754 F. Supp. 2d 186
D. Mass.2010Background
- Phan is charged with theft of public money under 18 U.S.C. § 641 for embezzling SSI benefits, totaling $24,392, deposited to her bank 2004–2006; initial misuse occurred while she was a case manager at IRC and acting as Luong's authorized representative; Luong previously received SSI checks sent to IRC where Phan discharged cash to Luong; the alleged scheme began in 2003 and continued through December 2006; indictment filed April 14, 2010; Phan moved to dismiss on statute of limitations grounds on September 29, 2010; court will consider her reply despite no leave to file it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 641 is a continuing offense for SOL purposes | Government asserts continuing-offense theory. | Phan contends offense completes when threshold is reached; no continuing-offense doctrine applies. | Court finds § 641 can be continuing in this case; indictment not time-barred. |
| Whether the conduct constitutes a single continuing scheme under § 641 | Smith/related authorities support a continuing-scheme view enabling one offense across multiple deposits. | Phan argues separate acts with discrete completion. | Court holds a continuous scheme existed; multiple acts form one continuing offense. |
Key Cases Cited
- Toussie v. United States, 397 U.S. 112 (1970) (statutory limitations begin when crime is complete; continuing offenses may toll)
- Morales v. United States, 11 F.3d 915 (9th Cir. 1993) (continuing-offense framework requires harm and conduct extending over time)
- United States v. Yashar, 166 F.3d 873 (7th Cir. 1999) (continuing-offense concept to recast the timing of liability when conduct persists)
- United States v. Smith, 373 F.3d 561 (4th Cir. 2004) (recurring, automatic SSI-like scheme can be a continuing offense)
- United States v. Daley, 454 F.2d 505 (1st Cir. 1972) (multiple acts forming a single continuing scheme possible under §641)
- United States v. Billingslea, 603 F.2d 515 (5th Cir. 1979) (scheme that yields recurring embezzlement can be a single crime)