The opinion of the court was delivered by: Gershon, United States District Judge
Defendants Mordecai Abraham Sorcher and Sroya Sorcher face charges stemming from their alleged fraud of the National School Breakfast and Lunch Program. Defendants move to dismiss all five counts of the Second Superseding Indictment, pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, on the ground that the statute of limitations has expired. For the reasons set forth below, defendants' motion is denied.
The Second Superseding Indictment, like the original indictment, describes the federal program which defendants are charged with defrauding. It charges that Yeshiva Gedolah Academy ("YGA") is a not-for-profit private educational institution located in Brooklyn, New York. Mordecai Abraham Sorcher was the Director of YGA, and Sroya Sorcher served as President and an administrator. YGA was a participant in the National School Breakfast and Lunch Program, which provides funding and bulk food to participating institutions for students whose families satisfy specified income requirements.
The United States Department of Agriculture ("USDA") is responsible for implementing the National School Breakfast and Lunch Program, pursuant to the National School Lunch Act, 42 U.S.C. §§ 1751 et seq. In New York, the program is administered by the New York State Department of Education ("NYSDOE"). For a student to be eligible to receive meals under the program, parents are required to complete an application certifying the number of school-age children in the family, as well as the family's income. The head of the participating institution is required to sign the application and keep it on file at the school. The NYSDOE also requires participating institutions to file monthly claim forms detailing the number of meals provided to eligible students. The Board of Jewish Education ("BJE"), a not-for-profit organization, acts as a consultant for certain participating institutions, including YGA. For a small fee, the BJE assists schools with their submission of reimbursement claims by reviewing the claim forms, and, without making any substantive changes, ensuring that the claims conform to the proper format prior to forwarding them to the NYSDOE. The BJE also collects and disburses funds, and coordinates delivery of bulk food to participating schools.
Defendants were originally indicted on October 20, 2005. Count One of the indictment charged that, between May 1997 and September 1, 2001, defendants conspired to defraud the School Breakfast and Lunch Program, in violation 18 U.S.C. § 371. Count Two charged that, between May 1997 and September 1, 2001, defendants defrauded the School Breakfast and Lunch Program, in violation of 42 U.S.C. § 1760(g). Counts Three, Four, and Five charged that, on or about September 1, 2001, defendants made materially false, fictitious and fraudulent statements and representations in a matter within the jurisdiction of the Executive Branch of the United States government, in violation of 18 U.S.C. § 1001(a)(2). Each count of the indictment incorporated by reference all of the factual allegations set forth in paragraphs one through fourteen.
By motion dated November 13, 2006, defendants sought dismissal of the indictment on statute of limitations grounds.*fn1 In its opposition, the government indicated that, with respect to Counts Three, Four, and Five, the indictment incorrectly stated that the date the fraudulent family application forms were signed was September 1, 2001. In fact, the date on the forms was September 1, 2000, a date clearly outside of the statute of limitations. However, the government argued that defendants violated 18 U.S.C. § 1001(a)(2) "as a result of giving . . . field inspectors the fraudulent School Breakfast and Lunch Program application forms in December 2000." Gov't Opp. to Defs.' Pre-trial Motions at 10. Furthermore, the government stated that it would "move to amend the indictment prior to the start of trial, to reflect the accurate date." Id. at 10 n.3.
At oral argument on defendants' motion to dismiss, the government reiterated that, with respect to Counts Three, Four, and Five, the correct date was December 2000, not September 1, 2001 or September 1, 2000. See Oral Argument Transcript, Feb. 7, 2007, ("OA Tr. I") at 6-7. The court declined the government's request to "amend" the indictment and determined that, if the government sought to change the dates in the indictment to December 2000, it would have to do so by obtaining a superseding indictment. See OA Tr. I at 6-9. By order dated February 9, 2007, the court sustained Count One, ordered supplemental briefing on Count Two, and dismissed Counts Three, Four, and Five on statute of limitations grounds, relying on the government's acknowledgment that the September 1, 2001 date in those counts was based upon an error, and that the true date on the documents to which the indictment referred was September 1, 2000. On March 19, 2007, the government filed a First Superseding Indictment.
On April 9, 2007, the government filed a Second Superseding Indictment.*fn2 Count One charges that, between May 1997 and July 2001, defendants conspired to defraud the School Breakfast and Lunch Program, in violation of 18 U.S.C. § 371. Count Two charges that, between May 1997 and July 2001, defendants defrauded the School Breakfast and Lunch Program, in violation of 42 U.S.C. § 1760(g). Counts Three, Four, and Five charge that, on or about December 27, 2000, defendants made materially false, fictitious and fraudulent statements and representations in a matter within the jurisdiction of the Executive Branch of the United States government, in violation of 18 U.S.C. § 1001(a)(2). Each count of the indictment incorporates by reference all of the factual allegations set forth in paragraphs one through sixteen. Defendants now move to dismiss all five counts of the Second Superseding Indictment, pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, on the ground that the statute of limitations on these offenses has expired.
The purpose of statutes of limitations is "to protect individuals from having to defend themselves against charges when the basic facts may have been obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." Toussie v. United States, 397 U.S. 112, 114-15 (1970). Thus, the primary concern is whether the defendant had notice of the charges against him, such that he knows that he "will be called to account for [his] activities and should prepare a defense." United States v. Grady, 544 F.2d 598, 601 (2d Cir. 1976); United States v. Frequency Elecs., 862 F.Supp. 834, 844 (E.D.N.Y. 1994) ("So long as the defendants may be said to have been put on notice of the criminal acts they are alleged to have committed in order to allow them to prepare adequately a defense to the same, the protective purposes of the criminal statute of limitations will have been served."). In criminal cases, statutes of limitations are "to be liberally interpreted in favor of repose." United States v. Scharton, 285 U.S. 518, 522 (1932); see United States v. Marion, 404 U.S. 307, 322 n.14 (1971) (discussing the policy in favor of repose).
Once an indictment has been filed, the statute of limitations is tolled with respect to the charges contained in the indictment. United States v. Ben Zvi, 242 F.3d 89, 98 (2d Cir. 2001); United States v. Gengo, 808 F.2d 1, 3 (2d Cir. 1986); Grady, 544 F.2d at 601. "[A] superseding indictment that supplants a pending timely indictment relates back to the original pleading and inherits its timeliness as long as the later indictment does not materially broaden or substantially amend the original charges." United States v. Salmonese, 352 F.3d 608, 622; see Gengo, 808 F.2d at 3; Grady, 544 F.2d at 601-02. "In determining whether a superseding indictment materially broadens or amends the original charges, [the court] will consider whether the additional pleadings allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence." Salmonese, 352 F.3d at 622. The Second Circuit has stated that "[n]o single factor is determinative; rather, the 'touchstone' of our analysis is notice." Id.
Defendants renew their argument that the original indictment was time-barred and therefore was not "validly pending" at the time the Second Superseding Indictment was filed. See Grady, 544 F.2d at 601-02. Defendants further argue that the Second Superseding Indictment is untimely as it does not relate back to the date of the original indictment because it materially broadens or substantially amends the original charges. And, as to Counts Three, ...