Based on the laws cited below the DOJ can prosecute a BK fraud action for up to five years from the date of discharge.
841. Concealment of Property—18 U.S.C. § 152(1)
The concealment of property can be charged under either 18 U.S.C. § 152(1) or § 152(7). One of the important differences between these two paragraphs is that under Subsection (1) the property which was concealed must be property of the bankruptcy estate.
Subsection (1) of Section 152 provides 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. . ., imprisoned. . ., or both.
The elements of the offense of concealment under 18 U.S.C. § 152(1) that the government must prove are:
- the bankruptcy proceeding was in existence;
- the defendant fraudulently concealed the property from the custodian; and
- the property belonged to the bankruptcy estate.
Devitt, Blackmar & O'Malley, 2 Federal Jury Practice and Instructions, § 24.03 (4th ed. 1990); United States v. Guiliano, 644 F.2d 85, 87 (2d Cir. 1981); United States v. Beery, 678 F.2d 856 (10th Cir. 1982),cert. denied, 471 U.S. 1066 (1985).
Title 18 U.S.C. § 3284 contains a special statute of limitations which applies to concealment of assets cases:
The concealment of assets of a debtor in a case under title 11 shall be deemed to be a continuing offense until the debtor shall have been finally discharged or a discharge denied, and the period of limitations shall not begin to run until such final discharge or denial of discharge.
Where the debtor either receives a discharge or is denied a discharge by court order, the application of § 3284 is easy. The five year period begins with the date of the discharge or denial of the discharge.
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