U.S. v. Smith

• Decision Date: 24 June 2004
• Docket Number: No. 03-4650.,03-4650.
• Citation: 373 F.3d 561
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

373 F.3d 561

UNITED STATES of America, Plaintiff-Appellee, v. Alfred SMITH, Defendant-Appellant.

No. 03-4650.

United States Court of Appeals, Fourth Circuit.

Argued: February 27, 2004.

Decided: June 24, 2004.

ARGUED: Nia Ayanna Vidal, Research and Writing Attorney, Office of the Federal Public Defender, Norfolk, Virginia, for Appellant. Arenda L. Wright Allen, Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Larry M. Dash, Assistant Federal Public Defender, Norfolk, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Norfolk, Virginia, for Appellee.

Before LUTTIG and MICHAEL, Circuit Judges, and William D. QUARLES, Jr., United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published PER CURIAM opinion. Judge MICHAEL wrote a dissenting opinion.

OPINION

PER CURIAM:

Appellant, Alfred Smith, appeals his conviction for embezzling, stealing purloining and converting to his own use funds belonging to the Social Security Administration ("SSA") in violation of 18 U.S.C. § 641. Smith asserts that the indictment against him was unconstitutionally duplicitous, i.e., that it joined two or more distinct and separate offenses in one single count. United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.1993). When an indictment impermissibly joins separate offenses that occurred at different times, prosecution of the earlier acts may be barred by the statute of limitations. United States v. Beard, 713 F.Supp. 285 (S.D.Ind.1989).

The district court held that aggregation of Smith's individual offenses was proper because each was part of a single scheme or plan. For the reasons that follow, we affirm.

I.

On January 24, 2003, a Grand Jury returned a one-count indictment against Smith, charging:

Estelle Smith died on February 4, 1994. The defendant, ALFRED SMITH did not report the death of Estelle Smith to the Social Security Administration and continued on a monthly basis to receive Estelle Smith's monthly Social Security benefits until February 3, 1998. Beginning in or about March 1994, and continuing until in or about February 1998, in the Eastern District of Virginia and elsewhere, the defendant ALFRED SMITH, did knowingly, intentionally and willfully embezzle, steal, purloin and convert to his own use, on a recurring basis, a record, voucher, money and thing of value belonging to the Social Security Administration, to wit: Social Security Administration benefits issued to Estelle Smith, totaling approximately $26,336.00.

(In violation of Title 18, United States Code, Section 641).

Section 641 provides that theft of property with a value in excess of $1,000 is a felony punishable by a maximum term of imprisonment of ten years. If the property has a value of less than $1,000, the violation is a misdemeanor with a term of imprisonment not to exceed one year. 18 U.S.C. § 641 (2004).

From March 1994 through February 1998, 48 payments were electronically deposited into Smith's joint account with his mother; each deposit was between $525 and $583. In all, Smith received approximately $26,336 after his mother's death.

Smith wrote checks and withdrew funds from the account. When interviewed by SSA agents, Smith admitted writing numerous checks on the account and acknowledged that he knew it was wrong for him to receive the benefit payments after his mother's death.

II.

The purpose of a statute of limitations is to limit exposure to criminal prosecution following an illegal act. Toussie v. United States, 397 U.S. 112, 114, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). A statute of limitations protects individuals from having to defend against charges "when the basic facts may have become obscured by the passage of time," and minimizes "the danger of official punishment because of acts in the far-distant past." Id. at 114-15, 90 S.Ct. 858.

Statutes of limitations should not be extended "`except as otherwise expressly provided by law.'" Id. at 115, 90 S.Ct. 858 (quoting 18 U.S.C. § 3282). Normally, the statute of limitations will begin to run when a single criminal act is complete. Id. Criminal acts over an extended period, however, may be treated as a "continuing offense" for limitations purposes when a criminal statute explicitly compels that result, or if "the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Id.

But we must first decide whether Smith's charged conduct was properly aggregated into a single count. In determining whether a series of takings are properly aggregated, the court must examine the intent of the actor at the first taking. United States v. Billingslea, 603 F.2d 515, 520 (5th Cir.1979). If the actor formulated "a plan or scheme or [set] up a mechanism which, when put into operation, [would] result in the taking or diversion of sums of money on a recurring basis," the crime may be charged in a single count. Id.

Smith's failure to report his mother's death evidences the intent to establish a mechanism for the automatic and continuous receipt of funds for an indefinite period. Smith's criminal conduct was patterned and methodical. Therefore, the indictment properly aggregated his charged conduct into one count.

The indictment charges the acts of its single count in the conjunctive. See J.A. 46-47 (alleging that Smith "did knowingly... embezzle, steal, purloin, and convert to his own use" the funds at issue) (emphasis added). But given that section 641 lists those acts disjunctively, the government, of course, only was required to prove that Smith's conduct satisfied one of those acts to convict on that count. See United States v. Brandon, 298 F.3d 307, 314 (4th Cir.2002). The indictment, therefore, would be sufficient if embezzlement, a distinguishable act, can be charged as a continuing offense.

We think that it can; the nature of embezzlement is such that Congress must have intended that, in some circumstances, it be treated in section 641 as a continuing offense. The term "embezzle" includes "the fraudulent appropriation of property" — e.g., "the deliberate taking or retaining of the ... property of another with the intent to deprive the owner of its use or benefit" — "by a person ... into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner." Kevin F. O'Malley et al., Federal Jury Practice and Instructions, §§ 16.01, 16.03 (2000 & Supp. 2003) (quoting from and elaborating on "the classic, almost standard, definition of `embezzlement' ... given by the Supreme Court in" Moore v. United States, 160 U.S. 268, 269-70, 16 S.Ct. 294, 40 L.Ed. 422 (1895)).

Although many state embezzlement statutes require that the embezzled property be acquired through some relationship of trust, it is not a universal requirement. See 3 Wayne R. LaFave, Substantive Criminal Law § 19.6 (2d ed. 2003) (noting that while, "in general, [embezzlement] may be defined as: (1) the fraudulent (2) conversion of (3) the property (4) of another (5) by one who is already in lawful possession of it," "some statutes limit the scope of embezzlement by requiring that the property be `entrusted' ... to the embezzler") (emphasis added). We do not think that section 641 imposes this requirement, a conclusion that is amply supported by a leading Supreme Court case on the scope of embezzlement under federal law, as well as by the interpretations made by other circuits of section 641 in particular. See, e.g., Paul C. Jorgensen, Embezzlement, 24 Am.Crim. L. Rev. 513, 514 (1987) ("A defendant accused of violating Section 641's embezzlement provisions initially must have lawfully acquired the property at issue, although he need not have received it through holding a position of trust or fiduciary relation.") (emphasis added) (citations omitted).

Indeed, the classic definition of "embezzlement" set forth in Moore v. United States, 160 U.S. 268, 269-270, 16 S.Ct. 294, 40 L.Ed. 422 (1895) implicitly suggests that lawful possession need not be acquired through a relationship of trust. The Moore Court, interpreting a precursor to section 641, defined embezzlement under that statute to be "the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come." 160 U.S. at 270, 16 S.Ct. 294 (emphases added).

If the distinction made by this phrasing were not enough, the reasoning set forth in Moore firmly supports the conclusion that a fiduciary relationship is not an essential element of embezzlement. Moore involved a challenge to an indictment for embezzlement under the Act of March 3, 1875 ("the 1875 Act") based, in part, on the ground that while the indictment named the defendant as a post office employee, it did not allege that the embezzled government monies "came into the possession of the defendant by virtue of his employment." Id. at 270, 16 S.Ct. 294. In assessing the requirements for embezzlement under the 1875 Act, the Court discussed several earlier state and English cases that made the existence of a fiduciary or other employment relationship a necessary element of embezzlement. Id. at 270-73, 16 S.Ct. 294.

The Moore Court explained that "[t]he ordinary form of an indictment for larceny" simply would require a sufficiently specific "allegation that the defendant stole, took, and carried away certain specified goods belonging to the person named," without regard to a particular relationship between the thief and the victim. Id. at 273, 16 S.Ct. 294. Notably, the prohibitions of the 1875 Act "applie[d] to'any person,' and use[d] the words `embezzle, steal, or purloin' in the same connection, and as applicable to the same persons and to the same property." Id. In contrast, "[t]he cases reported from the English courts and from the courts of the several states have usually...