United States District Court, D. Alaska
ORDER DENYING MOTION AT DOCKET 195
RALPH R. BEISTLINE, District Judge.
I. PENDING MOTIONS
At Docket 195 Defendant Mark J. Avery filed a Motion to Dismiss (Statute of Limitations). The Government has opposed and Avery has replied. Neither party has requested oral argument and the Court has determined that oral argument would not materially assist in resolving the issues presented. Accordingly, the matter is submitted for decision on the moving and opposing papers.
The history of this case is well known to the parties and is repeated here only to the extent necessary to an understanding of this decision. On March 6, 2007, the Government filed a sixteen-count information: five (5) counts of Wire Fraud (18 U.S.C. §§ 1343, 1346, 18 U.S.C. § 2); ten (10) counts of Money Laundering (18 U.S.C. § 1957(a)); and one (1) Criminal Forfeiture count (18 U.S.C. § 982(a)(1)). On the same date the Government filed a fully executed Plea Agreement. In April 2008, this Court sentenced Avery to 102 months imprisonment on his guilty plea to the information. Avery waived his right to appeal and no appeal was filed. In February 2011 Avery sought habeas relief claiming his conviction and sentence were invalidated by the Supreme Court decision in Skilling.  This Court denied Avery relief. Upon appeal, the Ninth Circuit, finding that the crime to which Avery pleaded guilty was no longer a criminal offense, reversed and remanded.
As relevant to the motions sub judice, the Ninth Circuit noted:
We note that while Avery is innocent of honest services fraud, as that theory has been defined by the Supreme Court in Skilling, Avery's conduct may still constitute money-or-property based wire fraud. See, e.g., United States v. Pelisamen, 641 F.3d 399, 406 (9th Cir.2011). If this is the case, under the terms of the plea agreement the government may be able to reinitiate criminal proceedings against Avery under the broader money-or-property based wire fraud prosecution theory alleged in the original Information. If criminal proceedings are reinstituted, we leave it to the district court on remand to determine whether Avery's misconduct could trigger liability under core mail and wire fraud jurisprudence.
It further noted:
Because our certificate of appealability is limited to evaluating whether Avery's habeas claim attacking the basis for his honest services fraud conviction was procedurally defaulted, we leave it to the district court on remand to determine what consequences might follow issuance of the writ granting relief under the honest services fraud theory, should the government elect to continue prosecuting this case rather than dismissing the Information.
Upon remand the Government sought and the Grand Jury re-indicted Avery on fifteen (15) counts: five (5) counts of wire fraud (18 U.S.C. §§ 2, 1343); and ten (10) counts of money laundering (18 U.S.C. §§ 2, 1957(a)) on October 17, 2013. It is this re-indictment that Avery seeks be dismissed.
III. ISSUE PRESENTED
Whether Avery's re-indictment is barred by the applicable five-year limitation period, 18 U.S.C. § 3282.
It is undisputed that the original information was timely. It is also undisputed that more than five years lapsed between the time Avery committed the offenses (August 16, 2006) and the current indictment was returned (October 17, 2013). The issue before this Court is whether or not the date governing when the limitations period stopped running was the date of the initial information (March 6, 2007) or the date of ...