Statute of Limitations


A statute of limitations is a time limit on the prosecution of an offense. Statutes of limitations have generally been a defendant’s primary safeguard against the possibility of unfairness with a pre-accusation delay. A statute of limitations provides an arbitrary full stop in terms of time. Therefore, providing a statute of limitations defense is different than arguing that a pre-indictment delay violated the defendant's right to due process. A due process violation defense requires an evaluation of the reason for the delay and any prejudice involved.


Length of Limitations Period

Under current federal law, there is a statute that prescribes a period of limitations along with several neighboring statutes that prescribe longer periods for specific offenses. In Section 3282 of Title 18, this is the general statute that provides general limitations. This statute states that (except otherwise provided by law) a prosecution for non-capital offenses must be prosecuted within five years from the date the offense was committed.


Section 3281 of Title 18 provides an incitement for capital offenses that are punishable by death. In the statute, it provides that indictments for capital offenses can be filed at any time providing virtually an unlimited time period to file.


Section 3286 of Title 18 provides an 8-year window on non-capital offenses under certain terrorism offenses. This statute first became effective toward the following crimes on September 13, 1994, toward crimes that occurred on or after September 15, 1989. These offenses include:


  • Aircraft destruction

  • Airport violence

  • Assault upon a diplomat and internationally protected persons

  • Violent crimes against Congress Members or Cabinet Officers

  • Murder of diplomats and internationally protected persons

  • Hostage taking

  • Willful injury to government property

  • Violent crimes against the president

  • Maritime violence

  • Maritime platform violence

  • Terrorist acts abroad against United States nationals

  • Use of weapons of mass destruction

  • Acts of terrorism that transcend national boundaries

  • Acts of torture

  • Aircraft piracy

  • Interference with a flight crew

  • Carrying a weapon or explosive device on an aircraft

  • Various crimes while onboard an aircraft


Section 3293 of Title 18 prescribes a 10-year statute of limitations for certain offenses regarding financial institutions that involve violations, or the conspiracy to violate various laws.


Section 3294 of Title 18 provides a 20-year statute of limitations involving the theft of major artwork.


Section 3295 of Title 18, which was enacted on April 24, 1996, prescribes a 10-year statute of limitations for certain arson and use of explosive cases (as long as they are non-capital offenses).


A one-year statute of limitations is provided for criminal contempt under §3285.


Section 507(a) of Title 17 states that no criminal proceeding shall be maintained in relation to copyright violations unless it is commenced within three years after the cause of action arose. Section 6531 of Title 26 prescribes that prosecutions for violations of the internal revenue laws shall be commenced within three years after the commission of the offense, except for eight enumerated categories of offenses as to which a six-year limitations period is made applicable.


Section 3291 of Title 18 provides that prosecutions involving nationality, citizenship and passport laws, or conspiracy to violate these laws must be commenced within 10 years after the offense was committed.


Section 2278 of Title 42 prescribes a similar 10-year time limit for prosecution of restricted data offenses under the current atomic energy laws.


Section 783(e) of Title 50 provides that a prosecution for an offense under this section, part of the Subversive Activities Control Act must be initiated within ten years after the commission of the offense.


Statute of Limitation for Continuing Offenses

Ordinarily, the date that a statute of limitations begins to take effect on the date that the offense was committed. Some offenses are, by nature, considered continuing offenses due to their attributes. For example, possession of contraband, or escape from federal custody would be considered continuing offenses, whereas a murder in the first-degree charge would not. The finding of a continuing offense is generally frowned upon, but if the explicit language of the criminal statute compels a conclusion that a charge is a continuing one, then it must be allowed.


Statute of Limitations for Conspiracy

Conspiracy is a continuing offense. For statutes like 18 U.S.C. § 371, an overt act in furtherance of the conspiracy is required, and the statute of limitations begins on the date that the last overt act was committed. This differs, for example, from a murder charge, in which the act was committed on a hard date. For a conspiracy charge, the statute of limitations begins on the date that the last overt act was committed. However, conspiracy statutes do not require proof of an overt act


Conspiracy statutes do not require proof of an overt act, however, the government must prove that an alleged conspiracy continued into the limitations period. The crucial question in this regard is the scope of the conspiratorial agreement, and the conspiracy is deemed to continue until its purpose has been achieved or abandoned.


Statute of Limitations and the Assimilative Crimes Act

The Assimilative Crimes Act of 1948 makes criminal acts punishable in federal court if the act was committed within the special maritime and territorial jurisdiction of the United States and if the crime is applicable under state law. However, only substantial offenses of a state are assimilated into federal law. Therefore, a different state’s period of limitations will not control prosecution under this act.


Statute of Limitations and Rico

The RICO statute (Racketeer Influenced and Corrupt Organizations) requires that state crimes used as predicate offenses be chargeable and applicable under state law. Federal courts have uniformly found that a defendant is still chargeable with the state offense, regardless of the prescribed statute of limitations within 18 U.S.C. § 1961(1)(A).


Statute of Limitations and Defective Indictments -- Superseding Indictments

If an indictment is dismissed or thrown out due to a legal defect or irregularity with the grand jury, the government may submit a new indictment within six months. This must occur six months from the date the previous incitement was dismissed with the original limitation period (whichever is later). Once the original limitation period has expired, a superseding indictment may narrow the charges made in the original indictment. These charges cannot be broadened.


Waiver of the Statute of Limitations

A knowing and intelligent waiver of the statute of limitations is a valid waiver. A guilty plea without reserving the statute of limitations has been held to waive later assertion of a defense.


Tolling of Statute of Limitations

The running of statutes of limitations is taxed during periods where the defendant is considered a fugitive. Physical absence from the jurisdiction is not required to activate this tolled provision. The running of a statute of limitations may also be tolled depending on the nature of an official request to a foreign court or other authority to obtain evidence located in a foreign country.


Statute of Limitations and Tax Offenses

A special statute of limitations in relation to tax offenses provides that a complaint that is instituted within the limitation periods (3 or 6 years depending on the type of offense) then the time shall be extended to the date in which is nine months after the date of the complaint. The courts have found that the complaint must be valid in order to toll the statute of limitations. This means that the complaint must establish probable cause to believe that the defendant committed an offense.


Besides continuing offenses and the application of special provisions that suspend the statute of limitations, statutes of limitations generally begin to countdown when an offense is completed. For an internal revenue statute, Congress found that when a tax return is filed or is paid before the statutory deadline, the limitation period begins to run on the date when the return payment was due (considering any type of extension granted to the taxpayer). However, in one particular case, the court found that where an extension has been given to the taxpayer, but the return is filed after the original statutory due date, the period of limitations starts when the return is filed rather than on the original due date. Otherwise, the limitation period would begin before the offense was committed.


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