The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) GRANTING DEFENDANTS' MOTION AND RENEWED MOTION TO DISMISS BASED ON STATUTE OF LIMITATIONS [Doc. Nos. 234 and 405]; (2) DISMISSING COUNTS 2, 3, 4, 7 and 15 OF THE SECOND SUPERSEDING INDICTMENT
Currently pending before the Court is a renewed motion to dismiss based on statute of limitations filed by Defendants Western Titanium, Inc., Daniel Schroeder, and John Cotner. Defendants seek dismissal of Counts 2, 3, 4, 7, and 15 of the Second Superseding Indictment on the grounds that these charges were brought more than five years after the date of the conduct alleged therein and that the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287, does not apply. Having fully considered the initial and supplemental motions filed by Defendants, as well as the Government's oppositions thereto, the Court will grant Defendants' motion.
Defendants were first charged in this matter on December 4, 2008, when the Government obtained an 8-count indictment alleging a conspiracy to commit fraud involving aircraft or space vehicle parts in violation of 18 U.S.C. § 38 and seven substantive counts alleging violations of the same statute. On August 18, 2009, the Government obtained a Superseding Indictment which again alleged a conspiracy to commit fraud involving aircraft or space vehicle parts, and further alleged 63 substantive violations of 18 U.S.C. § 38.
On August 25, 2009, Defendant Cotner filed a motion to dismiss 41 counts of the Superseding Indictment on the basis that they alleged conduct occurring more than five years prior to the return of the Superseding Indictment. This motion was joined by all Defendants, and opposed by the Government (with the exception of nine counts which the Government conceded were time-barred). After hearing oral argument, the Court took the motion under submission.
On February 23, 2010, the Government filed a Second Superseding Indictment ("SSI") alleging a conspiracy to commit fraud involving aircraft or space vehicle parts, to make and present false claims in violation of 18 U.S.C. § 287, to make false statements in violation of 18 U.S.C. § 1001, and to commit mail fraud in violation 18 U.S.C. § 1341. In addition to the conspiracy count, the SSI contains five substantive counts of fraud involving aircraft parts, eight substantive mail fraud counts, four substantive false claim counts, and one substantive false statement count, as well as criminal forfeiture allegations.
The SSI does not contain most of the counts disputed as time-barred in the Superseding Indictment,*fn1 but contains five counts which Defendants contend are barred by the statute of limitations: Counts 2, 3, 4, 7 and 15.
The general federal statute of limitations, 18 U.S.C. § 3282, provides that "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." Counts 2, 3, 4 and 7 of the SSI each allege crimes occurring in 2002, thus fall well outside the general five-year period of limitations. Count 15, a false claim allegation, alleges conduct that occurred from August 9, 2002 to January 23, 2006.
The Government contends that period of limitations for each of these counts is tolled by the Wartime Suspension of Limitations Act ("WSLA"), 18 U.S.C. § 3287. During most of the time period covered by the SSI, until October 14, 2008, the WSLA provided as follows:
When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war or directly connected with or related to the authorized use of the Armed Forces, or with any disposition of termination inventory by any war contractor or Government agency, shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.
On October 14, 2008, the WSLA was amended to expand the operation of the Act to times "when the United States is at war or Congress has enacted a specific authorization for the use of the Armed Forces as described in Section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b))." 18 U.S.C. § 3287 (emphasis added). The amendment also lengthened the suspension period from three to five years and clarified that a presidential proclamation ending hostilities must be a formal proclamation with notice to Congress.
At issue in this case is the interpretation of the phrase "at war" in the WSLA prior to its amendment. Defendants contend that the Act applies only when the there is a formal Congressional declaration of war, while the Government contends that the phrase "at war" includes any authorized military engagement that might compromise or impede the government's ability to investigate allegations of fraud. It is the Government's position that the United States has been "at war" during the conflict in Iraq and that the WSLA suspended the limitations period for the charges in this case beginning on October 10, 2002, the date Congress passed the Authorization for the Use of Military Force Against Iraq Resolution of 2002.
There appear to be only two decisions discussing the application of the WSLA during times of military conflict other than wars formally declared by Congress. In United States v. Shelton, 816 F. Supp. 1132 (W.D. Tex. 1993), the court held that the United States was not "at war" during the Persian Gulf conflict in 1991. The Shelton court held that in order for the conflict to fall within the provisions of the WSLA, Congress should have formally recognized the conflict as a war. The court noted that the judicial branch of the United States government has no constitutional power to declare a war and that the ...