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UNITED STATES v. BERGER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


November 3, 1998

UNITED STATES OF AMERICA,
v.
CHAIM BERGER, a/k/a "Herman Berger," AVRUM DAVID FRIESEL, a/k/a "David Friesel," a/k/a "Avraham Friesel," a/k/a "A. David Friesel," a/k/a "Aron Friesel," KALMEN STERN, DAVID GOLDSTEIN, JACOB ELBAUM, a/k/a "Yitzchok Elbaum," and BENJAMIN BERGER, Defendants.

The opinion of the court was delivered by: JONES

MEMORANDUM ORDER

 BARBARA S. JONES

 UNITED STATES DISTRICT JUDGE

 By letter brief dated September 29, 1998, defendant David Goldstein moves for reconsideration of that portion of the Court's September 14, 1998 Memorandum & Order which denied Goldstein's motion to dismiss Counts Two, Four, Five, and Twenty-Two on statute of limitations grounds. Having considered Goldstein's arguments, the Court adheres to its prior ruling.

 Each member of a conspiracy remains responsible for the known or reasonably foreseeable acts committed by his coconspirators in furtherance of a conspiracy, unless and until he takes an affirmative action to withdraw from the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 646, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946); United States v. Eisen, 974 F.2d 246, 268 (2d Cir. 1992), cert. denied, 507 U.S. 1029, 123 L. Ed. 2d 467, 113 S. Ct. 1840 (1993); United States v. Brasco, 516 F.2d 816, 818 (2d Cir.), cert. denied, 423 U.S. 860, 46 L. Ed. 2d 88, 96 S. Ct. 116 (1975). Mere cessation of activity in furtherance of the conspiracy does not necessarily establish that a member has withdrawn. See United States v. Goldberg, 401 F.2d 644, 648 (2d Cir. 1968), cert. denied, 393 U.S. 1099, 21 L. Ed. 2d 790, 89 S. Ct. 895 (1969).

 Here, the Indictment properly charges that defendants, including Goldstein, committed substantive offenses within the statute of limitations period in furtherance of a conspiracy to defraud the federal government. Contrary to Goldstein's characterization, nothing about the Government's theory "revives" or "reincarnates" an offense that would otherwise be time-barred. While Goldstein may argue at trial that he withdrew from the conspiracy on September 1, 1991, the Government is entitled to argue that Goldstein remained in the conspiracy and therefore continued to bear responsibility for the criminal acts committed by his coconspirators.

 Accordingly, Goldstein's motion for reconsideration is denied.

 SO ORDERED :

 BARBARA S. JONES

 UNITED STATES DISTRICT JUDGE

 Dated: New York, New York

 November 3, 1998

19981103

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