United States v. Henrikson

• Decision Date: 25 May 2016
• Docket Number: CR. 15-50084-JLV
• Citation: 191 F.Supp.3d 999
• Parties: UNITED STATES of America, Plaintiff, v. Terry Wayne HENRIKSON, Defendant.
• Court: U.S. District Court — District of South Dakota

191 F.Supp.3d 999

UNITED STATES of America, Plaintiff,

v.Terry Wayne HENRIKSON, Defendant.

CR. 15-50084-JLV

United States District Court, D. South Dakota, Western Division.

Signed May 25, 2016

Kathryn Rich, U.S. Attorney's Office, Rapid City, SD, for Plaintiff.

ORDER

JEFFREY L. VIKEN, CHIEF JUDGE

INTRODUCTION

Before the court is defendant Terry Henrikson's motion to dismiss the indictment as time-barred due to the running of the statute of limitations (Docket 27) and a motion for a Daubert¹ hearing. (Docket 29). The government opposes both motions. See Dockets 36 & 37. The court addresses each motion separately.

MOTION TO DISMISS

The government charged Mr. Henrikson in a three-count indictment, alleging theft of government property (count 1), false statement (count 2) and concealment of events affecting benefits (count 3). (Docket 2). To the extent Mr. Henrikson moves for the dismissal of count 2 as time-barred, the motion is denied. Count 2 alleges offenses occurring "[o]n or about between November 5, 2011, and November 30, 2013." Id. Mr. Henrikson was indicted on June 16, 2015, well within the five-year statute of limitations for non-capital offenses. See 18 U.S.C. § 3282(a).

In resolving defendant's motion to dismiss count 1, theft of government property, and count 3, concealment of events affecting benefits, the court must determine whether the offenses constitute a continuing offense. It is undisputed that those counts allege offense conduct far outside the five-year statute of limitations. See id.

The United States Supreme Court held "statutes of limitations normally begin to run when the crime is complete." Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) (internal quotation marks and brackets omitted) (quoting Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 87 L.Ed. 368 (1943) ).² The United States Court of Appeals for the Eighth Circuit held that generally "a criminal statute of limitations begins to run ‘when each element of that offense has occurred.’ " United States v. Bennett, 765 F.3d 887, 893 (8th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1463, 191 L.Ed.2d 410 (2015) (quoting United States v. Gonzalez, 495 F.3d 577, 580 (8th Cir.2007).

However, "[t]here is a recognized exception to this rule for so-called continuing offenses." Gonzalez, 495 F.3d at 580 (citing United States v. Yashar, 166 F.3d 873, 875 (7th Cir.1999) ). "An offense is deemed ‘continuing’ for statute of limitations purposes only when (a) ‘the explicit language of the substantive criminal statute compels such a conclusion’; or (b) ‘the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.’ " Yashar, 166 F.3d at 875 (quoting Toussie, 397 U.S. at 115, 90 S.Ct. 858 ). "The hallmark of a continuing offense is that it perdures beyond the initial illegal act, and that ‘each day brings a renewed threat of the evil Congress sought to prevent’ even after the elements necessary to establish the crime have occurred." Id.(quoting Toussie, 397 U.S. at 122, 90 S.Ct. 858 ).

The Supreme Court cautions "the doctrine of continuing offenses should be applied in only limited circumstances [as] ... the 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." Toussie, 397 U.S. at 115, 90 S.Ct. 858 (brackets, internal quotation marks and citations omitted). The court is mindful that "criminal limitations statutes are to be liberally interpreted in favor of repose." Id.(internal quotation marks and citations omitted).

I. Count 1: Theft of Government Property

Count 1 of the indictment charges:

On or about between April 1, 1989, and November 30, 2013, at Rapid City, in the District of South Dakota, the defendant, Terry Wayne Henrikson, did embezzle, steal, purloin, and knowingly convert to his own use money from the Social Security Administration, a department and agency of the United States, namely, Social Security Title II disability payments made to him to which he knew he was not entitled, having a value in excess of $1,000, all in violation of 18 U.S.C. § 641.

(Docket 2 at p. 1).

The first paragraph of 18 U.S.C. § 641 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 .... Shall be fined under this title or imprisoned not more than ten years, or both ...."

18 U.S.C. § 641.

There is a split of authority as to whether theft of government property in violation of 18 U.S.C. § 641 constitutes a "continuing offense" for statute of limitations purposes. The court can find no Eighth Circuit case law on the issue of whether theft of government property in violation of § 641 constitutes a continuing offense. See United States v. Turner, No. 4:13–CR–00227–01–BRW, 2014 WL 641768, at *1 (E.D.Ark. Feb. 18, 2014) (noting that "the Eighth Circuit Court of Appeals has not ruled on the issue.").

With regard to the first Toussie factor, courts on both sides of the issue are in agreement that "nothing in the language of section § 641 indicates that Congress intended it to be a continuing offense." United States v. Crary, No. CR 13–35–M–DLC, 2013 WL 6054607, at *3 (D.Mont. Nov. 15, 2013) (finding § 641 not to constitute a continuing offense); cf.United States v. Gibson, No. 08–03057–01–CR–S–DGK, 2008 WL 4838226, at *3 (W.D.Mo. Nov. 6, 2008) (finding § 641 to constitute a continuing offense). The difference of opinion lies in the interpretation of the second Toussie factor regarding whether the nature of the crime involved is such that Congress must assuredly have intended it be treated as a continuing offense.

Under one line of cases, courts look to the specific characteristics of a defendant's alleged underlying conduct in determining whether § 641 constitutes a continuing offense. The Fourth Circuit case of United States v. Smith, best illustrates this reasoning. 373 F.3d 561, 56768 (4th Cir.2004) (per curiam), cert. denied, 543 U.S. 1123, 125 S.Ct. 1048, 160 L.Ed.2d 1073 (2005). In Smith, the defendant failed to report the death of his mother to the Social Security Administration ("SSA") and he continued to collect and use the social security funds deposited in their joint account. Id. at 563, 567–68. The Fourth Circuit held:

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, and maintained that scheme without need for affirmative acts ... we think that Congress must have intended that such be considered a continuing offense for purposes of the statute of limitations.

Id. 567–68. The Fourth Circuit clarified its holding by noting "[t]his is not to say that all conduct constituting embezzlement may necessarily be treated as a continuing offense as opposed to merely ‘a series of acts that occur over a period of time’; indeed, it may well be that different embezzlement conduct must be differently characterized in this regard." Id. at 568.

The rationale of the Smith case has been relied on by other district courts both within and outside of the Eighth Circuit. See, e.g., United States v. Trang Huydoan Phan, 754 F.Supp.2d 186, 190 (D.Mass.2010) (finding that "while § 641 is not inherently and automatically a continuing offense, it is in this case where the violation consists of an uninterrupted scheme wrongfully to receive SSI payments which continued well into the statute of limitations period."); Gibson, 2008 WL 4838226, at *3 (noting that "[a]s in Smith, defendant in the instant case is charged with creating a recurring, automatic scheme of embezzlement under § 641 by conversion of funds voluntarily placed in his possession by the government, and maintained that scheme without any need for affirmative acts linked to any particular receipt of funds."); Turner, 2014 WL 641768, at *1 (finding that "the nature of the alleged offense—stealing SSI benefits by misrepresenting material facts on an application—is such that Congress must have intended courts treat it as a continuing offense."); United States v. Askia, No. 1:13–CR–10004, 2015 WL 9685586, at *5 (W.D.Ark. Nov. 10, 2015), report and recommendation adopted, No. 13–CR–10004, 2016 WL 110586 (W.D.Ark. Jan. 8, 2016) (relying on Turner in finding that § 666(a)(1)(A) constituted a continuing offense).

Under a second line of cases, courts rely only on the statutory language of the substantive offense in determining whether Congress must assuredly have intended it be treated as a continuing offense. In the case of Yash a r, the defendant, an employee of the City of Chicago, received wage payments, health insurance coverage and other federal benefits for which he did little or no work. 166 F.3d at 875 (describing the defendant as a "ghost payroller"). Mr. Yasher was charged with having violated 18 U.S.C. § 666. Id. The Seventh Circuit held "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." Id. at 879–80. In support of its holding, the Seventh Circuit reasoned:

[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. If the statute describes an offense that by its nature continues after the elements have been met, then the offense is a continuing one regardless of the nature of defendant's actions beyond that point.

Id. at 877 ; see also Toussie 397 U.S. at 122, 90 S.Ct. 858.

The Seventh Circuit further noted:

[A] prosecutorial

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