United States v. Curtis Holden, 806 F.3d 1227

Dr. Curtis T. Holden, owner of Advanced Podiatry in Washington, was indicted for health care fraud under 18 U.S.C. § 1347 related to billing for services at a nursing facility on January 6, 2006 and later dates.
Original indictment (Apr 21, 2011) charged 59 counts; the district court dismissed Counts 41 and 43–56 as time-barred under the five-year statute of limitations, but left Count 42 based on payment dates.
The government filed a Second Superseding Indictment consolidating the dismissed counts with Count 42 into a single revised Count 41 alleging a continuing scheme from Jan 6, 2006 through Feb 27, 2007.
Holden moved to dismiss the revised count as barred by the statute of limitations, as impermissibly broadening the charges, and for failing to allege execution of a scheme; he also contended that Counts 42–44 constituted a constructive amendment.
The district court denied dismissal; after a seven-day jury trial Holden was convicted on 32 counts and acquitted on several others.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether revised Count 41 was barred by the 5-year statute of limitations	Gov: §1347 is a continuing offense; last execution/payment in Feb 2007 tolled limitations	Holden: Multiple acts from Jan 2006 were time-barred individually and cannot be consolidated to avoid limitations	The court: §1347 is a continuing offense; revised Count 41 pleaded one execution within limitations and was permitted
Whether revised Count 41 impermissibly broadened charges (relation back)	Gov: Superseding count tracks same factual allegations and fits within savings clause	Holden: New language exposed him to liability for a 14-month period beyond original allegations	The court: Indictment read as whole showed same factual allegations; no substantial broadening; notice was adequate
Whether revised Count 41 failed to allege an execution of a fraudulent scheme	Gov: Count alleged submission/causing submission of false Medicare claims (E/M visits) — execution alleged	Holden: For the first time on appeal, argued the count did not allege an execution	The court: Liberal construction shows execution was alleged; claim forfeited below; count sufficient
Whether inclusion of Counts 42–44 (2010 conduct) constructively amended the original indictment	Gov: Grand jury returned Counts 42–44; evidence matched those counts and did not expand the indictment materially	Holden: Addition improperly expanded indictment	The court: No constructive amendment; no impermissible expansion

Toussie v. United States, 397 U.S. 112 (holding continuing-offense concept and when crime is complete)
United States v. Molinaro, 11 F.3d 853 (describing execution of fraudulent scheme and charging each execution)
United States v. Hickman, 331 F.3d 439 (holding §1347 is a continuing offense by analogy to §1344)
United States v. Awad, 551 F.3d 930 (§1344 interpretive model for §1347; each execution may be charged as separate count but need not be)
United States v. Najjor, 255 F.3d 979 (treating §1344 as a continuing offense)
United States v. King, 200 F.3d 1207 (an act that could be an independent execution need not be charged separately)