16

‐ 3044

‐ cr

United States v. Green



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2017

No. 16

‐ 3044

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

C HRISTY G REEN

, Defendant

‐ Appellant

.

On Appeal from the United States District Court

for the Northern District of New York

S UBMITTED : D ECEMBER 8, 2017

D ECIDED : J ULY 31, 2018

Before: C ABRANES and C ARNEY

, Circuit Judges

, and G OLDBERG

, Judge. 

 Judge Richard W. Goldberg, of the United States Court of International

Trade, sitting by designation.2 Defendant

‐ Appellant Christy Green (“Green”) appeals from a

judgment of the United States District Court for the Northern District

of New York (Thomas J. McAvoy, Judge ) convicting her of theft of

government property in violation of 18 U.S.C. § 641 and sentencing her

principally to one year of probation and to paying restitution. The

questions for appeal are (1) whether Green waived her right of appeal

in her plea agreement with the government; (2) whether the District

Court was permitted to order restitution for property stolen outside

the period set by the applicable statute of limitations on the ground

that Green consented to pay such restitution in her plea agreement;

and (3) whether violations of 18 U.S.C. § 641 (embezzlement of

government property) constitute continuing offenses, rendering

Green liable for restitution for funds embezzled outside the limitation

period.

We hold that Green did not waive her right of appeal, and that

the District Court was not permitted to order restitution for property

stolen outside the limitation period because Green did not consent to

pay such restitution and violations of 18 U.S.C. § 641 do not constitute

continuing offenses. Accordingly, we VACATE IN PART the District

Court’s judgment and REMAND the cause for determination of the

proper restitution amount within the limitation period.

Carina H. Schoenberger, Assistant United

States Attorney, for Grant C. Jaquith, Acting3 United States Attorney for the Northern

District of New York, Syracuse, NY, for

Appellee.

Arthur R. Frost, Frost & Kavanaugh, P.C.,

Troy, NY, for Defendant

‐ Appellant.

J OSÉ A. C ABRANES

, Circuit Judge :

Defendant

‐ Appellant Christy Green (“Green”) appeals from a

judgment of the United States District Court for the Northern District

of New York (Thomas J. McAvoy, Judge ) convicting her of theft of

government property in violation of 18 U.S.C. § 641 and sentencing her

principally to one year of probation and to paying restitution. The

questions for appeal are (1) whether Green waived her right of appeal

in her plea agreement with the government; (2) whether the District

Court was permitted to order restitution for property stolen outside

the period set by the applicable statute of limitations on the ground

that Green consented to pay such restitution in her plea agreement;

and (3) whether violations of 18 U.S.C. § 641 (embezzlement of

government property) constitute continuing offenses, rendering

Green liable for restitution for funds embezzled outside the limitation

period.

We hold that Green did not waive her right of appeal, and that

the District Court was not permitted to order restitution for property

stolen outside the limitation period because Green did not consent to4 pay such restitution and violations of 18 U.S.C. § 641 do not constitute

continuing offenses. Accordingly, we VACATE IN PART the District

Court’s judgment and REMAND the cause for determination of the

proper restitution amount within the limitation period.

I. BACKGROUND

While she was still living, Green’s mother received monthly

benefits payments from the United States Department of Veterans

Affairs (“VA”). Each month, the VA automatically deposited

approximately $1,154 into a joint bank account that Green held with

her mother. Green’s mother died on January 10, 2009, and Green

notified the VA of her death on February 9, 2009. But the VA continued

to make automatic monthly payments to the joint bank account

through August 2, 2011. As the automatic deposits continued, Green

regularly wrote checks to herself from the account in amounts similar

to the amounts of the VA payments.

On February 8, 2016, 1 the government filed an Information

charging Green with having “willfully and knowingly embezzled,

stole, and converted to her use and the use of others, money of the

United States and of a department thereof

. . . in violation of Title 18,

United States Code, Section 641.” 2 App. 5.

1 The record does not indicate why the government did not file the

Information until almost five years after the final VA payment.

2 Section 641 of title 18 provides, as relevant to the crime charged here:5 Green immediately entered into a plea agreement with the

government. She agreed to plead guilty to stealing a total of $35,774

between January 10, 2009, and August 2, 2011, and to pay “restitution

. . . in an amount determined by the Court to be equal to the sum of

payments unlawfully received within the applicable limitations

period.” App. 7–8 (emphasis added). She also waived her right “to

appeal and/or collaterally attack

. . . [a]ny order of

. . . restitution

. . .

that is consistent with governing law and is not contrary to the terms

of this agreement.” Id. at 11. But Green expressly “reserve[d] the right

to contest

. . . restitution” for payments stolen outside the limitation

period. Id. at 8.

At sentencing, the parties disagreed about which payments, if

any, had been stolen outside “the applicable limitations period.” The

applicable statute of limitations, 18 U.S.C. § 3282(a), requires any

prosecution under 18 U.S.C. § 641 to be “instituted within five years.”

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;

. . .

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.

The word “value” means face, par, or market value, or cost

price, either wholesale or retail, whichever is greater.6 According to Green, this meant that she was liable only for payments

stolen within five years of the filing of the Information. According to

the government, Green’s violation of 18 U.S.C. § 641 was one

“continuing offense” that encompassed the theft of all the payments

she received after her mother died, rendering Green liable for

payments received more than five years before the Information was

filed.

The District Court agreed with the government. It sentenced

Green to one year of probation and ordered restitution in the full

amount of $35,744, covering payments stolen both within and outside

the limitation period. This appeal followed.

II. DISCUSSION

A. Whether Green Waived Her Right to Appeal

The government argues that Green’s appeal should be

dismissed because she waived her right to appeal the District Court’s

restitution order. We disagree.

We review plea agreements, including waivers of the right to

appeal, de novo and in accordance with general principles of the law

of contract. See United States v. Padilla

, 186 F.3d 136, 139–40 (2d Cir.

1999). Since plea agreements waive defendants’ fundamental

constitutional rights, we construe their terms strictly against the

government, “hold[ing] prosecutors engaging in plea bargaining to

the most meticulous standards of both promise and performance.”7 United States v. Lawlor

, 168 F.3d 633, 636 (2d Cir. 1999) (citation

omitted).

We conclude that Green expressly reserved the right to

challenge any order of restitution that includes funds embezzled

outside of the limitation period. The plea agreement contains a

provision stating as much: “[T]he defendant reserves the right to

contest such restitution.” App. 8. It is true that Green waived her right

to appeal “[a]ny order of

. . . restitution

. . . that is consistent with

governing law and is not contrary to the terms of this agreement.”

App. 11. But as we discuss below, Green’s main argument on appeal

is precisely that the restitution order in this case is not “consistent with

governing law,” in that the order applies to VA funds stolen outside

the applicable limitation period. The government’s attempt to

circumvent this language does not satisfy “the most meticulous

standards” to which we hold the government in plea bargains. Lawlor

,

168 F.3d at 636. Indeed, it falls far short.

B. Whether Green’s Guilty Plea Constitutes Agreement to

Pay the Full Amount of Loss to the VA

The government next argues that the District Court was

permitted to order restitution for funds stolen outside the limitation

period because Green consented to such an order in her plea

agreement. According to the government, since Green pleaded guilty

to stealing funds both before and after the limitation period, the

District Court’s restitution order properly reflected the entire loss8 admitted in the plea agreement. We conclude that Green agreed to no

such thing in her plea agreement.

This case is similar to United States v. Silkowski

, 32 F.3d 682 (2d

Cir. 1994). In Silkowski

, the government prosecuted the defendant

under 18 U.S.C. § 641, the parties entered into a plea agreement under

which Silkowski pleaded guilty, and Silkowski—who stole Social

Security payments over a period that straddled the statute of

limitations—argued at sentencing that the court could not order

restitution for any money he received beyond the limitation period. Id.

at 684–85. After the district court ordered Silkowski to pay restitution

covering the full twelve years of stolen payments, Silkowski appealed.

We agreed with Silkowski, concluding that “the district court is

prohibited from ordering restitution for losses attributed to conduct

that was not part of the offense of conviction because of the applicable

statute of limitations in this case.” Id. at 687. We further noted that the

sentencing court can only order “restitution beyond the offense of

conviction when the defendant agrees to such in a plea agreement.” Id.

at 688–89 (internal quotation marks omitted).

The government argues that because the District Court based its

restitution order solely on Green’s offense of conviction, its order

differed from the one reviewed in Silkowski

. In the government’s view,

Silkowski pleaded guilty only to the charge as it related to payments

stolen within the five

‐ year statute of limitations. By contrast, Green

pleaded guilty to the entire charge, which pertained to payments

stolen more than five years before the information charging her was

filed. Yet, under Silkowski

, pleading guilty to stealing funds outside of9 the limitation period does not constitute agreement to pay restitution

for that period where, as here, the defendant expressly reserved the

right to raise the statute

‐ of

‐ limitations defense. Green’s guilty plea did

not constitute an agreement to pay the full amount of loss incurred by

the VA.

C. Whether Violations of 18 U.S.C. § 641 Constitute

“Continuing Offenses”

Having concluded that Green may challenge the restitution

order on appeal, we now address Green’s argument that the District

Court erred in ordering restitution in the full amount of $35,744

because violations of 18 U.S.C. § 641 do not constitute continuing

offenses—and thus that the government is entitled to restitution for

only the money embezzled within the five

‐ year statute of limitations

period. The government, by contrast, contends that while Section 641

offenses must be “instituted within five years,” they are not complete

each time funds are converted and are thus continuing offenses

encompassing multiple occasions of conversion.

We review this question of law de novo. See United States v.

Gushlak

, 728 F.3d 184, 191 (2d Cir. 2013); Lawlor

, 168 F.3d at 636.

Prosecutions of violations under 18 U.S.C. § 641 must be

“instituted within five years.” 18 U.S.C. § 3282(a). The statute of

limitations for prosecuting an offense runs from the moment the

offense is completed. Toussie v. United States

, 397 U.S. 112, 115 (1970).

Ordinarily, completion occurs at the moment the defendant’s conduct

satisfies every element of the offense has been fulfilled. A continuing10 offense presents an exception to the rule. It is a crime, such as a

conspiracy, that “contemplates a prolonged course of conduct.” Id. at

120. Although all the elements of the offense may already have been

fulfilled, the offense is understood to be complete only when the

conduct has “run its course.” United States v. Eppolito

, 543 F.3d 25, 46

(2d Cir. 2008) (quoting United States v. Rivera

‐ Ventura

, 72 F.3d 277, 281

(2d Cir. 1995)). If violation of section 641 is a continuing offense,

Green’s conversions of VA payments to her own use are a single crime

that ran from January 2009 to August 2011. If violation of section 641

is not a continuing offense, Green committed a separate crime each

time she converted VA funds, and the district court may not order her

to pay restitution for losses attributable to acts of conversion that she

committed outside the five

‐ year limitation period. Silkowski

, 32 F.3d at

687.

Under Toussie

, a crime is not a continuing offense “unless 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.”

397 U.S. at 115. The government concedes that “the explicit language

of Section 641 does not compel the conclusion that every chargeable

violation is a ‘continuing offense’

. . . .” Gov. Br. 24. We thus need only

consider whether “the nature of the crime” makes violation of section

641 a continuing offense.

We conclude that violations of that paragraph of section of 641

that prohibits “embezzle[ment], steal[ing], purloin[ing], or knowing[]

conver[sion]” are not by their nature continuing offenses and that the11 District Court was not permitted to order restitution for payments

stolen outside the limitation period on a continuing

‐ offense theory.

We acknowledge that the Fourth Circuit, in the only appellate

case to address the question, held violation of section 641 is a

continuing offense. See United States v. Smith

, 373 F.3d 561 (4th Cir.

2004). In Smith

, the defendant failed to report his mother’s death to a

federal agency and continued to receive her benefits payments for

several years. Id. at 563. He was charged with “knowingly,

intentionally and willfully embezzl[ing], steal[ing], purloin[ing] and

convert[ing] to his own use” the benefits payments. Id. To determine

whether Smith’s crime was a continuing offense, the Fourth Circuit

looked beyond the language of section 641 and considered Smith’s

actual charged conduct. The Fourth Circuit held that “at least in those

cases where the defendant created a recurring, automatic scheme of

embezzlement under section 641 by conversion of funds voluntarily

placed in the defendant’s possession by the government,” as in Smith

,

“Congress must have intended that such be considered a continuing

offense for purposes of the statute of limitations.” Id. at 567–68.

We respectfully disagree with the Fourth Circuit’s reasoning. In

Toussie

, the Supreme Court determined “the nature of the crime” as

intended by Congress by examining the statutory definition of the

offense. See 397 U.S. at 115–21. In Smith

, by contrast, the Fourth Circuit

examined not only the statute but also the specific facts of the case. We

think that this approach is inconsistent with the Supreme Court’s

rationale in Toussie

, which looks to Congress’s intent as expressed in

the “explicit language” of the statute. Id. at 115. Nothing in the12 statutory language indicates to us an intent to make violation of

section 641 a continuing offense.

Our analysis follows the Seventh Circuit’s interpretation of a

closely related statute, 18 U.S.C. § 666. See United States v. Yashar

, 166

F.3d 873 (7th Cir. 1999). Section 666 among other things makes it a

federal crime for the agent of an entity that receives federal funds to

steal that entity’s property. The Seventh Circuit held that a violation of

section 666 does not become a continuing offense simply because the

charging instrument describes a continuing course of conduct. The

court noted that “the

. . . 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.” Id. at 877. The statute of limitations

begins to run on a violation of section 666, it concluded, “once all

elements of the offense are established, regardless of whether the

defendant continues to engage in criminal conduct.” Id. at 880.

Moreover, the majority of district courts to reach this issue have

held that section 641 is not a continuing offense. See, e.g.

, United States

v. Reese

, 254 F. Supp. 3d 1045, 1049 (D. Neb. 2017); United States v.

Henrickson

, 191 F. Supp. 3d 999, 1001 (D.S.D. 2016); United States v.

Powell

, 99 F. Supp. 3d 262, 264–66 (D.R.I. 2015).

In short, we agree with the majority of the district courts that

have reached this question in holding that violations of section 641 are

not continuing offenses. The District Court was therefore not

permitted to order restitution for theft outside the limitation period on

that basis.13 III. CONCLUSION

To summarize, we hold as follows:

(1) Green did not waive her right to appeal;

(2) the District Court was not permitted to order restitution for

VA payments stolen outside the limitation period on the

ground that Green had consented to such an order because

her plea agreement indicates no such consent; and

(3) the District Court was not permitted to order restitution for

VA payments stolen outside the limitation period on a

continuing offense theory because violations of 18 U.S.C.

§ 641 do not constitute continuing offenses.

Accordingly, we VACATE IN PART the District Court’s

judgment as to the restitution order and REMAND the cause to the

District Court to determine the proper restitution amount within the

limitation period.