United States District Court, D. Rhode Island
For Christine Powell, also known as Christine Powell-Fiander, Defendant: Tara I. Allen, LEAD ATTORNEY, Federal Public Defender Office, Providence, RI.
For USA, Plaintiff: Richard W. Rose, LEAD ATTORNEY, United States Attorney's Office, Providence, RI.
MEMORANDUM AND ORDER
John J. McConnell, Jr., United States District Judge.
This matter is before the Court on Christine Powell's Motion to Dismiss the Indictment (ECF No. 19), contending that it runs afoul of the statute of limitations and that it is duplicitous. In brief, the Court concludes that 18 U.S.C. § 641 is not a continuing offense, and thus the acts of embezzlement charged to have occurred more than five (5) years before the filing of the Indictment are barred by the applicable statute of limitations. The Court does not agree, however, that the remedy is dismissal of the Indictment. Nor does the Court agree that the Indictment is duplicitous.
The government alleges that Ms. Powell willfully embezzled $110,328.00 in Social Security payments by failing to report the death of her grandmother, to whom the benefits were due and paid. Instead, after her grandmother's death, according to the government, Ms. Powell converted to her own use the payments made into a bank account she had jointly held with her grandmother.
Ms. Powell's grandmother died in June 2001. The Indictment charges that the embezzlement began in July 2001 and continued to March 2013.
Statute of Limitations
The appropriate statute of limitations for an offense charged under 18 U.S.C. § 641 is five years. 18 U.S.C. § 3282(a).
The Indictment was filed on June 18, 2014. (ECF 1). Whether the government can charge acts occurring prior to June 18, 2009, depends on whether embezzlement prosecuted under § 641 is a " continuing offense." Ordinarily, acts occurring prior to June 18, 2009, would be barred, but an exception exists for offenses that are deemed " continuing." In those cases, the charging instrument can reach back to embrace conduct occurring outside the limitations period, so long as the charge is filed within five years of the completion of the offense.
The First Circuit has not spoken on whether this § 641 offense is a " continuing" one. There are, however, conflicting decisions among some other Circuits as well as conflicting decisions from two district courts within this Circuit. Compare, United States v. Yashar, 166 F.3d 873, 879 (7th Cir. 1999) (holding that " the limitations period would be virtually unbounded" if embezzlement under 18 U.S.C. § 666 were a continuing offense) with United States v. Smith, 373 F.3d 561, 567-68 (4th Cir. 2004) (holding that a section 641 violation was continuing because in that case it involved a " recurring, automatic scheme of embezzlement under section 641 by conversion of funds voluntarily placed in the defendant's possession by the government" ).
A " continuing offense" is one that either Congress by explicit language intended to be considered " continuing" or it is one which by its very nature is inherently " continuing." Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). In that case, Robert Toussie was indicted 8 years after his 18th birthday for failing to register for the draft. He contended the charge could be brought only within five years of the registration period, which ended five days after his 18th birthday. The government claimed the offense was one that " continued to be committed each day that Toussie did not register." Id. at 114. Because the continuing offense doctrine is inconsistent with the purpose of statutes of limitations, the Court held it should only be invoked " [where] the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved in such that Congress must assuredly have intended that it be treated as a continuing one." Id. Finding nothing in the Selective Service Act that manifested an intent that failure to register be a continuing offense, the ...