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United States v. Ntekume

United States District Court, D. Nevada

October 2, 2019

UNITED STATES OF AMERICA, Plaintiffs,
v.
JOSIAH N. NTEKUME, Defendants.

          ORDER

         Presently 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. 51).

         I. Background

         The 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. Id.

         In a 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).

         Defendant 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.

         II. Legal Standard

         In 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. § 3282).

         “Statutes 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 is conspiracy.

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).

         Finally, “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))).

         Discussion

         The 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.

         Counts 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 ...


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