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United States v. Schneider

September 15, 2010

UNITED STATES OF AMERICA
v.
KENNETH SCHNEIDER



The opinion of the court was delivered by: Juan R. Sánchez, J.

MEMORANDUM

Defendant Kenneth Schneider asks this Court to dismiss both charges against him, arguing the Government failed to bring these charges within the applicable statute of limitations. For the following reasons, this Court will deny Schneider's motion.

FACTS

On January 14, 2010, Schneider was charged in a two-count indictment with (1) traveling in foreign commerce for the purpose of engaging in sex with a minor, in violation of 18 U.S.C. § 2423(b), and (2) transporting a person in foreign commerce with the intent that such person engage in criminal sexual conduct, in violation of 18 U.S.C. § 2421. The date of Schneider's allegedly criminal travel was August 22, 2001, when he flew from Philadelphia to Moscow, Russia, in the company of R.Z., a 15-year-old Russian boy. The indictment further alleges Schneider engaged in a sexual relationship with R.Z. both before and after the date of travel.

DISCUSSION

Schneider argues both counts of the Indictment should be dismissed pursuant to Federal Rule of Criminal Procedure 12(b)(3)(A) because the Government failed to secure an indictment within the applicable statute of limitations for the charged offenses. To prevail on a motion to dismiss an untimely indictment, a defendant must establish the indictment charges conduct which occurred outside the applicable statute of limitations period. See, e.g., United States v. Atiyeh, 402 F.3d 354, 362 (3d Cir. 2005) (concluding an indictment which, on its face, charged conduct occurring outside the five-year limitations period of 18 U.S.C. § 3282 was beyond the statute of limitations). "In considering a defense motion to dismiss an indictment, the district court accepts as true the factual allegations set forth in the indictment." United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990).

The general statute of limitations for non-capital federal offenses is five years. See 18 U.S.C. § 3282(a) ("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... within five years next after such offense shall have been committed."). The Indictment in this case was returned on January 14, 2010, over five years after the date of the charged offense, August 22, 2001. Schneider asserts the five-year statute of limitations period contained in § 3282 applies and bars his prosecution for the charged offenses. The Government disagrees, arguing 18 U.S.C. § 3283, which establishes a longer statute of limitations period for certain child abuse offenses, applies to the charges filed against Schneider.*fn1

Congress established a longer statute of limitations for child sex abuse offenses in 1990, permitting prosecution of such offenses until the victim turned 25 years old. The new statute, originally codified at 28 U.S.C. § 3509(k) (1991), provided, "No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years." Section 3509(k) was recodified without change in 1994 at 18 U.S.C. § 3283. 18 U.S.C. § 3283, Historical and Statutory Notes; United States v. Chief, 438 F.3d 920, 922 (9th Cir. 2006) (explaining the progressive lengthening of the statute of limitations for child sexual abuse crimes).*fn2

Schneider does not dispute the Indictment was timely filed under § 3283 if this statute applies to his offenses. Rather, he argues § 3283 is inapplicable to the offenses with which he is charged because neither charge is an "offense involving the sexual or physical abuse of a child under the age of 18 years." Def.'s Mot. to Dismiss 6 (citing 18 U.S.C. § 3283).

The sexual abuse of a child "includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or to assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation with children, or incest with children." 18 U.S.C. § 3509(a).*fn3 The determination of whether Schneider's charges fall within § 3283's statute of limitations requires this Court to determine whether 18 U.S.C. §§ 2421 and 2423(b) are "offenses involving the sexual or physical abuse of a child" within the meaning of § 3283.

In the first count of the Indictment, Schneider is charged with traveling in foreign commerce "for the purpose of engaging in any sexual act as defined in Section 2246 with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred" in the United States, in violation of 18 U.S.C. § 2423(b). Indictment 2. In the second count, Schneider is charged with "transport[ing] a person in foreign commerce with the intent that such person engage in any sexual activity for which any person can be charged with a criminal offense," in violation of 18 U.S.C. § 2421. Indictment 4. The predicate criminal sexual activity charged for this count is compulsory anal intercourse, which is a violation of Article 133 of the Russian Criminal Code. Both of the offenses charged in the Indictment are codified in chapter 117 of title 18 of the United States Code, titled "Transportation for Illegal Sexual Activity and Related Crimes."

To support his argument that sexual abuse of a child is not an essential ingredient of either of the offenses charged, Schneider relies on Bridges v. United States, 346 U.S. 209 (1953). In Bridges, the Supreme Court clarified the criminal offenses to which the 1942 Wartime Suspension of Limitations Act (WSLA) applied. The WSLA expanded the statute of limitations for fraud in connection with war contracts beyond the three-year limitations period in place at the time for non-capital federal crimes. Congress had authorized a limited expansion of the limitations period to "safeguard the treasury" from war contract fraud "by increasing the time allowed for [the] discovery and prosecution [of war fraud crimes]." Id. at 216-17. The Supreme Court insisted the WSLA was not intended to "swallow up the three-year [statute of] limitations" and thus interpreted the statute narrowly, strictly limiting application of the WSLA to only those offenses "in which defrauding or attempting to defraud the United States is an essential ingredient of the offense charged." Id. at 221. The Court held fraud was only an "essential ingredient" if proof of fraud was required to prove the charged offense and further stated "the insertion of surplus words in the indictment does not change the nature of the offense charged." Id. at 222.

Schneider contends, under Bridges's essential ingredient test, § 3283 does not apply because child sexual abuse is not an essential ingredient of either § 2421 or §2423(b). He contends both charges have two essential elements - (1) transportation or travel, and (2) intent to engage in a sexual act - neither of which requires proof a child was sexually or physically abused. Indeed, a defendant may be convicted for a violation of § 2423(b) based on evidence of his intent alone, even if he never actually encountered or sexually assaulted a child. See United States v. Tykarsky, 446 F.3d 458, 469 (3d Cir. 2006) (explaining a conviction under § 2423(b) "turns simply on the purpose for which [the defendant] traveled" and the actual age of the intended victim is not an element of the offense). Although instances of a defendant's sexual abuse of a child victim may be presented at trial to prove the defendant's intent to engage in a sexual act which would violate chapter 109A, or his intent to engage in criminal sexual activity, evidence of actual abuse is not necessary to secure a conviction under either of theses statutes. See id. Schneider therefore urges this Court to find an offense only involves the sexual abuse of a minor if such abuse is necessary to sustain a conviction for the offense, and argues the Court should not look beyond the elements of the charge to the underlying facts of the offense in making its determination as to whether § 3283 applies.

Schneider's arguments are unavailing. First, Bridges, the case Schneider relies on to support his argument, is distinguishable. Although Bridges also interpreted the word "involve" in the context of a statute of limitations' applicability, the statute in that case, the WSLA, is dissimilar to § 3283 because the WSLA targeted a narrow category of crimes and was intended to be narrowly applied.*fn4 In contrast, Congress has sought to progressively lengthen the statute of limitations to allow prosecution for child sex offenses by extending the limitations period first to the victim's 25th birthday, then to encompass the life of the victim, and finally to abolish the limitations period entirely for some categories of offenses. See Chief, 438 F.3d at 922; and 18 U.S.C. ยง 3299. Moreover, such legislation is indicative of the general Congressional intent to "cast a wide net to ...


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