Tulsa Attorney BlogStatute of Limitation for Federal Prosecution of Crimes Dismissed Under McGirt Precedent

If a Case Is Vacated, That Doesn’t Automatically Mean That the Case Is Done

Video Transcribed:  What is the statute of limitations for prosecuting criminal offenses under Federal Law if they get dismissed due to the McGirt precedent? I’m Tulsa criminal attorney James Wirth, and we’re about to talk about the statute of limitations for federal crimes.

All right, so after the aftermath of McGirt v Oklahoma, we’re seeing all kinds of cases go through the courts and getting kicked out. McGirt held that the Muskogee Creek nation was never disestablished, which means that most of Tulsa and surrounding counties are actually tribal reservation land, where the state lacked subject matter jurisdiction to prosecute Indians or crimes committed against Indians.

So, a lot of those cases are being thrown out, it’s already happened to a handful in the short period of time since that decision came out on July 9th of 2020, way more in the works, and we expect there to be hundreds, if not thousands. Some prosecutors have talked about there being upwards of 6,000 cases just in one small county because this goes back to potentially all the way back hundreds of years, that these cases could be vacated.

So if a case is vacated, that doesn’t automatically mean that the case is done and the defendants get out of jail if they’re in jail. They could be re-prosecuted under Federal Law or Tribal Law, depending on the circumstances. So what cases can be re-prosecuted? Well, they’ve got to be within the statute of limitations, which brings us to the question of the day. What is the typical statute of limitations for federal offenses?

Well, the default statute of limitations for state crimes unless specified otherwise is three years. Most state crimes have a three-year statute of limitations. For federal crimes under the Federal Law, it’s actually five years. So if it’s not specifically designated as having another statute of limitations under Federal Law, it is actually five years, and we can kind of give you some examples of some other ones.

There’s 20-year statute of limitations for the theft of artwork, 10 years for arson and certain financial institution crimes and for immigration offenses, eight years for nonviolent terrorist offenses, and there is no statute of limitation for violent terrorist crimes, that can be prosecuted at any time.

So the question becomes next is that, can the statute of limitations change in a way that will allow the feds to prosecute a case they otherwise couldn’t? That deals with prohibitions in the United States Constitution against ex post facto prosecution, and what courts have decided previously is that if they extend the statute of limitations while it has not yet passed for a certain defendant, then it does apply to that defendant without it being a violation of ex post facto laws and restrictions.

But, if for that defendant the existing statute of limitations has passed, any law that now extends it does not apply to that person, otherwise it would violate the U.S. Constitution’s restriction against ex post facto prosecutions. So, that does prevent the Congress from fixing this as to some defendants that may go free.

So what about some other ones? Some crimes are continuing crimes, meaning the statute of limitation never begins, and is told while it’s still being committed, and there’s a list of those… Escaped from federal custody. So as long as you’re still escaped and you’re on the outside, your statute of limitation has not begun yet.

Flights to avoid prosecution, same thing, failure to report for sentencing, same thing as continuing crime, possession of a skull of an endangered species, same thing, possession of counterfeit currency, kidnapping, embezzlement under some circumstances, possession of an unregistered python, a lot of these possession cases are continuing crimes.

Failure to pay child support, continuing offense, bank fraud, healthcare fraud, those could be continuing offenses as well, so they never start that statute of limitations, so it can never end if it never starts.

Getting into further lists, death penalty crimes. For the most part, death penalty offenses have no statute of limitations at all, and that can be… There’s a lot of them.

Drive-by shooting resulting in first degree murder, lot of other different types of murder offenses, can be crimes that do not have any statute of limitations because they do have death penalty. Hate crime resulting in death, murder of a member of Congress, murder of a federal prisoner, murder of a foreign dignitary, all kinds of murder.

Kidnapping where death results, terrorism-related ones, there’s all kinds of different ones there. Child abduction and sex offenses for the most part, no statute of limitations. We already talked about there’s only one crime with a 20-year statute of limitations, and it’s theft of art.

10-year statute of limitations, looking at arson, certain wire fraud, misuse of a passport, some immigration offenses. Eight year statute of limitations, dealing with assaults on diplomats, assaulting a member of Congress, assaulting the President or presidential staff, certain criminal laws to acts on aircraft have an eight year statute of limitations. Violence at an international airport, destruction of federal property, bombing a public place, anti-aircraft missiles, crimes dealing with atomic weapons, eight year statute of limitations.

All right, down to the list of seven year statute of limitations. Damage to religious property, hate crime not resulting in death, major fraud against the United States. Getting down to crimes that have a six year statute of limitations, Security Act violations, Trust Indenture Act violations, Security Exchange Act violations, investment company acts, Investment Advisor Act violations, security and commodities frauds, tax crimes, all those have a six year limit, statute of limitations.

Three year statute limitations, misuse of treasury department names and symbols. One year statute of limitations, contempt of federal court. And then as I mentioned before, anyone that’s not specifically listed by federal code has a five year statute of limitations. That said, this list that I’m reading through, I’m only hitting on some of the highlights and some here and there. There’s a lot more on the list.

So if you’ve got a question about a particular offense for yourself, friend or family member that may be affected by the McGirt decision when you’re evaluating whether you want to file to vacate that and what the risk is of federal prosecution, contact an attorney to talk about your specific circumstances and that particular offense. If you want to talk to somebody at my office, you can go to makelaweasy.com.


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