United States v. Green
897 F.3d 443
2d Cir.2018Background
- Green received VA benefits deposited into a joint account she shared with her mother; her mother died January 10, 2009.
- Green notified the VA on February 9, 2009, but VA deposits continued automatically through August 2, 2011; Green withdrew funds similar to the deposits.
- The government charged Green under 18 U.S.C. § 641 by Information filed February 8, 2016, alleging theft totaling $35,774 between January 10, 2009 and August 2, 2011.
- Green pleaded guilty and agreed to pay restitution “equal to the sum of payments unlawfully received within the applicable limitations period,” while expressly reserving the right to contest restitution for payments outside the limitations period.
- At sentencing the district court treated § 641 as a continuing offense and ordered full restitution ($35,744) including amounts received more than five years before the Information.
- Green appealed; the Second Circuit considered waiver, whether her plea consented to full restitution, and whether § 641 is a continuing offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Green waived her right to appeal the restitution order | Gov: Plea waiver bars appeal of restitution | Green: Plea expressly reserves right to contest restitution outside limitations period | Waiver does not bar appeal — reservation permits challenge |
| Whether Green consented in her plea to pay restitution for all VA losses (including pre‑limitation losses) | Gov: Guilty plea admitting full loss equals consent to full restitution | Green: Plea limited restitution to amounts within the applicable limitations period and reserved challenge to amounts outside it | No implied consent — plea does not authorize restitution beyond the limitation period |
| Whether § 641 is a continuing offense (so statute of limitations covers entire multi‑year scheme) | Gov: Conversion of recurring automatic payments yields a continuing offense covering all conversions | Green: Each conversion is a discrete offense; statute of limitations bars prosecution/restitution for pre‑period acts | § 641 (embezzlement/stealing/conversion) is not by its nature a continuing offense; district court erred in ordering restitution for pre‑limitation losses |
Key Cases Cited
- United States v. Silkowski, 32 F.3d 682 (2d Cir. 1994) (district court cannot order restitution for losses outside statute of limitations absent defendant's agreement)
- Toussie v. United States, 397 U.S. 112 (1970) (continuing‑offense analysis: statute language or clear congressional intent required)
- United States v. Smith, 373 F.3d 561 (4th Cir. 2004) (holding § 641 can be a continuing offense in recurring automatic‑payment schemes)
- United States v. Yashar, 166 F.3d 873 (7th Cir. 1999) (statutory language, not factual description of conduct, governs continuing‑offense determination)