United States District Court, D. Nevada
before the court is defendant Josiah Ntekume's
(“defendant”) motion to dismiss counts 2 and 4 of
the indictment as time-barred. (ECF No. 49). The United
States of America (“the government”) filed a
response (ECF No. 50), to which defendant replied (ECF No.
government alleges that defendant “fraudulently
obtained[ed] and falsely possess[ed] social security numbers
and other personal information” and used that
information “to obtain money by filing false and
fraudulent state and federal income tax returns claiming
refunds.” (ECF No. 1 at 1). At the time of his arrest,
defendant had approximately 250 pre-paid debit cards and
roughly 50 sheets of paper containing the personal
identification information of 195 people. Id. at 2.
The debit cards had been loaded with over $200, 000 from
federal tax refunds, much of which had been spent.
nine-count indictment, defendant is charged with one count of
fraud in connection with access devices in violation of 18
U.S.C. § 1029(a)(3), six counts of theft of public money
in violation of 18 U.S.C. § 641, and one count of wire
fraud in violation of 18 U.S.C. § 1343. Id. The
indictment was returned on February 22, 2017. (ECF No. 1).
moves to dismiss counts two and four, both of which are
theft-of-public-money charges, as time-barred. (ECF No. 49).
Because the indictment alleges that the federal tax refund
money was deposited onto pre-paid debit cards on February 1,
2012, for count two, and February 17, 2012, for count four,
defendant argues that the claims became time-barred on
February 1 and February 17, 2017, respectively. Id.
order to protect defendants from unfairly facing criminal
liability for conduct in the distant past, “a statute
of limitations . . . limit[s] exposure to criminal
prosecution to a certain fixed period of time following the
occurrence of those acts . . .” Toussie v. United
States, 397 U.S. 112, 114-15 (1970). Congress sets the
limitation period by statute, which “should not be
extended ‘except as otherwise expressly provided by
law.'” Id. at 115 (quoting 18 U.S.C.
of limitations normally begin to run when the crime is
complete.” Pendergast v. United States, 317
U.S. 412, 418 (1943). “A crime is complete when each
element of the crime has occurred.” United States
v. Smith, 740 F.2d 734, 736 (9th Cir. 1984) (citing
United States v. Drebin, 557 F.2d 1316, 1332 (9th
Cir.1977)). Determining when a crime is completed depends on
whether the offense is “continuing” or not. The
Ninth Circuit has held that:
[A] criminal offense is typically completed as soon as each
element of the crime has occurred. For example, a larceny is
completed as soon as there has been an actual taking of the
property of another without consent, with the intent
permanently to deprive the owner of its use. The offense does
not “continue” over time. The crime is complete
when the act is complete. A “continuing offense,
” in contrast, is an unlawful course of conduct that
does perdure.... The classic example of a continuing offense
United States v. Morales, 11 F.3d 915, 921 (9th Cir.
1993) (quoting United States v. McGoff, 831 F.2d
1071, 1078 (D.C.Cir.1987)). “Thus, the Court in
Toussie distinguished between offenses that involve
a ‘continuing process' and those that occur as
‘instantaneous events.'” Id. (citing
Toussie, 397 U.S. at 122).
“criminal limitations statutes are ‘to be
liberally interpreted in favor of repose.'”
Toussie, 397 U.S. at 115 (quoting United States
v. Habig, 390 U.S. 222, 227 (1968) (quoting United
States v. Scharton, 285 U.S. 518, 522 (1932))).
parties agree on two things. First, 18 U.S.C. § 641
charges must be brought within five years. See 18
U.S.C. § 3282. Second, the five-year limitation period
begins to run from the time the offense is completed.
Toussie v. United States, 397 U.S. 112, 115 (1970).
The parties do not agree on when the offense conduct
underlying counts two and four was completed. If counts two
and four are continuing offenses, they are timely. If they
are not continuing offenses, they are time-barred.
two and four allege violations of 18 U.S.C. § 641, which
“criminalizes two distinct acts. . . . In short,
paragraph one covers stealing from the United States and
paragraph two covers knowingly receiving stolen United States
property.” United States v. Fairley, 880 F.3d