Time extended for Big Dig prosecution
WWII fraud law applies, judge rules
A federal judge has ruled that prosecutors can pursue scores of fraud charges against former employees of a Big Dig contractor - even though the statute of limitations had expired - because the United States was at war for much of this decade.
In an unusual ruling that introduced questions of war and peace into a corruption case, US District Court Judge Richard G. Stearns said prosecutors can extend the ordinary five-year window to pursue 85 fraud charges against six former managers of Aggregate Industries NE Inc. by applying a seldom-used World War II-era law.
The Wartime Suspension of Limitations Act of 1942 suspends the statute of limitations on fraud committed against the US government during times of war and up until three years after the end of fighting "as proclaimed by the president or by a concurrent resolution of Congress."
Lawyers for the former Aggregate employees countered that the law did not apply because the country was not at war in this decade - at least not in the sense of the 66-year-old statute. They argued, among other things, that the United States did not issue a formal declaration of war against Afghanistan or Iraq.
But Stearns said that was irrelevant.
"The United States has not declared war in any conflict since World War II, despite prolonged engagements in Korea, Vietnam, Kosovo, Afghanistan, and Iraq (twice) and shorter deployments in Panama, Grenada, Haiti, and Somalia, among others," he wrote Friday.
"Certainly not every shot fired or every armed skirmish is of sufficient magnitude to stop the running of the statute of limitations," he added. But given congressional authorizations for the Bush administration to use force in Afghanistan and Iraq, hundreds of billions of dollars spent in both wars, and more than 4,500 US military casualties, the United States was definitely at war and the 1942 statute applied, Stearns wrote.
The ruling preserved 85 counts of highway project fraud and mail fraud filed against the men in May 2006, even though some of their alleged acts took place in 1999. The men, who were indicted for participating in an alleged conspiracy to deliver substandard concrete, face 50 other federal counts that were not part of this challenge .
Assistant US Attorney Brian T. Kelly said the ruling marks the first time prosecutors in the United States have successfully applied the 1942 statute to crimes unrelated to World War II-era fraud. Congress passed the law to prevent contractors from defrauding the government at a time when resources were focused on war.
Kelly said the ruling will probably also give prosecutors greater latitude in mounting other Big Dig fraud prosecutions beyond the statute of limitations, but he declined to discuss specific cases.
"Because [the statute] is not used very frequently doesn't mean it's not good law," he said.
Joshua S. Levy, who represents Keith H. Thomas of Billerica, one of the six defendants, had urged Stearns to dismiss the charges but noted that the case would have gone forward anyway because of the other charges.
"From our standpoint, I wish the trial was narrower, but we look forward to the trial on the merits," he said.
The judge, who quoted 17th-century Dutch philosopher Hugo Grotius and the Oxford English Dictionary as he sought to define war, has scheduled an Oct. 6 hearing during which he is expected to set a trial date, Levy said.
The other defendants are Robert Prosperi of Lynnfield; Gregory A. Stevenson of Furlong, Pa.; John J. Farrar of Canterbury, Conn.; Gerard M. McNally of Rockland; and Marc Blais of Lynn.
They are accused of running a conspiracy that allegedly delivered 5,700 truckloads of tainted concrete - 1.2 percent of the concrete used on the project - to the Big Dig over nine years.
The company was also charged in the case. In January 2007, another federal judge in Boston accepted a guilty plea from Aggregate for supplying the substandard concrete and a $50 million settlement negotiated between the company and the US and state governments.
Stearns said a strong case can be made that the United States remains at war in Afghanistan and Iraq. But after applying the statute, he concluded the Afghan war ended in December 2001 when the United States formally recognized the new government of Hamid Karzai. Stearns concluded that the war in Iraq ended on May 1, 2003, when President Bush, while aboard the USS Abraham Lincoln, proclaimed that "major combat operations in Iraq have ended."
After adding the three years provided in the statute, Stearns calculated that the statute of limitations for the defendants' alleged crimes was suspended from Sept. 18, 2001, to May 1, 2006. The clock then began ticking again, he said, on the roughly 2 1/2 remaining of the original five-year deadline for filing charges.
Jonathan Saltzman can be reached at jsaltzman@globe.com. 