MEMORANDUM AND ORDER
This mаtter is before the court on Defendant Jennie L. Reese’s Motion for Bill of Particulars and Motion to Dismiss (Filing No. 20). For the reasons discussed below, the Motion for a Bill of Particulars will be denied, and the Motion to Dismiss will be granted in part and denied in part.
BACKGROUND
Reese was a tenant at a public housing progrаm in Gordon, Nebraska from February 1, 2010 through May 31, 2012. The housing program was administered by the Gordon Housing Authority (GHA), with the amount of rent based on each tenant’s income and adjusted if that income changed. Reese also worked for the GHA and “was responsible to review, calculate, and re-certify the tenants’ rents ... annually.” (Filing No. 22 at CM/ECF p. 3).
A one count indictment was filed against Defendant on January 19, 2017. The indictment in its entirety states:
Between on or about February 2011 and on or about January 2013, in the District of Nebraska, Defendant, JENNIE L. REESE, willfully and knowingly did embezzle, steal, purloin, and convert to her own use funds of the Gordon Housing Authority that originated with the United States Department of Housing and Urban Development, a department or agency of the United States, of a value*1047 exceeding $1000. In violation of Title 18, United States Code, Section 641.
(Filing No. 1).
Defendant initially appeared on March 1, 2017, and the parties were ordered tо conduct reciprocal discovery, as set forth in Fed. R. Crim. P. 16. Defendant has now moved for a Bill of Particulars and to have the indictment dismissed, alleging the charges within the indictment are barred by the statute of limitations.
ANALYSIS
A. Motion for Bill of Particulars.
Defendant has moved for a Bill of Particulars, asserting the government should be required to list the specific date on which each alleged theft or embezzlement of money occurred “in order to determine whether or not the statute of limitations has expired with regards to each offense.” (Filing No. 21 at CM/ECF p. 8).
If a defendant believes that an indictment does not provide enough information to prepare a defense, then he or she may move for a bill of particulars. See Fed.R.Crim.P. 7(f). The purpose of a bill of particulars is to inform the defendant of the nature of a charge with “sufficient precision to enable him to prepare for trial” and “to avоid or minimize the danger of surprise at trial.”
U.S. v. Livingstone,
The government opposes the motion for bill of particulars, stating it has already provided extensive discovery and afforded defendant Reese with adequate notice of the charges and a full and fair opportunity to prepare a defense. The government further asserts the discovery materials it provided to Reese “set forth in detail dates, amounts, types of Defendant Reese’s actions, and also included spreadsheets and tables that specifically identified the dollar amount of loss, together with summaries of intеrviews of GHA executives and employees that provided additional details to support Defendant Reese’s commission of the offense.” (Filing No. 22 at CM/ECF p. 4).
Under the circumstances described, Defendant is not entitled to a Bill of Particulars. Defendant alleges she needs additional information on the specific dates and amounts in question. However, Defendant’s assertion is directly contradicted by the detailed background, complete with dates and amounts, provided in Defendant’s brief supporting her motion to dismiss. As argued by the government, it’s production of documents provided Defеndant ample information to prepare a defense as evidenced by Defendant’s pending motion to dismiss. Accordingly, Defendant’s motion for bill of particulars will be denied.
B. Motion to Dismiss
Defendant has moved to dismiss the indictment as barred by the statute of limitations. The applicable statute of limitations provides “except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” 18 U.S.C.A. § 3282(a).
The purpose of the statute of limitations is to limit exposure to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time, and minimize the danger of official punishment because of acts in the far-distant past.
Toussie v. United States,
“[A] criminal statute of limitations begins to run when each element of the offense has occurred.” United States v. Bennett,
The parties agree that the language of 18 U.S.C. § 641 does not comрel a conclusion that crimes committed under that statute are continuing offenses. So the question before the court is whether Congress must have intended that result. The Eighth Circuit has not ruled on the question, and other circuits, along with lower court decisions, are split on this issue. In general, the court deсisions examine whether an offense is deemed continuing when the defendant fraudulently receives government payments through automatic or systematic means; for example, as a result of submitting a false application for benefits or by receiving federal benefit payments through an ongoing direct deposit. See United States v. Smith,
In Smith, the defendant’s mother received social security payments which were directly deposited into a joint account owned by the defendant and his mother. When his mother died, Smith did not inform the SSA and continued to receive the payments intended fоr his mother. The court in Smith determined “that Congress must have intended that, in some circumstances, [embezzlement] be treated in § 641 as a continuing offense.” Smith,
At least in those cases where the defendаnt created a recurring, automatic scheme of embezzlement under section 641 by conversion of funds voluntarily placed in the defendant’s possession by the government, and maintained that scheme without need for affirmative acts linked to any particular receipt of funds — cases in whiсh there is a strong “temporal relationship between the [completion of the] offense and culpability,” United States v. Blizzard,27 F.3d 100 , 103 (4th Cir. 1994) — -we think that Congress must have intended that such*1049 be considered a continuing offense for purposes of the statute of limitations.
Id. at 567-68.
Since the defendant had implemented a scheme where funds were automatically deposited into an account and retained by him “without further specific action on his part,” Smith held the crime was a continuing offense. Id. at 568. However, Smith further explained that not “all conduct constituting embezzlement” may be treated as a continuing offense and some embezzlement conduct may be treated otherwise. Id. at 568. See also, United States v. Morris,
Courts rejecting the reasoning in Smith have reasoned that determining whether a § 641 offense is deemed “continuous” does not require a case-by-case analysis: The determination is not dependent on each defendant’s conduct. Sеe Henrikson,
[T]he active or passive nature of a defendant’s actions has never been the benchmark of a continuing offense under Toussie. Instead, the focus is on the statutory language. If a statute describes an offense that by its very nature continues after the elements have been met, then the offense is a continuing one regardless of the nature of defendant’s actions beyond that point.
Id. at 1003 (quoting United States v. Yashar,
Having liberally construed the criminal limitations statutes in favor of repose, (Toussie,
The indictment against Reese alleges she embezzled, stole, purloined, and converted government funds. Each of these offenses is distinct in nature and does not “clearly contemplate a prolonged course of conduct.” Toussie,
An individual can violate the first paragraph of § 641 by embezzling or stealing govеrnment funds through a defined act' with a clear beginning and end — such as actively stealing rent payments and converting those funds to personal use. Embezzlement, stealing, purloining, or converting government funds encompasses a broad scope of activities which have a finite beginning and end. Thus, the cоurt cannot say that Congress must have intended to treat the types of crimes listed in § 641 as continuing offenses under Toussie.
The government asks the court to adopt the reasoning in Smith. While Smith instructs that under certain circumstances a violation of § 641 may constitute a continuing offense, it limited that finding to “those сases where the defendant created a recurring, automatic scheme of embezzlement ... by conversion of funds voluntarily placed in the defendant’s possession by the government, and maintained that scheme without need for affirmative acts linked to any particular receipt оf funds.” Smith,
Even if the court accepted and applied Smith’s reasoning and holding to charges against Reese, the result would not change. The conduct identified in the indictment and in the government’s response to Defendant’s motion to dismiss does not describe a continuous and passive scheme perpetrated by Reese. Rather, the government is alleging Reese failed to complete a required annual certificаtion and, on at least three separate occasions, stole other tenants’ rent money, as evidenced by discrepancies in the GHA’s rent receipts and corresponding deposits into GHA’s bank accounts. Reese’s alleged misconduct is not the type of recurrent, automаtic, and passive activity considered by Smith. The government is not alleging that Reese fraudulently received electronic deposits, or other analogous conduct. Thus, even if the court followed the reasoning Smith, it would not find a continuing § 641 offense under the facts alleged in this case.
Athough the viоlations alleged are not continuing offenses, Reese’s motion to dismiss cannot be granted in its entirety. The indictment, filed on January 19, 2017, alleges Reese’s violations occurred between February 2011 and January 2013. Thus, the indictment against Reese should be dismissed to the extent it seeks a conviction for alleged criminal activity occurring prior to January 19, 2012. As to alleged offenses occurring on or after that date, the motion to dismiss should be denied.
Accordingly,
IT IS ORDERED that as to Defendant’s motion (Filing No. 20):
*1051 1) The motion to dismiss is granted in part and denied in part as set forth above.
2) Defendant’s motion for a bill of particulars is denied.
3) The jury trial of this case is set to commence before Richard G. Kopf, Senior United States District Judge, in Courtroom 1, United States Courthouse, Lincoln, Nebraska, at 9:00 a.m. on June 19, 2017, or as soon thereafter as the case may be called, for a duration of three (3) trial days. Jury selection will be held at the commencement of trial.
Notes
. Yashar addressed the continuing offense doctrine in the context of 18 U.S.C. § 666 — at statute which makes it illegal when a state or local government agent "embezzles, steals, obtains by fraud, or "converts” federal funds. Yashar, relying on Toussie, determined the violation of § 666 was not a continuing offense.