily injury, do not have a statute of limitations. The federal government can prosecute the individual at any time.
• Federal child-sex offenses, Under 18 U.S.C. § 3299, some federal child-sex offenses have no statute of limitations.
• Federal tax offenses, Under 26 U.S.C. § 6531, some federal tax offenses, like tax fraud, have six-year limitation periods.

As you can see, there is no “one-size-fits-all” federal statute of limitations. For example, with some federal crimes, the statute of limitations can be six, 10, or 20 years; while with other crimes, no federal statute of limitations applies. So, if you are under investigation or concerned about being charged with a federal offense, your first call should be to an experienced federal defense attorney.

The federal government cannot (and does not) prosecute every federal offense, and many are subject to the federal statute of limitations. But, to avoid being wrongfully charged with a federal offense that is no longer timely, you need to make informed decisions about your defense.

Can prosecutors indict before arrest, toll time, or refile a dismissed case?

A grand jury may return an indictment well before the suspect is arrested. As long as an indictment is filed before the five-year period (or the applicable statute of limitations for that specific offense) expires, federal prosecutors can then file charges and proceed with the case even if the suspect is not arrested or served with a warrant until years later. Thus, just because it has been five years since the alleged offense, or you’ve not been served with an arrest warrant, does not mean you are safe, especially if a prosecutor issued an indictment in your name months (or years) ago.

Generally speaking, federal law does not require an arrest to occur (or a warrant to be served) before the statute of limitations runs out. This is another reason why you may not know if you are the target of an ongoing federal investigation for several years.

Sealed indictments, which may remain undisclosed for several months (and occasionally several years), are relatively common in federal criminal cases. These sealed indictments can sometimes lead to surprise arrests, and once again, it’s important to remember that just because it has been several years since an alleged offense occurred doesn’t mean you are safe, as a grand jury could have returned an indictment, or the government could have instituted an information, that would permit prosecution for a number of years.

In a conspiracy to commit a federal offense, such as wire fraud, the federal statute of limitations generally begins with the date of the conspiracy’s last overt act. So, like other crimes that can run for months, a defendant can become subject to federal prosecution years after he or she first participated in the conspiracy.

Drug-trafficking conspiracies, for example, can have complex statute of limitations defenses since calculating the relevant period often depends on determining the conspiracy’s termination or the defendant’s withdrawal. Due to the difficulty of pinpointing this date in most cases, the statute of limitations will be an important issue in a defense against these allegations.

If federal agents are at your door, the firm's advice is the same as every defense lawyer's: say you want your lawyer, then stop talking.

How should you calculate expiration and challenge a late federal case?

If the federal government waits to arrest someone who has been indicted, then this may present a Sixth Amendment speedy trial issue, rather than a federal criminal statute of limitations issue. While these two constitutional defenses are related, each focusing on delaying prosecution for too long, they have very different meanings and different consequences.

A federal statute of limitations defense asserts that a federal defendant cannot be held criminally liable because the federal government filed its charges after the federal statutory period had run out. In other words, while the government is claiming to have the ability to prosecute for the underlying federal offense, the limitations defense argues that this ability has expired. This argument focuses on the dates of the alleged offense and the date of indictment or information, respectively.

Many federal courts also have additional requirements for federal criminal defense attorneys who wish to raise the federal statute of limitations defense. These may include filing a written motion to dismiss the charges, and, for example, they may explicitly require that the federal court (rather than a jury) determine whether the federal statute of limitations defense applies.

When determining whether the federal criminal statute of limitations has expired, your federal criminal defense attorney must also take tolling (if any) into account. Under these rules, certain circumstances can pause or suspend the clock. For example, if a defendant has been a fugitive, then the period for prosecution may be suspended.

Lastly, if you believe that a state criminal statute of limitations has passed, this should not necessarily be used as a reason to think that you are no longer eligible to face federal charges. Federal criminal law and federal criminal procedure are entirely separate from the state criminal system, and the state statute of limitations will not be applicable to federal charges. While federal and state authorities often work together, they remain separate systems with separate statutory deadlines for taking action.

What makes one federal felony worse, and more expensive, than another?

There is no single maximum felony charge in the federal criminal justice system. Instead, federal criminal law encompasses a vast array of offenses, each with its own specific requirements and consequences.

The “seriousness” of any particular federal offense is generally measured by two factors: (i) the statutory elements federal prosecutors must prove to federal juries or judges to obtain a conviction, and (ii) the statutory penalties authorized under federal law.

Because each federal criminal case is different, it is difficult to provide a dependable “national price” for defending a federal case. Federal criminal defense costs can vary widely depending on several factors, including:

• The length of the investigation, the nature and quantity of the federal charges, the complexity of the discovery process, the number of pre-trial motions and appeals, the duration and complexity of the trial itself, and the presence of mitigating or aggravating circumstances.

If you are being targeted for a federal capital offense, there are additional factors to consider when determining the offense’s seriousness. With federal capital crimes, the authorized punishment depends on the relevant federal statute. This means that death penalty or life imprisonment is not universal. In some cases, life imprisonment is available, whereas in others it is not. As a result, if you are being investigated for a federal capital offense, you need to engage an attorney who can help you make informed decisions.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.