## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 4 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. DOUGLAS REITMEYER; DON SPARKMAN; JAMES ALTON WATSON; DANIEL JOSEPH EATON; JAMES ROGER CRADDOCK; NORTH AMERICAN CONSTRUCTION CORPORATION; EVI CHARRINGTON ENVIRONMENTAL, INC., Defendants-Appellees. No. 02-5151

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 02-CR-32-EA)
Richard A. Friedman (David E. O’Meilia, United Stat es Attorney; Kenneth P. Snoke, Assistant United States Attorney; Douglas A. Horn, Assistant United States Attorney, Tulsa, Oklahoma, with him on the b riefs), Department of Justice, Washington, D.C., for Plaintiff-Appellant. R. Thomas Seymour (C. Robert Burton, IV, of SeymourLaw Firm, Tulsa, Oklahoma, with him on the brief for Defendant-Appel lee Reitmeyer; James C. Lang, G. Steven Stidham, and Brian S. Gaskill of Sn eed Lang, P.C., Tulsa, Oklahoma, on the brief for Defendant-Appellee James Alton Watson; John E. Dowdell and Marichiel A. Lewis of Norman WohlgemuthChandler & Dowdell, Tulsa, Oklahoma, on the brief for Defendant-Appelle e Joseph Eaton; William G. Rosch III of Rosch & Ross, Houston, Texas, on the b rief for Defendant-Appellee James Roger Craddock; Burck Bailey and Warren F. Bi ckford of Fellers, Snider,* The Honorable John W. Lungstrum, United States Di strict Judge for the

District of Kansas, sitting by designation.

1 We deny the appellees’ motion to strike the gover nment’s brief and dismiss this appeal.

-2- Blankenship, Bailey & Tippens, Oklahoma City, Oklah oma, adopted by reference briefs of all Defendants-Appellees, for Defendant-Appellee Don Sparkman), of Seymour Law Firm, Tulsa, Oklahoma, for Defendants-Appellees. Before O’BRIEN, Circuit Judge, BRORBY , Senior Circuit Judge, and LUNGSTRUM , District Judge. *

BRORBY , Senior Circuit Judge.

The government appeals the district court’s dismiss al of its indictment on statute of limitations grounds. The indictment cha rged certain companies and five company officers with “execut[ing] and attempt[ing] to execute a scheme to defraud the United States and to obtain money from the United States by false pretenses” in violation of the Major Fraud Act, 18 U.S.C. § 1031(a). Exercising jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291, we affirm. 1

I. Background We recite the following factual allegations as they appear in the superseding indictment. The United States Army Corps of Engineers awarded-3-

North American Construction Corporation a fixed pri ce contract to construct a groundwater treatment facility. Part of the constr uction required drilling wells, which North American subcontracted to CH&A Corporat ion. CH&A, in turn, subcontracted the “horizontal” well drilling portio n of the contract to EVI Cherrington Environmental, Inc.

EVI drilled the horizontal wells but experienced co st overruns. In order to recover these additional costs, North American, with the aid of EVI and CH&A, submitted a certified claim for equitable adjustmen t to the chief contracting officer of the Corps on May 16, 1994. The companie s sought almost $ 4 million, claiming the geological conditions encountered duri ng drilling “were different than those represented by the government’s specific ation on which EVI had based their [sic] bid.” According to the companies’ clai m, the Corps’ misrepresentations “caused the project to run longe r than had been anticipated” and caused the companies to incur the “excess costs .” The companies met with the Corps on June 28, 1995, “to promote and support ” their claim.

On February 15, 2002, over seven years after the co mpanies initially filed their claim, the government filed an indictment in district court, and later filed a superseding indictment, charging the companies and certain of their officers-4-

(collectively “the Companies”) with “execut[ing] an d attempt[ing] to execute a scheme to defraud the United States and to obtain m oney from the United States by means of false pretenses” in violation of the Ma jor Fraud Act. See 18 U.S.C. § 1031(a). The indictment alleged the Companies subm itted a “false Claim for Equitable Adjustment.” It asserted the Companies k new “there were no material differences between [the Corps’] representations inthe bid package and the actual conditions encountered.” It also alleged the Compa nies intentionally withheld from their claim a report prepared by EVI concludin g the Corps provided information that “would have correctly warned a pro spective horizontal driller of the hard drilling conditions ultimately encountered .”

In response, the Companies filed motions to dismiss the indictment, arguing “the statute of limitations for the charged offense expired before the original Indictment was returned.” The relevant statute of limitations requires the government to commence a prosecution within seven y ears after an offense is committed. See 18 U.S.C. § 1031(f). Since the government returne d the indictment more than seven years after the Companie s filed the claim for equitable adjustment, the Companies argued the “act ion was commenced outside the limitations period, and therefore, must be dism issed.”2We granted the government’s motion to dismiss thi s appeal against North

American and EVI (CH&A was not a party), leaving on ly the individual defendants as parties to this appeal. For purposes of clarity and continuity, however, we continue to refer to the individual def endants collectively as “the Companies” for the remainder of this opinion.

-5- The district court agreed with the Companies’ argum ent and concluded the statute of limitations began running when the Compa nies filed their claim for equitable adjustment on May 16, 1994. The districtcourt therefore concluded the government commenced its prosecution outside of the limitations period by returning the indictment roughly nine months after the limitations period expired. (Apt. App. at 139.) As a result of these conclusio ns, the district court granted the Companies’ motions and dismissed the indictment. T he government appeals. 2

II. Discussion On appeal, the government argues the district courtincorrectly dismissed the indictment on statute of limitations grounds. We review this question de

novo. United States v. Thompson , 287 F.3d 1244, 1248-49 (10th Cir. 2002); Foutz v. United States , 72 F.3d 802, 804 (10th Cir. 1995). We test the i ndictment “solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” United States v. Hall , 20 F.3d 1084, 1087 (10th Cir. 1994).-6-

The statute of limitations under the Major Fraud Ac t states: “A prosecution of an offense under this section may be commenced a ny time not later than 7 years after the offense is committed, plus any addi tional time otherwise allowed by law.” 18 U.S.C. § 1031(f). “[C]riminal statute s of limitation are to be liberally interpreted in favor of repose.” United States v. Marion , 404 U.S. 307, 323 n.14 (1971). “Statutes of limitations normally begin to run when the crime is complete.” Pendergast v. United States , 317 U.S. 412, 418 (1943). “A crime is complete as soon as every element in the crime occu rs.” United States v. Payne , 978 F.2d 1177, 1179 (10th Cir. 1992) (quotation marks and citation omitted).

Under the principles discussed above, the statute o f limitations began running in this case when the Companies first “comm itted” or completed an offense under the Major Fraud Act. In order to det ermine when the Companies committed an offense, however, we must first determ ine what constitutes an offense under the Act.

In relevant part, the Act prescribes fines and impr isonment under certain circumstances for “[w]hoever knowingly executes, orattempts to execute, any scheme or artifice with the intent – (1) to defraud the United States; or (2) to obtain money or property by means of false or fraud ulent pretenses,3 In full, the Act provides:

Whoever knowingly executes, or attempts to execute, any scheme or artifice with the intent – (1) to defraud the United States; or (2) to obtain money or property by means of false o r fraudulent pretenses, representations, or promises, in any procurement of property or services as a pri me contractor with the United States or as a subcontractor or supplieron a contract in which there is a prime contract with the United States, if the value of the contract, subcontract, or any constituent part thereof, for such property or services is $1,000,000 or more shall, s ubject to the applicability of subsection (c) of this section, be fined not more than $1,000,000, or imprisoned not more than 10 years, o r both. 18 U.S.C. § 1031(a).

-7- representations, or promises.” 18 U.S.C. § 1031(a)

. 3 Under the plain language of the Act, an offense is each knowing “execut[ion]” o r “attempt[ed] execut[ion]” of a scheme or artifice to defraud or obtain money by false pretenses. Id . Each act in furtherance of a scheme does not constitute a se parate offense, see United
States v. Sain , 141 F.3d 463, 473 (3d Cir.), cert. denied, 525 U.S. 908 (1998); however, the Act contemplates prosecution of multip le counts when there are multiple “executions” of a single scheme, see 18 U.S.C. § 1031(c) (imposing a maximum fine for “a prosecution with multiple count s under this section”). This reading of the Act is consistent with this and othe r circuits’ interpretation of the4The bank fraud statute provides:

Whoever knowingly executes, or attempts to execute, a scheme or artifice – (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, as sets, securities, or other property owned by, or under th e custody or control of, a financial institution, by means of fa lse or fraudulent pretenses, representation, or promises; shall be fined not more than $1,000,000 or imprison ed not more than 30 years, or both. 18 U.S.C. § 1344.

-8- nearly identical language found in the bank fraud s tatute, 18 U.S.C. § 1344. 4 See United States v. De La Mata , 266 F.3d 1275, 1287 (11th Cir. 2001), cert. denied, 535 U.S. 989 (2002); United States v. Colton, 231 F.3d 890, 908-09 (4th Cir. 2000); United States v. Bruce , 89 F.3d 886, 889 (D.C. Cir. 1996); United States v. Harris, 79 F.3d 223, 232 (2d Cir.), cert. denied, 519 U.S. 851 (1996); United States v. Longfellow , 43 F.3d 318, 323 (7th Cir. 1994), cert. denied, 515 U.S. 1122 (1995); United States v. Wall, 37 F.3d 1443, 1446 (10th Cir. 1994); United States v. Molinaro , 11 F.3d 853, 860 (9th Cir. 1993); United States v. Lilly , 983 F.2d 300, 304 (1st Cir. 1992); United States v. Heath, 970 F.2d 1397, 1402 (5th Cir. 1992); United States v. Schwartz , 899 F.2d 243, 248 (3d Cir. 1990).-9-

Although the Act criminalizes each knowing “executi on” or “attempted execution” of a scheme, the Act does not define the se terms. Nevertheless, case law interpreting the term “execution” in the bank f raud context provides some guidance. In determining what constitutes an “exec ution,” a court should first “‘ascertain the contours of the scheme.’” Wall , 37 F.3d at 1446 (quoting United States v. Rimell , 21 F.3d 281, 287 (8th Cir. 1994)). A court shoul d then determine the conduct necessary to “execute” or complete the scheme. Id

. “[W]hether [conduct] is an ‘execution’ of the schem e or merely a component of the scheme will depend on several factors including the ultimate goal of the scheme, the nature of the scheme, the benefits inte nded, the interdependence of the acts, and the number of parties involved.” De La Mata , 266 F.3d at 1288. Other factors the court may consider include whethe r the conduct created a “new and independent” financial risk, United States v. Allender , 62 F.3d 909, 913 (7th Cir. 1995), cert. denied, 516 U.S. 1076 (1996); De La Mata , 266 F.3d at 1288, or involved “a new and independent obligation to be tr uthful,” Molinaro , 11 F.3d at 861 n.16. Essentially, the conduct constituting an “execution” will “depend on the particular facts” of each case. Wall , 37 F.3d at 1446.

Applying these principles to the facts of this case , we agree with the district court that the Companies “executed” their alleged s cheme to defraud and obtain5 The government asserts the Companies’ subsequent actions were a

necessary part of the scheme and therefore part of the execution. The government argues the Companies “were aware that their scheme could not succeed until they and the government had taken additional steps to pr ocess the claim,” i.e. , the government “had to conduct an audit” and the Compan ies had “to persuade the Corps ... to accept the merits of their claim for r eimbursement.” In support of this assertion, the government relies on affidavits the district court did not consider. This it cannot do. Absent an exception not relevan t here, “[a]n indictment should be tested solely on the basis of the allegations ma de on its face, and such allegations are to be taken as true.” Hall , 20 F.3d at 1087. “Courts should refrain from considering evidence outside the indictment wh en testing its legal sufficiency.” Id . Although the indictment in this case mentions th e Companies’ efforts to “promote and support” their claim as part of the scheme, there is nothing in the indictment that states these efforts were a necessary part of the scheme. To the contrary, the indictment states the Companies “request[ed]” a meeting with the Corps “to promote and support” the ir claim. On the basis of the indictment, we conclude the Companies did not need to engage in any conduct except filing the claim to realize the ultimate goa l of their scheme. The government also asks us to leave certain factua l questions, including the issue above, for the jury to resolve at trial. We reject this request because, as discussed above, we test the indictment “solely on the basis of the allegations made on its face, and such allegations are to be ta ken as true.” Id.

-10- money from the government when they filed their cla im for equitable adjustment on May 16, 1994. The Companies’ alleged scheme was to “fraudulently seek [almost four million dollars] from the United State s” by certifying and submitting “a false Claim for Equitable Adjustment.” Once the Companies filed their claim, they did not need to engage in any additional condu ct to realize the ultimate goal of their scheme – the receipt of four million dolla rs from the government. 5 At this point the Companies’ conduct first created a f inancial risk to the government-11-

and involved an obligation to be truthful. We ther efore conclude the Companies “executed” their scheme on May 16, 1994, and the st atute of limitations began running on this date.

The government nonetheless argues for various reaso ns it filed the indictment within the statute of limitations period . We divide this argument into three parts and address each in turn: (a) the Comp anies’ conduct was an “attempt to execute” a scheme to defraud or obtain money that was underway during the Companies’ June 28, 1995, meeting with the Corps; ( b) the Companies’ conduct was an “execution” of a scheme to defraud or obtain money that continued at least until their 1995 meeting with the Corps; and (c) th e 1995 meeting with the Corps was an independent “execution” or “attempted execut ion” of a scheme to defraud or obtain money.

A. An Attempted Execution The government argues the Companies’ entire course of conduct was an “attempted execution” of a scheme to obtain money b y false pretenses because “there is no doubt that a scheme to obtain money by false representations is executed when it is completed, that is, when money is obtained.” According to6The government argues “the rule of lenity counsel s that the execution of a

scheme to obtain money by false representations is committed when some of that money is obtained.” The rule of lenity states that“‘[w]hen the intent of Congress as to the unit of prosecution cannot be clearly dis cerned, doubt must be resolved in favor of lenity.’” United States v. Jones , 841 F.2d 1022, 1023 (10th Cir. 1988) (quoting United States v. Valentine , 706 F.2d 282, 293 (10th Cir. 1983)). “Consequently, ambiguity in the definition of condu ct to be punished must be settled against turning a single transaction into m ultiple offenses.” Id . The rule of lenity does not apply in this case, however, bec ause the statute is not ambiguous.

-12- the government, “the collective steps leading to ob taining a sum of money by false representations will be a single attempt, unt il the money is obtained and the attempt merges with the substantive offense.” Unde r the facts of this case, the government believes the Companies’ “attempt offense was first committed not later than the filing of the claim” and “was underw ay at the time of the June 28, 1995 ... meeting.” We reject the government’s argu ment.

The language of the Major Fraud Act does not support the government’s cramped definition of an “execution” of a scheme to obtain money by false pretenses. 6 In relevant part, the Act punishes “[w]hoever kno wingly executes, or attempts to execute, any scheme or artifice with th e intent ... to obtain money or property by means of false or fraudulent pretenses. ” 18 U.S.C. § 1031(a)(2). The Act does not define an execution as the receipt of money by false pretenses. Instead, the Act punishes the execution of a scheme “with the intent to obtain7The government has its own concern about part of the Major Fraud Act

becoming superfluous. It argues that “[i]f ... eac h significant constituent act is itself an ‘execution’ of the scheme to obtain money , there would not seem to be any rationale for Congress to have specified that a n attempted execution also was an offense.” We do not hold, however, that each si gnificant constituent act is an “execution” of a scheme to obtain money by false pr etenses. We hold only that an individual need not actually obtain money in order to “execute” a scheme.

8The government does direct us to one case involvi ng the Major Fraud Act, United States v. Sain , 141 F.3d 463 (3d Cir. 1998). In that case, the T hird Circuit held an indictment charging defendants with multiple “executions” of a scheme was not multiplicious. Id . at 473. In reaching this conclusion, the court noted: “There is no evidence that the defendants ha d determined a specific amount of money that they wanted to obtain and tookseveral steps to get that single amount.” Id . We fail to see how this language supports the go vernment’s contention an “execution” of a scheme to obtain mon ey does not occur until the money is actually obtained.

-13- money.” Id . If we were now to conclude an execution requires the receipt of money, the phrase “with the intent to obtain money” would become largely superfluous with respect to executed schemes. We m ust avoid this result. See United States v. Collins , 313 F.3d 1251, 1254 (10th Cir. 2002). 7

The government nevertheless argues “[t]he bank-frau d cases are consistent with [its] view.” 8 For example, it extracts language from a Seventh Circuit case stating “[t]he execution of the fraudulent scheme i s complete upon the movement of money, funds, or other assets from the financial institution.” United States v. Anderson , 188 F.3d 886, 891 (7th Cir. 1999) (citing United States v. Christo , 129-14-

F.3d 578, 580 (11th Cir. 1997)). The Seventh Circu it also recognized in this case, however, “the crime of bank fraud is complete when the defendant places the bank at a risk of financial loss, and not necessari ly when the loss itself occurs.” Anderson , 188 F.3d at 888. In any event, we believe the ca ses cited by the government are inapposite. While the movement of m oney may be a useful factor to consider in determining whether an indictment is multiplicious, see United
States v. Mancuso , 42 F.3d 836, 847-48 (4th Cir. 1994); United States v. Brandon , 17 F.3d 409, 422 (1st Cir. 1994); Lilly , 983 F.2d at 305; United States v. Saks , 964 F.2d 1514, 1519, 1526 (5th Cir. 1992), and may be evidence indicating an “execution” is complete under the facts of a partic ular case, Anderson , 188 F.3d at 891; Christo , 129 F.3d at 580, these cases do not go so far as to hold a movement of money must occur in order for an indivi dual to “execute” a scheme under the Bank Fraud Act. Consequently, these case s do not support the government’s offered definition of an execution und er the Major Fraud Act. In any event, we continue to believe the government’s argument is contrary to the plain language of the Major Fraud Act. The Compani es did not need to receive money to execute a scheme to obtain money by false pretenses under 18 U.S.C. § 1031(a)(2).

The government also suggests the Companies’ conductwas an attempt to9We note our decision in United States v. Sapp , 53 F.3d 1100, 1103 (10th

Cir. 1995), cert. denied, 516 U.S. 1082 (1996), where we held “the governme nt need not prove that a defendant put a bank ‘at risk ’ to sustain a conviction under [the Bank Fraud Act].” We do not decide here wheth er the government must show a risk, or a potential risk, of financial loss under the Major Fraud Act in -15- execute a scheme to defraud the United States under18 U.S.C. § 1031(a)(1). We reject this argument for substantially the same rea sons we reject the government’s attempted execution argument under 18 U.S.C. § 1031 (a)(2). The Act does not require an individual to actually obtain money in o rder to “execute” a scheme to defraud the United States, see 18 U.S.C. § 1031(a)(1), and this reading of the statute is supported by case law in the bank fraud context which consistently holds an individual need only put a bank at a risk of loss in order to “execute” a scheme to defraud, see, e.g. , United States v. Young, 952 F.2d 1252, 1257 (10th Cir. 1991) (“To support a § 1344 conviction the gov ernment does not have to prove the bank suffered any monetary loss, only that the bank was put at potential risk by the scheme to defraud.”).

We conclude the Companies did not need to actually obtain any money in order to “execute” their scheme to defraud the Unit ed States or obtain money by false pretenses. Under the facts of this case, the Companies “executed” their scheme to defraud or obtain money when they first p laced the government at a risk of financial loss upon filing their claim for equitable adjustment in 1994. 9order to prove an individual “executed” a scheme to obtain money; however, we

believe it is at least a factor that may be conside red, much like the movement of money, in determining whether an “execution” occurr ed.

10Contrary to the government’s argument, this holdi ng is consistent with the bank fraud cases in this circuit, see Young, 952 F.2d at 1257, Sapp , 53 F.3d at 1103, and the bank fraud cases in several other cir cuits, United States v. McNeil , 320 F.3d 1034, 1039 (9th Cir.), cert. denied, 124 S. Ct. 111 (2003); United States v. Everett , 270 F.3d 986, 991 (6th Cir. 2001), cert. denied, 537 U.S. 828 (2002); United States v. Briggs , 965 F.2d 10, 12-13 (5th Cir. 1992), including the First and Seventh Circuits, United States v. Moran , 312 F.3d 480, 489 (1st Cir. 2002) (“[T]he bank ... need not have suffered actual loss so long as the requisite intent is established and the bank was exposed to a risk o f loss.”); United States v. Moede , 48 F.3d 238, 242 (7th Cir. 1995) (“It is sufficie nt the defendant intended to cause actual or potential loss to the financial institution.”).

-16- No further conduct was necessary for the Companies to “execute” their scheme. Accordingly, we decline the government’s invitationto interpret the Companies’ filing of the claim and subsequent actions as a sin gle attempt to violate the Major Fraud Act. 10

B. A “Continued” Execution In the alternative, the government acknowledges that the Companies first “executed” their scheme when they submitted their a llegedly false claim, but it argues the offense “continued into the limitation p eriod to include the June 28, 1995 meeting.” In other words, the government argu es the “execution of a scheme to defraud is a continuing offense.” Under this analysis, the government-17-

believes the indictment “was timely filed” because the statute of limitations did not begin to run until “the objective of the fraud [was] accomplished or the fraud [was] discovered.” According to the government, itdid not discover the fraud (and therefore the statute of limitations did not b egin running) until sometime after the June 28, 1995 meeting. We disagree with the government’s argument.

The term “‘[c]ontinuing offense’ is a term of art t hat does not depend on everyday notions or ordinary meaning.” United States v. Jaynes , 75 F.3d 1493, 1506 (10th Cir. 1996) (quotation marks and citationomitted). It “is not the same as a scheme or pattern of illegal conduct.” Id . “Separate offenses may be part of a common scheme without being ‘continuing’ for limi tations purposes.” Id . at 1506 n.12. Rather, “[a] continuing offense is one which is not complete upon the first act, but instead continues to be perpetuated over time.” De La Mata , 266 F.3d at 1288. “[T]he continuing offense doctrine applies only where it is contended that the actual conduct of the defendant ended but the crime continued past that time, not where ... the charged criminal conduct itself extends over a period of time.” Jaynes , 75 F.3d at 1507 (quotation marks and citation omi tted).

The Supreme Court discussed when a court should con sider an offense “continuing” for statute of limitations purposes in Toussie v. United States , 397-18-

U.S. 112 (1970). The Court stated “criminal limitations statutes are to be liberally interpreted in favor of repose” and “[s]t atutes of limitations normally begin to run when the crime is complete.” Id . at 115 (quotation marks and citations omitted). The Court instructed that “the doctrine of continuing offenses should be applied in only limited circumstances sin ce ... [t]he tension between the purpose of a statute of limitations and the continu ing offense doctrine is apparent.” Id. (quotation marks and citation omitted). The forme r fixes a time limit by which the government must prosecute an ind ividual following the occurrence of a criminal act, and “the latter, for all practical purposes, extends [this time limit] beyond [the statutory] term.” Id . As a result, the Supreme Court held a court should not construe an offense as a “c ontinuing offense” unless (1) “the explicit language of the substantive criminal statute compels such a conclusion”; or (2) “the nature of the crime involv ed is such that Congress must assuredly have intended that it be treated as a con tinuing one.” Id

.

No circuit court has addressed whether the “executi on” of a scheme to defraud or obtain money is a “continuing offense” f or statute of limitations purposes under the Major Fraud Act; however, the Ni nth Circuit addressed this question under the bank fraud statute. United States v. Najjor , 255 F.3d 979, 983- 84 (9th Cir. 2001), cert. denied, 536 U.S. 961 (2002). The court in Najjorheld11 Nash notes one earlier Ninth Circuit case treating a Ba nk Fraud Act

offense as a continuing offense, United States v. Hutchinson , 22 F.3d 846, 854 (9th Cir. 1993). Nash , 115 F.3d at 1441. However, as Nash recognizes, Hutchinson “[did] not discuss the issue.” Id. (citing Hutchinson , 22 F.3d at 854).

-19- that the “execution” of a scheme to defraud or obta in money “is a continuing offense” for statute of limitations purposes; there fore, the statute of limitations on bank fraud begins to run when the last act “in furt herance of the scheme” is committed. Id. at 983. The Najjorholding was based on a previous Ninth Circuit
case, United States v. Nash , 115 F.3d 1431 (9th Cir. 1997), cert. denied, 522 U.S. 1117 (1998), which held bank fraud was a “continuin g offense” for ex post facto purposes because the language of the statute so sug gested by punishing “the execution of the overall scheme” rather than each i ndividual act. Id. at 1441. 11

We are not persuaded by the Ninth Circuit’s reasoni ng. Following the Supreme Court’s analysis in Toussie , we hold the “execution” of a scheme under the Major Fraud Act is not a “continuing offense” f or statute of limitations purposes. Nothing in the “explicit language” of th e Act “compels” the conclusion that the offense is “continuing.” Toussie , 397 U.S. at 115. If Congress intended the “execution” of a scheme to be a “continuing off ense,” “it could have clearly stated so.” United States v. Dunne , 324 F.3d 1158, 1164 (10th Cir. 2003). See,
e.g. , 50 U.S.C. § 856 (“Failure to file a registration statement ... is a continuing-20-

offense for as long as such failure exists, notwith standing any statute of limitation or other statute to the contrary.”).

Furthermore, the nature of a Major Fraud Act violat ion does not “assuredly” indicate Congress intended it to be a “ continuing offense.” Toussie , 397 U.S. at 115. In making this determination, it is helpful to consider whether the offense is discrete in nature. Compare United States v. Bailey , 444 U.S. 394, 413 (1980) (holding Congress intended the crime of escape from federal custody to be a “continuing offense” because of the “contin uing threat to society posed by an escaped prisoner”) with Toussie , 397 U.S. at 116-22 (holding Congress did not intend the crime of failing to register for the dra ft to be a “continuing offense” because the crime was complete when a male failed t o register during the five-day registration period). If a crime is discrete, it i s less likely Congress “assuredly intended” the crime to be a “continuing offense.” See Toussie , 397 U.S. at 122- 23; Nash , 115 F.3d at 1441. As we have already determined, the Major Fraud Act criminalizes each discrete “execution” of a scheme rather than the scheme in its entirety. Once an “execution” is complete, the cri me has ended, and additional acts do not violate the statute unless they indepen dently constitute a separate “execution” or “attempted execution” of a scheme. See id . at 1290. The discrete nature of a Major Fraud Act violation makes it unli kely Congress intended it to be12In support of its argument, the government cites a few cases where there

was one “execution” but where conduct constituting the execution occurred over a period of time. See Colton , 231 F.3d at 910; United States v. Duncan , 42 F.3d 97, 104 (2d Cir. 1994). We do not believe these cases are inconsistent with our determination that a violation of the Major Fraud A ct is not a “continuing -21- a continuing offense for statute of limitations purposes.

The government argues a Major Fraud Act violation i s a “continuing offense” because the “threat to the government pose d by an execution of a scheme to defraud ... continues during the entire period t he fraud is perpetrated.” In support of this argument, the government notes it “ continu[es] to rely on the fraudulent representations until [it] succumbs to the object of the fraud,” i.e. , it pays the “money that is the object of the fraud.” We reject this argument because it conflicts with the plain language of the Major F raud Act. The Act punishes each “execution” or “attempted execution” of a sche me rather than the scheme in its entirety or each act in furtherance of a scheme

. See 18 U.S.C. § 1031(a). Although conduct in furtherance of a scheme may perpetuate a fraud, the Act does not punish the conduct unless it constitutes an “ex ecution” or “attempted execution” of a scheme. Id . We will not extend the Act to punish conduct not expressly covered by the Act. Once the scheme is “ executed,” the crime has ended, and additional conduct in furtherance of the scheme does not extend the statute of limitations for that particular “executi on.” 12offense” for statute of limitations purposes becaus e, as discussed above, the

statute of limitations does not begin to run until an execution is complete.

13 The general venue statute establishes venue “in a ny district in which such offense was begun, continued, or completed.” 1 8 U.S.C. § 3237(a).

-22- The government points to cases in other circuits ho lding violations of the wire fraud, bank fraud, and mail fraud statutes are continuing for venue purposes. See United States v. Pace , 314 F.3d 344, 350 (9th Cir. 2002); United States v.
Scott , 270 F.3d 30, 34-36 (1st Cir. 2001), cert. denied, 535 U.S. 1007 (2002); United States v. Loe , 248 F.3d 449, 465 (5th Cir.), cert. denied, 534 U.S. 974 (2001). We are not persuaded for two reasons. Fir st, Congress specifically stated “any offense involving the use of the mails ... is a continuing offense” for venue purposes. 18 U.S.C. § 3237(a). Second, and more i mportantly, the “continuing offense” analysis for venue purposes is “obviously different” from the “continuing offense” analysis for statute of limitations. Dunne , 324 F.3d at 1166.
See also Toussie , 397 U.S. at 121 n.16. None of the cases cited by the government apply the Toussie analysis. Instead, consistent with the general ve nue statute, 13 these cases focus on geographic factors, i.e. , whether the defendant began, continued, or completed the offense in more than one geographic location.
See Pace , 314 F.3d at 350-51; Scott , 270 F.3d at 36; Loe , 248 F.3d at 465. An offense may begin, continue, or end in different lo cations without qualifying as a14In this case, we need not decide whether we agree that violations of the

bank fraud and wire fraud statutes are continuing f or venue purposes.

15 For similar reasons, we are not persuaded by the government’s citation to cases in the Eighth and Sixth circuits that hold vi olations of the mail fraud and bank fraud statutes are continuing for ex post fact o purposes. See United States v. Blumeyer , 114 F.3d 758, 766 (8th Cir.) (noting mail fraud i s a continuing offenses for ex post facto purposes), cert. denied, 522 U.S. 938 (1997); United States v. Buckner , 9 F.3d 452, 454 (6th Cir. 1993) (holding a violat ion of the bank fraud statute is a continuing offense for ex post facto p urposes). But see United States v. Barger, 178 F.3d 844, 847 (7th Cir. 1999) (holding a violat ion of the mail fraud statute is not a continuing offense for ex post fac to purposes); United States v. Ortland, 109 F.3d 539, 546-47 (9th Cir.) (same), cert. denied, 522 U.S. 851 (1997); United States v. Miro , 29 F.3d 194, 198 (5th Cir. 1994) (same); United States v. Bakker , 925 F.2d 728, 739 (4th Cir. 1991) (noting mail an d wire fraud are not ongoing crimes that can “straddle” the effe ctive date of the sentencing guidelines). Both circuits held violations of the statutes were continuing with little or no analysis, and neither circuit cited, m uch less applied, the Toussie analysis.

-23- “continuing offense” for statute of limitations purposes. See, e.g., Dunne , 324 F.3d at 1166 (concluding a violation of the Securit ies Exchange Act, 18 U.S.C. § 1001, is not a “continuing offense” for statute of limitations purposes even though it may be “continuing” for venue purposes). Even a ssuming these circuits reached the correct result, 14 we conclude the analysis in these particular cases is not dispositive because of the discrete nature of an of fense under the Major Fraud
Act. Cf. id. 15

The government also argues the restraint called forin Toussie is16Incidentally, the government acknowledges it “did not assert the doctrine

of fraudulent concealment in the district court as a ground for holding, on the facts of this particular case, that the statute of limitation did not begin to run.” It also disavows any assertion on appeal of “a plain e rror argument that [the] indictment was timely due to tolling of the limitat ion period.” We therefore do not consider whether the Companies’ conduct tolled the limitations period under a doctrine of fraudulent concealment.

-24- inapplicable here. The government claims “there is no tension between the purposes of the limitation period and application o f the continuing-offense doctrine” because “Congress specifically intended” to toll the limitations period during a period of fraudulent concealment. The gov ernment points to a portion of the Act’s legislative history in support of its arg ument. 16 See S. Rep. No. 100- 503, at 14 (1988), reprinted in 1988 U.S.C.C.A.N. 5969, 5978. Even assuming the government correctly discerns Congress’s intent , such a rule would toll the limitations period only during periods of fraudulent concealment and not upon every act in furtherance of a scheme. Therefore, t he tension between the limitations period and the doctrine of continuing o ffenses still exists. Furthermore, if, as the government argues, there is solid evidence indicating Congress’ intent as to what circumstances toll the limitations period, we believe the absence of evidence that Congress intended courts to consider the offense a “continuing offense,” or at least that every act in furtherance of a scheme tolls the limitations period, lends support to our conclusionthat a violation of the Major17The government again argues the rule of lenity “s upport[s] the

conclusion that an execution of a scheme to defraud ... continues as a single offense until the object of the fraud is accomplish ed or the fraud is discovered”; otherwise, a defendant may be liable for “multiple executions of the scheme to defraud.” We have already concluded, however, the statute unambiguously punishes each “execution” of a scheme and indicates a particular scheme may be “executed” (and therefore punished) multiple times; the rule of lenity does not apply under these circumstances. Jones , 841 F.2d at 1023.

-25- Fraud Act is not a “continuing offense.” In any ev ent, we are convinced the language of the Major Fraud Act dictates our conclu sion in this case.

We therefore conclude an “execution” of a scheme to defraud or obtain money is not a “continuing offense” for statute of limitations purposes. 17Under the facts of this case, the statute of limitations began running when the Companies “executed” their scheme on May 16, 1994. The Companies’ subsequent meeting with the Corps in 1995 was not a“continuation” of their “execution”; the “execution” was already committed or complete once the Companies filed their claim. The 1995 meeting was merely an act in furtherance of the scheme which did not extend the limitations period. Although the scheme may have continued, the Act does not punish the sch eme but only the “execution.”

C. An Independent Execution Or Attempted Execution-26-

Finally, the government argues the Companies “commi tted a separate offense [under the Major Fraud Act] at the June 28, 1995 meeting.” The government claims the Companies committed a separat e offense at this meeting because (1) their “false representations [at the me eting] ... significantly increased the risk that the claim would be paid,” and (2) “[t ]he Corps detrimentally relied on [their] misrepresentations to continue processin g the claim, which entailed an expenditure of time and money.” Once again, we rej ect the government’s argument.

Nowhere does the superseding indictment allege the 1995 meeting was a separate “execution” or “attempted execution” of a scheme. Instead, the superseding indictment alleges the Companies arrang ed the meeting with the Corps in order “to support and promote their claim” for equitable adjustment, i.e. , the Companies wanted to increase the likelihood the Corps would pay their claim. The meeting did not concern any other claims. It t herefore did not create a new and independent financial risk to the government orcreate a new and independent obligation to be truthful. Nor did the meeting con stitute a substantial step towards a new and independent “execution.” Althoug h the Companies’ alleged misrepresentations at the meeting may have increase d the likelihood the Corps would pay the claim, the financial risk to the gove rnment was not new or-27-

independent of the risk the Companies created by fi ling their claim for equitable adjustment in the first place. Likewise, the Compa nies’ obligation to be truthful at this meeting derived from, or was an extension o f, its initial obligation to tell the truth when they filed the claim.

As a result of the language in the indictment, we c onclude the 1995 meeting was not an independent “execution” or “attempted ex ecution”; it was merely an act in furtherance of the Companies’ scheme to defr aud the United States or obtain money from the United States. Although, acc ording to the government, the Companies’ conduct “was not innocent,” the conduct is not an independent offense under the Major Fraud Act.

III. Conclusion For the reasons discussed above, we conclude the st atute of limitations began running in this case when the Companies filedtheir claim for equitable adjustment on May 16, 1994. Since the government w aited until February 15, 2002, to return an indictment, it did not commence this action within the seven year limitations period. The district court’s deci sion dismissing the indictments is therefore AFFIRMED

.