254 F. Supp. 3d 1045
D. Neb.2017Background
- Reese was a GHA employee and tenant (Feb 1, 2010–May 31, 2012) who reviewed and re‑certified tenant rents.
- Indictment (filed Jan 19, 2017) charges Reese under 18 U.S.C. § 641 for embezzling/converting HUD funds between Feb 2011 and Jan 2013.
- Government produced extensive discovery (documents, spreadsheets, interview summaries) identifying dates, amounts, and summaries of alleged acts.
- Reese moved for a bill of particulars to identify specific dates/amounts (statute‑of‑limitations concern) and moved to dismiss arguing the indictment is time‑barred.
- Central legal question: whether § 641 violations can be treated as continuing offenses (which would toll the limitations period) or are discrete acts governed by the 5‑year statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion for bill of particulars | Gov't has provided adequate discovery; not applicable (opposes) | Reese: needs specific dates/amounts to evaluate statute of limitations | Denied — discovery already provided sufficient detail; Reese had enough info to file a motion to dismiss |
| Whether § 641 is a continuing offense for statute of limitations | Gov't: in some factual scenarios (e.g., recurring automatic schemes) § 641 may be continuing | Reese: alleged conduct falls within continuing‑offense theory so indictment timely | Court: § 641 is not categorically a continuing offense; whether continuing depends on statute and Congress' intent. Under these facts, violations are discrete, not continuing |
| Application to this indictment — timeliness of alleged acts | Gov't: some alleged acts fall within five years of indictment | Reese: indictment covers Feb 2011–Jan 2013, thus time‑barred in part | Partial grant: Counts alleging conduct before Jan 19, 2012 are dismissed; allegations on/after Jan 19, 2012 survive |
Key Cases Cited
- Livingstone v. United States, 576 F.3d 881 (8th Cir.) (purpose of bill of particulars)
- Toussie v. United States, 397 U.S. 112 (1970) (statute of limitations and continuing‑offense framework)
- Bennett v. United States, 765 F.3d 887 (8th Cir.) (statute of limitations begins when each element occurs)
- United States v. Smith, 373 F.3d 561 (4th Cir.) (§ 641 can be continuing where defendant maintained an automatic recurring scheme)
- United States v. Jacob, 781 F.2d 643 (8th Cir.) (continuing offense completes when proscribed conduct ends)
- United States v. Yashar, 166 F.3d 873 (7th Cir.) (analyzing continuing‑offense doctrine in related statutes)
- United States v. Reitmeyer, 356 F.3d 1313 (10th Cir.) (discrete crimes less likely intended as continuing)
- Bailey v. United States, 444 U.S. 394 (1980) (example of a continuing offense where detention continues over time)
- United States v. Garcia, 854 F.2d 340 (9th Cir.) (kidnapping treated as continuing due to ongoing detention)