Federal criminal law generally provides for a five-year statute of limitations (SOL), meaning the government has five years from the commission of the crime to obtain a grand jury indictment and file it with the court. Once exception is the laundry list of tax crimes, for which Congress, in its divine wisdom or otherwise, provided IRS six years. In the case of conspiracy, whether it be tax or otherwise, the courts provided an additional government windfall – the five years begins to run from the last day of the overt act. So, for example, if the client, Bob, attempted to evade taxes for the year 2005 by his skimming a million dollars and not reporting it, keeping the cash under his mattress, and filed a false tax return on April 15, 2006, IRS has until April 15, 2011, to bring charges; but if Bob had George, knowing of the attempted tax evasion, funnel the cash to a Caymanian bank account a year later, 2007, the SOL did not run until 2012 because the SOL clock starts to tick from the last overt act in furtherance of the conspiracy.
But in this case of the missing millions, Bob was engaged in a conspiracy to not only evade taxes but to launder drug proceeds, money laundering, where Bob made two regular airline trips from Phoenix direct to London, each time carrying under his raincoat (how often does in rain in Phoenix?) $0.5M in cash (yes, he kept his coat on for the entire flight, perhaps anticipating foul weather in London?). The cash was then wired, not all at once, back to the United States, to a business in Phoenix, where it was laundered. Not content with the advice of his court appointed counsel – plea to a felony and hope for a lighter sentence in exchange for Bob’s testimony against Mr. Big – Bob, an indigent not paid much for his courier duties, asked the court to appointed another attorney; and under the Criminal Justice Act lottery system for appointed counsel, a “panel” of those private attorneys who volunteer their services and are selected by the federal judges, I was appointed.
I liked Bob. He viewed the world as I do: in linear fashion: A + B = C. If you know the value of A and B, then it is easy to calculate the value of C. Simple logic, which is the basis for the syllogism. Bob made it easy for me; he had already researched the law and solved the equation. Bob claimed he withdrew from the conspiracy more than five years prior to the filing of the indictment. One week more. And he had documentary evidence to prove it – a certified letter to co-conspirators. He told prior counsel this, the words falling on deaf ears. I listened closely, and filed a simple, two-page motion to dismiss for the government’s failure to timely file the indictment – the SOL was busted, and therefore the case should be dismissed. The court ordered the government to produce, in but two weeks of time, evidence sufficient to go to the jury on the issue of Bob continuing as a member of the conspiracy after the date of his letter. With no such evidence produced by the prosecutor, the court dismissed, with prejudice, all charges against Bob.