In a short and interesting opinion, available here, the Second Circuit held today that (1) a defendant did not waive her right to appeal a restitution order on the ground that it covered conduct outside the statute of limitations period, and (2) that violations of 18 U.S.C. § 641 (embezzlement of government property) are not continuing offenses, rendering the defendant liable for funds embezzled outside the limitations period. See United States v. Green, No. 16-3044 (2d Cir. 2018) (Cabranes, Carney, Goldberg (Ct. Intl. Trade )) (appeal from W.D.N.Y.). The second of these holdings, concerning the scope of § 641, creates a circuit split.
The defendant in Green was charged under § 641 for drawing money out of a joint bank account between 2009 and 2011 in amounts similar to those of VA payments to her deceased mother that went into the account. She pled guilty, and signed a plea agreement consenting to pay restitution “equal to the sum of payments unlawfully received within the applicable limitations period.” Slip op. at 5. The agreement expressly reserved the right to contest restitution for payments outside the five-year limitations period. This language, the Second Circuit held, was sufficient to preserve the defendant’s appellate rights notwithstanding a separate provision in the plea agreement waiving the right to contest “any order of restitution that is consistent with governing law and is not contrary to the terms of th[e] agreement.” Id. at 7 (alterations omitted).
Next, the panel held that, contrary to the Fourth Circuit’s interpretation of the statute, violations of § 641 are not continuing offenses. That is, under § 641, a defendant is not liable for any embezzlement of funds that occurred more than five years before the defendant was charged. See id. at 9-13.
Ordinarily, the completion of an offense “occurs at the moment the defendant’s conduct satisfies every element of the offense.” Id. at 9. A continuing offense (such as conspiracy) “contemplates a prolonged course of conduct” that is complete only when the conduct has run its course. Id. at 10 (quoting Toussie v. United States, 397 U.S. 112, 120 (1970)). A crime is not a continuing offense, however, “‘unless the explicit language of the substantive criminal statute compels the conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.'” Id. (quoting Toussie, 397 U.S. at 115).
Here, the government conceded that § 641’s language does not compel the conclusion that violations of the statute are continuing offenses. Nor, the Circuit held, are these offenses “by their nature continuing offenses.” Id.
The Fourth Circuit reached a different conclusion with respect to § 641 by looking at the actual conduct of the defendant who was charged in the case before them. United States v. Smith, 373 F.3d 561 (4th Cir. 2001). This approach, the Second Circuit held, is incompatible with the holding of Toussie. Instead, one must look to “Congress’s intent as expressed in the ‘explicit language’ of the statute.'” Slip op. at 11 (quoting Toussie, 397 U.S. at 115).
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