United States v. Jeffrey Cole Bennett , 765 F.3d 887 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3754
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jeffrey Cole Bennett
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 13-1109
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jennifer Rose Hogeland
lllllllllllllllllllll Defendant - Appellant
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No. 13-2038
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Clayton Craig Hogeland
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: June 10, 2014
Filed: August 29, 2014
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury found Jeffrey Bennett (“Bennett”), Jennifer Hogeland (“Jennifer”), and
Clayton Hogeland (“Clayton”) guilty on several counts stemming from two fraudulent
schemes. The district court1 sentenced them to ninety-five months’, fifteen months’,
and 200 months’ imprisonment, respectively. Bennett and Clayton appeal both their
convictions and sentences. Jennifer appeals her convictions. Clayton died while this
appeal was pending. For the reasons described below, we vacate Clayton’s
convictions and remand his case to the district court with instructions to dismiss the
indictment as it relates to him. However, we affirm Bennett’s convictions and
sentence, as well as Jennifer’s convictions.
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
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I. Background
Clayton served as general manager of Advantage Transportation, Inc.
(“Advantage”), a large Minnesota-based trucking-logistics company. As general
manager, Clayton had “free reign” to manage the company’s operations, including
contracting with outside vendors and approving invoices for payment. At Clayton’s
recommendation, in May 2003, Advantage hired Bennett to oversee its Memphis,
Tennessee office.
Soon thereafter, Clayton and Bennett hatched a scheme to defraud Advantage.
Bennett created four corporations: American Logistics Advisors, Inc. (“ALA”);
Transportation Marketing Concepts, Inc. (“TMC”); LTLDevelopment.com, Inc.
(“LTL”); and Air Catering Solutions and Marketing, Inc. (“ACS”). Between 2003
and 2005, the corporations submitted numerous invoices to Advantage purportedly
for various goods or services provided to Advantage. Clayton approved the invoices,
after which checks were generated from Advantage to the corporate entities. The
checks were then mailed or, on rare occasions, sent by common carrier to the
recipients. While Advantage’s accounting staff knew that these payments were being
made, they were unaware that the corporations were owned by Bennett. Despite
receiving the payments from Advantage, Bennett’s corporations never actually
provided the goods or services for which they had billed Advantage. Bank records
for ALA, TMC, and LTL showed that the only payments the corporations had
received were from Advantage and that they did not pay ordinary business expenses
such as rent or utilities. The only business-expense payments revealed by ACS’s
bank records were payroll checks to two employees. Instead, Bennett’s corporations
wrote numerous checks to Jennifer, most of which she deposited into her bank
account. Nearly all of the companies’ remaining funds were withdrawn by Bennett.
In all, Bennett received $393,091 through the fraudulent scheme.
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Beginning in 2003, Clayton also operated a separate fraudulent scheme with
Carl Frey, an American Airlines employee who was responsible for finding trucking
companies to deliver freight for the airline. The two agreed that Frey would steer
American Airlines trucking business to Advantage, and, in exchange, Clayton would
authorize payments from Advantage to Frey personally. In all, Frey received nearly
$90,000. Neither American Airlines nor Advantage were aware of this scheme.
Clayton resigned from Advantage in the spring of 2005, and Bennett left in
September 2006. Neither Jennifer nor Clayton informed their tax preparers about the
funds obtained through these fraudulent schemes, and thus their illicit income was not
included on their joint federal income-tax returns for 2003, 2004, and 2005.
After the fraudulent schemes were discovered, a grand jury returned an
indictment against Bennett, Clayton, and Jennifer. The indictment charged Bennett
and Clayton with mail fraud, in violation of 18 U.S.C. § 1341; conspiracy to commit
mail fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h). The indictment also charged
Bennett, Clayton, and Jennifer with income-tax evasion, in violation of 26 U.S.C.
§ 7201. After a joint trial, a jury found Bennett, Clayton, and Jennifer guilty on all
counts. Bennett and Clayton appeal both their convictions and their sentences.
Jennifer appeals only her convictions.
II. Discussion
A. Clayton’s Appeal
As noted above, Clayton died while this appeal was pending. Thus, the
criminal proceedings against Clayton abated ab initio. See Crooker v. United States,
325 F.2d 318, 319-20 (8th Cir. 1963). Consistent with our practice in such situations,
we vacate his convictions and remand his case to the district court with instructions
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to dismiss the indictment as it pertains to him. See United States v. Howe, 591 F.2d
454, 459 (8th Cir. 1979).
B. Bennett’s Appeal
1. Statute of Limitations
Bennett argues that the district court erred by denying his motion to dismiss the
mail-fraud and mail-fraud-conspiracy counts on the ground that they are barred by the
statute of limitations. We review the district court’s denial of a motion to dismiss an
indictment based on the statute of limitations de novo. United States v. Mueller, 661
F.3d 338, 344 (8th Cir. 2011). The five-year statute of limitations prescribed by 18
U.S.C. § 3282 governs both counts.
The indictment alleged that on March 17, 2005, Bennett received a check from
Clayton disbursing a fraudulent payment made by Advantage to ACS. Thus, the
check must have been mailed, at the latest, on March 16, 2005. The indictment was
filed on March 17, 2010. Bennett argues that the limitations period ended on March
16, 2010, five years after the check was mailed to Bennett.
First, the statute of limitations did not bar the mail-fraud charge. In general,
a criminal statute of limitations begins to run “when each element of that offense has
occurred.” United States v. Gonzalez, 495 F.3d 577, 580 (8th Cir. 2007) (quoting
United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999)). The elements of a mail-
fraud offense under 18 U.S.C. § 1341 are: “(1) a scheme to defraud by means of
material false representations or promises, (2) intent to defraud, (3) reasonable
foreseeability that the mail would be used, and (4) that the mail was used in
furtherance of some essential step in the scheme.” United States v. Cole, 721 F.3d
1016, 1021 (8th Cir. 2013) (quoting United States v. Louper-Morris, 672 F.3d 539,
555 (8th Cir. 2012)). The fourth element can be satisfied by placing an item in the
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mail, sending or causing an item to be sent by common carrier, taking or receiving an
item from the mail or a common carrier, or knowingly causing an item to be delivered
by mail or common carrier. 18 U.S.C. § 1341. Thus, under our general rule, the date
on which the statute of limitations begins to run “depend[s] on the specific use of the
mails charged in the indictment.” United States v. Crossley, 224 F.3d 847, 859 (6th
Cir. 2000); see also United States v. Pharis, 298 F.3d 228, 234 n.3 (3d Cir. 2002).
The indictment here alleged that Bennett used the mail by receiving a check from
Clayton on March 17, 2005, within five years of the date on which the indictment was
filed. Thus, the statute of limitations did not bar the mail-fraud count against
Bennett.2
However, Bennett argues that our decision in United States v. Pemberton, 121
F.3d 1157 (8th Cir. 1997), prescribes that the statute of limitations for mail fraud
begins to run only on the date the item was deposited into the mail. In Pemberton,
we stated that “[f]or mail fraud, the relevant date [for the running of the statute of
limitations] is the date of mailing.” Id. at 1163. Bennett construes the phrase “date
of mailing” to mean the date on which the sender deposited the item into the mail,
even if the defendant violated § 1341 by using the mail in some other way, such as
by receiving the item. Thus, Bennett argues, the statute of limitations began to run
on the date the check was mailed to him; that is, on March 16, 2005—more than five
years before the indictment against Bennett was filed.
2
The partial dissent contends that this conclusion conflicts with the views of
our sister circuits. We disagree. United States v. Hoffecker, 530 F.3d 137, 158 (3d
Cir. 2008), on which the partial dissent relies, concerned a situation in which the
defendant’s charged conduct was sending, not receiving, a mailing and is therefore
distinguishable. Moreover, the other cases cited by the partial dissent “are consistent
with our holding because we do not believe that the ‘date of the mailing’ [as
discussed in those cases] was intended to have a restrictive meaning, limited to the
date on which the relevant matter actually was mailed.” Crossley, 224 F.3d at 859
(discussing United States v. Eisen, 974 F.2d 246, 263 (2d Cir. 1992), and United
States v. Dunn, 961 F.2d 648, 650 (7th Cir. 1992)).
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Bennett misreads Pemberton because he decontextualizes our reference to “the
date of mailing” from the issue presented in that case. In Pemberton, the defendants
fraudulently induced an Indian tribe to enter into a series of contracts with them. Id.
at 1160-61. They argued that the statute of limitations barred their mail-fraud charge
because they had fraudulently induced the tribe to enter the contracts more than five
years before the indictment against them was filed. Id. at 1162-63. However, within
the limitations period, the defendants had used the mail to disburse the funds obtained
under the contracts. Id. at 1162. We rejected the defendants’ argument and clarified
that a mail-fraud offense is not completed—and the statute of limitations does not
begin to run—until the date on which the defendant uses the mail in furtherance of
his fraudulent scheme (that is, “the date of mailing” in that case). See id. at 1163-64.
The limitations period does not begin simply because a fraudulent scheme has been
hatched or the fruits of that scheme have been obtained. See United States v. Eisen,
974 F.2d 246, 263 (2d Cir. 1992) (cited by Pemberton, rejecting argument “that the
mail fraud claims date from the time the fraud was conceived”). Because the
Pemberton defendants had used the mail in furtherance of the fraud within the
limitations period, the statute of limitations did not bar the mail-fraud charges. We
referred to “the date of mailing” only to emphasize that a defendant’s use of the
mail—rather than some other aspect of the fraudulent scheme—determines when the
limitations period begins. Pemberton did not establish an anomalous rule,
inconsistent with our general approach to criminal statutes of limitations, under which
the limitations period for mail fraud begins before all of the elements of the offense
have been completed. In this case, the indictment alleged and the Government proved
that Bennett received the check by mail within the limitations period on March 17,
2005. Thus, the statute of limitations did not bar the mail-fraud charge against
Bennett. See Crossley, 224 F.3d at 859 (holding that statute of limitations did not bar
mail-fraud charge where indictment alleged that defendant received mailing within
limitations period).
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Similarly, the statute of limitations did not bar the mail-fraud-conspiracy
charge. “In a conspiracy charge, the limitations period begins to run from the
occurrence of the last overt act committed in furtherance of the conspiracy that is set
forth in the indictment.” Mueller, 661 F.3d at 347 (quoting United States v. Dolan,
120 F.3d 856, 864 (8th Cir. 1997)). Bennett’s receipt of the check on March 17 was
an overt act in furtherance of the mail-fraud conspiracy, one that was integral to
carrying on the fraudulent scheme. See id. (explaining that the receipt by mail of life-
insurance proceeds from policy insuring victim constituted an overt act in furtherance
of a conspiracy to commit murder-for-hire). Because this overt act occurred within
the limitations period, the statute of limitations did not bar his prosecution for
conspiracy to commit mail fraud. Accordingly, the district court did not err by
denying Bennett’s motion to dismiss the mail-fraud and mail-fraud-conspiracy counts
of the indictment.
2. Sufficiency of the Evidence
Bennett next argues that the district court erred by denying his motion for a
judgment of acquittal on the mail-fraud charge because the Government failed to
present sufficient evidence to support the jury’s verdict. Specifically, Bennett argues
that the evidence did not permit the jury to find that the March 16, 2005 check was
mailed to Bennett, that Bennett received the check, or that the mailing was in
furtherance of a fraudulent scheme. “We review the denial of a motion for a
judgment of acquittal based on the sufficiency of the evidence de novo.” United
States v. Chatmon, 742 F.3d 350, 352 (8th Cir. 2014). “We will affirm unless,
viewing the evidence in the light most favorable to the Government and accepting all
reasonable inferences that may be drawn in favor of the verdict, no reasonable jury
could have found [the defendant] guilty.” Id. (alteration in original) (quoting United
States v. Bynum, 669 F.3d 880, 883 (8th Cir. 2012)).
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The Government presented sufficient evidence to permit the jury to find that
the March 16 check was mailed, that Bennett received the check, and that the mailing
was in furtherance of a fraudulent scheme. The Government introduced a check from
Advantage made payable to ACS and dated March 16, 2005. Diana Goembel, an
Advantage accounting manager, testified that it was Advantage’s business practice
that once a check was signed for an out-of-state vendor, Advantage would then send
the check to the vendor by mail or, on rare occasions, by common carrier. The
address on the check indicated that it was being sent from Advantage in Minnesota
to ACS in Tennessee, and the address was positioned on the check so as to be visible
through an envelope’s clear-plastic address window. Bennett counters that Goembel
was on maternity leave at the time the check was sent and thus that her testimony
does not necessarily reflect Advantage’s practice at that time. However, no evidence
was presented showing that Advantage altered its usual check-mailing practice while
Goembel was on maternity leave. Therefore, the jury was permitted to rely on her
testimony to find that the check was sent by mail to ACS. See United States v.
Shyres, 898 F.2d 647, 654-55 (8th Cir. 1990) (holding that a business’s “customary
procedure for paying invoices” can support a finding that the defendant used the mail
to commit mail fraud); see also United States v. Delfino, 510 F.3d 468, 471 (4th Cir.
2007) (“[T]he use of the mails can be proven through evidence of business practice
or office custom.”). From this evidence, the jury reasonably could have concluded
that the March 16 check was mailed from Advantage. See also United States v.
Kieffer, 621 F.3d 825, 832-33 (8th Cir. 2010) (holding that jury could infer that the
mails were used because an item was delivered to North Dakota from California).
The Government also presented evidence permitting the jury to conclude
reasonably that Bennett received the check. ACS’s bank records reveal that a check
was deposited in ACS’s bank account on March 19, 2005 for the same amount as the
check sent from Advantage. Bennett was one of three individuals authorized to
deposit funds into the account. He has not pointed to any evidence showing that the
other two individuals ever deposited money into the account. This evidence
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regarding the deposit of the check permitted the jury to conclude reasonably that
Bennett received the check that had been mailed to ACS, which he owned and
managed, from Advantage. Bennett argues that the other two individuals authorized
to make deposits—rather than he—could have received the check. While the jury
perhaps could have reached that conclusion, it did not do so. “The facts and
circumstances relied on by the government must be consistent with guilt, but they
need not be inconsistent with any other hypothesis . . . .” Chatmon, 742 F.3d at 353
(alteration omitted) (quoting United States v. Lam, 338 F.3d 868, 872 (8th Cir.
2003)). Thus, the Government presented sufficient evidence to permit the jury to
conclude reasonably that Bennett received the March 16 check through the mail.
Finally, the jury could have reasonably concluded that Bennett’s receipt of the
check was in furtherance of an essential step of the fraudulent scheme. See Cole, 721
F.3d at 1021. The Government presented extensive evidence of Clayton and
Bennett’s multi-year scheme to defraud Advantage. Several Advantage employees
testified that, despite exhaustive searches of the company’s records, they could find
no proof that ACS and Bennett’s other companies actually provided any goods or
services for which they had billed Advantage. Similarly, no other Advantage
employees were aware of any work that Bennett’s companies had done for Advantage
or goods they had supplied. Goembel testified that she had not known that Bennett
owned the companies to which Advantage made numerous payments. The March 16
check was deposited in ACS’s bank account, and nearly the entirety of the funds in
that account were distributed to Bennett or to Jennifer. From this evidence, the jury
could have reasonably concluded that the March 16 check was mailed in furtherance
of the scheme to have Advantage pay fraudulent invoices and distribute the proceeds
of those invoices to Bennett and Jennifer. Accordingly, the district court did not err
in denying Bennett’s motion for a judgment of acquittal.3
3
Bennett also argues that the Government failed to present sufficient evidence
to support his convictions for conspiracy to commit money laundering and conspiracy
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3. Sixth Amendment
Bennett next argues that the district court violated his Sixth Amendment right
to a jury trial by applying several enhancements under the advisory sentencing
guidelines based on facts that were not found by the jury. We review a constitutional
challenge to a sentence de novo. United States v. Bowers, 638 F.3d 616, 620 (8th Cir.
2011). Bennett relies primarily on the Supreme Court’s recent decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013). However, under Alleyne, the Sixth Amendment
permits a district court to rely on facts beyond those found by the jury when the court
calculates the applicable advisory sentencing guidelines range and selects a sentence
within the statutorily-prescribed range. United States v. Davis, --- F.3d ---, 2014 WL
2609715, at *1 (8th Cir. June 12, 2014) (per curiam); Alleyne, 133 S. Ct. at 2161 n.2.
Here, the facts found by the district court did not alter the statutory maximum or
minimum sentence that Bennett faced. Instead, the district court merely used those
facts to calculate the applicable sentencing guidelines range and to exercise its
discretion when imposing a sentence within the range prescribed by statute. Thus,
the district court did not violate Bennett’s Sixth Amendment right to a jury trial.
to commit mail fraud. First, he argues that his money-laundering-conspiracy
conviction “hinges on finding that . . . [he] committed mail fraud.” Even if this
assertion were correct, we reject Bennett’s argument because, as explained above, the
Government presented ample evidence to support his mail-fraud conviction. With
regard to his mail-fraud-conspiracy conviction, Bennett argues that the Government
failed to prove an overt act in furtherance of the conspiracy because it failed to show
that Bennett received the March 16 check. However, as explained above, the
Government presented sufficient evidence to permit the jury to conclude that Bennett
received the March 16 check, which constitutes an overt act in furtherance of the
conspiracy. Thus, we also find Bennett’s sufficiency-of-the-evidence challenges to
his conspiracy convictions to lack merit.
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4. Effect of Clayton’s Death
Bennett presents three arguments that Clayton’s death necessitates reversal of
Bennett’s convictions and sentence. We find that each of these arguments lacks
merit. First, Bennett argues that Clayton’s death abated ab initio the entire criminal
proceeding in this case, thereby invalidating the conviction against Bennett. As noted
in Part II.A above, the criminal prosecution against Clayton was abated by his death
on appeal. This rule rests on two rationales: first, that a criminal defendant should not
be deprived of the right to challenge his conviction on appeal, even by death; and
second, that the punitive purposes of a conviction and sentence cannot be served once
the defendant has died. United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998).
Obviously, neither of these rationales supports abating the criminal proceeding as to
a deceased defendant’s living co-defendants. Thus, we decline to confer upon
Bennett the inexplicable windfall that he seeks.
Second, Bennett argues that he has been deprived of the opportunity to rely on
the “rule of consistency.” Citing Getsy v. Mitchell, 495 F.3d 295, 307 (6th Cir. 2007)
(en banc), Bennett claims that his conspiracy conviction would be invalidated if
Clayton’s conspiracy conviction had been invalidated on sufficiency-of-the-evidence
grounds. But even if Bennett might have benefitted fortuitously from a favorable
outcome in Clayton’s appeal, he has no right or entitlement to appellate review of his
deceased co-defendant’s conviction. He still can challenge—and has
challenged—the sufficiency of the evidence presented against him. Thus, we can see
no reason why Bennett’s convictions are undermined by the fact that we no longer
will consider Clayton’s sufficiency-of-the-evidence argument.
Third, Bennett argues that Clayton’s death rendered invalid the district court’s
application of a role-in-the-offense sentencing enhancement, see USSG § 3B1.1(a),
which was premised on Bennett’s participation in “criminal activity [that] involved
five or more participants or was otherwise extensive.” Bennett argues that Clayton
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cannot be considered for purposes of the enhancement now that he is deceased,
thereby reducing the number of participants in the fraudulent scheme to four.
However, the guidelines enhancement does not limit its application to participants in
the scheme who are living at the time the sentence is reviewed on appeal. Clayton
participated in the scheme, and his subsequent death simply does not alter that fact.
Nor does Clayton’s death affect whether Bennett’s fraudulent scheme was “otherwise
extensive” when perpetrated, which the presentence investigation report—adopted
by the district court—identified as a basis for applying the enhancement to Bennett.
Thus, we reject Bennett’s challenge to the application of § 3B1.1(a).
C. Jennifer’s Appeal
Jennifer appeals the district court’s denial of her motion to sever her trial from
that of Clayton and Bennett. She does not argue on appeal that she was misjoined
under Federal Rule of Criminal Procedure 8 but rather that the district court erred by
denying her request for severance pursuant to Rule 14. Accordingly, we review the
district court’s denial of her motion to sever for abuse of discretion. United States v.
Mann, 685 F.3d 714, 718 (8th Cir. 2012). “[T]o warrant severance [under Rule 14]
a defendant must show ‘real prejudice,’ that is, ‘something more than the mere fact
that he would have had a better chance for acquittal had he been tried separately.’”
United States v. Mickelson, 378 F.3d 810, 817-18 (8th Cir. 2004) (quoting United
States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993)). “A defendant can demonstrate
real prejudice to his right to a fair trial by showing (a) his defense is irreconcilable
with that of his co-defendant or (b) the jury will be unable to compartmentalize the
evidence as it relates to the separate defendants.” Id. at 818.
Jennifer argues that the jury could not be expected to compartmentalize the
evidence presented regarding her co-defendants’ fraudulent schemes—schemes in
which she claims not to have been implicated—when considering her tax-evasion
charges. We have explained that “[t]he risk of prejudice posed by joint trials is best
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cured by careful and thorough jury instructions.” Mann, 685 F.3d at 718 (quoting
Mickelson, 378 F.3d at 818). Here, the district court’s final jury instructions
admonished the jury: “Keep in mind that you must give separate consideration to the
evidence about each individual defendant. Each defendant is entitled to be treated
separately, and you must return a separate verdict for each defendant.” We have
found consistently that such an instruction adequately cured the risk that the jury
would not properly compartmentalize the evidence against jointly-tried defendants.
See, e.g., United States v. Mallett, 751 F.3d 907, 917 (8th Cir. 2014); Mann, 685 F.3d
at 718. In light of this limiting instruction, we conclude that the district court did not
abuse its discretion by denying Jennifer’s motion for severance under Rule 14.
We also note that much of the evidence regarding the fraudulent schemes was
relevant to the tax-evasion charges against Jennifer. A violation of 26 U.S.C. § 7201
requires “the existence of a tax deficiency.” United States v. Perry, 714 F.3d 570,
573 (8th Cir. 2013) (quoting Sansone v. United States, 380 U.S. 343, 351 (1965)).
The existence of a tax deficiency depends, in turn, on whether the income that
Jennifer failed to report to the Internal Revenue Service was taxable income.
Evidence showing that the income resulted from the fraudulent schemes was
necessary to show the source of the income and thus that the income was taxable.
Therefore, the admission of evidence regarding the fraudulent schemes did not
warrant severing Jennifer’s trial from that of Bennett and Clayton. See United States
v. Lee, 374 F.3d 637, 647 (8th Cir. 2004) (holding that severance was not required
where evidence admitted against co-defendant was independently admitted against
defendant seeking severance).
Jennifer also challenges the district court’s refusal to provide limiting
instructions immediately after several witnesses testified at trial. Her proposed
instructions would have informed the jury that it should not consider those witnesses’
testimony when considering the charges against her. We review a district court’s
decision not to give a limiting instruction for abuse of discretion. United States v.
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Velazquez-Rivera, 366 F.3d 661, 666 (8th Cir. 2004). A district court need not
instruct the jury regarding each item of evidence at the time the evidence is admitted
if the court provides an appropriate instruction at the close of trial. See United States
v. Kime, 99 F.3d 870, 881 (8th Cir. 1996); United States v. Garrido, 995 F.2d 808,
816-17 (8th Cir. 1993). As noted above, the instruction given by the district court at
the close of trial adequately instructed the jury to compartmentalize the evidence
presented against Clayton and Bennett from the evidence presented against Jennifer.
See Mallett, 751 F.3d at 917; Mann, 685 F.3d at 718. In addition, the instructions
specifically identified which defendant was charged with each offense, further
reinforcing to the jury that the fraudulent schemes should not be considered
improperly when assessing Jennifer’s guilt on the tax-evasion charges against her.
Thus, the district court did not abuse its discretion by declining to give the limiting
instructions requested by Jennifer.
III. Conclusion
For the foregoing reasons, we vacate Clayton’s convictions and remand his
case to the district court with instructions to dismiss the indictment as it pertains to
him. However, we affirm Bennett’s convictions and sentence, as well as Jennifer’s
convictions.
BEAM, Circuit Judge, concurring and dissenting.
I concur in the judgment of the court except for its affirmance of the mail fraud
conviction. The limitations period on the mail fraud conspiracy did not begin to run
until the last overt act in furtherance of the conspiracy had occurred, United States v.
Dolan, 120 F.3d 856, 864 (8th Cir. 1997), which act was, of course, subsequent to
March 16, 2005. The limitations period for the mail fraud charge itself, however,
commenced on March 16, 2005, the date the last check was placed in the mail.
United States v. Pemberton, 121 F.3d 1157, 1163 (8th Cir. 1997). Since all of the
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charges at issue in this prosecution were initiated when the indictment was filed on
March 17, 2010, the mail fraud charge must be dismissed as untimely.
The court contends that Bennett's argument concerning the importance of the
mailing date of the check "decontextualizes" this court's reference to such happening
in Pemberton. I disagree.
The district court, at the government's urging, adopted the Sixth Circuit's
ambiguous reasoning in United States v. Crossley, 224 F.3d 847, 859 (6th Cir. 2000),
only barely acknowledging Pemberton which clearly states "[f]or mail fraud, the
relevant date [for the statute of limitations] is the date of the mailing." 121 F.3d at
1163. And, the Second, Third and Seventh Circuits each agree with this analysis.
United States v. Eisen, 974 F.2d 246, 263 (2d Cir. 1992); United States v. Hoffecker,
530 F.3d 137, 157-58 (3d Cir. 2008); United States v. Dunn, 961 F.2d 648, 650 (7th
Cir. 1992). So, it seems, decontextualization, if any has occurred, runs in the
direction of the Sixth Circuit and the district court and not the precedent established
in Pemberton.
Accordingly, I would reverse the district court's holding to the contrary and
remand this matter for resentencing of Bennett without consideration of the mail
fraud charge.
______________________________
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