191 F. Supp. 3d 999
D.S.D.2016Background
- Terry Henrikson was indicted on June 16, 2015 on three counts: theft of government property (18 U.S.C. § 641), false statement, and concealment affecting Social Security benefits (42 U.S.C. § 408(a)(4)).
- Count 1 alleges conversion of Social Security Title II disability payments from April 1, 1989 to November 30, 2013; Count 3 alleges concealment of events affecting benefits over the same period.
- Henrikson moved to dismiss counts as time-barred under the five-year statute of limitations, and separately moved for a Daubert hearing challenging anticipated government expert testimony.
- The court analyzed whether § 641 and § 408(a)(4) are "continuing offenses" under Toussie, which would toll the limitations period until a later date.
- The government had not designated expert witnesses at the time of Henrikson’s Daubert motion; the court treated the Daubert request as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether count 2 (false statement) is time-barred | N/A (defendant sought dismissal) | Count 2 occurred Nov 5, 2011–Nov 30, 2013 and is within 5 years | Denied — count 2 timely (within 5-year statute) |
| Whether § 641 theft charge (count 1) is a continuing offense | Government: conduct may be part of a prolonged scheme, tolling limitations | Henrikson: § 641 is not inherently continuing; long-ago acts are time-barred | Granted in part — § 641 (first paragraph) is not a continuing offense; conduct before June 16, 2010 is excluded |
| Whether § 408(a)(4) concealment (count 3) is a continuing offense | Government: concealment continues until discovery; thus within limitations | Henrikson: argues statute of limitations bars old conduct | Denied — § 408(a)(4) is a continuing offense; count 3 not time-barred |
| Whether a Daubert hearing should be held now | Henrikson: requests hearing to preclude unreliable expert methodology | Government: no expert notices filed; witnesses likely fact witnesses; motion premature | Denied as premature — Daubert hearing may be sought if/when experts are designated |
Key Cases Cited
- Toussie v. United States, 397 U.S. 112 (holding continuing-offense doctrine is narrow; limitations run when crime is complete)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (trial court gatekeeping for expert testimony)
- United States v. Bennett, 765 F.3d 887 (8th Cir.) (limitations period begins when each element occurs)
- United States v. Gonzalez, 495 F.3d 577 (8th Cir.) (same principle on limitations)
- United States v. Yashar, 166 F.3d 873 (7th Cir.) (focus on statutory language to determine continuing offenses)
- United States v. Smith, 373 F.3d 661 (4th Cir.) (where defendant creates an automatic recurring embezzlement scheme, § 641 may be continuing)