United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-1515

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Kwame Ali Askia

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court 

for the Western District of Arkansas - El Dorado

____________

Submitted: April 12, 2018

Filed: June 29, 2018

____________

Before GRUENDER, MELLOY, and GRASZ, Circuit Judges.

____________

MELLOY, Circuit Judge.

Kwame Ali Askia managed an organization that received federal grant funds

to subsidize an after-school program for children. After misappropriating over $5,000

of those funds for personal expenditures, Askia was charged on March 6, 2013, with

theft concerning programs receiving federal funds, in violation of 18 U.S.C.

§ 666(a)(1)(A). Askia moved to dismiss the indictment, arguing that it violated the

applicable statute of limitations. Specifically, Askia claimed that the five-year statute
of limitations barred his indictment for offenses committed before March 6, 2008, and

that his crime was committed before that date. In fact, and complicating the issue,

Askia’s alleged criminal conduct straddled this limitations bar; the indictment charged

criminal conduct from August 23, 2007, to April 11, 2008. The district court1

 denied

Askia’s motion, concluding that the offense was a “continuing offense,” meaning the

crime was not committed until the last date charged in the indictment, and thus the

indictment was timely. The district court alternatively held that, even assuming the

offense was not a continuing offense and Askia had committed an offense before the

limitations bar, the indictment charged a separate § 666(a)(1)(A) offense within the

limitations period. The case proceeded to trial, and a jury returned a guilty verdict.

On appeal, Askia raises several questions, including one of first impression in

this circuit: When an offense prohibits unlawfully taking at least $5,000 from an

organization receiving federal funds, is that crime “committed” once all elements are

established or is the crime continually committed over time?

I.

The United States government, through a grant program known as the “21st

Century Community Learning Centers,” provides grant money to subsidize

community learning centers, typically for children attending high-poverty, lowperforming schools. The Arkansas Department of Education received grant funds

from the 21st Century program and then awarded grants to approved entities.

Askia, the owner of Askia Learning Concepts, submitted an application on

behalf of Askia Learning for a 21st Century grant. The application sought a grant in

order to establish a community learning center in Arkansas during the 2007–2008

1

The Honorable Susan O. Hickey, United States District Judge for the Western

District of Arkansas, adopting the report and recommendations of the Honorable

Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.

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school year. The application was approved, and Askia Learning received a grant for

$149,280, the full amount requested in the application.

On November 1, 2007, Arkansas Department officials visited Askia Learning’s

location and discovered several compliance issues. Based on these issues, the

Department ordered Askia Learning to cease spending grant funds and to send the

Department a current expenditure report with supporting documentation. Department

officials then held several meetings with Askia, repeatedly requested documentation,

and continually ordered Askia to stop spending grant funds. Askia neither supplied the

requested documentation nor stopped spending grant funds. On March 27, 2008, the

Department sent Askia Learning a letter, terminating the 21st Century grant based on

Askia Learning’s failure to comply with grant requirements and demanding repayment

of most of the grant. After investigating Askia Learning and Askia, the Government

identified numerous expenditures where he allegedly misappropriated grant funds for

personal expenditures.

On March 6, 2013, more than five years after Askia Learning received the 21st

Century grant, a one-count indictment was returned, charging Askia with a violation

of 18 U.S.C. § 666(a)(1)(A). The indictment specifically charged:

From on or about August 23, 2007, to on or about April 11, 2008, in the

Western District of Arkansas, El Dorado Division, the defendant,

KWAME ALI ASKIA, being an agent of, Askia Learning Concepts, a

for profit organization, said organization receiving in the one year period

beginning August 23, 2007, benefits in excess of $10,000 under a 21st

Century Community Learning Centers Grant, embezzled, stole, without

authority knowingly converted, obtained by fraud, and intentionally

misapplied property worth at least $5,000 and owned by and under the

care, custody and control of Askia Learning Concepts, that is, grant

funds provided for educational services to Strong High School, Strong,

Arkansas, in violation of 18 U.S.C. § 666(a)(1)(A).

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Askia moved to dismiss the indictment, arguing that the applicable five-year

statute of limitations barred his indictment for offenses committed before March 6,

2008. This date landed toward the end of the timeline charged in the indictment (i.e.,

August 23, 2007, to April 11, 2008). At a hearing on the motion, the Government

offered proof of seventeen supposedly personal expenditures, including at least four

occurring after March 6, 2008. These four expenditures totaled $5,503.36.

The district court denied Askia’s motion to dismiss, for two reasons. First, the

court concluded that § 666(a)(1)(A) was a “continuing offense” and thus the statute

of limitations did not begin to run until the last date charged, i.e., April 11, 2008,

placing the indictment within the limitations period. Second, even assuming

§ 666(a)(1)(A) was a completed offense and thus the statute of limitations began to

run once all elements of the offense were established, the court concluded that the four

expenditures after March 6, 2008, established a separate offense within the limitations

period.

The case proceeded to trial, where Askia represented himself pro se with

standby counsel. Notwithstanding the district court’s earlier alternative ruling that the

indictment charged an offense committed after March 6, 2008, Askia did not challenge

the Government’s evidence of expenditures before March 6. Askia also did not

request a jury instruction or a special verdict form as to the dates of his alleged

misappropriations. A jury then returned a guilty verdict. The sentencing court

sentenced Askia to twenty-four months of imprisonment, to be followed by thirty-six

months of supervised release, and ordered $148,416 in restitution. Askia timely

appealed.

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II.

On appeal, Askia raises four challenges regarding: (A) the statute of limitations,

(B) evidentiary issues, (C) his due-process rights, and (D) the sufficiency of the

evidence.

A.

Askia first asserts that the applicable statute of limitations barred the indictment

charging him with violating 18 U.S.C. § 666(a)(1)(A). “This court reviews de novo

the denial of a motion to dismiss the indictment.” United States v. Howell, 531 F.3d

621, 622 (8th Cir. 2008).

A statute of limitations for an offense typically begins to run once it is

complete—in other words, once all elements of the offense are established. See

Toussie v. United States, 397 U.S. 112, 115 (1970); id. at 124 (White, J., dissenting). 

Larceny is an easy example. A larceny occurs when a person wrongfully or

fraudulently takes another’s property without her permission or consent, and with the

intent to permanently deprive the owner of that property. The crime is committed and

complete once the last of these elements has occurred. That point in time thus starts

the clock for a statute of limitations. See United States v. McGoff, 831 F.2d 1071,

1078 (D.C. Cir. 1987).

There is an exception to this general rule, however, for a “continuing offense.”

A continuing offense is, simply put, a single crime that continues over time. 

See Toussie, 397 U.S. at 119; United States v. Yashar, 166 F.3d 873, 875 (7th Cir.

1999); McGoff, 831 F.2d at 1078. “[E]ven after the elements necessary to establish

the crime have occurred,” Yashar, 166 F.3d at 875, the same crime is continuously or

continually committed over time. Toussie, 397 U.S. at 119–20. A statute of

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limitations for a continuing offense thus does not start until the offense “expires.” 

Conspiracy is a classic continuing offense. The statute of limitations for a conspiracy

does not start until the conspiracy expires—for example, when either the conspiracy’s

unlawful purpose is accomplished or the relevant conspirator withdraws from the

conspiracy. See Ashraf v. Lynch, 819 F.3d 1051, 1053 (8th Cir. 2016).

The Supreme Court in Toussie v. United States formulated two prongs for

identifying a continuing offense. 397 U.S. at 115. An offense is continuous if either

“the explicit language of the substantive criminal statute compels such a conclusion,

or the nature of the crime involved is such that Congress must assuredly have intended

that it be treated as a continuing one.” Id. The Government concedes that

§ 666(a)(1)(A) is not a continuing offense under the first prong, but contends that the

offense is a continuing offense under the second prong.2

The Supreme Court has cautioned courts to apply the continuing-offense

doctrine infrequently. “The purpose of a statute of limitations is to limit exposure to

criminal prosecution to a certain fixed period of time following the occurrence of

those acts the legislature has decided to punish by criminal sanctions.” Id. at 114. 

This “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 to minimize the danger of official punishment because of acts in the

far-distant past. Such a time limit may also have the salutary effect of encouraging

law enforcement officials promptly to investigate suspected criminal activity.” Id. at

114–15. Based on these principles, “[t]he tension between the purpose of a statute of

limitations and the continuing offense doctrine is apparent; the latter, for all practical

2

Yet the Government has conceded in other cases that § 666(a)(1)(A) is not a

continuing offense under either prong. See, e.g., Yashar, 166 F.3d at 876 (“[T]he

government agree[s] that § 666 is not a ‘continuing offense’ as that term is defined in

Toussie.”).

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purposes, extends the statute beyond its stated term.” Id. at 115 (alteration in original)

(citation omitted). “[T]he doctrine of continuing offenses [therefore] should be

applied in only limited circumstances . . . .” Id.

To determine whether an offense is a continuing offense, a court must analyze

the language and elements of the offense, rather than the facts alleged or the charge

itself. See id. at 116–20 (examining the text and legislative history of the offense);

Yashar, 166 F.3d at 877 (“[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.”); United States v. Jaynes, 75 F.3d 1493, 1506 (10th Cir.

1996) (“[A] continuing offense is not the same as a scheme or pattern of illegal

conduct.”); United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991) (per curiam)

(“As [Toussie] makes clear, the analysis turns on the nature of the substantive offense,

not on the specific characteristics of the conduct in the case at issue.”), overruled in

part on other grounds by United States v. Scarano, 76 F.3d 1471, 1474–77 (9th Cir.

1996); McGoff, 831 F.2d at 1077–78. We thus start with the text of the offense.

Here, Askia was charged with violating 18 U.S.C. § 666(a)(1)(A), which

prohibits unlawfully taking property from an organization receiving federal funds:

(a) Whoever, if the circumstance described in subsection (b) of this

section exists—(1) being an agent of an organization . . . (A) embezzles,

steals, obtains by fraud, or otherwise without authority knowingly

converts to the use of any person other than the rightful owner or

intentionally misapplies, property that—(i) is valued at $5,000 or more,

and (ii) is owned by, or is under the care, custody, or control of such

organization . . . shall be fined under this title, imprisoned not more than

10 years, or both.

Subsection (b), in turn, limits the offense’s scope to an agent of an organization

(or of certain governmental bodies) that “receives, in any one year period, benefits in

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excess of $10,000 under a Federal program involving a grant.” 18 U.S.C. § 666(b). 

The statute of limitations for this offense is five years. Id. § 3282(a) (“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.”).

The issue of whether § 666(a)(1)(A) is a continuing offense is an issue of first

impression in this circuit. Although larceny might be an easy example and although

embezzlement is similar to larceny, there is a partial circuit split on the issue of

whether an embezzlement-type offense is a continuing offense. 

The Seventh Circuit in United States v. Yashar held that § 666(a)(1)(A) is not

a continuing offense and “the offense is committed and the limitations period begins

to run once all elements of the offense are established, regardless of whether the

defendant continues to engage in criminal conduct.” 166 F.3d at 879–80. Several

district courts have held similarly. See, e.g., United States v. Sunia, 643 F. Supp. 2d

51, 72–75 (D.D.C. 2009); United States v. Donehue, No. C 07-00380 SI, 2008 WL

1900992, at *2 (N.D. Cal. Apr. 28, 2008); cf. United States v. Johnson, 145 F. Supp.

3d 862, 871 (D.S.D. 2015) (holding that “embezzlement under 18 U.S.C. § 656 is not

a continuing offense”); United States v. Jones, 676 F. Supp. 2d 500, 518 (W.D. Tex.

2009) (holding that bribery under 18 U.S.C. § 666(a)(1)(B) is not a continuing

offense). But see United States v. Shoemaker, No. 2:11-CR-00038-NBB-DAS, 2012

WL 313620, at *1–2 (N.D. Miss. Feb. 1, 2012) (holding that § 666 is a continuing

offense, despite the government conceding “that a Section 666 offense is not a

continuing offense”).

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The Fourth Circuit in United States v. Smith analyzed a similar embezzlementtype statute, 18 U.S.C. § 641,3

 and held that it was a continuing offense. 373 F.3d

561, 567–68 (4th Cir. 2004) (per curiam). There, the defendant had arranged for his

mother’s Social Security benefits to be automatically deposited in his and his mother’s

joint account each month, and the defendant continued receiving and spending

benefits after his mother died. Id. at 563. The Fourth Circuit held that § 641 was a

continuing offense because the scheme involved a “recurring, automatic scheme of

embezzlement.” Id. at 567. In so holding, the court analyzed not only the language

and elements of the offense, but also the facts and circumstances alleged, which is

contrary to our conclusion above that a court must analyze the language and elements

of the offense.

We agree with the Seventh Circuit and hold that 18 U.S.C. § 666(a)(1)(A) is not

a continuing offense. We reach this conclusion for at least four reasons.

3

Section 641 is analogous in all relevant respects here to § 666(a)(1)(A). See

Sunia, 643 F. Supp. 2d at 73. Each offense prohibits unlawfully taking property; the

offenses differ merely based on the lawful owner or possessor of the property and the

property’s value. Section 641 specifically provides: 

Whoever embezzles, steals, purloins, or knowingly converts to his use

or the use of another, or without authority, sells, conveys or disposes of

any record, voucher, money, or thing of value of the United States or of

any department or agency thereof, or any property made or being made

under contract for the United States or any department or agency thereof;

or Whoever receives, conceals, or retains the same with intent to convert

it to his use or gain, knowing it to have been embezzled, stolen,

purloined or converted—Shall be fined under this title or imprisoned not

more than ten years, or both; but if the value of such property in the

aggregate, combining amounts from all the counts for which the

defendant is convicted in a single case, does not exceed the sum of

$1,000, he shall be fined under this title or imprisoned not more than one

year, or both.

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To start, a § 666(a)(1)(A) offense is completed once each element of the offense

has occurred. A defendant’s “instantaneous events,” Toussie, 397 U.S. at

122—embezzling or stealing property from an organization receiving federal grant

funds—complete the crime. As noted above, it is well established that offenses such

as stealing, theft, and larceny are completed offenses. See McGoff, 831 F.2d at 1078

(“[A] larceny is completed as soon as there has been an actual taking of the property

of another without consent, with the intent permanently to deprive the owner of its

use. The offense does not ‘continue’ over time.”). Section 666(a)(1)(A) proscribes

those actions, in addition to embezzlement-type actions. But embezzlement is merely

a larceny from a position of trust. Even the Fourth Circuit in Smith recognized that

embezzlement “differs from larceny [only] in the fact that the original taking of the

property was lawful, or with the consent of the owner.” 373 F.3d at 564. That

distinction, however, does not transform embezzlement into an offense that continues

over time. See Toussie, 397 U.S. at 136 (“[T]he unlawful course of conduct [for a

continuing offense] is ‘set on foot by a single impulse and operated by an

unintermittent force,’ until the ultimate illegal objective is finally attained.” (citation

omitted)); United States v. Morales, 11 F.3d 915, 921 (9th Cir. 1993) (O’Scannlain,

J., concurring in part and dissenting in part). Embezzlement, like larceny, is

completed with the unlawful taking.

Second, unlike well-established continuing offenses—such as conspiracy and

unlawful possession—a § 666(a)(1)(A) offense “does not ‘continue’ over time.” 

McGoff, 831 F.2d at 1078. Once the elements are established—i.e., an agent of an

organization, which receives certain federal funds, unlawfully takes at least $5,000

from the organization—the crime is complete. It is not then continuously or

continually committed over time, as is the case with conspiracy. See Toussie, 397

U.S. at 122; Yashar, 166 F.3d at 875. Although the harm to the victim might

continue, the crime does not.

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Our holding is supported also by the principle that continuing “offenses are not

to be implied except in limited circumstances.” Toussie, 397 U.S. at 121; id. at 115

(reaffirming “the principle that criminal limitations statutes are ‘to be liberally

interpreted in favor of repose’” (quoting United States v. Scharton, 285 U.S. 518, 522

(1932))). The Supreme Court in Toussie declared that “the doctrine of continuing

offenses should be applied in only limited circumstances since . . . ‘[t]he tension

between the purpose of a statute of limitations and the continuing offense doctrine is

apparent; the latter, for all practical purposes, extends the statute beyond its stated

term.’” Id. at 115 (alteration in original) (citation omitted). That principle governs

here where Congress neither expressly declared that § 666(a)(1)(A) is continuing

offense, nor clearly implied as such when prescribing the nature of the offense. 

Congress’s inaction is particularly telling as larceny-type offenses long have been

understood as generic, non-continuing offenses. See id. at 120.

Finally, the rationales undergirding the statute of limitations further support

finding that § 666(a)(1)(A) is not a continuing offense. As noted above, this

legislatively prescribed limitation not only encourages timely prosecutions when the

facts are fresh and recollections collected, but also discourages prosecutions for “acts

in the far-distant past.” Id. at 114–15. Those rationales militate against concluding

that § 666(a)(1)(A) is a continuing offense, where the statute of limitations gave the

Government five years to seek an indictment for the offense, yet the Government

failed to obtain an indictment until more than five years after initially discovering

Askia’s misconduct.

We therefore hold that 18 U.S.C. § 666(a)(1)(A) is not a continuing offense. 

As such, a defendant may not be charged for a § 666(a)(1)(A) offense committed

outside the five-year statute of limitations. See 18 U.S.C. § 3282(a).

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The question remains, however, whether a defendant may be charged for a

§ 666(a)(1)(A) violation when the charged conduct falls both outside and within the

limitations period. To prove a § 666(a)(1)(A) offense, the government must show in

part that the defendant stole at least $5,000. To establish this element, the government

sometimes may aggregate multiple thefts to satisfy the $5,000 jurisdictional minimum. 

See United States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008) (holding that § 666

“permits the government to aggregate multiple transactions in a single count to reach

the $5,000 minimum as long as they were part of a single plan or scheme”). An issue

thus arises—as it does here—when the aggregated thefts straddle the limitations bar.

The Seventh Circuit in Yashar implied that a § 666(a)(1)(A) offense outside the

limitations period absolves future § 666(a)(1)(A) offenses committed within the

limitations period. See 166 F.3d at 879–80 (“[W]e hold that for offenses that are not

continuing offenses under Toussie, the offense is committed and the limitations period

begins to run once all elements of the offense are established, regardless of whether

the defendant continues to engage in criminal conduct.” (emphasis added)). The

Yashar court thus remanded to the district court to determine whether “all elements

of the crime were met [outside the limitations period], such that the government could

have proceeded with criminal charges prior to that date”; if so, “then the indictment

in th[e] case was not timely.” Id. at 880.

We disagree with that position. If, as we have decided, each § 666(a)(1)(A)

violation is a separate criminal offense, and not a continuing violation, we see no

reason why those violations that occurred within the statute of limitations cannot be

prosecuted. We see nothing in criminal law that would prevent the prosecution of an

individual who commits a series of thefts or embezzlements (which, by their nature,

are crimes of concealment) over a number of years from being prosecuted for those

crimes that occurred within the limitations period, just because a few of the

embezzlements or thefts occurred outside the five years. The government is precluded

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from prosecuting the violations committed more than five years prior to the date of the

indictment, but, would be free to charge and prosecute any § 666(a)(1)(A) violations

committed within the limitations period.

At the motion-to-dismiss hearing here, the Government introduced evidence of

seventeen supposedly personal expenditures. The district court found that four of

those expenditures occurred within the limitations period and equaled over $5,000.

Those four expenditures independently supported a separate § 666(a)(1)(A) offense,

and nothing could bar the Government from charging those expenditures as a

§ 666(a)(1)(A) violation. See Smith, 373 F.3d at 570 (Michael, J., dissenting) (“The

record indicates that some of [the defendant]’s conduct [allegedly in violation of

§ 641] occurred within the applicable limitations period . . . . The government would

be able to obtain a superseding indictment charging that conduct.”); Jaynes, 75 F.3d

at 1507 (“[The defendant] could be convicted of the offenses charged in counts one

and two if she forged or passed any Treasury checks within five years of the date of

the indictment, even if some of the alleged acts of forgery and passing forged checks

would be barred by the statute of limitations.”); Morales, 11 F.3d at 922 (O’Scannlain,

J., concurring in part and dissenting in part) (“When an official engages in an ongoing

pattern of seeking and receiving bribes from a single source . . . that does not mean

that he is guilty of a ‘continuing’ violation . . . (or, for that matter, a series of such

‘continuing’ violations). Instead, [the defendant] could have been charged for each

discrete, individual . . . violation he committed . . . .”). The indictment did not specify

the precise expenditures supporting the offense, and the four post-March 6

expenditures supported an offense committed within the limitations period. See

United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993) (“An indictment will

ordinarily be held sufficient unless it is so defective that it cannot be said, by any

reasonable construction, to charge the offense for which the defendant was

convicted.”). The district court therefore properly denied Askia’s motion to dismiss

the indictment.

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Based on the district court’s erroneous ruling that § 666(a)(1)(A) was a

continuing offense, the Government at trial introduced evidence of Askia’s personal

expenditures outside the limitations period. The Government also introduced

evidence of expenditures within the limitations period, totaling over $5,000. As noted

above, at trial Askia did not challenge the evidence on the expenditures outside the

limitations period through, for example, a motion in limine. Nor did he request a jury

instruction or a special verdict form as to which expenditures (i.e., those pre- or postMarch 6) supported his conviction. See Fed. R. Crim. P. 30–31. Now, however,

Askia appears to contest the jury’s consideration of the outside-the-limitations-period

expenditures. Because Askia did not challenge this evidence at trial, we review the

evidentiary challenge for plain error. See id. 52(b) (standard of review); United States

v. Olano, 507 U.S. 725, 732 (1993). A court of appeals has the discretion to correct

an error only if there is “an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’” 

Olano, 507 U.S. at 732 (alteration in original). The court “should not exercise that

discretion[, however,] unless the error seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” Id. (second alteration in original) (citation

omitted).

Here, even assuming the admission of the pre-March 6 evidence was plain

error, Askia has not shown that the supposed error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See id. As discussed above,

the jury received evidence of numerous expenditures within the limitations period that

were allegedly for personal reasons and that these expenditures totaled over $5,000. 

Viewing the evidence in the light most favorable to the jury’s verdict, these

transactions established that Askia unlawfully took, for his own personal use, over

$5,000 from Askia Learning. Because this evidence supports a finding that Askia

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violated § 666(a)(1)(A) within the statute of limitations, the purported error did not

seriously affect the judicial proceeding’s fairness, integrity, or public reputation.4

B.

Askia next complains that the Government submitted, to the grand jury and at

trial, a document falsely purporting to be Askia Learning’s application for the 21st

Century grant. The application admitted into evidence was marked as “Exhibit 4,”

and Askia contends that Exhibit 4 was not his true grant application.

Even assuming Askia properly objected to this evidence, he has not shown that

the district court abused its discretion in admitting Exhibit 4 into evidence. See

United States v. Big Eagle, 702 F.3d 1125, 1130 (8th Cir. 2013) (standard of review). 

The purported differences between Exhibit 4 and the document that Askia claimed to

be his “true” application include omitted page numbers, date stamps, and an appendix,

as well as different formatting. The most significant difference between the

documents, it appears, is the documents’ budgetary allocations (allocating the amounts

that Askia Learning could spend on certain expenses). Askia has not shown, however,

how those purported differences were relevant to the question at trial, i.e., whether

Askia misappropriated federal grant funds for his personal expenditures. Askia

therefore has not demonstrated that the district court abused its discretion in admitting

Exhibit 4 into evidence.

4

Askia also argues that the personal expenditures were withdrawals of personal

funds he had commingled with the grant funds in Askia Learning’s bank account. 

This circuit, however, has rejected the argument that the government must trace

personal expenditures directly to federal grant funds when a defendant has

commingled federal grant funds with his own personal funds. Hines, 541 F.3d at 836.

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Moving on, Askia appears to argue that the Government violated his Sixth

Amendment rights by not introducing into evidence the document he claims to be the

true 21st Century grant application. He also suggests that the district court violated

his rights by not sua sponte holding a hearing to determine which document was the

real application. Askia nevertheless concedes there was no violation of Brady v.

Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution”). Although his arguments are not entirely clear, we

conclude they are meritless. Askia had ample opportunities at trial to introduce his

version of the application into evidence and to challenge the validity of Exhibit 4. His

own failures did not create Sixth Amendment violations by the Government or the

district court.

Finally, Askia contends that the district court should have dismissed the

indictment because the Government gave the grand jury a copy of Exhibit 4 (before

being marked as such). Askia did not file a motion to dismiss the indictment based

on this supposedly false application. See Fed. R. Crim. P. 12(b)(3)(A)(v). Because

Askia did not file such motion before trial, he must show good cause for this failure. 

See id. 12(c)(3); United States v. Green, 691 F.3d 960, 963 (8th Cir. 2012). He has

not done so, and therefore his argument is untimely. See Fed. R. Crim. P. 12(c)(3).

C.

Askia next claims that his due-process rights under the Fourteenth Amendment

were violated at a pretrial hearing because the Government presented hearsay

evidence rather than giving Askia the opportunity to confront an adverse witness who

was the source of that evidence. Specifically, after Askia allegedly violated

conditions of his pretrial release, the Government petitioned to detain him pending

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trial. At a hearing on that petition, the Government elicited testimony from a

probation officer about the alleged pretrial violations, detailed in a “violation report.” 

The testifying officer, however, had not prepared the report. The Government did not

call as a witness the officer who actually had prepared the report. Askia contends that

the Government’s reliance on the hearsay testimony of the probation officer who had

not prepared the violation report was a violation of Askia’s due-process rights. For

this contention, Askia relies on Morrisey v. Brewer, 408 U.S. 471, 477 (1972). 

Even assuming there was such a violation, however, this issue is moot. Federal

courts may adjudicate only “actual and concrete disputes, the resolutions of which

have direct consequences on the parties involved.” Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 71 (2013). “If an intervening circumstance deprives the

plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during

litigation, the action can no longer proceed and must be dismissed as moot.” Id. at 72

(citation omitted). The resolution of the issue in this appeal—whether there was a

violation of Askia’s constitutional rights at the pretrial detention hearing—will have

no direct consequence on Askia now. His pretrial detention has concluded (and he has

already been released after serving his sentence). See United States v.

Sanchez–Gomez, 138 S. Ct. 1532, 1540 (2018) (concluding that the defendants’

challenges to their pretrial detentions were moot because they were “no longer in

pretrial custody”).

Relatedly, Askia argues that his pretrial detention hindered his and his stand-by

counsel’s abilities to obtain evidence, locate witnesses, and prepare for trial. In

support of this argument, Askia relies primarily on Barker v. Wingo, 407 U.S. 514

(1972), which deals with the Sixth Amendment right to a speedy trial. Under Barker,

a defendant must show “serious prejudice” resulting from a constitutional violation. 

Id. at 534. But Askia has not shown how he suffered serious prejudice here, besides

his conclusory claim that his trial preparation was hindered. Askia also fails to

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explain how his stand-by counsel—who claims to have met with Askia “daily”—was

unable to pursue these possible sources of evidence.

D.

Askia’s last argument is that the evidence at trial was insufficient to support his

conviction. “We review the sufficiency of the evidence de novo, viewing evidence

in the light most favorable to the government, resolving conflicts in the government’s

favor, and accepting all reasonable inferences that support the verdict.” United States

v. Washington, 318 F.3d 845, 852 (8th Cir. 2003). The evidence showed that Askia

was an agent of Askia Learning; that, in a one-year period, Askia Learning received

a federal grant valued over $10,000; that Askia deposited those grant funds into Askia

Learning’s account; that he withdrew funds several times for personal expenditures;

and that these expenditures totaled at least $5,000. These facts more than sufficiently

support Askia’s conviction. See 18 U.S.C. § 666(a)(1)(A).5

III.

The judgment of the district court is affirmed.6

______________________________

5

Askia presents several other arguments on the above issues and others. We

have reviewed these arguments and conclude they are meritless. See 8th Cir. Rule

47B.

6

Askia’s and the Government’s motions to supplement the record are denied. 

The Government’s motion to strike is dismissed as moot.

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