UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-20421

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEVEN CRAIG ELY,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

May 11, 1998

Before DAVIS, E. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:

Appellant pled guilty to conspiring to disclose tax return

information. He claimed that the conspiracy prosecution was not

timely because the three year statute of limitations for offenses

arising under the Internal Revenue Code had run. The district

court rejected that argument holding that the prosecution was

timely because the five ye ar statute of limitations for general

conspiracy applied. We agree.

BACKGROUND

In July 1989 and September 1992, Steven Craig Ely (“Ely”)1 § 7213(a)(1) reads in pertinent part:

It shall be unlawful for any officer or employee of the

United St ates. . . or any former officer or employee,

willfully to disclose to any person, except as authorized

by his title, any return or return information.

2 The section does carve out eight exceptions and makes those

exceptions subject to a six year statute of limitations.

2 persuaded Margaret Kynard, an IRS agent, to provide him with tax

return information of two other individuals. Four years later, Ely

was indicted under 18 U.S.C. § 371 for conspiring with an IRS agent

to disclose tax return information in violation of 26 U.S.C. §

7213(a)(1). Ely unsuccessfully moved to dismiss the indictment

arguing that the statute of limitations had run. Ely then pled

guilty, but r eserved the right to appeal the district court’s

denial of his motion to dismiss.

ANALYSIS

The heart of Ely’s argument is that the government prosecuted

him for violating 26 U.S.C. § 7213(a)(1). 1 According to 26 U.S.C.

§ 6531, offenses arising under the internal revenue l aws are

genera lly subject to a three year statute of limitations. 2 Ely

argues that the three year statute of limitations applies here

because violation of § 7213(a)(1) arises under the internal revenue

laws. Ely’s argument, however, ignores the fact that he is not

charged with nor could he be charged with violating 26 U.S.C. §

7213(a)(1). That section applies only to current and former

federal employees, and Ely is neither. The indictment shows that

Ely was charged under the general conspiracy statute, 18 U.S.C. §

371. In Braverman v. United States , 317 U.S. 49, 54, (1942), the3 Section 3282 provides:

Except as otherwise expressly provided by law, no person shall

be prosecuted.

. . for any offense, not capital, unless the

indict ment is found or the information is instituted within

five years next after such offense shall have been committed.

3 Supreme Court made clear that "a conspiracy is not the commission

of the crime which it contemplates, and either violates nor 'arises

under' the statute whose vi olation is its object." Thus, the

issue here is what statute of limitations applies since 26 U.S.C.

§ 6531 does not.

Because this Court has decided no cases directly on point, we

turn to those of the other circuits for guidance. In U nited States

v. Lowder

, 492 F.2d 953 (4th Cir. 1974), the Fourth C ircuit held

that “[l]imitatio ns, for indictments under § 371, are those

supplied by other provisions of law, or where there are none, by 18

U.S.C. § 3282”. Id. at 956. There, Lowder had been convicted of

consp iring to impede the IRS from collecting taxes. I d. at 955.

Lower argued that his conspiracy convicti on should be overturned

because the five year limitations period of § 3282 3 had run. I d.

The Fourth Circuit disagreed stating that §3282 applied only when

there was no other applic able statute, and there was one. The

court held that the six year limitations period provided in 26

U.S.C. § 6531(1) applied because that statute mandated a six year

limitations for conspiracy to defraud the United States government.

Id. at 956. The court reasoned that Lowder had tried to defraud

the United States by filing a fraudulent tax return and thus, such4 See also United States v. Waldman

, 941 F.2d 1544, 1548 (11th

Cir. 1991), and United States v. Ingredient Tech. Corp. , 698 F.2d

88, 98-99 (2d Cir. 1983). We agree with these cases and disagree

with the two cases from the Secon d Circuit: U nited States v.

Klein

, 247 F.2d 908, 912 (2d Cir. 1957), and United States v. Witt

, 215 F.2d 580, 584 (2d Cir. 1954).

4 an action fell within § 6531(1). Id. 4

Here, Ely argues that his offense, conspiring to disclose tax

return information, arises under the Internal Revenue Code and so

falls within the three year limitations that § 6531 prescribes. As

we explained above, his o ffense cannot arise under the Internal

Revenue Code because Ely is not and was not a federal employee.

His offense arise s under 18 U.S.C. § 371. As the Fourth Circuit

stated in Lowder

, the five year statute of limitation s in § 3282

applies to § 371 unless o therwise expressly provided by law. We

hold there is no other applicable express provision. Thus, the

five year statute of limitations applies.

To determine whether the conspiracy indictment was timely, we

look to our decision in United States v. Parker

, 586 F.2d 422, 430

(5th Cir. 1978). There, we held that “[t]hough the conspiracy

began outside the limitations period, the conspiracy continued, and

overt acts were committed within the limitations period.” I d.

Here, the 1989 overt act is outside of the limitations period;

however, the last overt act occurred in 1992. Ely was indicted in

1996 which was within the five year period. Thus, we hold that the

district court did not err in applyin g 18 U.S.C. § 3282 and that

the prosecution fell within the five year statute of limitations.5 CONCLUSION

For the foregoing reasons, we AFFIRM the district court.

AFFIRMED.