United States v. Ely

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20421
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVEN CRAIG ELY,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
May 11, 1998
Before DAVIS, E. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:
Appellant pled guilty to conspiring to disclose tax return
information. He claimed that the conspiracy prosecution was not
timely because the three year statute of limitations for offenses
arising under the Internal Revenue Code had run. The district
court rejected that argument holding that the prosecution was
timely because the five year statute of limitations for general
conspiracy applied. We agree.
BACKGROUND
In July 1989 and September 1992, Steven Craig Ely (“Ely”)
persuaded Margaret Kynard, an IRS agent, to provide him with tax
return information of two other individuals. Four years later, Ely
was indicted under 18 U.S.C. § 371 for conspiring with an IRS agent
to disclose tax return information in violation of 26 U.S.C. §
7213(a)(1). Ely unsuccessfully moved to dismiss the indictment
arguing that the statute of limitations had run. Ely then pled
guilty, but reserved the right to appeal the district court’s
denial of his motion to dismiss.
ANALYSIS
The heart of Ely’s argument is that the government prosecuted
him for violating 26 U.S.C. § 7213(a)(1).1 According to 26 U.S.C.
§ 6531, offenses arising under the internal revenue laws are
generally subject to a three year statute of limitations.2 Ely
argues that the three year statute of limitations applies here
because violation of § 7213(a)(1) arises under the internal revenue
laws. Ely’s argument, however, ignores the fact that he is not
charged with nor could he be charged with violating 26 U.S.C. §
7213(a)(1). That section applies only to current and former
federal employees, and Ely is neither. The indictment shows that
Ely was charged under the general conspiracy statute, 18 U.S.C. §
371. In Braverman v. United States, 317 U.S. 49, 54, (1942), the
1
§ 7213(a)(1) reads in pertinent part:
It shall be unlawful for any officer or employee of the
United States. . . or any former officer or employee,
willfully to disclose to any person, except as authorized
by his title, any return or return information.
2
The section does carve out eight exceptions and makes those
exceptions subject to a six year statute of limitations.
2
Supreme Court made clear that "a conspiracy is not the commission
of the crime which it contemplates, and either violates nor 'arises
under' the statute whose violation is its object." Thus, the
issue here is what statute of limitations applies since 26 U.S.C.
§ 6531 does not.
Because this Court has decided no cases directly on point, we
turn to those of the other circuits for guidance. In United States
v. Lowder, 492 F.2d 953 (4th Cir. 1974), the Fourth Circuit held
that “[l]imitations, for indictments under § 371, are those
supplied by other provisions of law, or where there are none, by 18
U.S.C. § 3282”. Id. at 956. There, Lowder had been convicted of
conspiring to impede the IRS from collecting taxes. Id. at 955.
Lower argued that his conspiracy conviction should be overturned
because the five year limitations period of § 32823 had run. Id.
The Fourth Circuit disagreed stating that §3282 applied only when
there was no other applicable statute, and there was one. The
court held that the six year limitations period provided in 26
U.S.C. § 6531(1) applied because that statute mandated a six year
limitations for conspiracy to defraud the United States government.
Id. at 956. The court reasoned that Lowder had tried to defraud
the United States by filing a fraudulent tax return and thus, such
3
Section 3282 provides:
Except as otherwise expressly provided by law, no person shall
be prosecuted. . . 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.
3
an action fell within § 6531(1). Id.4
Here, Ely argues that his offense, conspiring to disclose tax
return information, arises under the Internal Revenue Code and so
falls within the three year limitations that § 6531 prescribes. As
we explained above, his offense cannot arise under the Internal
Revenue Code because Ely is not and was not a federal employee.
His offense arises under 18 U.S.C. § 371. As the Fourth Circuit
stated in Lowder, the five year statute of limitations in § 3282
applies to § 371 unless otherwise expressly provided by law. We
hold there is no other applicable express provision. Thus, the
five year statute of limitations applies.
To determine whether the conspiracy indictment was timely, we
look to our decision in United States v. Parker, 586 F.2d 422, 430
(5th Cir. 1978). There, we held that “[t]hough the conspiracy
began outside the limitations period, the conspiracy continued, and
overt acts were committed within the limitations period.” Id.
Here, the 1989 overt act is outside of the limitations period;
however, the last overt act occurred in 1992. Ely was indicted in
1996 which was within the five year period. Thus, we hold that the
district court did not err in applying 18 U.S.C. § 3282 and that
the prosecution fell within the five year statute of limitations.
4
See also United States v. Waldman, 941 F.2d 1544, 1548 (11th
Cir. 1991), and United States v. Ingredient Tech. Corp., 698 F.2d
88, 98-99 (2d Cir. 1983). We agree with these cases and disagree
with the two cases from the Second Circuit: United States v.
Klein, 247 F.2d 908, 912 (2d Cir. 1957), and United States v. Witt,
215 F.2d 580, 584 (2d Cir. 1954).
4
CONCLUSION
For the foregoing reasons, we AFFIRM the district court.
AFFIRMED.
5