United States v. Kubitshuk
1:16-cr-00711
S.D.N.Y.Aug 17, 2017Background
- Four defendants (Shlomo and Rachel Kubitshuk; Naftali and Hinda Englander) indicted (Oct. 25, 2016) for obtaining federal housing, Medicaid, and SNAP benefits by allegedly failing to disclose substantial rental income from U.S. and U.K. real estate.
- Counts 3–7 allege benefit receipt and retention over multi-year periods, some dates predating five years before the indictment.
- Defendants pleaded not guilty and moved to: (1) dismiss pre‑limitation‑period conduct as time‑barred under 18 U.S.C. § 3282(a); (2) dismiss for improper venue in SDNY; and (3) obtain a bill of particulars specifying yearly income/assets and program eligibility rules.
- The Indictment charges retention/receipt language ("receive, conceal, and retain"), which the Government contends makes Section 641 a continuing offense.
- Government discovery included eligibility charts and detailed allegations; benefit payments were reportedly wired from NYCHA/NYHRA offices in Manhattan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations: whether Section 641 is a continuing offense | Section 641’s retention language yields a continuing offense; limitations tolled while defendants retained embezzled funds | Pre‑2011 conduct is time‑barred because defendants had to actively recertify eligibility (not an automatic/continuous scheme) | Held: Section 641 is a continuing offense when it charges retention; motion to dismiss pre‑2011 conduct denied |
| Active vs. passive receipt (impact on continuity) | N/A (Government relies on statutory retention, not passive scheme) | Because defendants recertified annually, their scheme was active and not a continuing offense | Held: Continuity depends on statute’s nature (retention), not whether the receipt was active or passive; defendants’ argument rejected |
| Venue (SDNY proper?) | Venue proper where offense began, continued, or concluded; wired payments from Manhattan make SDNY proper | All relevant acts occurred in Brooklyn/Eastern District; applications and recertifications were mailed/received there | Held: SDNY is proper — benefits wired from Manhattan and Rutigliano controls; defendants fail to show prejudice |
| Bill of particulars: scope of required disclosures | N/A (Government provided discovery; limited particulars sufficient) | Request for detailed yearly income/assets and all NYCHA/NYHRA manuals/regulations | Held: Denied — Government provided ample particularized discovery; sweeping document demands inappropriate for a bill of particulars |
Key Cases Cited
- Toussie v. United States, 397 U.S. 112 (Sup. Ct.) (continuing‑offense test and principles)
- United States v. Rivera‑Ventura, 72 F.3d 277 (2d Cir.) (discussion of continuing offense concept)
- United States v. Yashar, 166 F.3d 873 (7th Cir.) (hallmark of continuing offense)
- United States v. Smith, 373 F.3d 561 (4th Cir.) (Section 641 can be continuing where defendant received recurring automatic benefits)
- United States v. Motz, 652 F. Supp. 2d 284 (E.D.N.Y.) (continuing‑offense analysis focuses on statute’s nature)
- United States v. Kim, 246 F.3d 186 (2d Cir.) (venue in continuing‑offense cases where offense began, continued, or concluded)
- United States v. Svoboda, 347 F.3d 471 (2d Cir.) (venue foreseeability and causation tests)
- United States v. Geibel, 369 F.3d 682 (2d Cir.) (overt act in a district can establish venue)
- United States v. Goldberg, 756 F.2d 949 (2d Cir.) (indictment allegations taken as true on motion to dismiss)
- United States v. Rutigliano, 790 F.3d 389 (2d Cir.) (scheme not complete until proceeds received; payments routed through SDNY can support venue)
- United States v. Saavedra, 223 F.3d 85 (2d Cir.) ("substantial contacts" test for venue/prejudice)
- United States v. Mandell, 710 F. Supp. 2d 368 (S.D.N.Y.) (standard for bill of particulars)
- United States v. Facciolo, 753 F. Supp. 449 (S.D.N.Y.) (Government not required to preview its case via bill of particulars)