                                                                         PUBLISH


                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT

                          -------------------------------------------

                                       No. 97-2208

                          --------------------------------------------

                        D. C. Docket No. 3:96-CR-47-LAC


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

     versus


RICHARD L. GILBERT,

                                                             Defendant-Appellant.


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                 Appeal from the United States District Court
                     for the Northern District of Florida

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                                    (March 18, 1998)


Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.
EDMONDSON, Circuit Judge:


     Defendant Richard Gilbert appeals his


conviction          for      concealing   assets   of   a


bankrupt’s estate, in violation of 18 U.S.C.

         1
§ 152.       Defendant challenges the district


court’s failure to dismiss the indictment


 18 U.S.C. § 152 provides, in relevant part,
 1


that “[a] person who . . . knowingly and
fraudulently conceals from a custodian,
trustee, marshal, or other officer of the
court charged with the control or custody of
property, or, in connection with a case
under title 11, from creditors or the United
States Trustee, any property belonging to
the estate of a debtor . . . shall be fined
under        this   title,    imprisoned   not     more
than 5 years, or both.”

                                2
                                                 2
as barred by the statute of limitations.


We agree with Defendant. Thus, we reverse


the conviction.




                  Background



   2
    Defendant also argued, among other
things, that the indictment should have
been dismissed due to pre-indictment delay;
that insufficient evidence existed upon
which a jury could have based the guilty
verdict;    and   that       the   district   court
improperly        determined         Defendant’s
sentence.

                         3
        Defendant was the president and


sole stockholder of Corporate Air Limited,


Inc. (“CAL”).   In 1985, CAL contracted to


purchase   a    piece   of     real    estate    called


Robinson   Island.        Before       the    sale   of


Robinson    Island       to     CAL     was      final,


Defendant formed a second corporation to


take title to the property.              The second


corporation     was     Isle    of    Fantasy,    Inc.


(“IOF”). IOF paid for Robinson Island using


funds   received    from        CAL.     The     funds




                         4
provided by CAL represented either loans


to IOF or an interest in Robinson Island


to be held by CAL.


   In   1987,     CAL     filed    a    petition          for


bankruptcy        under        Chapter        11    of    the


Bankruptcy Code. The petition included the


necessary schedules of CAL’s assets.                      No


interest     in   connection           with        Robinson


Island was disclosed.


   On    1   December          1987,    CAL        had    the


bankruptcy        petition        converted              from




                           5
Chapter 11 (reorganization) to Chapter 7


(liquidation).    A bankruptcy trustee was


appointed; and eventually the existence of

                                            3
Robinson Island, and CAL’s interest, was


discovered.


   Defendant was indicted in July 1996 for


concealing assets of the bankrupt’s estate:


CAL’s     interest      in   Robinson     Island.


Defendant        moved       to   dismiss       the



   3
       Defendant disputes that an interest
existed    in    Robinson    Island.     For    our
purposes,   we    can   assume    that   such   an
interest did exist.

                         6
indictment as barred by the statute of


limitations.    That   motion   was   denied.


Defendant was convicted of concealing


assets of the bankrupt’s estate.




                Discussion




   The general statute of limitations for


noncapital offenses is


five years. See 18 U.S.C. § 3282 (“Except as


otherwise expressly provided by law, no




                       7
person      shall    be     prosecuted,        tried,     or


punished    for     any      offense,        not    capital,


unless    the   indictment             is   found   or    the


information         is     instituted        within      five


years next after such offense shall have


been     committed.”).           The    parties     do   not


dispute    that     this    five-year        limitations


period     applies         to      the       offense       of


concealment         of     assets.          Instead,      the


dispute is about when the time began to


run.




                             8
   We     review      the     district     court’s


interpretation       and    application     of   the


statute   of   limitations     de   novo.        See


Grayson v. K Mart Corp., 79 F.3d 1086, 1105


(11th Cir. 1996) (interpretation of statute is


question of law reviewed de novo); Morris


v. Haren, 52 F.3d 947, 949 (11th Cir. 1995)


(same).


   “Statutes    of    limitations        normally


begin to run when the crime is complete.”


Pendergast v. United States, 63 S.Ct. 268,




                       9
271       (1943).         But   some      offenses        are


considered continuing offenses: offenses


which are not complete upon the first


illegal    act,     but    instead       continue    to    be

                                     4
perpetrated over time.                   Offenses should


not be considered continuing unless “the


explicit language of the . . . statute compels




   A continuing offense is the “[t]ype of
   4


crime which is committed over a span of
time as, for example, a conspiracy.                  As to
period of statute of limitation, the last
act       of      the      offense        controls        for
commencement of the period. . . .”                  Black’s
Law Dictionary 291 (5th ed. 1979).

                                10
such a conclusion, or the nature of the


crime involved is such that Congress must


assuredly have intended that it be treated


as   a   continuing   [offense].”   Toussie   v.


United States, 90 S.Ct. 858, 860 (1970).


     Congress   has   explicitly    recognized


concealment of assets as a continuing


offense: “The concealment of assets of a


debtor in a case under title 11 [bankruptcy]


shall be deemed to be a continuing offense


until the debtor shall have been finally




                       11
discharged or a discharge denied, and the


period of limitations shall not begin to


run until such final discharge or denial of


discharge.” 18 U.S.C. § 3284 (emphasis added).


So, not only has Congress expressed that


concealment      is   a    continuing       offense,


Congress   has    also    specified    when    that


continuing       offense       shall   be    deemed


complete for limitations purposes.


   “Statutes of limitations, both criminal


and civil, are to be liberally interpreted in




                          12
favor of repose.”     United States v. Phillips,


843 F.2d 438, 443 (11th Cir. 1988); see also


United States v. Marion, 92 S.Ct. 455, 464


n.14 (1971). The Supreme Court has addressed


what    a   court     should     consider        when


determining        when        the    statute         of


limitations begins to run:


   In   deciding     when     the    statute     of
   limitations      begins     to    run    in   a
   given case several considerations
   guide our decision.       The purpose of a
   statute of limitations is to limit
   exposure to criminal prosecution to
   a   certain     fixed     period    of   time
   following   the   occurrence        of   those


                        13
   acts the legislature has decided to
   punish by criminal sanctions. Such
   a limitation is designed to protect
   individuals from having to defend
   themselves against charges when the
   basic      facts   may      have   become
   obscured by the passage of time and
   to minimize the danger of official
   punishment because of acts in the
   far-distant past. Such a time limit
   may also have the salutary effect of
   encouraging          law    enforcement
   officials promptly to investigate
   suspected criminal activity.


Toussie, 90 S.Ct. at 860.     When doubt exists


about   the   statute    of   limitations   in   a


criminal case, the limitations period should


be construed in favor of the defendant.


                         14
See United States v. Habig, 88 S.Ct. 926, 929


(1968).       With these thoughts in mind, we


turn to the case before us.


    Section          3284       provides      that     the


limitations period begins when the debtor


is discharged or denied discharge. CAL, as a


corporate debtor, potentially could have


received discharge under Chapter 11.                 See 11


U.S.C.    §   1141(d)(1)(A)   (“Except   as   otherwise


provided in this subsection, in the plan, or


in the order confirming the plan, the




                               15
confirmation of a plan . . . discharges the


debtor from any debt that arose before the


date of such confirmation . . . .”). But when


CAL converted from Chapter 11 to Chapter


7, discharge was no longer possible. Under


Chapter 7, a corporate debtor cannot be


discharged.   See 11 U.S.C. § 727 (“The court


shall grant the debtor a discharge, unless .


. . the debtor is not an individual . . . .”).


   The government argues that, because


discharge     (and    therefore     denial       of




                        16
discharge) is no longer possible for CAL, the


statute of limitations never will begin to


run.    This view would place the offense of


concealment         of    assets   in    the   same


category       as    capital       offenses,     the


extraordinary        offenses      for   which   no


limitation exists.        We cannot agree that


Congress intended that result.


     Congress last amended 18 U.S.C. § 3284


in     1948.   The       amendments       were   in


response to an asset concealment case,




                           17
United States v. Fraidin, 63 F. Supp. 271


(D.Md. 1945), and are discussed in United


States v. Guglielmini, 425 F.2d 439 (2d Cir.


1970):


   In    1945,   six       men         had     been
   prosecuted    for       concealment           of
   assets in the District of Maryland.
   At that time, the statute governing
   the period of limitation read: “* * *
   concealment of assets * * * shall be
   deemed to be a continuing offense
   until the bankrupt shall have been
   finally discharged, and the period of
   limitation * * * shall not begin to
   run   until     such        final   discharge.”
   Because   [in     Fraidin]          there    had
   never been an application for a
   discharge, and the time to apply for


                          18
a discharge had expired, the trial
court faced a situation where the
statute of limitations would never
run under the strict wording of the
tolling section, since there was no
longer     a    possibility            of   “final
discharge.”     The district court held
that the intent of Congress could be
followed only by reading the tolling
provision as if the words “or until
denial thereof” were appended to
“final   discharge.”       .   .   .    Congress
subsequently closed the statutory gap
by amending the tolling provision
as   the      court    in          Fraidin     had
construed      it.    As       Fraidin       itself
involved a waiver, rather than a
denial, of discharge, it is clear to us
that Congress intended a waiver to
have the same effect as a denial for
the purpose of calculating the period
of limitation.


                      19
Guglielmini, 425 F.2d at 442-43 (emphasis


added) (footnote omitted).


   “While there is little recent case law on


this issue, several courts have extended the


statute of limitations under section 3284


to events that have the same effect as


denying   a   discharge   of   the   bankrupt.”


United States v. Dolan, 120 F.3d 856, 867


(8th Cir. 1997) (citing Guglielmini, 425 F.2d


at 443; Rudin v. United States, 254 F.2d 45,




                     20
47 (6th Cir. 1958); United States v. Zisblatt


Furniture Co., 78 F. Supp. 9, 12-13 (S.D.N.Y.


1948)).      Courts addressing this issue have


determined that, where discharge is no


longer possible, the date upon which the


discharge became impossible is the date


upon      which    the   statute   of   limitations


begins     to     run.    In    other    words,   the


limitations period should begin when an


event occurs that has the same effect as


the denial of discharge. Events which have




                           21
been held to have the same effect as denial


of   discharge     include     the    voluntary


dismissal of bankruptcy proceedings, the


waiver of discharge, and the failure to file


timely for discharge. See Guglielmini, 425


F.2d at 443; Rudin, 254 F.2d at 47; Zisblatt


Furniture   Co.,   78   F.   Supp.   at   12-13;   cf.


Winslow v. United States, 216 F.2d 912, 915


(9th Cir. 1954) (because power to apply for


discharge   remained         with     defendant,


statute of limitations did not begin to




                        22
run   until   application     for   discharge        or


denial of discharge).


   Considering          the         alternative


interpretation           offered        by       the


government,       that       no      statute         of


limitations applies to situations like this


one, we decide that Defendant’s view of the


law is correct:   “[T]he period of limitation


runs from the date of the event when


discharge     becomes    impossible     .    .   .    .”


Guglielmini, 425 F.2d at 443. In our view,




                        23
CAL’s choice to convert from Chapter 11 to


Chapter   7     operated      like   a   waiver   of


discharge, making discharge impossible.


   When CAL’s bankruptcy was converted


to Chapter 7, on 1 December 1987, discharge


was no longer possible; and the statute of


limitations      began     to    run.     Thus,   the


government had until December 1992 to


file an indictment for the concealment of


CAL’s assets.    The indictment in this case


was not filed until July 1996. Therefore, the




                         24
charges against Defendant were brought


after   the   expiration   of   the   period   of


limitations; and the motion to dismiss the


indictment should have been granted.


   REVERSED.




                     25
