Caveat: Although authored and published on 4/1/23, this blog is not an April Fool’s Joke.

I have written before about the Wartime Suspension of
Limitations Act (“WSLA”), 18 USC  § 3287, here, that suspends certain
criminal statutes of limitations while “the United States is at war or Congress has
enacted a specific authorization for the use of the Armed Forces, as described
in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).” The statutes of limitations are suspended in relevant part for crimes “(1) involving fraud or
attempted fraud against the United States
or any agency thereof in any manner,
whether by conspiracy or not.” My blogs on this subject discussing the potential
application of this WSLA suspension for tax crimes are collected by relevance here and
reverse chronological order here. In those blogs, I have noted that the WSLA’s literal application to certain tax crimes
involving “fraud” would mean that the WSLA could have a pervasive effect permitting
the charging of tax crimes far before the normal suspensions often encountered for
tax crimes. See also, Michael Saltzman & Leslie Book, IRS Practice and
, ¶ 12.05[9][a][iii] Suspension and tolling (discussing normal
suspensions and discussing § 3287 at n. 933); and John A. Townsend, Federal
Tax Procedure (2022 Practitioner Ed.)
317-387 (August 3, 2022). Available
at SSRN:

1. The blog supplements those discussions
until the next revisions of those respective books (note that I am the
principal author of the Saltzman and Book chapter). Since I have already
brought the discussion up to date in the 2023 working draft for the Federal
Tax Procedure Book (2023 Practitioner Ed.)
, I will just offer the following
from the 2023 draft (which should be finalized by early August 2023). The last sentence in the carryover paragraph will be changed
to and a footnote added as follows (note that I link the blog entries and key
case entries in this blog but will not link them in the book):

This provision [WSLA] might apply to the Iraqi and
Afghanistan engagements, but its application to tax crimes with
elements of fraud or attempted fraud is notable only because of the many cases
in which it could have been applied but is rarely, very rarely, asserted where
statute of limitations defenses are asserted. fn

   fn E.g., Appeals Arguments Over
Whether Government Brought Evasion and Tax Conspiracy Charges Within Statute of
Limitations With No Mention of WSLA
(Federal Tax Crimes Blog 9/19/21), here.
Further, the WSLA is not even mentioned in the DOJ Criminal Tax Manual. SEE DOJ
CTM 7.00 Statute of Limitations (viewed 3/31/23), here. Apparently
because of its rarity of use in tax crimes, the ABA has recommended ”Guidance
making it clear that the Service’s Criminal Investigations division will not
recommend prosecution for charges that otherwise would be untimely except
through the operation of the Wartime Suspension Limitations Act,” I discuss and
link this recommendation in ABA Tax Section Recommendation to IRS for
Priority Guidance to Disavow Application of WSLA and Further Comments Re Same

(Federal Tax Crimes Blog 7/23/21), here;
and  More on the Wartime Suspension of
Limitations Act (WSLA) (Federal Tax Crimes Blog
2/20/21), here.  Nevertheless, the WSLA has been applied in
some tax offense and defraud conspiracies. See in addition to cases in the cited blogs, e.g., Daugerdas v. United
,  2021 WL 603068 (S.D. N.Y.
2/16/21), here (noting
the Afghanistan and Iraq resolutions and stating: “Accordingly, beginning in
September 2001, the WLSA tolled the statute of limitations on the conspiracy to
defraud the United States [for tax objects of conspiracy] and mail fraud
charges. See Wells Fargo Bank, 972 F. Supp. 2d 593 at 613–14 (holding
that the WSLA suspended the ten-year statute of limitations for certain fraud
claims arising prior to June 25, 2002 because hostilities had not ended).)”;
and United States v. Wellington, 2022 WL 3345759 (D. N.M. 2022), here (Defendant charged “violation of 18 U.S.C. §
371, Conspiracy to Commit Tax Evasion and Defraud the United States;” held WSLA
applied based on holding in United States v. Nishiie, 996 F.3d 1013,
1028 (9th Cir. 2021), cert. denied, 142 S. Ct. 2653 (U.S. Apr. 25, 2022) and
also citing Wells Fargo.)

Although the Government rarely invokes the WSLA, I presume it did in Daugerdas and know it did in Wellington. For example, see U.S. Response in Wellington asserting WSLA (at pp. 2-3), here:

2. The key to those potential applications is “war or
Congress has enacted a specific authorization for the use of the Armed Forces.”
The United States is not now at war, but there are some specific authorizations
for the use of military force. As news reports have recently discussed, the Senate
has voted to revoke the AUMF for the Iraqi War. See Barbara Sprunt & Susan Davis, Senate votes to repeal Iraq War
(NPR 3/29/23), here (discussing the Senate action and noting that
the House must now act). Just focusing on that Iraq War AUMF, if the revocation is enacted (must pass
House), it will cause the WSLA 5-year statute on that AUMF to start. But there
was a separate AUMF for the 9/11/01 attack (Afghanistan) and even earlier AUMFs
that have not been repealed. See P.L. 107-40, 115 STAT. 224 9/18/01, here; and see
the Caveat in BA Tax Section
Recommendation to IRS for Priority Guidance to Disavow Application of WSLA and
Further Comments Re Same
(Federal Tax Crimes Blog 7/23/21), here,
that are still effective and could potentially still require suspension of the criminal
statutes of limitations even if the Iraq AUMF is revoked.

3. I have stated my concern that § 371’s defraud conspiracy
will not support application of the WSLA because the term “defraud” in 18 USC §
371 (defining offense and defraud conspiracies) is broader than the term “fraud”
as generally used in criminal or related statutes such as § 3287. See More on
the Wartime Suspension of Limitations Act (WSLA)
(2/20/21), here,
¶¶ 3 and 4. In both Daugerdas and Wellington the courts thought
it did to apply the WSLA to the defraud conspiracy. I think that was simply a gut holding assuming that “fraud” in § 3287 and “defraud” in § 371 are coextensive; the
two terms are not coextensive because of the atypical and broader interpretation the Court
put on § 371’s use of “defraud” in Hammerschmidt
v. United States
, 265 U.S. 182 (1924).

 a, [Added 4/2/23 1:45pm]: Upon reflection, I am not sure that the Hammerschmidt holding that the § 371 “defraud” conspiracy is boader than “fraud” as used in the WSLA will foreclose using a defraud conspiracy to invoke the WSLA. Conceivably, the “defraud” conspiracy as interpreted in Hammerschmidt includes two types of objects:  (i) a defraud conspiracy with an object to commit fraud; and (ii) a defraud conspiracy with an object to defraud without an object to commit fraud. A special interrogatory or a question on the verdict form might answer which of the two types were used. Cf. United States v. Pursley, 22 F.4th 586, 591-593 (5th Cir. 1/13/22). A special interrogatory could be used to determine ensure that the jury determines which type of object is involved.

b. Use of special interrogatories in criminal cases have received much judicial and scholarly discussion, the concern being that special interrogatories can “lead” the jury to conviction and thus are anti-defendant.  They are used, nevertheless for specialized needs such as the statute of limitations which is a jury issue if the defense of the statute of limitations is in issue in the case and a defendant requests an appropriate submission of the statute of limitations issue to the jury. I won’t get into the nuances of the concerns about special interrogatories, but just cite generally a recent article:  But see e..g. Charles Eric Hintz, Fair Questions: A Call and Proposal for Using General Verdicts with Special Interrogatories to Prevent Biased and Unjust Convictions, 4 U.C. Davis L. Rev. Online 43 (2021), here; and Kate H. Nepveu, Beyond “Guilty” or “Not Guilty”: Giving Special Verdicts in Criminal Jury Trials, 21 Yale L. & Pol’y Rev. 263 (2003), here.

c. I offer an example of how a special interrogatory may be framed in a defraud conspiracy case potentially involving the WSLA and the distinction between defraud and fraud. The judge would give the jury standard jury instructions about the defraud conspiracy (based on the Hammerchmidt broad reading of defraud and explaining the that defraud conspiracy includes both actual fraud or the broader defraud definition of Hammerschmidt (this type of iinstruction would be required to properly instruct the jury that it could convict for defraud which does not require fraud).  The judge would submit to the jury a general jury verdict (Guilty/Not Guilty) form. The judge contemporaneously would submit a sealed envelope with a separate form to be opened and completed only if and after the jury rendered a unanimous general Guilty verdict for the defraud conspiracy defined per Hammerschmidt.  determines unanimously Guilt for the defraud conspiracy. The form inside the sealed envelope would ask whether the jury can find beyond a reasonable doubt that the defraud conspiracy for which the jury found the defendant guilty included at least one overt act with the intent to commit actual fraud (properly defined) after the starting date for the applicable statute of limitations (based on the WSLA).