*2 MICHAEL, Bеfore LUTTIG Judges, and D. Circuit William QUARLES, Jr., District United States Maryland, sitting Judge for the District of by designation. PER by published CURIAM
Affirmed opinion. Judge MICHAEL wrote dissenting opinion.
OPINION
PER CURIAM:
Smith, appeals
Appellant, Alfred
stealing,
embezzling,
his conviction
(In
purloining
converting
to his own use
violation of Title
United States
belonging
funds
to the
Security
Code,
641).
Social
Ad
Section
(“SSA”)
ministration
in violation of 18
Section
provides
that theft of prop-
641. Smith
that the in
asserts
erty with a value in
$1,000
excess of
is a
*3
against
dictment
him was unconstitutional
felony punishable by a maximum term of
i.e.,
ly duplicitous,
joined
two or
imprisonment of
years.
tеn
If
proper-
more distinct and separate
offenses
one
ty has a
$1,000,
value of less than
single
Burns,
count. United States v.
990 violation is a misdemeanor with a term of
Cir.1993).
When an imprisonment not to exceed one year. 18
indictment impermissibly joins separate of
(2004).
fenses that
times,
occurred at different
From March 1994 through February
prosecution of the
may
earlier acts
payments
were electronically de-
by
barred
the statute of limitations. Unit
posited
joint
into Smith’s
account with his
Beard,
ed States v.
knowledged that he knew it
wrong
was
I.
him to receive the
payments
benefit
after
his mothеr’s death.
24, 2003,
On January
a Grand Jury re-
turned a one-count
indictment against
II.
Smith, charging:
purpose
limi
statute of
Estelle Smith died on February
tations is to
exposure
limit
to criminal
defendant,
ALFRED SMITH did
prosecution
illegal
following
act. Tous
report
the death of Estelle Smith to
sie v.
112, 114,
the Social Security Administration and
(1970).
S.Ct.
in the Eastern District Virginia of acts in the past.” far-distant at 114- Id. elsewhere, the defendant ALFRED 15, 90 SMITH, did knowingly, intentionally embezzle, steal, willfully purloin and Statutes of limitations should not “ use, convert to his own on a recurring be extended as ‘except otherwise ex ” basis, record, voucher, money pressly provided law.’ thing of belonging value to the 3282). Social S.Ct. (quoting 18 U.S.C. Security Administration, to wit: Normally, Sоcial the statute of limitations will Security Administration benefits begin issued run single when a criminal act is Smith, to Estelle totaling approximately complete. Id. Criminal acts over an ex $26,336.00. tended period, may be treated as pur- continuing limitations offense” “continuing it be treated in section 641 as a explicitly statute a criminal offense. The term "embezzle" includes
poses when
of the
result,
nature
if “the
appropriation
proper
compels that
"the fraudulent
must
is such
ty"-e.g.,
taking
crime involved
"the deliberаte
or retain
it be treated
assuredly have
property
of the ...
of another with the
continuing one.”
deprive
intent to
the owner of its use or
benefit"-"by
person
into whose
whether
decide
first
But we
lawfully
hands it has
come. It differs from
ag
properly
conduct
larceny
original taking
in the fact that the
In determin
single
count.
gregated
lawful,
or with the
takings
proper
are
a series
ing whether
*4
O'Malley
consent of the owner." Kevin F.
the
must examine
the court
aggregated,
ly
al.,
Jury
Instructions,
et
Federal
Practice and
taking.
the first
actor
intent of the
16.01,
(2000 Supp. 2003)
§
16.03
&
515,
603
Billingslea,
v.
(quoting
elaborating
from and
on "the clas
Cir.1979).
actor formulated
(5th
If the
520
sic,
standard,
almost
definition of `embez
up a mechanism
or [set]
plan
“a
or scheme
given by
Supreme
zlement'
...
the
Court
which,
operation, [would]
into
put
when
States,
in" Moore v. United
of sums
or
taking
diversion
in the
result
269-70,
(1895)).
basis,” the crime
16 S.Ct.
patterned and
2003)(noting
while,
general, [em
"in
aggregated
properly
indictment
(1)
bezzlement]
be defined as:
the
into one count.
charged conduct
(2)
(3)
proper
fraudulent
ty (4)
conversionof
the
acts
chargеs the
The indictment
(5)by
already
of another
one who is
conjunctive. See
single
the
its
count
possession it,"
in lawful
"some statutes
know
“did
(alleging that Smith
46-47
J.A.
scope
by requir
limit the
of embezzlement
steal,
con
embezzle,
purloin, and
ingly
ing
property
that the
be `entrusted' ...
issue)
funds at
his own use” the
vert to
embezzler")(emphasisadded).
We do
added).
given that section
But
(emphasis
imposes
not think that section 641
this
gov
disjunctively,
acts
lists those
requirement,
amply
a conclusionthat is
course,
required
ernment,
only was
supported by
lеading Supreme
Court
satisfied one
conduct
prove
scope
case on the
of embezzlementunder
that count. See
to convict
those acts
law,
interpreta
federal
as well as
Brandon,
tions made
other circuits of section641
Cir.2002).
indictment, there
particular. See, e.g.,
Jorgensen,
Paul C.
embezzlement, a
if
fore,
be sufficient
would
Embezzlement,
24 Am.Crim. L. Rev.
act,
as a
distinguishable
can
(1987)("A
defendant accusedof violat
continuing offense.
provisions
Section641's embezzlement
initially
lawfully acquired
can;
the nature
We think
must have
property
issue, although
is such that
he need not
through holding posi-
circumstances,
that,
in some
have intended
have received it
relation”)
(em-
fiduciary
tion
trust or
to'any person,’ and use[d] the
words ‘em
added) (citations omitted).
phasis
bezzle, steal,
purloin’
or
in the same con
nection,
as applicable
to the same
Indeed,
classic
definition of “embez
persons and to the same property.” Id. In
set
zlement”
forth Moore v. United
contrast,
reportеd
“[t]he cases
from the
268, 269-270, 16
U.S.
S.Ct.
English courts and from the courts of
(1895)
(Emphasis
Second, embezzle-
appropriation.
of its
embezzle
similarly interpreted
cuits have
Moore,
ap-
knowledge that
light
requires
ment
under section
ment
contrary
to the wishes
need
is
possession
propriation
lawful
and held that
rela
any
property.
through
particular
the owner
acquired
Miller,
v.
United
tionship. See
added). Notably,
(emphasis
Id. at 216-217
Cir.1975) (“Section
(9th
1208, 1211
F.2d
require-
any
not enunciate
'did
the court
come into
persons
who
not limited
641 is
possession
lawful
a defendant’s
ment
par
by virtue
possession
trust,
relationship of
through a
acquired
rather
relationship, but
fiduciary
ticular
only page
earlier
recognition
our
despite
their
regardless of
persons,
to all
applies
made after
conversions
prosecuting
Davila,
v.
employment.”);
some
through
possession
gaining lawful
fi-
Cir.1982)
(citing
motivating force
capacity was
duciary
[Moore’s]
adding
“[u]nder
Miller
many embezzlement
the creation
еmbezzlement],
origi
lawful
[of
definition
statutes.
enough
support
possession
nal
has seen
fact remains
section
[under
criminaliz-
numerous statutes
fit to enact
a breach
necessary
prove
641]; it is not
embezzlement, and all
forms of
ing various
see,
e.g., Colella
fiduciary duty.”);
Congress has
are that where
indications
(1st
Cir.
or relation-
capacity
thought
1966)
(interpreting
embez-
necessary element of
ship to be
501(c)
concluding
circumstance,
it has
given
zlement in
concept of a
term “carries
*6
Seе, e.g.,
in the
much
statute.
specified as
relationship”).
fiduciary
breach
(2000) (criminalizing em-
§ 656
18 U.S.C.
v. Stock
in
opinion United States
Our
by “[whoev-
of a bank’s funds
bezzlement
(4th Cir.1986),
ton,
which
788 F.2d
director,
officer,
or em-
agent
er,
an
being
with
641 but
section
not with
dealt
any capacity
of,
in
or connected
ployee
501(c),
require
con
§
does not
U.S.C.
bank”);
18 U.S.C.
with
[such]
Admittedly,
the Stockton
trary result.
(2000)
666(a)(1)(A)
(proscribing embez-
of “embezzle
the extent
say that
court did
or
organization,
by “agent[s] of an
zlement
“should be
statutes
ment”
federal
local,
State,
govern-
tribal
or Indian
scope of
to the
roughly identical
viewed as
govern-
or
organization’s
ment”
those
under
interpreted
generally
the offense as
receive
entities
funds when those
ment’s
importantly,
at 215.
law.” Id.
More
state
501(c) (2000)
grants);
federal
general
that
enunciating
after
property
(proscribing
detail as to
court went into
principle, the
person]
organization
[a
of which
a labor
“of
require
actually
to the
meant as
what that
officer”).
where,
inas
section
But
is an
in section
of embezzlement
ments
ap-
statute
federal
explained
first
court
Stockton
terms,
persons;
to all
express
plies,
its
act of
is the
of embezzlement
the core
capacity
any manner
specify
does not
course,
conversion, which,
requires no
must be
act of embezzlement
which an
at 216. The
of trust.
relationship
out;
with
and lists embezzlement
carried
court then stated
persons
same
apply
to the
other acts
embezzlement builds
[t]he
that,
traditionally,
even
conversion, but adds two
сoncept of
any
have
the defendant
First,
require
do not
the embezzled
elements.
further
relationship
property’s
with
in the lawful
have been
property must
owner, we should not
a relationship
read
funds that renders his misappropriation of
trust
into the definition of embezzlement
them after
deposit
their
embezzlement.
under that
especially
statute. This is
true
Smith’s
right
lawful
to control the funds
precedent
prohibit
when
indicates that the
after their
deposit in
initial
his account
acts in
ed
section
were not meant to be distinguishes
possession
from that
See,
narrowly
so
e.g.,
read.
United States which follows a common-law larceny,
Morison,
Cir.
possession
did
require
1988) (“Manifestly, as the Court in Moris
“trespass in
taking”; rather,
gov
said[,]
sette
[section
was not
641]
ernment voluntarily,
though incorrectly,
simply to
‘larceny’
cover
and ‘embezzle
continued to deposit his mother’s Social
ment’ as those terms were understood at Security
jointly
benefits
their
owned
common law but was also
apply
to ‘acts
checking accоunt after her death. See La
which,
which shade into those crimes but
Fave, supra,
19.2,
§§
19.6 (explaining this
considered,
most strictly
might not be distinction
larceny
between
and embezzle
”)
found to fit their fixed
(quot
definitions.’
ment); Moore,
269-70,
As a of owner the checking that, ac- detection, to avoid often occurs count, Smith legal had control over the small, over some time in relatively and therein, funds including ability the See, with- recurring, e.g., amounts. v. MacEwen the full draw amount State, of such funds. See 194 Md. 71 A.2d 468-69 (Michie 1999). Ann. (1950) (“While Va.Code 6.1-125.9 embezzlement is sustained such, As when government the voluntarily the by diversion of a single money sum of placed account, these funds into they the particular time, aat in many cases it runs came control, ie., his lawful his lawful a long period for of time and consists of possession. But that he posses- had lawful converting different sums of money on of sion the disputed funds —the issue by many thief.”). dates to the use of the At in Smith his reply memorandum belоw— least those cases where the defendant give did right him the to appropriate created a recurring, automatic scheme of Thus, them for his purposes. own it was under section 641 con his lack legal of entitlement to own the of version funds voluntarily placed in the him on against an indictment returned government, the possession
defendant’s the of 24, 2003, years five within January need scheme without that and maintained security funds. of social any particular deposit final linked to acts for affirmative timely. indictment, therefore, is a there which funds —cases receipt of relationship between “temporal strong above, we reasons discussed For the culpabili offense of the] [completion conduct constituted that Smith’s conclude Blizzard, v. ty,” to embezzle scheme single continuous Cir.1994) that Con think — we of a nature funds and government be that such have intended must gress it must have pur for continuing offense considered Accord- continuing offense. as a treated limitations. of the statute poses court is the district judgment of ingly, course, what precisely And, of AFFIRMED. sup- done, that is a conclusion has Billingslea. analysis under by our ported MICHAEL, dissenting: Judge, Circuit specific Accordingly, we believe that a concludes majority’s opinion The properly is more issue here conduct offense, embezzle- this case rath- continuing offense as a characterized a continu- ment, as either may be treated acts. separate a series er than non-continuing offense offense or suffi- court were by the district facts found depending purposes, limitations statute of place he set into prove that cient to ante carried out. See crime is on how the automatically recurring maintained not believe this I do Because at 567-68. electronically whereby funds were scheme teachings with the is consistent conclusion retained in his account deposited States, Toussie any specific need for use without his own (1970), I 25 L.Ed.2d contin- part, his a scheme which action on Toussie begins dissent. respectfully pay- until death ued from mother’s Supreme from the of caution a word February were terminated ments continuing offenses “the doctrine Court: treated tuting embezzlement period This is merely “a differently characterized different as a not to time”; continuing offense series indeed, that all may acts that occur conduct necessarily be in this conduct opposed well be regard. consti- over tions should be stances.” guage of Court held sidered compels purposes continuing for statute such Id. applied in that an offense substantive only if conclusion, only “[1] criminal statute limited should be explicit [2] circum- limita- con- lan- na- involved is such the crime ture of the dissent’s lightly dismiss Nor we do *8 assuredly must have Congress circuits that from other to cases citation one.” continuing as a treated as be conclusion might require different Toussie, failure to in “continuing offense” The crime the application satisfied, draft, continuing not a We for the register doctrine. are aggregated (1) being properly language “there is аddition no offense because count, kind of single clearly con- Act that registration] in [the case occurred in this is conduct,” embezzlement that course of prolonged templates Toussie, considered, under correctly (2) 858, is 120, id. “[t]here 90 S.Ct. continuing offense. registra- in the act of nothing inherent also failure to do so makes a tion itself which scheme concluded Smith’s embezzlement 122, crime,” 90 S.Ct. id. continuing 3, Jury February Grand on
569
majority
relies on the second Tous- but recurring, amounts.” Id. But
say
sie factor —the nature of thе crime—to
that embezzlement is frequently conducted
conclude that embezzlement is a continu
way
this
does not alter the substantive
(or
inherent)
offense “at least in those cases where
nature of the
In
offense.
the defendant created a recurring,
deed,
auto
the fact that embezzlement can be
”
matic scheme....
Ante at 567. The ma
completed in one distinct transaction un
jority goes
on to
may
that “it
well be dermines the notion that it is inherently a
different
embezzlement conduct
continuing
I
crime.
realize
differently
characterized”
purposes
in some
punishes
circumstances
acts that
of the continuing offense doctrine. Ante
involve the
scheme, see,
execution of a
e.g.,
(“the
at 568. See also ante at
particu
(“Whoever
568
18 U.S.C.
1344
knowingly ex
lar kind of embezzlement that
occurred
...
ecutes
a scheme ...
to defraud a
correctly
this case is
considered ...
to be
financial
institution ...
shall be fined
offense”).
a continuing
Toussie,
”),
Under
and in those circumstances the un
however, whether an offense is continuing derlying
might
be a continuing of
“turns on the nature of the substantive
fense.
Nash,
See United States v.
115
offense, not on
specific
1431,
(9th
characteristics
Cir.1997) (“Section
1441
of the conduct in the case at issue.”
punishes
Unit
1344
the execution of a scheme to
Niven,
(9th
ed
289,
States v.
952 F.2d
defraud
obtain money language that
—
Cir.1991). See also United
v. Yas
suggests
States
the violation should be treated as
har,
(7th
873,
Cir.1999) (con
166 F.3d
when,
continuing.”).
here,
But
the lan
tinuing offense
(“Whoever
doctrine does not apply guage of the statute
embezzles
simply because “the charged conduct is
... money
States”)
... of the United
does
nature”);
continuous in
United States v.
“clearly
contemplate
a prolonged
1493,
(10th
Jaynes, 75 F.3d
1506 n. 12
conduct,” Toussie,
course
397 U.S. at
Cir.1996) (same).
words,
In other
whether
the manner in which the
an
continuing
offense is
in nature does not
offense is
out cannot provide justi
carried
change
depending
manner which fication
finding
a continuing offense.
See,
the offense is committed.
e.g., United By introducing the prospect
thаt an of
v. Bailey,
U.S.
fense
be either continuing or non-
(1980)
L.Ed.2d 575
(escape
continuing, depending on the manner in
prison
from
continuing offense);
is
committed,
United which it is
the majority brings
Blizzard,
expansion
about
unwarranted
of Cir.1994) (“possession
govern
[of stolen
continuing offense doctrine. As the Su
property]
ment
a continuing
nature
preme
Toussie,
Court said in
“continuing
offense”);
Garcia,
States v.
854 offenses are not to
readily
be too
found.”
(9th Cir.1988)
F.2d 340
(kidnaping
is con
U.S. at
period.” continuing on Yasher was alleged that point, At charge. indictment that The commit- government a local payroll which Smith of conduct course 1, 1989, 1, September until June tee from and the statute complete, chаrged was 1, September from charged It that 1992. April run. The date began to limitations 1992, 1, Yasher re- 1991, September until Janu- before every other date and al- $10,000 compensation, almost ceived gov- 24, 1998, Smith received on which ary The no work. little or he did though five-year fall outside the money ernment on August was returned indictment I Accordingly, of limitations. statute Yasher years after than five more and remand judgment vacate the would all, com- most, of the had received of limitations statute application thus had Cirсuit The Seventh pensation. mean does not This in Yasher. set forth statute of limitations how the to decide automatically punish- avoid will Smith ongoing to an applied some indicates that The record ment. the limitations “straddle[d] scheme appli- within conduct occurred court, relying Id. at 876. period.” is, on or after period, limitations cable em- Toussie, argument rejected the would government January 1998. a continu- treated as could be bezzlement indictment superseding to obtain be able it was merеly because ing offense Thus, em- if Smith that conduct. charging of conduct. continuing course aas 24,1998, January after on or bezzled $1000 the statute limitations held that 877. It felony. If he guilty he would still be embezzlement, other like run on begins to period, in that than less $1000 embezzled offenses, all non-continuing “once elements a misdemeanor. guilty of he would be established, regardless the offense are to en- continues the defendant of whether Id. at 880. criminal conduct.”
gage in the conclusion compels
Yashar con- indicted for certain
Alfred Smith five-year statute falls duct that outside COMPANY; COAL LEWIS was re- indictment of limitations. The Republic Insurance Old says that 2003. It January turned on Petitioners, Company, 1994, and in or March “beginning about February 1998 until in or about continuing knowingly, DIRECTOR, intention- Smith did OF Alfred OFFICE WORKERS’ embezzle, steal, purloin PROGRAMS, ally willfully and COMPENSATION use, recurring aon convert to his own DEPARTMENT STATES UNITED record, voucher, money, thing basis, McCoy, LABOR; Re Hershel U. OF Security the Social belonging to of value spondents. Administration, Security Ad- to wit: Social 03-1425. No. to Estelle issued benefits ministration of Appeals, Court United States $26,336.00.” totaling approximately Smith Fourth Circuit. mo- received these appears It amount between nies $525.00 Argued: Feb. month. 3rd of each on or about the $583.00 June Decided: charge- Smith was Under 18 U.S.C. as he embezzled felony as soon
able with money. There- government’s
$1000