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May 30, 1995

United States of America against Gabriel Reguer etc., Defendant.

The opinion of the court was delivered by: SIFTON

 SIFTON, District Judge

 This case involves a prosecution for wire fraud and conspiracy relating to the sale of counterfeit Passover Haggadahs. Defendant successfully moved to withdraw his plea for lesser charges, and by order of this Court the prior superseding indictment was reinstated against him. Defendant now moves for dismissal of the indictment as barred by the statute of limitations. *fn1" For the reasons set forth below, defendant's motion to dismiss the indictment as barred by the statute of limitations is denied.


 The original indictment in this case was filed in March of 1988, and the government filed a superseding indictment on May 23, 1988. This indictment charged Reguer and co-defendant Raphael Podde with three counts of wire fraud and one count of conspiracy to commit wire fraud, all in relation to the sale of counterfeit Guadalaxara Haggadahs, which are rare versions of a Jewish text read during Passover celebrations.

 Trial began on June 2, 1988. After the jury was selected and the government made its opening statement, defendant Podde decided to enter a plea of guilty to the entire indictment. At his plea allocution, Podde informed the Court that he had convinced Reguer to sell "certain books [by] giving him a wrong representation." Reguer was offered the opportunity to plead guilty to different, lesser charges. He thus pleaded to a new information charging him with violating 31 U.S.C. § 5313 and § 5322 by causing the First National Savings Bank to fail to file a currency transaction report. Reguer admitted that he "structured" his transactions to avoid the reporting requirements but contended that he was never aware that it was a crime to do so. Reguer was sentenced to three years of probation and a fine of $ 150,000. Reguer was also ordered to pay restitution to the victims.

 Subsequent to the Supreme Court's holding in Ratzlaf v. United States, 126 L. Ed. 2d 615, 114 S. Ct. 655 (1994), that a defendant is not guilty of structuring under 31 U.S.C. § 5313(a)(3) unless he knew that his conduct was illegal, Reguer moved this Court to vacate his plea and expunge his record, arguing that Ratzlaf should apply to his conviction. In a Memorandum and Order dated January 5, 1995, this Court granted Reguer's request, vacated his conviction and plea of guilty, and directed the parties to appear to fix a new trial date.

 The government subsequently moved to reinstate the May 23, 1988 indictment against Reguer. In a bench ruling on March 3, 1988, and in a subsequent written opinion, this Court granted the government's motion over the defendant's arguments that to do so would violate principles of double jeopardy. The Court specifically declined to rule at that time on defendant's arguments that the indictment was barred by the statute of limitations and reinstated the indictment without prejudice to a subsequent motion to dismiss on those grounds.


 Defendant argues that, when this Court dismissed the May 23, 1988 indictment, the tolling of the statute of limitations was lifted and that, since it is now more than five years since the alleged acts occurred, prosecution on the May 23, 1988 indictment is barred. The government responds with an analysis based in contract theory: it argues that, since the defendant has repudiated his plea bargain, both parties should be placed back in the position they were in prior to entering the plea agreement, and thus the May 23, 1988 indictment should be treated as never having been dismissed and the statute of limitations should be treated as tolled for the intervening period.

 The Court of Appeals explained "the interplay of an indictment with a statute of limitations" in United States v. Grady, 544 F.2d 598, 601 (2d Cir. 1976):

Once an indictment is brought, the statute of limitations is tolled as to the charges contained in that indictment. This is a sensible application of the policies underlying statutes of limitations. The defendants are put on timely notice, because of the pendency of an indictment, filed within the statutory time frame, that they will be called to account for their activities and should prepare a defense. The statute begins to run again on those charges only if the indictment is dismissed, and the Government must then reindict before the statute runs out or within six months, whichever is later, in order not to be time-barred. Since the statute stops running with the bringing of the first indictment, a superseding indictment brought at any time while the first indictment is still validly pending, if and only if it does not broaden the charges made in the first indictment, cannot be barred by the statute of limitations.

 Id. at 601-602 (citations and footnotes omitted); United States v. Gengo, 808 F.2d 1, 3 (2d Cir. 1986). Other courts have acknowledged that providing notice to a defendant that he will be called to prepare a defense is "the central policy underlying the statutes of limitation." United States v. Italiano, 894 F.2d 1280, 1283 (11th Cir.), cert. denied, 498 U.S. 896, 112 L. Ed. 2d 205, 111 S. Ct. 246 (1990); United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990) (quoting Italiano). The Supreme Court set forth a parallel rational for limitations periods:

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far distant past. Such a time ...

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