United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
the court is defendant Terry Henrikson’s motion to
dismiss the indictment as time-barred due to the running of
the statute of limitations (Docket 27) and a motion for a
Daubert hearing. (Docket 29). The government
opposes both motions. See Dockets 36 & 37. The
court addresses each motion separately.
government charged Mr. Henrikson in a three-count indictment,
alleging theft of government property (count 1), false
statement (count 2) and concealment of events affecting
benefits (count 3). (Docket 2). To the extent Mr. Henrikson
moves for the dismissal of count 2 as time-barred, the motion
is denied. Count 2 alleges offenses occurring “[o]n or
about between November 5, 2011, and November 30, 2013.”
Id. Mr. Henrikson was indicted on June 16, 2015,
well within the five-year statute of limitations for
non-capital offenses. See 18 U.S.C. 3282(a).
resolving defendant’s motion to dismiss count 1, theft
of government property, and count 3, concealment of events
affecting benefits, the court must determine whether the
offenses constitute a continuing offense. It is undisputed
that those counts allege offense conduct far outside the
five-year statute of limitations. See id.
United States Supreme Court held “statutes of
limitations normally begin to run when the crime is
complete.” Toussie v. United States, 397 U.S.
112, 115 (1970) (internal quotation marks and brackets
omitted) (quoting Pendergast v. United States, 317
U.S. 412, 418 (1943)). The United States Court of Appeals for the
Eighth Circuit held that generally “a criminal statute
of limitations begins to run ‘when each element of that
offense has occurred.’ ” United States v.
Bennett, 765 F.3d 887, 893 (8th Cir. 2014), cert.
denied, 135 S.Ct. 1463 (2015) (quoting United States
v. Gonzalez, 495 F.3d 577, 580 (8th Cir. 2007).
“[t]here is a recognized exception to this rule for
so-called continuing offenses.” Gonzalez, 495
F.3d at 580 (citing United States v. Yashar, 166
F.3d 873, 875 (7th Cir. 1999)). “An offense is deemed
‘continuing’ for statute of limitations purposes
only when (a) ‘the explicit language of the substantive
criminal statute compels such a conclusion’; or (2)
‘the nature of the crime involved is such that Congress
must assuredly have intended that it be treated as a
continuing one.’ ” Yashar, 166 F.3d at
875 (quoting Toussie, 397 U.S. at 115). “The
hallmark of a continuing offense is that it perdures beyond
the initial illegal act, and that ‘each day brings a
renewed threat of the evil Congress sought to prevent’
even after the elements necessary to establish the crime have
occurred.” Id. (quoting Toussie, 397
U.S. at 122).
Supreme Court cautions “the doctrine of continuing
offenses should be applied in only limited circumstances [as]
. . . the tension between the purpose of a statute of
limitations and the continuing offense doctrine is apparent;
the latter, for all practical purposes, extends the statute
beyond its stated term.” Toussie, 397 U.S. 115
(brackets, internal quotation marks and citations omitted).
The court is mindful that “criminal limitations
statutes are to be liberally interpreted in favor of
repose.” Id. (internal quotation marks and
Count 1: Theft of Government Property
of the indictment charges:
On or about between April 1, 1989, and November 30, 2013, at
Rapid City, in the District of South Dakota, the defendant,
Terry Wayne Henrikson, did embezzle, steal, purloin, and
knowingly convert to his own use money from the Social
Security Administration, a department and agency of the
United States, namely, Social Security Title II disability
payments made to him to which he knew he was not entitled,
having a value in excess of $1, 000, all in violation of 18
U.S.C. § 641.
(Docket 2 at p. 1).
first paragraph of 18 U.S.C. § 641 provides:
Whoever embezzles, steals, purloins, or knowingly converts to
his use or the use of another, or without authority, sells,
conveys or disposes of any record, voucher, money, or thing
of value of the United States or of any department or agency
thereof . . . . Shall be fined under this title or imprisoned
not more than ten years, or both . . . .”
18 U.S.C. § 641.
is a split of authority as to whether theft of government
property in violation of 18 U.S.C. § 641 constitutes a
“continuing offense” for statute of limitations
purposes. The court can find no Eighth Circuit case law on
the issue of whether theft of government property in
violation of § 641 constitutes a continuing offense.
See United States v. Turner, No.
4:13-CR-00227-01-BRW, 2014 WL 641768, at *1 (E.D. Ark. Feb.
18, 2014) (noting that “the Eighth Circuit Court of
Appeals has not ruled on the issue.”).
regard to the first Toussie factor, courts on both
sides of the issue are in agreement that “nothing in
the language of section § 641 indicates that Congress
intended it to be a continuing offense.” United
States v. Crary, No. CR 13-35-M-DLC, 2013 WL 6054607, at
*3 (D. Mont. Nov. 15, 2013) (finding § 641 not to
constitute a continuing offense); cf. United States v.
Gibson, No. 08-03057-01-CR-S-DGK, 2008 WL 4838226, at *3
(W.D. Mo. Nov. 6, 2008) (finding § 641 to constitute a
continuing offense). The difference of opinion lies in the
interpretation of the ...