99 F. Supp. 3d 262
D.R.I.2015Background
- Powell moved to dismiss the Indictment on statute of limitations and duplicitousness grounds.
- Indictment alleges willful embezzlement of $110,328 in Social Security benefits by failing to report the death of Powell's grandmother and redirecting funds to a jointly held account.
- Grandmother died June 2001; Indictment alleges embezzlement from July 2001 to March 2013.
- Statute of limitations for §641 offenses is five years; Indictment was filed June 18, 2014.
- Court holds §641 is not a continuing offense, thus acts before June 18, 2009 are generally time-barred, and orders truncation of the Indictment to post-June 18, 2009 acts; Court denies dismissal but grants partial truncation.
- Court addresses and resolves duplicity issue by approving aggregation of multiple transactions into a single count, with potential unanimity concerns to be addressed at trial later.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is §641 a continuing offense for SOL purposes? | Powell argues §641 is continuing. | Government argues not clearly continuing or inherently ongoing. | §641 is not a continuing offense. |
| What is the proper remedy for pre-limitations conduct if not dismissal? | Powell seeks dismissal of pre-limitations acts. | Indictment should not be dismissed; truncation is appropriate. | Court truncates Indictment to acts after June 18, 2009; dismissal denied. |
| Is the Indictment duplicitous by aggregating multiple transactions into one count? | Powell contends duplicitous. | Aggregation into a single count is permissible. | Indictment not duplicitous; aggregation permissible; unanimity issues reserved for trial. |
Key Cases Cited
- United States v. Bundy, 2009 WL 902064 (D. Me. 2009) (disfavored continuing-offense treatment for embezzlement; discussed different offenses within the same case)
- United States v. Smith, 373 F.3d 561 (4th Cir. 2004) (addressed continuing-offense concept in §641; cautioned not all embezzlement is inherently continuing)
- Phan v. United States, 754 F. Supp. 2d 186 (D. Mass. 2010) (held §641 can be continuing based on case facts; criticized as tri-part test)
- United States v. Venti, 687 F.3d 501 (1st Cir. 2012) (affirms non-dismissal reasoning; discusses pre-limitations funds in joint accounts)
- United States v. Newell, 658 F.3d 1 (1st Cir. 2011) (upheld aggregation structure; addressed duplicitous-indictment concerns with unanimity)
- United States v. Cruzado-Laureano, 404 F.3d 470 (1st Cir. 2005) (upheld aggregation to meet jurisdictional minimum; related unit-of-prosecution issues)
- United States v. Verecchia, 196 F.3d 294 (1st Cir. 1999) (aggregation can be permissible; discusses unit of prosecution)
- Toussie v. United States, 397 U.S. 112 (1970) (set framework for determining continuing-offense versus non-continuing)
- United States v. Bailey, 444 U.S. 394 (1980) (example of inherent continuing threat for offense)
- Bailey v. United States, 120 U.S. 274 (1887) (cohabitation discussed in Snow context for continuing-offense)
- Snow v. United States, 120 U.S. 274 (1887) (cohabitation described as continuing offense)