How Long the Government Has to Bring a Charge

A limitation period is a legislative judgment that proof grows unreliable and repose becomes reasonable. In federal criminal practice the judgment is expressed as a series of periods rather than one, and applying them means answering three separate questions: which period governs the offense charged, when the period began to run, and whether anything suspended it while it ran.

Which period applies

The default is five years. The general provision states that no person shall be prosecuted, tried or punished for a non-capital offense unless the indictment is found or the information instituted within five years after the offense was committed, subject to any express provision otherwise. Most federal offenses take that period because Congress has said nothing more specific about them.

The express provisions are numerous. Offenses affecting a financial institution carry a longer period, which sweeps in a wide range of fraud charges because the statutory list is generous about what affects an institution. Enumerated terrorism offenses carry a longer period, and the period is removed altogether where the offense resulted in or created a foreseeable risk of death or serious bodily injury. Offenses involving the abuse of a child carry their own extended treatment.

Two structural features of that scheme cause recurring difficulty. The extended periods attach to offenses rather than to conduct, so a charging decision about which statute to use can determine which period applies to the same underlying events. And the periods are keyed to statutory lists that have been amended repeatedly, which means the applicable period must be confirmed against the current text rather than remembered.

When the clock starts

The period runs from the commission of the offense, meaning from the point at which every element is satisfied. For most offenses that date is unambiguous. For a few it is the central battleground of the case, and characterizing an offense as continuing rather than complete can move the date by years.

Conspiracy is the most common example. Where the statute requires an overt act, the period generally runs from the last overt act in furtherance of the agreement, which means the conspiracy remains chargeable while any participant is still acting on it. Where no overt act is required, courts have looked instead to the point at which the objects of the agreement were accomplished or abandoned. Withdrawal by an individual participant can start that person's clock earlier, but it demands affirmative action rather than mere inactivity.

Courts are cautious about extending the continuing-offense analysis. The concern is that a sufficiently creative characterization would allow any offense to be described as continuing through its later concealment, which would leave the periods with little work to do. The prevailing approach requires either explicit statutory language or an offense whose nature plainly involves continuation.

Offenses defined around a scheme raise a related question. Where the statute punishes each execution of a scheme rather than the scheme itself, each execution starts its own clock, and a charge is timely as to executions within the period even though the scheme began earlier. That structure lets a prosecution reach conduct whose origins are well outside any period, and it explains why the count structure in a fraud case is often organized around individual transactions rather than around the arrangement as a whole.

What suspends the running

Two provisions do most of the work. The first excludes from the period any time during which the person is fleeing from justice. Courts have generally required an intent to avoid arrest or prosecution rather than mere absence from the district, though the circuits have differed on how much intent must be shown and on who bears the burden of showing it.

The second permits a court, on application of the government, to suspend the running of the period while an official request for evidence located in a foreign country is pending. The application may be made and granted without the defense participating, and the suspension is capped by the statute. Litigation about this provision usually concerns when the request was actually made, when it was finally acted on, and whether the government applied before the period expired.

A third provision operates after the fact. Where a timely indictment is dismissed for a defect after the period has run, a savings provision permits a new indictment within six calendar months of the dismissal becoming final. It preserves a case that would otherwise be lost to a pleading error, and its availability is one reason a defect in the indictment and the elements it must allege is rarely fatal to a prosecution on its own.

How the issue is raised and negotiated

Because the period is treated as an affirmative defense rather than a jurisdictional bar, it must be asserted, and it can be given up. Where the facts are undisputed the question can be resolved before trial. Where the date an offense was complete is genuinely contested, the issue reaches the jury with instructions, and it is decided alongside the merits.

Waiver is common and deliberate. In an investigation approaching the end of a period, the government frequently offers a choice: a tolling agreement, or an indictment filed now to preserve the charge. Counsel weighing that choice is weighing the value of continued negotiation against the cost of extending exposure, and the answer often depends on how the person has been described in the correspondence discussed in target, subject and witness letters.

The approach of a period also changes prosecutorial behavior in visible ways. Subpoena activity accelerates, requests for interviews become more insistent, and the government may charge a narrow count to stop the clock while continuing to investigate the rest. A charge filed in those circumstances is frequently superseded later, and each new count carries its own timeliness question, which interacts with the structural choices described in joining counts in a single charging document.