Case Information
‐ ‐ cr United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term
(Argued: December Decided: August 2018) No. ‐ ‐ cr
–––––––––––––––––––––––––––––––––––– U NITED S TATES OF A MERICA ,
Appellant,
‐ ‐
J OHN S AMPSON ,
Defendant ‐ Appellee. ––––––––––––––––––––––––––––––––––––
Before: C ABRANES L IVINGSTON C ARNEY Circuit Judges .
The appeals from an August judgment District Court Eastern District New York (Irizarry, C.J. ), granting Defendant ‐ Appellee’s Federal Rule Criminal Procedure 12(b) motion dismiss two counts charging him ‐ program embezzlement. The Defendant ‐ Appellee, John (“Sampson”), allegedly embezzled funds escrow accounts oversaw his capacity referee foreclosure actions. The district court dismissed embezzlement counts time barred U.S.C. 3282(a)’s five year limitations. concluded issue *2 “complete” he failed remit more than a decade before grand jury returned its indictment. We hold district made premature factual determination regarding time which Sampson, if guilty, formed requisite fraudulent intent. Accordingly, we VACATE judgment court, REINSTATE two ‐ program counts indictment, REMAND case for further proceedings consistent opinion.
A LEXANDER A. S OLOMON Assistant United States Attorney (David C. James, Paul Tuchmann, Marisa M. Seifan, Assistant Attorneys, brief ), for Richard P. Donoghue, Attorney for Eastern District New York, Brooklyn, NY, for Appellant . J OSHUA C OLANGELO B RYAN (Nathaniel H. Akerman, brief ), Dorsey & Whitney LLP, New York, NY, Defendant Appellee . D EBRA A NN L IVINGSTON Circuit Judge :
From John (“Sampson”) served as member New York State Senate, representing 19th Senate District Brooklyn. also served referee foreclosure actions properties located Kings County, Brooklyn. By had purportedly embezzled approximately $440,000 escrow accounts oversaw referee. To prevent discovery *3 of his embezzlement, Sampson allegedly made efforts tamper with witnesses and provided false statements federal law enforcement officials. [1]
On April grand jury in District Court Eastern District of New York returned indictment against Sampson charged him with, among other things, two counts ‐ program embezzlement U.S.C. § 666(a)(1)(A) in connection with his service referee. The indictment alleges that, after receiving surplus funds from foreclosure proceedings and placing funds into escrow accounts, Sampson failed remit Kings County Clerk (“KCC”), was required do. Over time, Sampson removed money from escrow accounts by cash withdrawals electronic transfers. alleges Sampson *4 committed (at least) two discrete acts embezzlement in 2008. These acts form the basis for the indictment’s two embezzlement counts.
Before trial, Sampson moved dismiss the two embezzlement counts under Federal Rule Criminal Procedure 12(b). Among other things, Sampson argued that two acts embezzlement that alleged occurred in actually occurred failed remit KCC. Because U.S.C. § 3282(a) imposes five year limitations prosecutions embezzlement U.S.C. 666(a)(1)(A), argued district court should dismiss counts as time barred. The district court granted motion, holding matter law embezzlements question were “complete” over five years before grand jury returned its indictment.
On appeal, government contends erred concluding pretrial, matter law, necessarily formed fraudulent intent required charged embezzlements—and thus completed *5 those embezzlements—once failed to remit funds. We agree. Accordingly, we reinstate two program counts of Sampson’s remand for further proceedings consistent this opinion.
BACKGROUND
I. Factual Background admitted New York Bar 1992. Beginning 1990s,
Justices Supreme Court State of New York periodically appointed serve as referee foreclosure actions Kings County properties. Sampson’s duties as referee included conducting sale foreclosed property, using proceeds sale pay any outstanding lienholders, tendering any remaining surplus KCC. KCC would then allow prior owners property—as well as “any other interested parties”—to collect from these surplus funds. Gov’t App’x ¶
As noted above, also served member New York State Senate from representing 19th Senate District Brooklyn. *6 Sampson held many high ranking roles during his tenure in Senate, including leader Democratic Conference Senate from June December 2012, Minority Leader Senate January December 2012. Sampson continued serve as referee for foreclosure actions in Kings County during his time in Senate.
The counts in focus Sampson’s alleged misappropriation surplus funds in two foreclosure actions in Brooklyn: one involving property located Forbell Street (“the Forbell Street Property”), other involving property located Eighth Avenue (“the Eighth Avenue Property”). Forbell Street Property Action
On February Justice Supreme Court State New York appointed Sampson referee foreclosure sale proceeding Forbell Street Property. On October Sampson informed Supreme Court foreclosure sale resulted surplus funds approximately $84,000. As required order judgment case, placed these escrow bank account. registered account name “John L. Referee” (the “Forbell Street Referee Account”). Although *7 the court order directed Sampson open escrow account Citibank, Sampson opened Chase Bank.
The court order also required Sampson remit surplus funds the KCC within five days receiving ascertaining them. State law imposed same obligation. N.Y. Real Prop. Acts. L. 1354(4). But Sampson failed do so—and in fact never remitted surplus funds. Instead, between July June 2008, Sampson withdrew or transferred approximately $80,000 $84,000 surplus from escrow account for his own use. For example (and specified in indictment), about February 13, 2008, Sampson transferred $8,000 Forbell Street Referee Account into his personal bank account. Eighth Avenue Property Action
On March Justice Supreme Court State New York appointed Sampson referee foreclosure sale proceeding Eighth Avenue Property. On June informed Supreme Court foreclosure sale resulted surplus funds approximately $80,000. As required judgment case, placed these escrow bank account registered name “John L. Recv [Receiver] Fleet National Bank” (“Eighth Avenue Referee Account”). Although order *8 directed Sampson to open this escrow account an Independence Savings Bank branch office, Sampson opened HSBC branch office instead. Much like Forbell Street Property foreclosure, both judgment in Eighth Avenue Property Action New York State law required Sampson to remit surplus funds to KCC within five days receiving ascertaining them. But Sampson never did so. Starting approximately 2002, he gradually removed from account. By July 2006, balance only $55,167.94 remained.
On or about July 20, 2006, Sampson asked Queens businessman named Edul Ahmad (“Ahmad”) to help him repay money he had misappropriated. Ahmad agreed to help Sampson. On about July Ahmad provided Sampson with three bank checks totaling $188,500. One bank checks was amount $27,500. apparent purpose this bank check was allow Sampson replenish money had taken Eighth Avenue Referee Account. Accordingly, combined $27,500 check $55,167.94 remaining Eighth Avenue Referee Account purchase bank check amount $82,677.94. This bank check made payable KCC.
But never gave this check KCC. Instead, about two years later, June exchanged $82,677.94 bank check eight *9 bank checks worth $10,000 each, and one bank check for $2,667.94. Each checks made payable “John Sampson.” On or about and between June 12, January 12, 2009, Sampson redeemed two $10,000 bank checks cash, negotiated $2,667.94 bank check, deposited three $10,000 bank checks into his personal bank account. Sampson simply retained (and never negotiated) remaining three $10,000 checks.
II. Procedural History
As noted above, April 29, 2013, grand jury District Court Eastern District New York returned nine count against Sampson, charging him with, inter alia two counts program embezzlement. Count charges with embezzling from Forbell Street Referee Account. It alleges committed embezzlement U.S.C. 666(a)(1)(A) about February transferred $8,000 from Forbell Street Referee Account into his personal bank account. Count concerns alleged from Eighth Avenue Referee *10 Account. Count alleges that Sampson committed embezzlement under U.S.C. § 666(a)(1)(A) on about June 7, when he exchanged $82,677.94 bank check made out to KCC nine bank checks made payable to Sampson himself.
On June 2014, moved to dismiss Counts and pursuant Federal Rule Criminal Procedure 12(b). argued, inter alia that U.S.C. § 3282(a) imposes five year statute limitations on prosecutions embezzlement 666(a)(1)(A), and embezzlements issue case were “complete”—and limitations began run—when failed remit surplus KCC and 2002. The government opposed Sampson’s motion, arguing, inter alia Sampson’s Rule 12(b) motion was not ripe, since had not yet proffered all its evidence formed his allegedly fraudulent intent converted funds.
The district court held oral argument Sampson’s Rule 12(b) motion on October 2014. At status conference October judge, bench, rejected government’s argument Rule 12(b) motion ripe, granted motion, accordingly dismissed Counts judge orally explained “the effective date *11 [was] the time [at] which [Sampson] did not return the Kings County Clerk the surplus monies were foreclosure accounts. . . . That means that the charges have been brought based on withdrawals February and June for Counts [1] and [2], respectively, are outside statute limitations.” Gov’t App’x 174–75. The judge stated written opinion would forthcoming.
A jury trial remaining charges commenced on June and ended July 2015. On August court issued formal opinion and order memorializing dismissal two embezzlement counts. opinion concluded was “complete” purposes five year limitations when he failed remit surplus funds KCC:
[T]he statutes limitations have long since expired Counts Defendant obligated orders [New York real property law] remit surplus funds within five days filing his referee reports. . . . On sixth day, did return funds, Defendant appropriated completed embezzlement. 122 F. Supp. 3d 20 (E.D.N.Y. 2015). The decision of August 2015 constituted final judgment counts. timely appealed district court’s decision.
DISCUSSION
Because court’s dismissal Counts 1 and 2 of indictment raises questions law, our review is de novo . Gundy 2015).
I
Section 666(a)(1)(A) Title prohibits “an agent organization[] or State, local, or Indian tribal government, or any agency thereof” receives over $10,000 funding during any one year period “embezzl[ing], steal[ing], obtain[ing] fraud, or otherwise without authority knowingly convert[ing] use any person other than rightful owner or intentionally misappl[ying], property . . . is valued $5,000 or more, . . . is owned by, under care, custody, or control such organization, government, or agency.” U.S.C. §§ 666(a)(1)(A), 666(b). Counts charge “embezzlement” provision. Thus, Counts must sufficiently allege that: (1) “embezzle[d] . . . property valued *13 $5,000 or more”; (2) did so while serving “an agent organization[] or a State, local, or Indian tribal government, or any agency thereof” receives over $10,000 funding during any one ‐ year period; (3) property issue “owned by, or [was] under care, custody, or control [that] organization, government, or agency.” See id. U.S.C. § 3282(a) states “[e]xcept otherwise expressly provided
law, no person shall prosecuted, tried, or punished for any offense, capital, unless found information is instituted within five years next after such offense shall have been committed.” If a defendant raises a statute ‐ ‐ limitations defense under § 3282(a), bears burden proving compliance statute jury beyond reasonable doubt. Martinez (2d Cir. 2017); United States v. Florez n.2 2006). Both parties agree § 3282(a)’s five ‐ year limitations applies prosecutions § 666(a)(1)(A). This five year period begins run moment crime “ha[s] been committed.” U.S.C. 3282(a). In other words, five year window prosecution opens “when crime ‘ complete ,’ thereby ‘encouraging law enforcement officials promptly investigate suspected criminal activity.’” Williams *14 F.3d 448, 453 (2d Cir. 2013) (emphasis added) (quoting United States v. Rivera ‐ Ventura , 72 F.3d 277, 281 (2d Cir. 1995)). A crime “complete as soon as every element in crime occurs.” United States v. Vebeliunas , 76 F.3d 1283, 1293 Cir. 1996) (quoting United States v. Musacchio , 790 (9th Cir. 1991)). Thus, in case, five year limitations embezzlement § 666(a)(1) began to run soon as every element alleged crimes had taken place.
That brings us to meaning “embezzlement” purposes Section does define “embezzlement.” We must therefore interpret word according its traditional meaning. Sekhar U.S. (2013); In re Sherman (1st 2010) (“There being no definition . . . Bankruptcy Code, we assume Congress wrote with common law mind” (citations omitted)). “Embezzlement” historically defined “the fraudulent appropriation property person whom such property has been intrusted, into whose hands has lawfully come.” Moore U.S. (1895). An individual commits “embezzlement” he: (1) intent defraud; (2) converts his own use; (3) property belonging another; situation where (4) property initially lawfully came *15 within his possession or control. See v. Clark , 765 F.2d 303–04 (2d Cir. 1985); 3 Wayne R. LaFave, Substantive Criminal Law , § 19.6 (2d ed. 2003). Element (1), intent, is the mens rea of “embezzlement.” [5] Elements (2), (3), and (4) are the *16 actus reus and attendant circumstances elements. When all four elements come together, embezzlement “complete” statute ‐ ‐ limitations purposes. See Vebeliunas at
II
A district court concluded that, matter law, Sampson’s “complete” he failed remit surplus funds within five days KCC. Accordingly, court granted Rule 12(b) motion limitations grounds. F. Supp. 3d at (“When [Sampson] did return funds [on day six], and instead kept them in accounts his name and which he alone had access, he completed crime embezzlement.”). Citing undisputed facts that received surplus issue 2002; that he placed funds in escrow accounts that he opened banks other than those specified relevant court orders; failed remit funds, required, within five days, concluded “it evident [Sampson] embezzled money Forbell Street Property Eighth Street Property 2002”—and *17 “[o]n the sixth day, when he did not return the funds, Sampson . . . completed the embezzlement.” Id. This, we conclude, error.
In dismissing the embezzlement counts Rule 12(b) motion, the district court made an implicit factual determination that Sampson possessed the requisite fraudulent intent (if he possessed it at all) 1998 and when he failed timely remit the surplus funds. As noted above, an embezzlement is not “complete” until an individual converts the property another with fraudulent intent. See, e.g. , Nolan , 1998) (“[B]ecause a criminal offense, proof unlawful or criminal intent is necessary . . . .”); see also 29A C.J.S. Embezzlement (2018) (“[For] fiduciary embezzlement, requisite [fraudulent] intent need coincide with accused’s actual taking property . . . .”). Accordingly, in concluding that embezzlements charged Counts and were complete, respectively, in court necessarily found that if possessed requisite fraudulent intent, possessed time, providing him a statute ‐ ‐ limitations defense.
We conclude pretrial factual finding constituted a premature adjudication sufficiency government’s evidence thus improper Rule 12(b) stage. To clear, Rule 12(b) allows “[a] party [to] raise pretrial motion any defense, objection, request can determine without a trial merits.” Fed. R. Crim. P. 12(b)(1). In some circumstances, moreover, party may raise establish a statute ‐ ‐ limitations defense via a Rule 12(b) motion, such defense clear face indictment. See, e.g. Toussie U.S. 113–14 (1970) (noting defendant charged alleging willful failure register draft may raise limitations issue pre ‐ trial *19 motion). But when such defense raises dispositive “evidentiary questions,” district court must defer resolving those questions until trial. United States v. Knox, U.S. & n.7 (1969); see also United States v. Wilson F.3d 159 (D.C. Cir. 1994) (“[A] decision [Rule 12] motion should be deferred[] if disposing motion involves deciding issues fact are inevitably bound up evidence about alleged offense itself.”); Shortt Accountancy Corp. (9th Cir. 1986) (“If [a] pretrial claim ‘substantially founded upon and intertwined with’ evidence concerning alleged offense, motion falls within province ultimate finder fact and must deferred.” (quoting Williams 1981))). Here, government disputes precise timing Sampson’s alleged fraudulent conversion argued before district court was premature adjudicate limitations defense sufficient its face had not proffered all its evidence. In rejecting argument, district court essentially granted “summary judgment” Sampson. Because civil summary judgment mechanism does exist criminal procedure acted prematurely *20 addressing ‐ of ‐ limitations issue, we vacate court’s decision of August 12, 2015, reinstate two counts, remand.
B drafters of Federal Rules of Criminal Procedure “cross pollinated” Rules principles from Federal Rules of Civil Procedure. James Fallows Tierney, Comment, Summary Dismissals , U. Chi. L. Rev. 1841, 1843 (2010). [7] Conspicuously absent Federal Rules of Criminal Procedure, however, is an analogue for summary judgment Federal Rule of Civil Procedure 56. See Yakou , 241, (D.C. Cir. 2005) (“There no criminal procedural mechanism resembles a motion for summary judgment civil context.”); accord Huet , 588, 2012); *21 United States v. Pope , 613 F.3d 1255, 1259–60 (10th Cir. 2010) (Gorsuch, J. ); United States v. Salman , 378 F.3d 1266, 1268 (11th Cir. 2004) (per curiam); United States v. Boren , 278 911, 914 (9th Cir. 2002); United States v. Nabors , 45 F.3d 238, 240 (8th Cir. 1995). Motions for summary judgment allow judges examine evidence adduced both sides before trial award judgment if, based proffered evidence, no rational trier fact could find for non moving party. See Fed. R. Civ. P. 56(a); Ricci v. DeStefano , 557 U.S. 557, 586 (2009). summary judgment motion civil actions existed time creation Federal Rules Criminal Procedure, but Rules’ drafters decided transplant particular flower out foreign soil civil procedure. See Ion Meyn, Why Civil Criminal Procedure Are So Different: A Forgotten History , 86 Fordham L. Rev. 697, (2017). Accordingly, although judge may dismiss civil complaint pretrial insufficient evidence, judge generally cannot do same criminal indictment. United States v. Williams, U.S. (1992); United Calandra U.S. (1974); Costello v. States U.S. 363–64 (1956); see also Guerrier (1st 2011) (“[C]ourts *22 routinely rebuff efforts use a motion dismiss as a way to test sufficiency evidence behind indictment’s allegations . . . .”).
This distinction between federal civil and criminal procedure comports with broader differences between civil and criminal regimes. First, federal criminal discovery far more limited than federal civil discovery. When federal government acts as prosecutor criminal case, it does face same mandatory disclosure regime acts plaintiff civil case. Compare, e.g. , Fed. R. Crim. P. 16(a), with Fed. R. Civ. P. To clear, federal criminal defendant can compel disclose specified materials simply asking them, see, e.g. , Fed. R. Crim. P. 12.1(b), 12.2, 12.3, 16(a), and certain statutory provisions constitutional mandates require significant disclosures, see, e.g. , U.S.C. 3500(b); Giglio , U.S. (1972); Brady v. Maryland U.S. (1963). But fact remains civil criminal procedure are different, “unlike their civil counterparts, criminal proceedings have no extensive discovery . . . procedures requiring both sides lay their evidentiary cards table before trial.” Pope 1259–60; see also Gottlieb 1974) (affirming court’s “refus[al] order compliance all [the defendant’s] very broad *23 demands for discovery,” because “[t]he government not required to disclose its evidence in advance trial”); David A. Sklansky & Stephen C. Yeazell, Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa Geo. L.J. 713–14 (2006) (describing how criminal proceedings often rely on an element surprise trial in way civil proceedings do not).
This has implications for proper construction Rule 12(b). Permitting civil “summary judgment” like motions this Rule would enable an end run around calibrated framework discovery in criminal cases. To overcome such motions, might need to reveal its complete case before trial. But would upset policy choices reflected criminal discovery rules— provide advantage defense did Rules’ drafters intend. not *24 Even more fundamentally, authorizing judges resolve dispositive fact based evidentiary disputes Rule 12(b) motions risks invading “the inviolable function jury” our criminal justice system. See Lopez & Behalf Garcia v. Curry , 1188, Cir. 1978). Judges can, course, make factual determinations matters do implicate general issue a defendant’s guilt, see Fed. R. Crim. P. 12(b), 12(d), such motions suppress evidence, see Fed. R. Crim. P. 12(b)(3)(C), selective prosecution objections, see Fed. R. Crim. P. 12(b)(3)(A)(iv), objections concerning discovery Rule see Fed. R. Crim. P. 12(b)(3)(E). But a defense raises a factual dispute inextricably intertwined defendant’s potential culpability, judge cannot resolve dispute Rule 12(b) motion. United States v. Schafer , (9th 2010) (“[I]f [a] pretrial motion raises factual questions associated Capra, American Criminal Procedure 973–75 (9th ed. 2010). In addition, Supreme Court recently noted, affording criminal defendants “sneak preview” government’s case could “facilitate witness tampering [and] jeopardize witness safety.” Kaley , S. Ct. 1101–02 (2014). Federal criminal discovery rules contain numerous safeguards protect identities witnesses until they testify trial. See, e.g. U.S.C. 3500(a); Fed. R. Crim. P. 26.2(a); see also Ruiz U.S. 631–32 (2002); Ronald J. Allen et al. Comprehensive Criminal Procedure 1190–91 (4th ed. 2016).
with validity of [a] defense, cannot make those determinations. Doing so would ‘invade province of ultimate finder of fact.’” (citation omitted) (quoting Shortt Accountancy , F.2d 1452)); see also United States v. Williams , F.2d 952–53 Cir. 1981) (“[I]t would be impractical unwise to attempt pretrial resolution of [defendant’s] due process claims, because they are substantially founded upon intertwined evidence presented trial.”). Because critical fact ‐ finding role jury, Supreme Court has admonished “where intent accused is an ingredient crime charged, its existence a question fact” a judge cannot resolve jury’s behalf. Morissette v. United States U.S. (1952). same rationale must apply statute ‐ ‐ limitations defense turns precise timing defendant’s fraudulent conversion. Sams (6th Cir. 1988) (explaining willful failure pay tax “complete” limitations purposes when individual fails pay tax, but rather “the failure pay tax becomes willful” (emphasis added) (quoting Andros (9th 1973))).
Here, Rule 12(b) motion effectively asked the district court to make a factual finding about the precise moment at which he acted with fraudulent intent to convert issue in case. Rule however, “permits pretrial resolution of a motion dismiss only when ‘trial facts surrounding commission alleged offense would be of no assistance in determining validity defense.’” Pope (quoting Covington U.S. (1969)). question possessed fraudulent intent sums specified in Counts was inherently intertwined question whether possessed fraudulent intent—one elements embezzlement. Such a question might have been resolvable pretrial a civil case. But resolvable pretrial, a criminal setting, record here.
C To sure, Alfonso 1998), we outlined narrow exception rule court cannot test sufficiency government’s evidence Rule 12(b) motion. In Alfonso, dismissed Hobbs Act robbery count pretrial response defendants’ Rule 12(b) motion, concluding “the Government [failed adduce] sufficient facts establish a nexus between robbery allegedly committed by [the defendants] any obstruction of interstate commerce.” Id. at 773–74. As here, we held district court’s “inquiry into sufficiency of [government’s] evidence” on issue “was premature.” Id . at 776. We distinguished Mennuti , F.2d (2d Cir. 1981), which upheld a pretrial sufficiency ‐ evidence ruling where government had voluntarily submitted an affidavit containing entirety its proof. Alfonso F.3d at 777; see also Mennuti , F.2d at & n.1. Alfonso made clear “[u]nless government has made what can fairly described full proffer evidence intends present at trial,” sufficiency evidence appropriately addressed Rule 12(b) motion pretrial. Alfonso 776–77. exception employed Mennuti elaborated Alfonso
extraordinarily narrow. As Alfonso states, must make “detailed presentation entirety evidence” before can dismiss an sufficiency grounds. Id. Moreover, our research reveals—and *28 the parties cite—no federal appellate case upholding the authority a district court to require the government, before trial, to make such a presentation. Indeed, if district court possessed such authority, it could effectively force summary judgment like motion government—and, explained above, summary judgment does not exist in criminal procedure. See Huet , 665 F.3d at 595; Pope , at 1259–60; Yakou , F.3d at 246; Salman , F.3d at 1268. [10]
Simply put, government in Sampson’s case cannot “fairly” be said have made “a full proffer evidence intends present at trial” concerning precise time at which formed intent fraudulently convert issue Counts See Alfonso , at 776–77. There some dispute about this point oral argument. Sampson’s counsel posited that had fact made “full proffer” its evidence. But we cannot conclude that be case. During hearing, asked *29 government whether it had other evidence support its position concerning the limitations. See Gov’t App’x at government proffered some additional evidence after the hearing. See id. at 159–67. But it clear the government had not yet proffered all its evidence. See, e.g. id. at (mentioning “statements attributed Mr. Sampson, at time that, example, he created check, check which he emptied Eighth Avenue account . . . .”); id. at 145–46 (mentioning evidence opened numerous referee accounts at incorrect banks—including accounts which apparently did not embezzle); compare id. at (Sampson’s counsel arguing government’s additional proffer “really [didn’t] add anything” “just recite[d] what [was] already [i]ndictment”), Alfonso at (“The government’s brief statement . . . cannot fairly described full proffer purposes pretrial ruling sufficiency evidence.”). Indeed, its opinion granting motion dismiss, itself seemed acknowledge point. F. Supp. 18–19 (“The government’s additional contention motion premature because has not proffered all evidence related embezzlements also unavailing. Supplemental evidence would alter Court’s decision . . . .”); id. n.8 (“[A]t eleventh hour, *30 proffered additional evidence that had no relevance bearing the Court’s decision .” (emphasis added)).
We agree with the district court that placement of the surplus funds at issue banks other than those specified in court orders his failure to remit the within five days of their receipt could constitute evidence that possessed intent to defraud with respect to these funds—thereby completing any offense with respect to the funds—outside the of limitations. But this evidence far conclusive a matter of law. Moreover, it cannot be said that “trial the facts surrounding the commission the alleged *31 offense would no assistance in determining validity [the limitations] defense.’” Pope at (quoting Covington U.S. at 60).
Thus, consider Count 1, which alleges that “embezzle[d]” $8,000 from Forbell Street Account “[o]n or about February 2008.” Gov’t App’x at ¶ 54. The indictment alleges in placed Forbell Street surplus funds into escrow account then failed to remit them. The then alleges engaged periodic “cash withdrawals electronic transfers” from account starting around July 1998. Gov’t App’x at ¶ A factfinder might consider such conduct to establish referee’s fraudulent intent, start, to convert all money account to his own use, including money not yet removed. But such conduct would not constitute as to proceeds not yet transferred or withdrawn if referee, while neglectful his legal obligation promptly to remit, never acted fraudulent intent take control remaining funds himself—meaning, to fraudulently convert them. If were case Sampson, then his alleged *32 periodic withdrawals from the account between July 1998 June 2008 would constitute individual separate acts of embezzlement (assuming, of course, that he acted with the requisite fraudulent intent in each case). [13] Sampson would have then “completed” $8,000 at issue in Count 1 only “on or about February 13, 2008,” alleges that he took $8,000 out account (assuming, again, that he did so requisite fraudulent mens rea ). [14]
would routinely retain surplus funds in escrow accounts until a court ordered their distribution, despite judgments requiring such funds to be remitted promptly to ‐ designated depository. See In re Ball’s Will N.Y.S.2d 149 (N.Y. Sup. Ct. 1952) (addressing referee treatment surplus funds from foreclosures Queens County, New York). We do not opine on facts established at trial, nor take any view to validity Sampson’s ‐ ‐ limitations defense. We note, however, that
Eric Newton, Kings County Court clerk, testified at trial on indictment’s other counts that, on at least one occasion, Sampson remitted surplus funds from foreclosure action on untimely basis. Notice Filing Official Transcript Proceedings John Sampson Held 6/24/2015, No. 1:13 ‐ cr ‐ DLI (E.D.N.Y. Aug. 2015), ECF at 84. This testimony may constitute evidence that did form requisite fraudulent intent embezzle funds Forbell Street Account until he transferred them into his personal account. We also note Ahmad testified that feared that law enforcement officials would discover he had removed funds escrow accounts—not had failed remit those first place. Id. 107. Count presents more complex issue than Count 1. Count alleges embezzled $82,677.94 Eighth Avenue Surplus about June Gov’t App’x ¶ 56. According facts outlined earlier
To be clear, on the record before us, we do not know if the government will be able to prove that Sampson completed the alleged embezzlements within the limitations. But fact alone is not enough to mandate dismissal Sampson’s embezzlement counts, for “we simply cannot approve dismissal an indictment basis predictions as to what trial evidence will be.” United States v. DeLaurentis , 230 F.3d 659, 661 (3d Cir. 2000). On remand, if proceeds Sampson’s prosecution, jury must be presented with evidence to when (if ever) fraudulent intent arose regarding $8,000 he indictment, however, Sampson had embezzled $27,500 $82,677.94 Eighth Avenue Surplus July 21, Id. 43, ¶ 24. fact is later alleged have attempted replace money is irrelevant; offense is complete all elements are met, even if defendant later attempts return money he took. See United States v. Angelos , F.2d 859, 861 (7th Cir. 1985). Thus, even if lacked fraudulent intent for remainder account until 2008, taking indictment’s allegations true, could have embezzled—at most—$55,167.94 or about June 2008, not $82,677.94. Nonetheless, $55,167.94 still “$5,000 more,” which what 666(a)(1)(A) requires jurisdictional purposes. See, e.g. United States v. Stringer , (2d Cir. 2013) (“An ‘need be perfect, common sense reason are more important than technicalities.’” (quoting De La Pava 2001))). Because Count “contains elements offense intended be charged, sufficiently apprises defendant what must prepared meet,” we consider sufficient Rule 12(b) purposes. Russell U.S. (1962) (internal quotation marks omitted).
allegedly transferred from Forbell Street Referee Account the $55,167.94 reflected bank check payable KCC that allegedly exchanged that same year bank checks made payable himself.
In sum, question timing of Sampson’s alleged fraudulent conversions is factual, not legal. And factual dispute such as one, going a statute limitations defense that itself inextricably intertwined an element crime (here, mens rea embezzlement) cannot be resolved on Rule 12(b) motion—at least when, here, government has yet proffered all its evidence. district thus applied erroneous legal standard reach premature conclusion. Accordingly, its pretrial order concluding alleged embezzlements were outside limitations matter law must vacated.
III argues notwithstanding above error, we should affirm court’s decision other grounds. We disagree.
First, contends because purportedly took inconsistent positions fraudulent intent issue during its prosecution other counts indictment, somehow estopped arguing *35 alleged embezzlements were “complete” Sampson, however, cites no relevant support proposition. cases cites his brief— United States v. GAF Corp. , 928 F.2d 1253 (2d Cir. 1991); United States v. Salerno , 937 (2d Cir. 1991), rev’d other grounds , 505 U.S. 317 (1992); United States v. Lopez Ortiz , F. Supp. 2d (D.P.R. 2009); v. Bakshinian , F. Supp. 2d (C.D. Cal. 1999)—all concern admissibility prior inconsistent statement government admission by party opponent Federal Rule Evidence 801(d)(2). These cases are far enough rebut extraordinarily strong presumption against applying equitable estoppel against government. See, e.g. Drozd I.N.S. 1998) (“The doctrine equitable estoppel available against ‘except most serious circumstances,’ applied ‘with utmost caution restraint.’” (internal citations omitted) (first quoting RePass 154, (2d Cir. 1982); then quoting Estate of Carberry Comm’r of Internal Revenue 1991))).
Second, Sampson argues that we should affirm the dismissal of the two counts lack of subject matter jurisdiction grounds. To extent that Sampson’s argument concerns sufficiency government’s evidence, we decline address his argument, reasons explained above. To extent that argument challenges sufficiency indictment, however, we reject his argument merits.
As described above, an individual can convicted program “embezzlement” only if he “agent an organization, or State, local, or Indian tribal government, or any agency thereof” that “receive[d], any one year period, benefits excess $10,000 Federal program involving grant, contract, subsidy, loan, guarantee, other form Federal assistance.” *37 U.S.C. §§ 666(a)(1)(A), 666(b). “Agent” defined as “a person authorized act on behalf of another person or government,” id. § 666(d)(1), and government “agency” includes “a subdivision of . . . judicial . . . branch of government,” id. 666(d)(2). indictment alleges that he “act[ed] on behalf of Supreme Court [of State of New York]” when he served as referee foreclosure proceedings, and, as result, was Supreme Court’s “agent.” Gov’t App’x at 37, ¶ 4; id. at 52, ¶ 54; id. at 53, ¶ 56. Furthermore, indictment insists, “[i]n or about between Supreme Court received excess of $10,000 grants each year.” Id. at ¶ 13. Therefore, claims, Supreme Court was an “agency of state received benefits excess $10,000 one more Federal programs.” Id. ¶ 54; id. ¶ challenges indictment’s—and, extension,
government’s—allegation three grounds. First, claims he an agent “Supreme Court State New York” served as referee, but rather an agent “Kings County Supreme Court.” argues “nothing authorized [him] act behalf entity known ‘the Supreme Court State New York,’” “[t]he entity known *38 ‘Supreme Court of State of New York’ does not exist any physical sense.” Br. Def. Appellee The problem, however, is New York State Constitution mentions only one “supreme court.” N.Y. Const. art. VI, § 1; id. , (“ supreme court shall have general original jurisdiction law equity.” (emphasis added)). Accordingly, New York’s highest tribunal, New York Court of Appeals, has made clear Supreme Court is single great tribunal of general state wide
jurisdiction, rather than aggregation of separate courts sitting several counties or judicial districts of state. “There is,” we have stated, “but one supreme court state jurisdiction of its justices is coextensive with state.” That unity has been preserved throughout court’s history, as local tribunals civil of criminal jurisdiction have been merged it.
Schneider v. Aulisi N.Y. (1954) (citations omitted) (emphasis added) (quoting People ex rel. New York Cent. & Hudson Riv. R.R. Co. Priest N.Y. (1902)). Because “[t]he interpretation state constitutional provision made state’s highest binding court,” Auerbach Rettaliata 1985), we cannot question Court Appeals’ determination that, purposes jurisdiction, there no such entity “Kings County Supreme Court,” but rather simply one “Supreme Court State New York.” While may therefore correct “[t]he entity known ‘the Supreme Court State New York’ does exist any physical sense,” it does exist a legal sense, and that is all that matters for purposes of Sampson’s argument.
Second, submits even if he an “agent” of a pertinent agency, his agency terminated Forbell Street and Eighth Avenue Foreclosure Actions ended respectively. But orders appointed a referee contain no expiration date for his agency. And “[i]f parties do specify duration for agent’s actual authority, terminates after reasonable period of time. What is reasonable time is issue trier fact .” Restatement (Third) Of Agency § 3.09 cmt. d (2018) (emphasis added). Accordingly, absent voluntary full proffer government’s evidence, issue whether agency terminated along foreclosure actions one jury resolve.
Finally, alternative, argues his agency terminated before when, according indictment, committed multiple discrete acts embezzlement. It true agency can sometimes terminate when, “without knowledge principal,” agent commits “a serious breach loyalty principal.” Restatement (Second) Agency § (1958). But we decline read principle into definition “agent” If we did, employee’s “agency” would terminate moment he commits any crime, thereby rendering him outside scope § 666 for any future crime commits. That conclusion would only run counter basic idea § 666— i.e. , “protect integrity vast sums money distributed through Federal programs theft, fraud, and undue influence bribery,” Sabri v. United States , U.S. 600, 606 (2004)—but would also deeply conflict with cases which we have affirmed convictions for multiple , separate violations § see, e.g. Boyland (2d Cir. 2017); Coyne 1993). We reject Sampson’s invitation read such obvious opportunity subterfuge abuse into Accordingly, we cannot affirm district court’s order dismissing Sampson’s counts alternative grounds.
CONCLUSION
For foregoing reasons, we VACATE district court’s August judgment, REINSTATE Count Count indictment, REMAND further proceedings consistent opinion.
[1] In case’s companion appeal, Sampson No. cr, appeals judgment entered after jury trial which found guilty obstruction justice, violation U.S.C. § 1503(a), two counts making false statements, violation U.S.C. 1001(a)(2). This instant appeal concerned solely court’s pretrial dismissal two acts purportedly committed
[2] government later filed multiple superseding indictments, each which contain virtually identical counts. For sake clarity, we will refer counts Third Superseding Indictment, which filed July
[3] Unless otherwise stated, facts outlined below are either undisputed taken directly indictment, allegations which we assume true purposes appeal. Rosengarten 1988).
[4] entered into agreement tolled relevant limitations February up including May
[5] “To act with the ‘intent to defraud’ means to act willfully, and with the specific intent to deceive or cheat purpose of either causing some financial loss to another, or bringing about some financial gain to oneself.” Cloud , F.2d 852 n.6 (9th Cir. 1989). A “conversion” context consists “the unauthorized assumption and exercise right ownership over goods belonging to another to exclusion owner’s rights,” which includes a “denial or violation [owner’s] dominion, rights or possession” over his property. See Thyroff Nationwide Mut. Ins. Co. , 403–04 (2d 2006). An individual charged with overseeing another’s funds can “convert” those by intentionally failing to remit them despite existence a fiduciary duty to do so. Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, Law Torts § ed. 2011) (“A bailee who an obligation to return goods when a specific event occurs may liable as a converter event occurs he fails to return goods, whether or not plaintiff demands them.”). Importantly, “intent” required such an act to qualify a “conversion” not same “intent to defraud.” A “conversion” requires solely an “intent to exercise dominion or control over goods,” a manner “is fact inconsistent with [another’s] rights.” W. Page Keeton et al. , Prosser Keeton Law Torts § (5th ed. 1984); see also Dobbs et al. supra § (“The defendant might believe goods are his he has every right to deal them, but, even so, harbors requisite intent [for conversion] if he intends act upon goods.”). An intent defraud, contrast, involves “specific intent deceive cheat.” Cloud n.6 (emphasis added). Thus, “[a] mere failure pay over monies belonging another[] without fraudulent intent”— while potentially conversion—“is [an] embezzlement.” 29A C.J.S. Embezzlement (2018).
[6] Admittedly, the district court’s opinion is somewhat ambiguous point. Although the court clearly recognized that embezzlement requires fraudulent intent, also used language suggesting an embezzlement complete as matter law when an individual fails remit funds accordance legal obligation. See, e.g. F. Supp. 3d at 19–20 (“[T]he offense embezzlement completed as soon as there has been actual taking property. . . . [Accordingly, moment Sampson] did return [escrow] funds, [he] appropriated and completed embezzlement.” (internal quotation marks omitted) (quoting Sunia F. Supp. 2d (D.D.C. 2009))). We therefore read district court as having made determination if committed crime all, necessarily possessed requisite fraudulent intent—and thereby completed alleged offenses—outside limitations. We also read having determined (again implicitly) actus reus conversion took place, if all, not, charged, allegedly removed $8,000 Forbell Street Referee Account exchanged monies reflected $82,677.94 KCC bank check checks made out himself.
[7] Federal Rule of Criminal Procedure 7, for example, which governs presentment indictment, modeled after Federal Rule of Civil Procedure 8, which governs presentment a pleading. See Fed. R. Crim. P. 7; Fed. R. Civ. P. 8; Jesse Jenike Godshalk, Comment, “Plausible Cause”?: How Criminal Procedure Can Illuminate U.S. Supreme Court’s New General Pleading Standard Civil Suits U. Cin. L. Rev. (2010). Federal Rule Criminal Procedure 12, which concerns, inter alia motions dismiss facially deficient indictments, resembles Federal Rule Civil Procedure which concerns, inter alia motions dismiss facially invalid complaints. See Fed. R. Crim. P. 12; Fed. R. Civ. P. 12. And Federal Rule Criminal Procedure which allows party move a judgment acquittal, similar Federal Rule Civil Procedure which allows party move judgment matter law. Fed. R. Crim. P. 29; Fed. R. Civ. P.
[8] We need elaborate here numerous rationales more calibrated discovery federal criminal, as opposed civil, cases. Suffice say even there has been trend recent decades somewhat broader discovery criminal cases, concerns persist regarding: legal practical constraints ability afford reciprocal discovery against criminal defendant; whether full disclosure government’s case facilitates defense perjury; whether such concerns these militate against broader discovery prosecution, given its heavy burden proof. Wayne R. LaFave et al., Criminal Procedure § 20.1(b) (4th ed. 2017); Charles Alan Wright et al., Federal Practice & Procedure: Criminal (4th ed. 2018); Steven A. Saltzburg & Daniel J.
[9] Although Alfonso referred only “jurisdictional” element an offense, we have since clarified its holding applies any element offense. Perez 166–67 2009).
[10] We further note Supreme Court’s decision Kaley S. Ct. (2014), may cast doubt continued viability even narrow exception. LaFave, Criminal Procedure supra 15.5(a) (“ Kaley arguably indicates . . . grand jury determination evidence sufficiency cannot contradicted pretrial process finds inadequacy other sources evidence.”). We need not address question, however, because even assuming exception remains viable, case does fall within it.
[11] It worth contrasting government’s limited proffer case proffer that government voluntarily submitted Mennuti . That proffer consisted a point point outline how government would establish each element indictment’s counts, including testimony government intended present at trial. See Mennuti at & n.1. As we noted Alfonso it can sometimes government’s benefit voluntarily submit such a proffer: can appeal a Rule 12(b) pretrial determination it lacks sufficient evidence prove its case, but cannot appeal a similar Rule determination. Alfonso n.7. In any event, record here does not permit conclusion there such comprehensive proffer, qualifying “detailed presentation entirety evidence [the government] would present jury” regarding allegedly formed requisite fraudulent intent. Id. Absent complete proffer, could inquire into sufficiency government’s case. id.
[12] argues retaining escrow account beyond court imposed statutory deadline uncommon, not conclusive intent defraud. Br. Appellant 25–26. Indeed, least one New York described practice 1950s pursuant which court appointed referees
[15] To extent that Sampson claims indictment deficient because somehow alleges embezzled funds at issue both before during we reject his argument. Nothing indictment stands proposition embezzled all surplus funds failed remit them 2002. Rather, alleges began embezzle surplus relevant accounts around period. Gov’t App’x ¶ 20; id. ¶