United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-3754

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jeffrey Cole Bennett

lllllllllllllllllllll Defendant - Appellant

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No. 13-1109

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jennifer Rose Hogeland

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 13-2038

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee
v.

Clayton Craig Hogeland

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the District of Minnesota - St. Paul

____________

 Submitted: June 10, 2014

 Filed: August 29, 2014

____________

Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

____________

GRUENDER, Circuit Judge.

A jury found Jeffrey Bennett (“Bennett”), Jennifer Hogeland (“Jennifer”), and

Clayton Hogeland (“Clayton”) guilty on several counts stemming fromtwo fraudulent

schemes. The district court sentenced them to ninety-five months’, fifteen months’, 1

and 200 months’ imprisonment, respectively. Bennett and Clayton appeal both their

convictions and sentences. Jennifer appeals her convictions. Clayton died while this

appeal was pending. For the reasons described below, we vacate Clayton’s

convictions and remand his case to the district court with instructions to dismiss the

indictment as it relates to him. However, we affirm Bennett’s convictions and

sentence, as well as Jennifer’s convictions.

The Honorable Patrick J. Schiltz, United States District Judge for the District 1

of Minnesota.

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I. Background

Clayton served as general manager of Advantage Transportation, Inc.

(“Advantage”), a large Minnesota-based trucking-logistics company. As general

manager, Clayton had “free reign” to manage the company’s operations, including

contracting with outside vendors and approving invoices for payment. At Clayton’s

recommendation, in May 2003, Advantage hired Bennett to oversee its Memphis,

Tennessee office.

Soon thereafter, Clayton and Bennett hatched a scheme to defraud Advantage. 

Bennett created four corporations: American Logistics Advisors, Inc. (“ALA”);

Transportation Marketing Concepts, Inc. (“TMC”); LTLDevelopment.com, Inc.

(“LTL”); and Air Catering Solutions and Marketing, Inc. (“ACS”). Between 2003

and 2005, the corporations submitted numerous invoices to Advantage purportedly

for various goods orservices provided to Advantage. Clayton approved the invoices,

after which checks were generated from Advantage to the corporate entities. The

checks were then mailed or, on rare occasions, sent by common carrier to the

recipients. While Advantage’s accounting staff knew that these payments were being

made, they were unaware that the corporations were owned by Bennett. Despite

receiving the payments from Advantage, Bennett’s corporations never actually

provided the goods or services for which they had billed Advantage. Bank records

for ALA, TMC, and LTL showed that the only payments the corporations had

received were from Advantage and that they did not pay ordinary business expenses

such as rent or utilities. The only business-expense payments revealed by ACS’s

bank records were payroll checks to two employees. Instead, Bennett’s corporations

wrote numerous checks to Jennifer, most of which she deposited into her bank

account. Nearly all of the companies’ remaining funds were withdrawn by Bennett. 

In all, Bennett received $393,091 through the fraudulent scheme.

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Beginning in 2003, Clayton also operated a separate fraudulent scheme with

Carl Frey, an American Airlines employee who was responsible for finding trucking

companies to deliver freight for the airline. The two agreed that Frey would steer

American Airlinestrucking businessto Advantage, and, in exchange, Clayton would

authorize payments from Advantage to Frey personally. In all, Frey received nearly

$90,000. Neither American Airlines nor Advantage were aware of this scheme.

Clayton resigned from Advantage in the spring of 2005, and Bennett left in

September 2006. Neither Jennifer nor Clayton informed their tax preparers about the

funds obtained through these fraudulentschemes, and thustheir illicit income was not

included on their joint federal income-tax returns for 2003, 2004, and 2005. 

After the fraudulent schemes were discovered, a grand jury returned an

indictment against Bennett, Clayton, and Jennifer. The indictment charged Bennett

and Clayton with mail fraud, in violation of 18 U.S.C. § 1341; conspiracy to commit

mail fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit money

laundering, in violation of 18 U.S.C. § 1956(h). The indictment also charged

Bennett, Clayton, and Jennifer with income-tax evasion, in violation of 26 U.S.C.

§ 7201. After a joint trial, a jury found Bennett, Clayton, and Jennifer guilty on all

counts. Bennett and Clayton appeal both their convictions and their sentences. 

Jennifer appeals only her convictions.

II. Discussion

A. Clayton’s Appeal

As noted above, Clayton died while this appeal was pending. Thus, the

criminal proceedings against Clayton abated ab initio. See Crooker v. United States,

325 F.2d 318, 319-20 (8th Cir. 1963). Consistent with our practice in such situations,

we vacate his convictions and remand his case to the district court with instructions

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to dismiss the indictment as it pertains to him. See United States v. Howe, 591 F.2d

454, 459 (8th Cir. 1979).

B. Bennett’s Appeal

1. Statute of Limitations

Bennett argues that the district court erred by denying his motion to dismiss the

mail-fraud and mail-fraud-conspiracy counts on the ground that they are barred by the

statute of limitations. We review the district court’s denial of a motion to dismiss an

indictment based on the statute of limitations de novo. United States v. Mueller, 661

F.3d 338, 344 (8th Cir. 2011). The five-year statute of limitations prescribed by 18

U.S.C. § 3282 governs both counts.

The indictment alleged that on March 17, 2005, Bennett received a check from

Clayton disbursing a fraudulent payment made by Advantage to ACS. Thus, the

check must have been mailed, at the latest, on March 16, 2005. The indictment was

filed on March 17, 2010. Bennett argues that the limitations period ended on March

16, 2010, five years after the check was mailed to Bennett.

First, the statute of limitations did not bar the mail-fraud charge. In general,

a criminal statute of limitations begins to run “when each element of that offense has

occurred.” United States v. Gonzalez, 495 F.3d 577, 580 (8th Cir. 2007) (quoting

United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999)). The elements of a mailfraud offense under 18 U.S.C. § 1341 are: “(1) a scheme to defraud by means of

material false representations or promises, (2) intent to defraud, (3) reasonable

foreseeability that the mail would be used, and (4) that the mail was used in

furtherance of some essential step in the scheme.” United States v. Cole, 721 F.3d

1016, 1021 (8th Cir. 2013) (quoting United States v. Louper-Morris, 672 F.3d 539,

555 (8th Cir. 2012)). The fourth element can be satisfied by placing an item in the

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mail, sending or causing an item to be sent by common carrier, taking or receiving an

item from the mail or a common carrier, or knowingly causing an item to be delivered

by mail or common carrier. 18 U.S.C. § 1341. Thus, under our general rule, the date

on which the statute of limitations begins to run “depend[s] on the specific use of the

mails charged in the indictment.” United States v. Crossley, 224 F.3d 847, 859 (6th

Cir. 2000); see also United States v. Pharis, 298 F.3d 228, 234 n.3 (3d Cir. 2002). 

The indictment here alleged that Bennett used the mail by receiving a check from

Clayton on March 17, 2005, within five years of the date on which the indictment was

filed. Thus, the statute of limitations did not bar the mail-fraud count against

Bennett.

2

However, Bennett argues that our decision in United States v. Pemberton, 121

F.3d 1157 (8th Cir. 1997), prescribes that the statute of limitations for mail fraud

begins to run only on the date the item was deposited into the mail. In Pemberton,

we stated that “[f]or mail fraud, the relevant date [for the running of the statute of

limitations] is the date of mailing.” Id. at 1163. Bennett construes the phrase “date

of mailing” to mean the date on which the sender deposited the item into the mail,

even if the defendant violated § 1341 by using the mail in some other way, such as

by receiving the item. Thus, Bennett argues, the statute of limitations began to run

on the date the check was mailed to him; that is, on March 16, 2005—more than five

years before the indictment against Bennett was filed.

The partial dissent contends that this conclusion conflicts with the views of 2

our sister circuits. We disagree. United States v. Hoffecker, 530 F.3d 137, 158 (3d

Cir. 2008), on which the partial dissent relies, concerned a situation in which the

defendant’s charged conduct was sending, not receiving, a mailing and is therefore

distinguishable. Moreover, the other cases cited by the partial dissent “are consistent

with our holding because we do not believe that the ‘date of the mailing’ [as

discussed in those cases] was intended to have a restrictive meaning, limited to the

date on which the relevant matter actually was mailed.” Crossley, 224 F.3d at 859

(discussing United States v. Eisen, 974 F.2d 246, 263 (2d Cir. 1992), and United

States v. Dunn, 961 F.2d 648, 650 (7th Cir. 1992)).

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Bennett misreads Pemberton because he decontextualizes our reference to “the

date of mailing” from the issue presented in that case. In Pemberton, the defendants

fraudulently induced an Indian tribe to enter into a series of contracts with them. Id.

at 1160-61. They argued that the statute of limitations barred their mail-fraud charge

because they had fraudulently induced the tribe to enter the contracts more than five

years before the indictment against them was filed. Id. at 1162-63. However, within

the limitations period, the defendants had used the mail to disburse the funds obtained

under the contracts. Id. at 1162. We rejected the defendants’ argument and clarified

that a mail-fraud offense is not completed—and the statute of limitations does not

begin to run—until the date on which the defendant uses the mail in furtherance of

his fraudulent scheme (that is, “the date of mailing” in that case). See id. at 1163-64. 

The limitations period does not begin simply because a fraudulent scheme has been

hatched or the fruits of that scheme have been obtained. See United States v. Eisen,

974 F.2d 246, 263 (2d Cir. 1992) (cited by Pemberton, rejecting argument “that the

mail fraud claims date from the time the fraud was conceived”). Because the

Pemberton defendants had used the mail in furtherance of the fraud within the

limitations period, the statute of limitations did not bar the mail-fraud charges. We

referred to “the date of mailing” only to emphasize that a defendant’s use of the

mail—rather than some other aspect of the fraudulentscheme—determines when the

limitations period begins. Pemberton did not establish an anomalous rule,

inconsistent with our general approach to criminal statutes oflimitations, under which

the limitations period for mail fraud begins before all of the elements of the offense

have been completed. In this case, the indictment alleged and the Government proved

that Bennett received the check by mail within the limitations period on March 17,

2005. Thus, the statute of limitations did not bar the mail-fraud charge against

Bennett. See Crossley, 224 F.3d at 859 (holding thatstatute of limitations did not bar

mail-fraud charge where indictment alleged that defendant received mailing within

limitations period).

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Similarly, the statute of limitations did not bar the mail-fraud-conspiracy

charge. “In a conspiracy charge, the limitations period begins to run from the

occurrence of the last overt act committed in furtherance of the conspiracy that is set

forth in the indictment.” Mueller, 661 F.3d at 347 (quoting United States v. Dolan,

120 F.3d 856, 864 (8th Cir. 1997)). Bennett’s receipt of the check on March 17 was

an overt act in furtherance of the mail-fraud conspiracy, one that was integral to

carrying on the fraudulentscheme. See id. (explaining that the receipt by mail of lifeinsurance proceeds frompolicy insuring victimconstituted an overt act in furtherance

of a conspiracy to commit murder-for-hire). Because this overt act occurred within

the limitations period, the statute of limitations did not bar his prosecution for

conspiracy to commit mail fraud. Accordingly, the district court did not err by

denying Bennett’s motion to dismiss themail-fraud and mail-fraud-conspiracy counts

of the indictment.

2. Sufficiency of the Evidence

Bennett next argues that the district court erred by denying his motion for a

judgment of acquittal on the mail-fraud charge because the Government failed to

present sufficient evidence to support the jury’s verdict. Specifically, Bennett argues

that the evidence did not permit the jury to find that the March 16, 2005 check was

mailed to Bennett, that Bennett received the check, or that the mailing was in

furtherance of a fraudulent scheme. “We review the denial of a motion for a

judgment of acquittal based on the sufficiency of the evidence de novo.” United

States v. Chatmon, 742 F.3d 350, 352 (8th Cir. 2014). “We will affirm unless,

viewing the evidence in the light most favorable to the Government and accepting all

reasonable inferences that may be drawn in favor of the verdict, no reasonable jury

could have found [the defendant] guilty.” Id. (alteration in original) (quoting United

States v. Bynum, 669 F.3d 880, 883 (8th Cir. 2012)).

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The Government presented sufficient evidence to permit the jury to find that

the March 16 check was mailed, that Bennett received the check, and that the mailing

wasin furtherance of a fraudulentscheme. The Government introduced a check from

Advantage made payable to ACS and dated March 16, 2005. Diana Goembel, an

Advantage accounting manager, testified that it was Advantage’s business practice

that once a check was signed for an out-of-state vendor, Advantage would then send

the check to the vendor by mail or, on rare occasions, by common carrier. The

address on the check indicated that it was being sent from Advantage in Minnesota

to ACS in Tennessee, and the address was positioned on the check so as to be visible

through an envelope’s clear-plastic address window. Bennett countersthat Goembel

was on maternity leave at the time the check was sent and thus that her testimony

does not necessarily reflect Advantage’s practice at that time. However, no evidence

was presented showing that Advantage altered its usual check-mailing practice while

Goembel was on maternity leave. Therefore, the jury was permitted to rely on her

testimony to find that the check was sent by mail to ACS. See United States v.

Shyres, 898 F.2d 647, 654-55 (8th Cir. 1990) (holding that a business’s “customary

procedure for paying invoices” can support a finding that the defendant used the mail

to commit mail fraud); see also United States v. Delfino, 510 F.3d 468, 471 (4th Cir.

2007) (“[T]he use of the mails can be proven through evidence of business practice

or office custom.”). From this evidence, the jury reasonably could have concluded

that the March 16 check was mailed from Advantage. See also United States v.

Kieffer, 621 F.3d 825, 832-33 (8th Cir. 2010) (holding that jury could infer that the

mails were used because an item was delivered to North Dakota from California). 

The Government also presented evidence permitting the jury to conclude

reasonably that Bennett received the check. ACS’s bank records reveal that a check

was deposited in ACS’s bank account on March 19, 2005 for the same amount as the

check sent from Advantage. Bennett was one of three individuals authorized to

deposit funds into the account. He has not pointed to any evidence showing that the

other two individuals ever deposited money into the account. This evidence

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regarding the deposit of the check permitted the jury to conclude reasonably that

Bennett received the check that had been mailed to ACS, which he owned and

managed, from Advantage. Bennett argues that the other two individuals authorized

to make deposits—rather than he—could have received the check. While the jury

perhaps could have reached that conclusion, it did not do so. “The facts and

circumstances relied on by the government must be consistent with guilt, but they

need not be inconsistent with any other hypothesis . . . .” Chatmon, 742 F.3d at 353

(alteration omitted) (quoting United States v. Lam, 338 F.3d 868, 872 (8th Cir.

2003)). Thus, the Government presented sufficient evidence to permit the jury to

conclude reasonably that Bennett received the March 16 check through the mail.

Finally, the jury could have reasonably concluded that Bennett’s receipt of the

check wasin furtherance of an essential step of the fraudulentscheme. See Cole, 721

F.3d at 1021. The Government presented extensive evidence of Clayton and

Bennett’s multi-year scheme to defraud Advantage. Several Advantage employees

testified that, despite exhaustive searches of the company’s records, they could find

no proof that ACS and Bennett’s other companies actually provided any goods or

services for which they had billed Advantage. Similarly, no other Advantage

employees were aware of anywork thatBennett’s companies had done for Advantage

or goods they had supplied. Goembel testified that she had not known that Bennett

owned the companiesto which Advantage made numerous payments. The March 16

check was deposited in ACS’s bank account, and nearly the entirety of the funds in

that account were distributed to Bennett or to Jennifer. From this evidence, the jury

could have reasonably concluded that the March 16 check was mailed in furtherance

of the scheme to have Advantage pay fraudulent invoices and distribute the proceeds

of those invoices to Bennett and Jennifer. Accordingly, the district court did not err

in denying Bennett’s motion for a judgment of acquittal.

3

Bennett also argues that the Government failed to present sufficient evidence 3

to support his convictions for conspiracy to commit money laundering and conspiracy

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3. Sixth Amendment

Bennett next argues that the district court violated his Sixth Amendment right

to a jury trial by applying several enhancements under the advisory sentencing

guidelines based on facts that were not found by the jury. We review a constitutional

challenge to a sentence de novo. United States v. Bowers, 638 F.3d 616, 620 (8th Cir.

2011). Bennett relies primarily on the Supreme Court’s recent decision in Alleyne v.

United States, 133 S.Ct. 2151 (2013). However, under Alleyne, the Sixth Amendment

permits a district court to rely on facts beyond those found by the jury when the court

calculates the applicable advisory sentencing guidelinesrange and selects a sentence

within the statutorily-prescribed range. United States v. Davis, --- F.3d ---, 2014 WL

2609715, at *1 (8th Cir. June 12, 2014) (per curiam); Alleyne, 133 S.Ct. at 2161 n.2. 

Here, the facts found by the district court did not alter the statutory maximum or

minimum sentence that Bennett faced. Instead, the district court merely used those

facts to calculate the applicable sentencing guidelines range and to exercise its

discretion when imposing a sentence within the range prescribed by statute. Thus,

the district court did not violate Bennett’s Sixth Amendment right to a jury trial. 

to commit mail fraud. First, he argues that his money-laundering-conspiracy

conviction “hinges on finding that . . . [he] committed mail fraud.” Even if this

assertion were correct, we rejectBennett’s argument because, as explained above, the

Government presented ample evidence to support his mail-fraud conviction. With

regard to his mail-fraud-conspiracy conviction, Bennett argues that the Government

failed to prove an overt act in furtherance of the conspiracy because it failed to show

that Bennett received the March 16 check. However, as explained above, the

Government presented sufficient evidence to permit the jury to conclude that Bennett

received the March 16 check, which constitutes an overt act in furtherance of the

conspiracy. Thus, we also find Bennett’s sufficiency-of-the-evidence challenges to

his conspiracy convictions to lack merit.

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4. Effect of Clayton’s Death

Bennett presents three arguments that Clayton’s death necessitates reversal of

Bennett’s convictions and sentence. We find that each of these arguments lacks

merit. First, Bennett argues that Clayton’s death abated ab initio the entire criminal

proceeding in this case, thereby invalidating the conviction against Bennett. As noted

in Part II.A above, the criminal prosecution against Clayton was abated by his death

on appeal. This rule rests on two rationales: first, that a criminal defendantshould not

be deprived of the right to challenge his conviction on appeal, even by death; and

second, that the punitive purposes of a conviction and sentence cannot be served once

the defendant has died. United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998). 

Obviously, neither of these rationales supports abating the criminal proceeding as to

a deceased defendant’s living co-defendants. Thus, we decline to confer upon

Bennett the inexplicable windfall that he seeks.

Second, Bennett argues that he has been deprived of the opportunity to rely on

the “rule of consistency.” Citing Getsy v. Mitchell, 495 F.3d 295, 307 (6th Cir. 2007)

(en banc), Bennett claims that his conspiracy conviction would be invalidated if

Clayton’s conspiracy conviction had been invalidated on sufficiency-of-the-evidence

grounds. But even if Bennett might have benefitted fortuitously from a favorable

outcome in Clayton’s appeal, he has no right or entitlement to appellate review of his

deceased co-defendant’s conviction. He still can challenge—and has

challenged—the sufficiency of the evidence presented against him. Thus, we can see

no reason why Bennett’s convictions are undermined by the fact that we no longer

will consider Clayton’s sufficiency-of-the-evidence argument.

Third, Bennett argues that Clayton’s death rendered invalid the district court’s

application of a role-in-the-offense sentencing enhancement, see USSG § 3B1.1(a),

which was premised on Bennett’s participation in “criminal activity [that] involved

five or more participants or was otherwise extensive.” Bennett argues that Clayton

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cannot be considered for purposes of the enhancement now that he is deceased,

thereby reducing the number of participants in the fraudulent scheme to four. 

However, the guidelines enhancement does not limit its application to participants in

the scheme who are living at the time the sentence is reviewed on appeal. Clayton

participated in the scheme, and his subsequent death simply does not alter that fact. 

Nor doesClayton’s death affect whether Bennett’s fraudulentscheme was “otherwise

extensive” when perpetrated, which the presentence investigation report—adopted

by the district court—identified as a basis for applying the enhancement to Bennett. 

Thus, we reject Bennett’s challenge to the application of § 3B1.1(a).

C. Jennifer’s Appeal

Jennifer appeals the district court’s denial of her motion to sever her trial from

that of Clayton and Bennett. She does not argue on appeal that she was misjoined

under Federal Rule of Criminal Procedure 8 but rather that the district court erred by

denying her request for severance pursuant to Rule 14. Accordingly, we review the

district court’s denial of her motion to sever for abuse of discretion. United States v.

Mann, 685 F.3d 714, 718 (8th Cir. 2012). “[T]o warrant severance [under Rule 14]

a defendant must show ‘real prejudice,’ that is, ‘something more than the mere fact

that he would have had a better chance for acquittal had he been tried separately.’” 

United States v. Mickelson, 378 F.3d 810, 817-18 (8th Cir. 2004) (quoting United

States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993)). “A defendant can demonstrate

real prejudice to his right to a fair trial by showing (a) his defense is irreconcilable

with that of his co-defendant or (b) the jury will be unable to compartmentalize the

evidence as it relates to the separate defendants.” Id. at 818.

Jennifer argues that the jury could not be expected to compartmentalize the

evidence presented regarding her co-defendants’ fraudulent schemes—schemes in

which she claims not to have been implicated—when considering her tax-evasion

charges. We have explained that “[t]he risk of prejudice posed by joint trials is best

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cured by careful and thorough jury instructions.” Mann, 685 F.3d at 718 (quoting

Mickelson, 378 F.3d at 818). Here, the district court’s final jury instructions

admonished the jury: “Keep in mind that you must give separate consideration to the

evidence about each individual defendant. Each defendant is entitled to be treated

separately, and you must return a separate verdict for each defendant.” We have

found consistently that such an instruction adequately cured the risk that the jury

would not properly compartmentalize the evidence against jointly-tried defendants. 

See, e.g., United States v. Mallett, 751 F.3d 907, 917 (8th Cir. 2014); Mann, 685 F.3d

at 718. In light of this limiting instruction, we conclude that the district court did not

abuse its discretion by denying Jennifer’s motion for severance under Rule 14.

We also note that much of the evidence regarding the fraudulent schemes was

relevant to the tax-evasion charges against Jennifer. A violation of 26 U.S.C. § 7201

requires “the existence of a tax deficiency.” United States v. Perry, 714 F.3d 570,

573 (8th Cir. 2013) (quoting Sansone v. United States, 380 U.S. 343, 351 (1965)). 

The existence of a tax deficiency depends, in turn, on whether the income that

Jennifer failed to report to the Internal Revenue Service was taxable income. 

Evidence showing that the income resulted from the fraudulent schemes was

necessary to show the source of the income and thus that the income was taxable. 

Therefore, the admission of evidence regarding the fraudulent schemes did not

warrant severing Jennifer’s trial from that of Bennett and Clayton. See United States

v. Lee, 374 F.3d 637, 647 (8th Cir. 2004) (holding that severance was not required

where evidence admitted against co-defendant was independently admitted against

defendant seeking severance).

Jennifer also challenges the district court’s refusal to provide limiting

instructions immediately after several witnesses testified at trial. Her proposed

instructions would have informed the jury that itshould not consider those witnesses’

testimony when considering the charges against her. We review a district court’s

decision not to give a limiting instruction for abuse of discretion. United States v.

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Velazquez-Rivera, 366 F.3d 661, 666 (8th Cir. 2004). A district court need not

instruct the jury regarding each item of evidence at the time the evidence is admitted

if the court provides an appropriate instruction at the close of trial. See United States

v. Kime, 99 F.3d 870, 881 (8th Cir. 1996); United States v. Garrido, 995 F.2d 808,

816-17 (8th Cir. 1993). As noted above, the instruction given by the district court at

the close of trial adequately instructed the jury to compartmentalize the evidence

presented against Clayton and Bennett from the evidence presented against Jennifer. 

See Mallett, 751 F.3d at 917; Mann, 685 F.3d at 718. In addition, the instructions

specifically identified which defendant was charged with each offense, further

reinforcing to the jury that the fraudulent schemes should not be considered

improperly when assessing Jennifer’s guilt on the tax-evasion charges against her. 

Thus, the district court did not abuse its discretion by declining to give the limiting

instructions requested by Jennifer.

III. Conclusion

For the foregoing reasons, we vacate Clayton’s convictions and remand his

case to the district court with instructions to dismiss the indictment as it pertains to

him. However, we affirm Bennett’s convictions and sentence, as well as Jennifer’s

convictions.

BEAM, Circuit Judge, concurring and dissenting.

I concur in the judgment of the court except for its affirmance of the mail fraud

conviction. The limitations period on the mail fraud conspiracy did not begin to run

until the last overt act in furtherance of the conspiracy had occurred, United States v.

Dolan, 120 F.3d 856, 864 (8th Cir. 1997), which act was, of course, subsequent to

March 16, 2005. The limitations period for the mail fraud charge itself, however,

commenced on March 16, 2005, the date the last check was placed in the mail. 

United States v. Pemberton, 121 F.3d 1157, 1163 (8th Cir. 1997). Since all of the

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charges at issue in this prosecution were initiated when the indictment was filed on

March 17, 2010, the mail fraud charge must be dismissed as untimely.

The court contends that Bennett's argument concerning the importance of the

mailing date of the check "decontextualizes" this court'sreference to such happening

in Pemberton. I disagree.

The district court, at the government's urging, adopted the Sixth Circuit's

ambiguous reasoning in United States v. Crossley, 224 F.3d 847, 859 (6th Cir. 2000),

only barely acknowledging Pemberton which clearly states "[f]or mail fraud, the

relevant date [for the statute of limitations] is the date of the mailing." 121 F.3d at

1163. And, the Second, Third and Seventh Circuits each agree with this analysis. 

United States v. Eisen, 974 F.2d 246, 263 (2d Cir. 1992); United States v. Hoffecker,

530 F.3d 137, 157-58 (3d Cir. 2008); United States v. Dunn, 961 F.2d 648, 650 (7th

Cir. 1992). So, it seems, decontextualization, if any has occurred, runs in the

direction of the Sixth Circuit and the district court and not the precedent established

in Pemberton. 

Accordingly, I would reverse the district court's holding to the contrary and 

remand this matter for resentencing of Bennett without consideration of the mail

fraud charge.

______________________________

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