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Friday, July 7th, 2023

Statute of limitations for habeas corpus claims requires a claim-by-claim approach.

In Clemente v. Lee, No. 21-279-pr (2d Cir. July 5, 2023) (Pooler, Sack, and Park), the Circuit, deciding an issue of first impression for this Court, held that the statute of limitations for a habeas corpus petition, 28 U.S.C. § 2244(d)(1), requires a claim-by-claim approach — meaning that each claim raised in the petition must be analyzed separately for timeliness. The Court rejected the petitioner’s argument that the statute of limitations requires only that at least one claim in the petition be timely.

Clemente, the petitioner, was convicted in New York State of murder in the second degree and criminal possession of a weapon. He ultimately filed a federal petition for a writ of habeas corpus in the Eastern District of New York. The district court dismissed some of the claims asserted in the petition as time-barred under 28 U.S.C. § 2244(d)(1).

The Second Circuit affirmed. Joining all …

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Thursday, August 4th, 2022

Second Circuit: Application of an Extradition Treaty’s “Lapse of Time” Provision is a Discretionary Decision for the Secretary of State, and Not for the Court.

In Yoo v. United States, 21-2755(2d Cir. Aug. 1, 2022), the Circuit (Lynch, joined by Calabresi and Lohier) affirmed the denial of a petition for habeas corpus alleging that petitioner’s extradition to South Korea was time-barred, holding that the extradition treaty’s “Lapse of Time” provision was a discretionary provision for the executive authority and not a legal question for the court.

South Korea requested Yoo’s extradition pursuant to a treaty that provided, in relevant part, that “[e]xtradition may be denied” when prosecution of the offense “for which extradition is requested would have been barred because of the statute of limitations of the Requested State had the same offense been committed in the Requested State.” Yoo was found extraditable under the treaty and he filed a petition for habeas corpus, arguing that his extradition was time-barred under that provision. The court denied the petition, ruling that the determination whether the …

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Tuesday, July 31st, 2018

Second Circuit Narrowly Construes Appellate Waiver and Holds That Embezzlement Is Not a Continuing Offense

In a short and interesting opinion, available here, the Second Circuit held today that (1) a defendant did not waive her right to appeal a restitution order on the ground that it covered conduct outside the statute of limitations period, and (2) that violations of 18 U.S.C. § 641 (embezzlement of government property) are not continuing offenses, rendering the defendant liable for funds embezzled outside the limitations period. See United States v. Green, No. 16-3044 (2d Cir. 2018) (Cabranes, Carney, Goldberg (Ct. Intl. Trade )) (appeal from W.D.N.Y.). The second of these holdings, concerning the scope of  § 641, creates a circuit split.

The defendant in Green was charged under § 641 for drawing money out of a joint bank account between 2009 and 2011 in amounts similar to those of VA payments to her deceased mother that went into the account. She pled guilty, and …

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Categories: appeal waiver, forfeiture, property, statute of limitations, statutory construction, statutory interpretation

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Sunday, February 12th, 2012

It Tolls for Thee

United States v. Knight, No. 09-5195-cr (2d Cir. February 1, 2012) (Walker, Straub, Livingston, CJJ)

While a Western District grand jury was investigating defendant’s involvement in a “high yield” investment scheme, the district court granted the government’s application pursuant to 18 U.S.C. § 3292 to toll the statute of limitations while it sought the assistance of Hungarian authorities in obtaining records relating to transfers of some of the scheme’s proceeds into Hungarian bank accounts. The circuit affirmed that order as a proper application of the tolling statute.

Under § 3292, the court must grant the government’s application and suspend the statute of limitations if the application asserts that evidence of an offense being investigated by a grand jury is in a foreign country and it reasonably appears, by a preponderance of the evidence, that such evidence has been officially requested.

The government satisfied the statute here. It gave the district …

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Saturday, August 29th, 2009

Cap’n Crunched

United States v. Pizzonia, No. 07-4314-cr (2d Cir. August 19, 2009) (Calabresi, Straub, Raggi, CJJ)

Dominick Pizzonia, a one-time captain for the Gambino crime family, was convicted of a racketeering conspiracy and sentenced to fifteen years in prison. On appeal, he raised an unsuccessful statute of limitations claim.

The government filed the indictment against Pizzonia on May 26, 2005; since a five-year statute of limitations applied, the government had to prove that Pizzonia’s participation in the conspiracy extended past May 26, 2000.

Pizzonia’s indictment charged a broad pattern of racketeering activity encompassing the entire spectrum of Gambino malfeasance. It alleged specifically that the pattern “consisted of” seven specified predicates. The jury found that he participated in only two of them: a 1992 double-murder conspiracy and a 1994-96 gambling offense. It also concluded that these two seemingly distinct events were sufficiently related to constitute a racketeering “pattern.” Finally, although the predicates …

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Categories: RICO, statute of limitations, Uncategorized

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Saturday, September 27th, 2008

Enterprise Rent-A-Cop

United States v. Eppolito, No. 06-3280-cr (2d Cir. September 17, 2008) (Kearse, Sack, Hall, CJJ)

Louis Eppolito and Stephen Caracappa were NYPD detectives who, for many years, also worked for the Lucchese organized crime family – and occasionally other Mafia families – on the side. They were were convicted of RICO conspiracy and other offenses after a jury trial. Judge Weinstein granted the defendants’ post-verdict Rule 29 motion on the RICO conspiracy, finding that the prosecution was time-barred by the applicable statute of limitations. He also granted a conditional new trial on the remaining counts, in the event the dismissal of the RICO conspiracy was not overturned on appeal.

On the government’s appeal, the circuit reversed and remanded the case for sentencing.

Background

The trial evidence revealed that, in the early 1980’s, while working for the NYPD, the defendants gave law enforcement information and other assistance to the Lucchese family. …

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Friday, August 29th, 2008

Toll Free

United States v. Kozeny, No. 07-3107-cr (2d Cir. August 29, 2008) (Sack, Katzmann, Hall, CJJ)

In 2002 and 2003, the government believed that Frederic Bourke was involved in a scheme to bribe senior government officials in Azerbaijan in connection with the privatization of that nation’s state-run oil company. During the investigation, the government made treaty requests for assistance to Switzerland and the Netherlands. And, months later, on July 21, 2003, it applied for an order under 18 U.S.C. § 3292 tolling the statute of limitations based on those requests. By this time, however, more than five years had elapsed since some of Bourke’s offenses had been completed.

Despite this, on July 22, 2003, a district judge suspended the statute of limitations for all of the offenses under investigation. Consistent with the statute, the order provided that the suspensions would begin on the date that the treaty requests had been made, …

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Sunday, October 28th, 2007

Score: Form 1; Substance 0

United States v. Rutkoske, No. 06-4067-cr (2d Cir. October 25, 2007) (Newman, Winter, Katzmann, CJJ).

This stock fraud decision deals primarily with the timeliness of a superseding indictment.

An initial indictment not naming Rutkoske was filed on December 11, 2003; S1, the first superseder, was filed on April 6, 2004. It named Rutkoske, and described a single overt act within the five-year statute of limitations. Suspiciously, that act occurred “on or about April 9, 1999,” making the indictment timely by only about three days. After repeatedly being pressed by the defendant to pin down the details of the April 9 act, the government superseded again, in July of 2005. S2 charged Rutkoske with the same offenses as S1, but the government dropped the April 9 overt act and instead alleged two others, on April 15 and April 16, 1999. When Rutkoske moved to dismiss S2 as untimely under the five-year …

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