Although we do not normally report on decisions issued in federal criminal cases that do not directly apply to matters in Georgia, Florida, or Alabama, a case that was recently decided by a federal appellate court that sits in Louisiana (the Fifth Circuit) is certainly interesting and therefore worth mentioning. As noted by Professor Ellen Pogdor over at the White Collar Crime Prof Blog, recently, the Fifth Circuit issued a decision involving the statute of limitations that applies in federal cases that charge an individual based on an aiding and abetting theory of liability. Specifically, in United States v. Rabhan, the Fifth Circuit concluded that “aiding and abetting is a form of derivative liability and should be treated the same as the substantive or underlying offense.” In other words, since 18 U.S.C. section 2 (the aiding and abetting statute) does not establish a distinct offense, but is instead “simply a different method of demonstrating liability for the substantive offense (and one which is derivative of, rather than separate from, the underlying or substantive offense),” the statute of limitations for the underlying substantive offense must govern.
Even though this decision will not have an impact on a significant number of federal criminal cases, it did have an impact in this particular case. That is because in Rabhan, the Government charged the defendant after the expiration of the five year statute of limitations that typically applies in most federal criminal cases, but before the expiration of the ten year statute of limitations applicable to the underlying substantive offense at issue. Therefore, based on the ruling described above, the Fifth Circuit reversed the trial court’s decision dismissing the offense that was charged beyond the five year statute of limitations.
Again, this case will not have an impact on a significant number of federal criminal cases; however, since this issue has apparently not yet been addressed in the Eleventh Circuit (the Court that hears federal appeals in Georgia, Alabama, and Florida), federal criminal attorneys that practice in these areas may want to make a mental note of this issue. Professor’s Pogdor’s analysis of this case can be found here, and the opinion itself can be found here.