U.S. v. Yashar

• Decision Date: 22 February 1999
• Docket Number: No. 98-2356,98-2356
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael A. YASHAR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 873

166 F.3d 873

UNITED STATES of America, Plaintiff-Appellant, v. Michael A. YASHAR, Defendant-Appellee.

No. 98-2356.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1998.

Decided Jan. 26, 1999.

Rehearing Denied Feb. 22, 1999.

Kaarina Salovaara, David Hoffman (argued), Office of United States Attorney, Criminal Division, Chicago, IL, for Plaintiff-Appellant.

John E. Farrell (argued), Katten, Muchin & Zavis, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Michael Yashar was indicted for a violation of 18 U.S.C. § 666, which makes it a federal crime for an agent of a local government or agency to embezzle, steal, obtain by fraud, or otherwise misapply property of that government or agency that is valued at more than $5000, during any one-year period in which the local government or agency receives federal benefits in excess of $10,000. The indictment alleged that Yashar was on the payroll of the Chicago City Council's Committee on Finance from June 1, 1989 until September 1, 1992. It charged that from September 1, 1991 until September 1, 1992, Yashar received $9,223 in wage payments and health insurance coverage, for which he did little or no work. In other words, the indictment alleged that he was a ghost payroller. The indictment also alleged that the City of Chicago received federal benefits in excess of $10,000 in that time period. Although the government was aware of the potential criminal violation since at least November 1994 and discussed it with Yashar at that time, it did not obtain the indictment until January 8, 1998. Yashar moved to dismiss the indictment, arguing that it was brought in violation of the five-year statute of limitations. Because Yashar signed a limited waiver in August 13, 1997 which effectively tolled the limitations period from that day forward, we review this issue as if the indictment were returned on August 13, 1997. The district court granted the motion to dismiss, holding that the statute of limitations requires the government to confine itself to the five years preceding the indictment. Because the government conceded that benefits received by Yashar after August 13, 1992 would not meet the statutory minimum of $5000, the court held that the indictment was barred by the statute of limitation.

This case involves a limitations issue of first impression, and thus a brief overview of limitations law may be helpful. The statute of limitations at issue here provides that "no person shall be prosecuted for any offense ... unless the indictment is found ... within five years next after such offense shall have been committed." 18 U.S.C. § 3282 (1994). An offense is committed when it is completed, Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), that is, when each element of that offense has occurred. United States v. McGoff, 831 F.2d 1071, 1078 (D.C.Cir.1987). An exception has been recognized for "continuing offenses." That is a term of art, and does not merely mean an offense that continues in a factual sense. An offense is deemed "continuing" for statute of limitations purposes only when (a) "the explicit language of the substantive criminal statute compels such a conclusion," or (b) "the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Toussie, 397 U.S. at 115, 90 S.Ct. 858. The classic example of a continuing offense is a conspiracy, but other offenses such as escape or kidnapping also may fall within those definitions. See, e.g., McGoff, 831 F.2d at 1078; United States v. Garcia, 854 F.2d 340, 343-44 (9th Cir.1988); see also Toussie, 397 U.S. at 134-35, 90 S.Ct. 858 (White, J., dissenting) (listing offenses traditionally considered continuing offenses). The hallmark of the continuing offense is that it perdures beyond the initial illegal act, and that "each day brings a renewed threat of the evil Congress sought to prevent" even after the elements necessary to establish the crime have occurred. 397 U.S. at 122, 90 S.Ct. 858. For those crimes, the statute of limitations does not begin to run when all elements are first present, but rather begins when the offense expires. Therefore, for a conspiracy offense, the statute of limitations would not run from the time of the first overt acts, but instead would run from the occurrence of the last act in furtherance. ¹ Because the continuing offense doctrine extends the statute of limitations, we are admonished to construe that term narrowly. See Toussie, 397 U.S. at 115, 90 S.Ct. 858.

I.

Yashar and the government agree that § 666 is not a "continuing offense" as that term is defined in Toussie. Instead, the government argues that the offense is a "continuing course of conduct" that straddles the limitations period. Because Yashar's conduct is permissibly charged as one offense and some conduct falls within the limitations period, the government asserts that there is no limitations problem. According to the government, Toussie applies only to offenses in which the defendant has completed all affirmative actions and the elements of the offense are satisfied, but the offense "continues" even without the defendant's actions. The government argues that the Toussie test is inapplicable to a case in which the defendant's affirmative acts or course of conduct causes the offense to continue. In those cases, the government maintains that the offense is not completed until all criminal conduct related to that scheme is exhausted. The government thus asks this court to hold that an indictment is timely as long as "a single act within the continuing course of conduct occurred after the limitations cut-off date," even if that act does not satisfy "all the elements, or any element in its entirety, within the limitations period." Brief of the United States at 25.

In response, Yashar embraces the district court's ruling that the government must establish that all elements of the crime occurred within the five years preceding the indictment. Yashar argues that the only exception to this approach is found in Toussie, and that § 666 is not a "continuing offense" under the Toussie test.

II.

We think that neither of these approaches is consistent with the language and purpose of the statute of limitations. We will consider Yashar's theory first. A requirement that all elements must occur within the five-year period preceding the indictment would mean that the limitations period begins to run when criminal conduct is initiated, not completed. That is contrary to the explicit wording of the statute and to cases interpreting it, which establish that the limitations period runs from the date that the offense is "committed," meaning completed. Yashar's theory would collapse the limitations period for crimes that take place over time, decreasing it as the criminal conduct became more expansive. For instance, assume an embezzler stole $500 per month for 10 months. All parties concede that the amounts can be aggregated to meet the $5000 statutory minimum under § 666. See also United States v. Sanderson, 966 F.2d 184, 189 (6th Cir.1992) and United States v. Webb, 691 F.Supp. 1164 (N.D.Ill.1988) (holding that aggregation is proper if the takings are part of a single scheme). Under Yashar's theory, the limitations period would begin to run in the first month of the embezzlement because all elements of the offense must be established by conduct within the five-year period; however, the government could not bring the criminal charge until the 10th month, because until that point, the conduct would not violate § 666. Therefore, the government would have little more than 4 years, not 5 years, to bring criminal charges. This view would start the limitations countdown before an offense was committed, and would arbitrarily shorten the five-year period. Therefore, the contention that all elements of the offense must occur within the five-year period cannot stand.

The government's argument, on the other hand, would treat a continuing course of conduct or scheme the same as a continuing offense under Toussie. As stated above, Toussie extends the limitations period only in cases in which Congress explicitly defines an offense as continuing, or in which the crime by its nature is such that Congress must have intended it to be considered continuing. The government would add to those factors a third one, which is whenever the charged conduct is continuous in nature. That would largely swallow the second factor of Toussie, which focuses on whether the crime by its nature is such that Congress must have intended that it be treated as a continuing one, and would eviscerate its narrow, selective approach. The focus would no longer be on Congress' wording and intent, but on the conduct charged by the prosecutor and the language of the indictment in a particular case. If the charged conduct was continuous, the court would no longer care if the statute itself delineated conduct that was continuous in nature. We reject this approach as inconsistent with Toussie as well as other cases, and as contrary to the purpose of the statute of limitations.

First, we cannot agree with the government's contention that Toussie does not govern here, and that it is applicable only to offenses in which the defendant's affirmative actions cease and the offense continues. It is true that many continuing offenses, such as escape or bigamy, meet that definition. See United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (escape is a continuing offense); Toussie, 397 U.S. at 134-36, 90 S.Ct. 858 (dissent) (lists continuing offenses including bigamy). On the other hand, a conspiracy is a continuing offense which may or may not involve affirmative actions by the defendant after the elements of the offense are met. In other words, the active or passive nature of a...