During the pandemic, I have heard of several instances where prosecutors facing the expiration of a statute of limitations period will file an Information, only to then seek dismissal of the Information without prejudice in order to “stop the clock” from running. The government is in essence playing a game in order to skirt a fundamental constitutional right.
In United States v. B.G.G., No. 20-80063-CR-Middlebrooks (D.E. 19) (S.D. Fla. Jan. 11, 2021), David Markus and Lauren Doyle decided they were not going to take this lying down and challenged the government.
In United States v. B.G.G., the government filed an Information on August 28, 2020. The statute of limitations for the charged offense expired on August 31, 2020. On September 2, 2020, the government emailed a proposed order to the Court, proposing dismissal of the Information pursuant to Rule 48 allowing voluntary dismissal without prejudice. The defense promptly responded, requesting that the Information be dismissed with prejudice. Upon review, the Court held that the government’s tactical use of Rule 48 was inappropriate.
While the briefing in the case is sealed, the Court’s Order is not. The Order confirms that the government affirmed that it sought to file the Information in order to “institute” the action within the meaning of 18 U.S.C. § 3282(a), the statute of limitations, believing that it could later file an indictment. Section 3282 provides: “Except as otherwise expressly provided by law, 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 after such offense shall have been committed.” The limitations period may be tolled for six months after dismissal of the indictment or information, or six months from the date the first grand jury is reconvened if the “indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired.”
The Court held that the filing of the Information did not “institute” the action within the meaning of Section 3282 because the Information was not a viable vehicle for prosecution. The Court reasoned that allowing the government to “tactically” use Rule 48 “would not serve the strong public interest of upholding statutory and constitutional protections.” The Court further stated that the government’s proposed action would also have “the effect of eroding the fundamental purpose of the statute of limitations – “to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions.” The Court went on to say that a criminal statute of limitations could not serve its purpose if the prosecution could just extend the limitations period whenever it felt convenient by filing a charging instrument that was not viable for prosecution.Following the Order, the government quickly filed its notice of appeal. This is a case to monitor in 2021!