15‐2869‐cr
United States v. Sampson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2017
(Argued: December 7, 2017 Decided: August 6, 2018)
No. 15‐2869‐cr
––––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Appellant,
‐v.‐
JOHN SAMPSON,
Defendant‐Appellee.
––––––––––––––––––––––––––––––––––––
Before: CABRANES, LIVINGSTON, and CARNEY, Circuit Judges.
The United States appeals from an August 12, 2015 judgment of the United
States District Court for the Eastern District of New York (Irizarry, C.J.), granting
the Defendant‐Appellee’s Federal Rule of Criminal Procedure 12(b) motion to
dismiss two counts of an indictment charging him with federal‐program
embezzlement. The Defendant‐Appellee, John Sampson (“Sampson”), allegedly
embezzled funds from escrow accounts that he oversaw in his capacity as a referee
for foreclosure actions. The district court dismissed the embezzlement counts as
time‐barred by 18 U.S.C. § 3282(a)’s five‐year statute of limitations. The district
court concluded that Sampson’s embezzlement of the funds at issue was
1
“complete” when he failed to remit the funds more than a decade before the grand
jury returned its indictment. We hold that the district court made a premature
factual determination regarding the time at which Sampson, if guilty, formed the
requisite fraudulent intent. Accordingly, we VACATE the judgment of the district
court, REINSTATE the two federal‐program embezzlement counts of Sampson’s
indictment, and REMAND the case for further proceedings consistent with this
opinion.
ALEXANDER A. SOLOMON, Assistant United
States Attorney (David C. James, Paul
Tuchmann, and Marisa M. Seifan, Assistant
United States Attorneys, on the brief), for
Richard P. Donoghue, United States
Attorney for the Eastern District of New
York, Brooklyn, NY, for Appellant.
JOSHUA COLANGELO‐BRYAN (Nathaniel H.
Akerman, on the brief), Dorsey & Whitney
LLP, New York, NY, for Defendant‐Appellee.
DEBRA ANN LIVINGSTON, Circuit Judge:
From 1997 to 2015, John Sampson (“Sampson”) served as a member of the
New York State Senate, representing the 19th Senate District in Brooklyn. Sampson
also served as a referee in foreclosure actions for properties located in Kings
County, Brooklyn. By 2013, Sampson had purportedly embezzled approximately
$440,000 from escrow accounts that he oversaw as a referee. To prevent discovery
2
of his embezzlement, Sampson allegedly made efforts to tamper with witnesses
and provided false statements to federal law enforcement officials.1
On April 29, 2013, a grand jury in the United States District Court for the
Eastern District of New York returned an indictment against Sampson that
charged him with, among other things, two counts of federal‐program
embezzlement under 18 U.S.C. § 666(a)(1)(A) in connection with his service as a
referee. The indictment alleges that, after receiving surplus funds from foreclosure
proceedings in 1998 and 2002 and placing the funds into escrow accounts,
Sampson failed to remit the funds to the Kings County Clerk (“KCC”), as he was
required to do. Over time, Sampson removed money from the escrow accounts by
cash withdrawals and electronic transfers. The indictment alleges that Sampson
1 In this case’s companion appeal, United States v. Sampson, No. 17‐343‐cr,
Sampson appeals from a judgment entered after a jury trial at which Sampson was
found guilty of obstruction of justice, in violation of 18 U.S.C. § 1503(a), and two
counts of making false statements, in violation of 18 U.S.C. § 1001(a)(2). This
instant appeal by the government is concerned solely with the district court’s
pretrial dismissal of two acts of embezzlement that Sampson purportedly
committed in 2008.
3
committed (at least) two discrete acts of embezzlement in 2008. These acts form
the basis for the indictment’s two embezzlement counts.2
Before trial, Sampson moved to dismiss the two embezzlement counts
under Federal Rule of Criminal Procedure 12(b). Among other things, Sampson
argued that the two acts of embezzlement that the indictment alleged occurred in
2008 actually occurred in 1998 and 2002, when Sampson failed to remit the funds
to the KCC. Because 18 U.S.C. § 3282(a) imposes a five‐year statute of limitations
on prosecutions for embezzlement under 18 U.S.C. § 666(a)(1)(A), Sampson
argued that the district court should dismiss the counts as time‐barred. The district
court granted Sampson’s motion, holding as a matter of law that the
embezzlements in question were “complete” in 1998 and 2002, over five years
before the grand jury returned its 2013 indictment.
On appeal, the government contends that the district court erred by
concluding pretrial, and as a matter of law, that Sampson necessarily formed the
fraudulent intent required for the charged embezzlements—and thus completed
2 The government later filed multiple superseding indictments, each of
which contain virtually identical embezzlement counts. For the sake of clarity, we
will refer to the counts in the Third Superseding Indictment, which the
government filed on July 30, 2014.
4
those embezzlements—once he failed to remit the funds. We agree. Accordingly,
we reinstate the two federal‐program embezzlement counts of Sampson’s
indictment and remand for further proceedings consistent with this opinion.
BACKGROUND
I. Factual Background3
Sampson was admitted to the New York Bar in 1992. Beginning in the 1990s,
Justices of the Supreme Court of the State of New York periodically appointed
Sampson to serve as a referee in foreclosure actions for Kings County properties.
Sampson’s duties as a referee included conducting the sale of a foreclosed
property, using the proceeds of the sale to pay any outstanding lienholders, and
tendering any remaining surplus funds to the KCC. The KCC would then allow
the prior owners of the property—as well as “any other interested parties”—to
collect from these surplus funds. Gov’t App’x at 39, ¶ 12.
As noted above, Sampson also served as a member of the New York State
Senate from 1997 to 2015, representing the 19th Senate District in Brooklyn.
3 Unless otherwise stated, the facts outlined below are either undisputed or
taken directly from Sampson’s indictment, the allegations of which we assume as
true for purposes of this appeal. See United States v. Rosengarten, 857 F.2d 67, 78 (2d
Cir. 1988).
5
Sampson held many high‐ranking roles during his tenure in the Senate, including
leader of the Democratic Conference of the Senate from June 2009 to December
2012, and Minority Leader of the Senate from January 2011 to December 2012.
Sampson continued to serve as a referee for foreclosure actions in Kings County
during his time in the Senate.
The embezzlement counts in Sampson’s indictment focus on Sampson’s
alleged misappropriation of surplus funds in two foreclosure actions in Brooklyn:
one involving property located at 165 Forbell Street (“the Forbell Street Property”),
and the other involving property located at 1915 Eighth Avenue (“the Eighth
Avenue Property”).
1. The Forbell Street Property Action
On February 17, 1998, a Justice of the Supreme Court of the State of New
York appointed Sampson as referee for the foreclosure sale proceeding for the
Forbell Street Property. On October 7, 1998, Sampson informed the Supreme Court
that the foreclosure sale resulted in surplus funds of approximately $84,000. As
required by the court order and judgment in the case, Sampson placed these funds
in escrow in a bank account. Sampson registered the account under the name
“John L. Sampson as Referee” (the “Forbell Street Referee Account”). Although
6
the court order directed Sampson to open this escrow account at Citibank,
Sampson opened it at Chase Bank.
The court order also required Sampson to remit the surplus funds to the
KCC within five days of receiving and ascertaining them. State law imposed the
same obligation. See N.Y. Real Prop. Acts. L. § 1354(4). But Sampson failed to do
so—and in fact never remitted the surplus funds. Instead, between July 1998 and
June 2008, Sampson withdrew or transferred approximately $80,000 of the $84,000
surplus from the escrow account for his own use. For example (and as specified in
the indictment), on or about February 13, 2008, Sampson transferred $8,000 from
the Forbell Street Referee Account into his personal bank account.
2. The Eighth Avenue Property Action
On March 18, 2002, a Justice of the Supreme Court of the State of New York
appointed Sampson as a referee for the foreclosure sale proceeding for the Eighth
Avenue Property. On June 28, 2002, Sampson informed the Supreme Court that
the foreclosure sale resulted in surplus funds of approximately $80,000. As
required by the judgment in that case, Sampson placed these funds in escrow in a
bank account registered under the name “John L. Sampson Recv [Receiver] Fleet
National Bank” (“Eighth Avenue Referee Account”). Although the court order
7
directed Sampson to open this escrow account at an Independence Savings Bank
branch office, Sampson opened it at an HSBC branch office instead. Much like the
Forbell Street Property foreclosure, both the judgment in the Eighth Avenue
Property Action and New York State law required Sampson to remit the surplus
funds to the KCC within five days of receiving and ascertaining them. But
Sampson never did so. Starting in approximately 2002, he gradually removed
funds from the account. By July 2006, a balance of only $55,167.94 remained.
On or about July 20, 2006, Sampson asked a Queens businessman named
Edul Ahmad (“Ahmad”) to help him repay money that he had misappropriated.
Ahmad agreed to help Sampson. On or about July 21, 2006, Ahmad provided
Sampson with three bank checks totaling $188,500. One of the bank checks was in
the amount of $27,500. The apparent purpose of this bank check was to allow
Sampson to replenish the money he had taken from the Eighth Avenue Referee
Account. Accordingly, Sampson combined the $27,500 check with the $55,167.94
remaining in the Eighth Avenue Referee Account to purchase a bank check in the
amount of $82,677.94. This bank check was made payable to the KCC.
But Sampson never gave this check to the KCC. Instead, about two years
later, on June 7, 2008, Sampson exchanged this $82,677.94 bank check for eight
8
bank checks worth $10,000 each, and one bank check for $2,667.94. Each of the
checks was made payable to “John Sampson.” On or about and between June 12,
2008 and January 12, 2009, Sampson redeemed two of the $10,000 bank checks for
cash, negotiated the $2,667.94 bank check, and deposited three of the $10,000 bank
checks into his personal bank account. Sampson simply retained (and never
negotiated) the remaining three $10,000 checks.
II. Procedural History
As noted above, on April 29, 2013, a grand jury in the United States District
Court for the Eastern District of New York returned a nine‐count indictment
against Sampson, charging him with, inter alia, two counts of federal‐program
embezzlement. Count 1 charges Sampson with embezzling funds from the Forbell
Street Referee Account. It alleges that Sampson committed embezzlement under
18 U.S.C. § 666(a)(1)(A) on or about February 13, 2008, when he transferred $8,000
from the Forbell Street Referee Account into his personal bank account.4 Count 2
concerns Sampson’s alleged embezzlement from the Eighth Avenue Referee
4 Sampson entered into an agreement with the government that tolled the
relevant statute of limitations from February 1, 2013 up to and including May 17,
2013.
9
Account. Count 2 alleges that Sampson committed embezzlement under 18 U.S.C.
§ 666(a)(1)(A) on or about June 7, 2008 when he exchanged the $82,677.94 bank
check made out to KCC for nine bank checks made payable to Sampson himself.
On June 20, 2014, Sampson moved to dismiss Counts 1 and 2 of the
indictment pursuant to Federal Rule of Criminal Procedure 12(b). Sampson
argued, inter alia, that 18 U.S.C. § 3282(a) imposes a five‐year statute of limitations
on prosecutions for embezzlement under § 666(a)(1)(A), and that the
embezzlements at issue in this case were “complete”—and the statute of
limitations began to run—when he failed to remit the surplus funds to the KCC in
1998 and 2002. The government opposed Sampson’s motion, arguing, inter alia,
that Sampson’s Rule 12(b) motion was not ripe, since the government had not yet
proffered all of its evidence as to when Sampson formed his allegedly fraudulent
intent and converted the funds.
The district court held oral argument on Sampson’s Rule 12(b) motion on
October 23, 2014. At a status conference on October 31, 2014, the district court
judge, from the bench, rejected the government’s argument that Sampson’s Rule
12(b) motion was not ripe, granted the motion, and accordingly dismissed Counts
1 and 2. The judge orally explained that “the effective date of the embezzlement
10
[was] the time [at] which [Sampson] did not return to the Kings County Clerk the
surplus monies that were in the foreclosure accounts. . . . That means that the
charges that have been brought based on the withdrawals in February of 2008 and
in June of 2008 for Counts [1] and [2], respectively, are outside the statute of
limitations.” Gov’t App’x at 174–75. The judge stated that a written opinion would
be forthcoming.
A jury trial on the remaining charges in the indictment commenced on June
22, 2015 and ended on July 24, 2015. On August 12, 2015, the district court issued
a formal opinion and order memorializing the dismissal of the two embezzlement
counts. The opinion concluded that Sampson’s embezzlement was “complete” for
purposes of the five‐year statute of limitations when he failed to remit the surplus
funds to the KCC:
[T]he statutes of limitations have long since expired for Counts 1 and
2. Defendant was obligated under court orders and [New York real
property law] to remit the surplus funds within five days of filing his
referee reports. . . . On the sixth day, when he did not return the funds,
Defendant appropriated the funds and completed the embezzlement.
11
United States v. Sampson, 122 F. Supp. 3d 11, 20 (E.D.N.Y. 2015). The decision of
August 12, 2015 constituted a final judgment on the embezzlement counts. The
government timely appealed the district court’s decision.
DISCUSSION
Because the district court’s dismissal of Counts 1 and 2 of the indictment
raises questions of law, our review is de novo. See United States v. Gundy, 804 F.3d
140, 145 (2d Cir. 2015).
I
Section § 666(a)(1)(A) of Title 18 prohibits “an agent of an organization[] or
of a State, local, or Indian tribal government, or any agency thereof” that receives
over $10,000 in federal funding during any one‐year period from “embezzl[ing],
steal[ing], obtain[ing] by fraud, or otherwise without authority knowingly
convert[ing] to the use of any person other than the rightful owner or intentionally
misappl[ying], property that . . . is valued at $5,000 or more, and . . . is owned by,
or is under the care, custody, or control of such organization, government, or
agency.” 18 U.S.C. §§ 666(a)(1)(A), 666(b). Counts 1 and 2 of the indictment charge
Sampson with “embezzlement” under this provision. Thus, Counts 1 and 2 must
sufficiently allege that: (1) Sampson “embezzle[d] . . . property that is valued at
12
$5,000 or more”; (2) Sampson did so while serving as “an agent of an
organization[] or of a State, local, or Indian tribal government, or any agency
thereof” that receives over $10,000 of federal funding during any one‐year period;
and (3) the property at issue was “owned by, or [was] under the care, custody, or
control of [that] organization, government, or agency.” See id.
18 U.S.C. § 3282(a) states that “[e]xcept 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.” If a defendant raises a statute‐
of‐limitations defense under § 3282(a), the government bears the burden of
proving compliance with the statute to a jury beyond a reasonable doubt. See
United States v. Martinez, 862 F.3d 223, 235 (2d Cir. 2017); United States v. Florez, 447
F.3d 145, 150 n.2 (2d Cir. 2006). Both parties agree that § 3282(a)’s five‐year statute
of limitations applies to prosecutions for embezzlement under § 666(a)(1)(A). This
five‐year period begins to run the moment a crime “ha[s] been committed.” 18
U.S.C. § 3282(a). In other words, the five‐year window for prosecution opens
“when a crime is ‘complete,’ thereby ‘encouraging law enforcement officials
promptly to investigate suspected criminal activity.’” United States v. Williams, 733
13
F.3d 448, 453 (2d Cir. 2013) (emphasis added) (quoting United States v. Rivera‐
Ventura, 72 F.3d 277, 281 (2d Cir. 1995)). A crime is “complete as soon as every
element in the crime occurs.” United States v. Vebeliunas, 76 F.3d 1283, 1293 (2d Cir.
1996) (quoting United States v. Musacchio, 968 F.2d 782, 790 (9th Cir. 1991)). Thus,
in this case, the five‐year statute of limitations for embezzlement under § 666(a)(1)
began to run as soon as every element in Sampson’s alleged crimes had taken
place.
That brings us to the meaning of “embezzlement” for purposes of § 666.
Section 666 does not define “embezzlement.” We must therefore interpret the
word according to its traditional meaning. See Sekhar v. United States, 570 U.S. 729,
732 (2013); In re Sherman, 603 F.3d 11, 13 (1st Cir. 2010) (“There being no definition
of embezzlement . . . in the Bankruptcy Code, we assume that Congress wrote with
the common law in mind” (citations omitted)). “Embezzlement” is historically
defined as “the fraudulent appropriation of property by a person to whom such
property has been intrusted, or into whose hands it has lawfully come.” Moore v.
United States, 160 U.S. 268, 269 (1895). An individual commits “embezzlement”
when he: (1) with intent to defraud; (2) converts to his own use; (3) property
belonging to another; in a situation where (4) the property initially lawfully came
14
within his possession or control. See United States v. Clark, 765 F.2d 303–04 (2d Cir.
1985); 3 Wayne R. LaFave, Substantive Criminal Law, § 19.6 (2d ed. 2003). Element
(1), intent, is the mens rea of “embezzlement.”5 Elements (2), (3), and (4) are the
5 “To act with the ‘intent to defraud’ means to act willfully, and with the
specific intent to deceive or cheat for the purpose of either causing some financial
loss to another, or bringing about some financial gain to oneself.” United States v.
Cloud, 872 F.2d 846, 852 n.6 (9th Cir. 1989). A “conversion” in this context consists
of “the unauthorized assumption and exercise of the right of ownership over
goods belonging to another to the exclusion of the owner’s rights,” which includes
a “denial or violation of the [owner’s] dominion, rights or possession” over his
property. See Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403–04 (2d Cir. 2006).
An individual charged with overseeing another’s funds can “convert” those
funds by intentionally failing to remit them despite the existence of a fiduciary
duty to do so. See Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of
Torts § 67 (2d ed. 2011) (“A bailee who is under an obligation to return goods when
a specific event occurs may be liable as a converter when the event occurs and he
fails to return the goods, whether or not the plaintiff demands them.”).
Importantly, the “intent” required for such an act to qualify as a “conversion” is
not the same as an “intent to defraud.” A “conversion” requires solely an “intent
to exercise a dominion or control over the goods,” in a manner that “is in fact
inconsistent with [another’s] rights.” W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 15 (5th ed. 1984); see also Dobbs et al., supra, at § 62 (“The defendant
might believe the goods are his and that he has every right to deal with them, but,
even so, he harbors the requisite intent [for a conversion] if he intends to act upon
the goods.”). An intent to defraud, by contrast, involves a “specific intent to
deceive or cheat.” Cloud, 872 F.2d at 852 n.6 (emphasis added). Thus, “[a] mere
failure to pay over monies belonging to another[] without fraudulent intent”—
while potentially a conversion—“is not [an] embezzlement.” 29A C.J.S.
Embezzlement § 19 (2018).
15
actus reus and attendant circumstances elements. When all four elements come
together, an embezzlement is “complete” for statute‐of‐limitations purposes. See
Vebeliunas, 76 F.3d at 1293.
II
A
The district court concluded that, as a matter of law, Sampson’s
embezzlement was “complete” when he failed to remit the surplus funds within
five days to the KCC. Accordingly, the court granted Sampson’s Rule 12(b) motion
on statute‐of‐limitations grounds. See Sampson, 122 F. Supp. 3d at 20 (“When
[Sampson] did not return the funds [on day six], and instead kept them in accounts
under his name and to which he alone had access, he completed the crime of
embezzlement.”). Citing the undisputed facts that Sampson received the surplus
funds at issue in 1998 and 2002; that he placed the funds in escrow accounts that
he opened at banks other than those specified in the relevant court orders; and that
he failed to remit the funds, as required, within five days, the district court
concluded that “it is evident that [Sampson] embezzled the money from the
Forbell Street Property in 1998 and the Eighth Street Property in 2002”—and that
16
“[o]n the sixth day, when he did not return the funds, Sampson . . . completed the
embezzlement.” Id. This, we conclude, was error.
In dismissing the embezzlement counts on Sampson’s Rule 12(b) motion,
the district court made an implicit factual determination that Sampson possessed
the requisite fraudulent intent (if he possessed it at all) in 1998 and 2002, when he
failed timely to remit the surplus funds.6 As noted above, an embezzlement is not
“complete” until an individual converts the property of another with fraudulent
intent. See, e.g., United States v. Nolan, 136 F.3d 265, 269 (2d Cir. 1998) (“[B]ecause
6 Admittedly, the district court’s opinion is somewhat ambiguous on this
point. Although the court clearly recognized that embezzlement requires
fraudulent intent, it also used language suggesting that an embezzlement is
complete as a matter of law when an individual fails to remit funds in accordance
with a legal obligation. See, e.g., Sampson, 12 F. Supp. 3d at 19–20 (“[T]he offense of
embezzlement is completed as soon as there has been an actual taking of the
property. . . . [Accordingly, the moment that Sampson] did not return the [escrow]
funds, [he] appropriated the funds and completed the embezzlement.” (internal
quotation marks omitted) (quoting United States v. Sunia, 643 F. Supp. 2d 51, 75
(D.D.C. 2009))). We therefore read the district court as having made a
determination that if Sampson committed the crime at all, he necessarily possessed
the requisite fraudulent intent—and thereby completed the alleged embezzlement
offenses—outside the statute of limitations. We also read the district court as
having determined (again implicitly) that the actus reus of conversion took place,
if at all, in 1998 and 2002, and not, as charged, when Sampson allegedly removed
the $8,000 from the Forbell Street Referee Account and exchanged the monies
reflected in the $82,677.94 KCC bank check for checks made out to himself.
17
embezzlement is a criminal offense, proof of unlawful or criminal intent is
necessary . . . .”); see also 29A C.J.S. Embezzlement § 19 (2018) (“[For] fiduciary
embezzlement, the requisite [fraudulent] intent need not coincide with the
accused’s actual taking of the property . . . .”). Accordingly, in concluding that the
embezzlements charged in Counts 1 and 2 were complete, respectively, in 1998
and 2002, the district court necessarily found that if Sampson possessed the
requisite fraudulent intent, he possessed it at that time, providing him with a
statute‐of‐limitations defense.
We conclude that this pretrial factual finding constituted a premature
adjudication as to the sufficiency of the government’s evidence and was thus
improper at the Rule 12(b) stage. To be clear, Rule 12(b) allows “[a] party [to] raise
by pretrial motion any defense, objection, or request that the court can determine
without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). In some circumstances,
moreover, a party may raise and establish a statute‐of‐limitations defense via a
Rule 12(b) motion, such as when the defense is clear from the face of the
indictment. See, e.g., Toussie v. United States, 397 U.S. 112, 113–14 (1970) (noting that
a defendant charged in 1967 under an indictment alleging a willful failure to
register for the draft in 1959 may raise the statute‐of‐limitations issue in a pre‐trial
18
motion). But when such a defense raises dispositive “evidentiary questions,” a
district court must defer resolving those questions until trial. See United States v.
Knox, 396 U.S. 77, 83 & 83 n.7 (1969); see also United States v. Wilson, 26 F.3d 142, 159
(D.C. Cir. 1994) (“[A] decision on a [Rule 12] motion should be deferred[] if
disposing of the motion involves deciding issues of fact that are inevitably bound
up with evidence about the alleged offense itself.”); United States v. Shortt
Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986) (“If [a] pretrial claim is
‘substantially founded upon and intertwined with’ evidence concerning the
alleged offense, the motion falls within the province of the ultimate finder of fact
and must be deferred.” (quoting United States v. Williams, 644 F.2d 950, 953 (2d Cir.
1981))). Here, the government disputes the precise timing of Sampson’s alleged
fraudulent conversion and argued before the district court that it was premature
to adjudicate Sampson’s statute‐of‐limitations defense when the indictment was
sufficient on its face and the government had not proffered all its evidence. In
rejecting this argument, the district court essentially granted “summary
judgment” to Sampson. Because the civil summary judgment mechanism does not
exist in federal criminal procedure and the district court acted prematurely in
19
addressing the statute‐of‐limitations issue, we vacate the district court’s decision
of August 12, 2015, reinstate the two embezzlement counts, and remand.
B
The drafters of the Federal Rules of Criminal Procedure “cross‐pollinated”
the Rules with principles from the Federal Rules of Civil Procedure. James Fallows
Tierney, Comment, Summary Dismissals, 77 U. Chi. L. Rev. 1841, 1843 (2010). 7
Conspicuously absent from the Federal Rules of Criminal Procedure, however, is
an analogue for summary judgment under Federal Rule of Civil Procedure 56. See
United States v. Yakou, 428 F.3d 241, 246 (D.C. Cir. 2005) (“There is no federal
criminal procedural mechanism that resembles a motion for summary judgment
in the civil context.”); accord United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012);
7 Federal Rule of Criminal Procedure 7, for example, which governs the
presentment of an indictment, was modeled after Federal Rule of Civil Procedure
8, which governs the presentment of a pleading. See Fed. R. Crim. P. 7; Fed. R. Civ.
P. 8; Jesse Jenike‐Godshalk, Comment, “Plausible Cause”?: How Criminal Procedure
Can Illuminate the U.S. Supreme Court’s New General Pleading Standard in Civil Suits,
79 U. Cin. L. Rev. 791, 807 (2010). Federal Rule of Criminal Procedure 12, which
concerns, inter alia, motions to dismiss facially deficient indictments, resembles
Federal Rule of Civil Procedure 12, which concerns, inter alia, motions to dismiss
facially invalid complaints. See Fed. R. Crim. P. 12; Fed. R. Civ. P. 12. And Federal
Rule of Criminal Procedure 29, which allows a party to move for a judgment of
acquittal, is similar to Federal Rule of Civil Procedure 50, which allows a party to
move for a judgment as a matter of law. See Fed. R. Crim. P. 29; Fed. R. Civ. P. 50.
20
United States v. Pope, 613 F.3d 1255, 1259–60 (10th Cir. 2010) (Gorsuch, J.); United
States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) (per curiam); United States v.
Boren, 278 F.3d 911, 914 (9th Cir. 2002); United States v. Nabors, 45 F.3d 238, 240 (8th
Cir. 1995). Motions for summary judgment allow judges to examine the evidence
adduced by both sides before trial and award judgment if, based on the proffered
evidence, no rational trier of fact could find for the non‐moving party. See Fed. R.
Civ. P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586 (2009). The summary judgment
motion in civil actions existed at the time of the creation of the Federal Rules of
Criminal Procedure, but the Rules’ drafters decided not to transplant this
particular flower out of the foreign soil of civil procedure. See Ion Meyn, Why Civil
and Criminal Procedure Are So Different: A Forgotten History, 86 Fordham L. Rev. 697,
710 (2017). Accordingly, although a judge may dismiss a civil complaint pretrial
for insufficient evidence, a judge generally cannot do the same for a federal
criminal indictment. See United States v. Williams, 504 U.S. 36, 53 (1992); United
States v. Calandra, 414 U.S. 338, 345 (1974); Costello v. United States, 350 U.S. 359,
363–64 (1956); see also United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011) (“[C]ourts
21
routinely rebuff efforts to use a motion to dismiss as a way to test the sufficiency
of the evidence behind an indictment’s allegations . . . .”).
This distinction between federal civil and criminal procedure comports with
broader differences between the civil and criminal regimes. First, federal criminal
discovery is far more limited than federal civil discovery. When the federal
government acts as prosecutor in a criminal case, it does not face the same
mandatory disclosure regime as when it acts as plaintiff in a civil case. Compare,
e.g., Fed. R. Crim. P. 16(a), with Fed. R. Civ. P. 26. To be clear, a federal criminal
defendant can compel the government to disclose specified materials simply by
asking for them, see, e.g., Fed. R. Crim. P. 12.1(b), 12.2, 12.3, 16(a), and certain
statutory provisions and constitutional mandates require significant disclosures,
see, e.g., 18 U.S.C. § 3500(b); Giglio v. United States, 405 U.S. 150 (1972); Brady v.
Maryland, 373 U.S. 83 (1963). But the fact remains that federal civil and criminal
procedure are different, and that “unlike their civil counterparts, criminal
proceedings have no extensive discovery . . . procedures requiring both sides to
lay their evidentiary cards on the table before trial.” Pope, 613 F.3d at 1259–60; see
also United States v. Gottlieb, 493 F.2d 987, 994 (2d Cir. 1974) (affirming a district
court’s “refus[al] to order compliance with all of [the defendant’s] very broad
22
demands for discovery,” because “[t]he government was not required to disclose
its evidence in advance of trial”); David A. Sklansky & Stephen C. Yeazell,
Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal
Procedure, and Vice Versa, 94 Geo. L.J. 683, 713–14 (2006) (describing how criminal
proceedings often rely on an element of surprise at trial in a way that civil
proceedings do not).
This has implications for the proper construction of Rule 12(b). Permitting
civil “summary judgment”‐like motions under this Rule would enable an end‐run
around the calibrated framework for discovery in criminal cases. To overcome
such motions, the government might need to reveal its complete case before trial.
But this would upset the policy choices reflected in the criminal discovery rules—
and provide an advantage to the defense that the Rules’ drafters did not intend.8
8 We need not elaborate here on the numerous rationales for more
calibrated discovery in federal criminal, as opposed to civil, cases. Suffice it to say
that even as there has been a trend in recent decades to somewhat broader
discovery in federal criminal cases, concerns persist regarding: legal and practical
constraints on the ability to afford reciprocal discovery against the criminal
defendant; whether full disclosure of the government’s case facilitates defense
perjury; and whether such concerns as these militate against broader discovery by
the prosecution, given its heavy burden of proof. See 5 Wayne R. LaFave et al.,
Criminal Procedure § 20.1(b) (4th ed. 2017); 2 Charles Alan Wright et al., Federal
Practice & Procedure: Criminal § 251 (4th ed. 2018); Steven A. Saltzburg & Daniel J.
23
Even more fundamentally, authorizing district court judges to resolve
dispositive fact‐based evidentiary disputes on Rule 12(b) motions risks invading
“the inviolable function of the jury” in our criminal justice system. See Lopez for &
in Behalf of Garcia v. Curry, 583 F.2d 1188, 1192 (2d Cir. 1978). Judges can, of course,
make factual determinations in matters that do not implicate the general issue of
a defendant’s guilt, see Fed. R. Crim. P. 12(b), 12(d), such as motions to suppress
evidence, see Fed. R. Crim. P. 12(b)(3)(C), selective prosecution objections, see Fed.
R. Crim. P. 12(b)(3)(A)(iv), and objections concerning discovery under Rule 16, see
Fed. R. Crim. P. 12(b)(3)(E). But when a defense raises a factual dispute that is
inextricably intertwined with a defendant’s potential culpability, a judge cannot
resolve that dispute on a Rule 12(b) motion. See United States v. Schafer, 625 F.3d
629, 635 (9th Cir. 2010) (“[I]f [a] pretrial motion raises factual questions associated
Capra, American Criminal Procedure 973–75 (9th ed. 2010). In addition, as the
Supreme Court recently noted, affording federal criminal defendants a “sneak
preview” of the government’s case could “facilitate witness tampering [and]
jeopardize witness safety.” Kaley v. United States, 134 S. Ct. 1090, 1101–02 (2014).
Federal criminal discovery rules contain numerous safeguards to protect the
identities of government witnesses until they testify at trial. See, e.g., 18 U.S.C.
§ 3500(a); Fed. R. Crim. P. 26.2(a); see also United States v. Ruiz, 536 U.S. 622, 631–32
(2002); Ronald J. Allen et al., Comprehensive Criminal Procedure 1190–91 (4th ed.
2016).
24
with the validity of [a] defense, the district court cannot make those
determinations. Doing so would ‘invade the province of the ultimate finder of
fact.’” (citation omitted) (quoting Shortt Accountancy, 785 F.2d at 1452)); see also
United States v. Williams, 644 F.2d 950, 952–53 (2d Cir. 1981) (“[I]t would be
impractical and unwise to attempt pretrial resolution of the [defendant’s] due
process claims, because they are substantially founded upon and intertwined with
the evidence to be presented at trial.”). Because of this critical fact‐finding role of
the jury, the Supreme Court has admonished that “where intent of the accused is
an ingredient of the crime charged, its existence is a question of fact” that a judge
cannot resolve on the jury’s behalf. Morissette v. United States, 342 U.S. 246, 274
(1952). The same rationale must apply to a statute‐of‐limitations defense that
turns on the precise timing of a defendant’s fraudulent conversion. See United
States v. Sams, 865 F.2d 713, 716 (6th Cir. 1988) (explaining that a willful failure to
pay a tax is “complete” for statute‐of‐limitations purposes not when an individual
fails to pay the tax, but rather when “the failure to pay the tax becomes willful”
(emphasis added) (quoting United States v. Andros, 484 F.2d 531, 532 (9th Cir.
1973))).
25
Here, Sampson’s Rule 12(b) motion effectively asked the district court to
make a factual finding about the precise moment at which he acted with
fraudulent intent to convert the funds at issue in this case. Rule 12, however,
“permits pretrial resolution of a motion to dismiss the indictment only when ‘trial
of the facts surrounding the commission of the alleged offense would be of no
assistance in determining the validity of the defense.’” Pope, 613 F.3d at 1259
(quoting United States v. Covington, 395 U.S. 57, 60 (1969)). The question of when
Sampson possessed fraudulent intent as to the sums specified in Counts 1 and 2
was inherently intertwined with the question of whether he possessed fraudulent
intent—one of the elements of embezzlement. Such a question might have been
resolvable pretrial in a civil case. But it was not resolvable pretrial, in a criminal
setting, on the record here.
C
To be sure, in United States v. Alfonso, 143 F.3d 772 (2d Cir. 1998), we outlined
a narrow exception to the rule that a court cannot test the sufficiency of the
government’s evidence on a Rule 12(b) motion. In Alfonso, the district court
dismissed a Hobbs Act robbery count pretrial in response to the defendants’ Rule
12(b) motion, concluding that “the Government [failed to adduce] sufficient facts
26
to establish a nexus between the robbery allegedly committed by [the defendants]
and any obstruction of interstate commerce.” Id. at 773–74. As here, we held that
the district court’s “inquiry into the sufficiency of the [government’s] evidence”
on this issue “was premature.” Id. at 776. We distinguished United States v.
Mennuti, 639 F.2d 107 (2d Cir. 1981), which upheld a pretrial sufficiency‐of‐the‐
evidence ruling where the government had voluntarily submitted an affidavit
containing the entirety of its proof. Alfonso, 143 F.3d at 777; see also Mennuti, 639
F.2d at 108 & n.1. Alfonso made clear that “[u]nless the government has made what
can fairly be described as a full proffer of the evidence it intends to present at trial,”
the sufficiency of the evidence is not appropriately addressed by a Rule 12(b)
motion pretrial. Alfonso, 143 F.3d at 776–77.9
The exception employed in Mennuti and elaborated on in Alfonso is
extraordinarily narrow. As Alfonso states, the government must make a “detailed
presentation of the entirety of the evidence” before a district court can dismiss an
indictment on sufficiency grounds. Id. at 777. Moreover, our research reveals—and
9 Although Alfonso referred only to the “jurisdictional” element of an
offense, we have since clarified that its holding applies to any element of an
offense. See United States v. Perez, 575 F.3d 164, 166–67 (2d Cir. 2009).
27
the parties cite—no federal appellate case upholding the authority of a district
court to require the government, before trial, to make such a presentation. Indeed,
if the district court possessed such authority, it could effectively force a summary
judgment‐like motion on the government—and, as explained above, summary
judgment does not exist in federal criminal procedure. See Huet, 665 F.3d at 595;
Pope, 613 F.3d at 1259–60; Yakou, 428 F.3d at 246; Salman, 378 F.3d at 1268.10
Simply put, the government in Sampson’s case cannot “fairly” be said to
have made “a full proffer of the evidence it intends to present at trial” concerning
the precise time at which Sampson formed the intent to fraudulently convert the
funds at issue in Counts 1 and 2. See Alfonso, 143 F.3d at 776–77. There was some
dispute about this point at oral argument. Sampson’s counsel posited that the
government had in fact made a “full proffer” of its evidence. But we cannot
conclude that to be the case. During a hearing, the district court asked the
10 We further note that the Supreme Court’s decision in Kaley v. United
States, 134 S. Ct. 1090 (2014), may cast doubt on the continued viability of even this
narrow exception. See LaFave, Criminal Procedure, supra, § 15.5(a) (“Kaley arguably
indicates . . . that the grand jury determination as to evidence sufficiency cannot
be contradicted pretrial by a process that finds inadequacy in other sources of
evidence.”). We need not address the question, however, because even assuming
that the exception remains viable, Sampson’s case does not fall within it.
28
government whether it had other evidence to support its position concerning the
statute of limitations. See Gov’t App’x at 102. The government proffered some
additional evidence after the hearing. See id. at 159–67. But it was clear that the
government had not yet proffered all of its evidence. See, e.g., id. at 102 (mentioning
“statements attributed to Mr. Sampson, at the time that, for example, he created
the 2006 check, the check in which he emptied the Eighth Avenue account . . . .”);
id. at 145–46 (mentioning evidence that Sampson opened numerous referee
accounts at incorrect banks—including accounts from which he apparently did not
embezzle); compare id. at 170 (Sampson’s counsel arguing that the government’s
additional proffer “really [didn’t] add anything” and “just recite[d] what [was]
already in the [i]ndictment”), with Alfonso, 143 F.3d at 777 (“The government’s brief
statement . . . cannot fairly be described as a full proffer for purposes of a pretrial
ruling on the sufficiency of the evidence.”). Indeed, in its opinion granting
Sampson’s motion to dismiss, the district court itself seemed to acknowledge the
point. See Sampson, 122 F. Supp. at 18–19 (“The government’s additional contention
that the motion is premature because it has not proffered all of the evidence related
to the embezzlements is also unavailing. Supplemental evidence would not alter
the Court’s decision . . . .”); id. at 19 n.8 (“[A]t the eleventh hour, the government
29
proffered additional evidence that had no relevance or bearing on the Court’s decision.”
(emphasis added)).11
We agree with the district court that Sampson’s placement of the surplus
funds at issue in banks other than those specified in court orders and his failure to
remit the funds within five days of their receipt could constitute evidence that he
possessed an intent to defraud with respect to these funds—thereby completing
any embezzlement offense with respect to the funds—outside the statute of
limitations. But this evidence is far from conclusive as a matter of law. Moreover,
it cannot be said that “trial of the facts surrounding the commission of the alleged
11 It is worth contrasting the government’s limited proffer in this case with
the proffer that the government voluntarily submitted in Mennuti. That proffer
consisted of a point‐by‐point outline of how the government would establish each
element of the indictment’s counts, including testimony that the government
intended to present at trial. See Mennuti, 639 F.2d at 108 & n.1. As we noted in
Alfonso, it can sometimes be to the government’s benefit voluntarily to submit such
a proffer: the government can appeal a Rule 12(b) pretrial determination that it
lacks sufficient evidence to prove its case, but it cannot appeal a similar Rule 29
determination. Alfonso, 143 F.3d at 777 n.7. In any event, the record here does not
permit the conclusion that there was such a comprehensive proffer, qualifying as
a “detailed presentation of the entirety of the evidence that [the government]
would present to a jury” regarding when Sampson allegedly formed the requisite
fraudulent intent. Id. at 777. Absent a complete proffer, the district court could not
inquire into the sufficiency of the government’s case. See id.
30
offense would be of no assistance in determining the validity of [the statute of
limitations] defense.’” Pope, 613 F.3d at 1259 (quoting Covington, 395 U.S. at 60).
Thus, consider Count 1, which alleges that Sampson “embezzle[d]” $8,000
from the Forbell Street Account “[o]n or about February 13, 2008.” Gov’t App’x at
52, ¶ 54. The indictment alleges that in 1998, Sampson placed the Forbell Street
surplus funds into the escrow account and then failed to remit them. The
indictment then alleges that Sampson engaged in periodic “cash withdrawals and
electronic transfers” from the account starting around July 1998. Gov’t App’x at
42, ¶ 20. A factfinder might consider such conduct to establish a referee’s
fraudulent intent, from the start, to convert all the money in the account to his own
use, including money not yet removed. But such conduct would not constitute
embezzlement as to proceeds not yet transferred or withdrawn if the referee, while
neglectful of his legal obligation promptly to remit, never acted with the
fraudulent intent to take control of the remaining funds for himself—meaning, to
fraudulently convert them.12 If that were the case as to Sampson, then his alleged
12 The government argues that retaining funds in an escrow account beyond
a court‐imposed or statutory deadline is not uncommon, and not conclusive as to
intent to defraud. See Br. for Appellant at 25–26. Indeed, at least one New York
court described a practice in the 1950s pursuant to which court‐appointed referees
31
periodic withdrawals from the account between July 1998 and June 2008 would
constitute individual and separate acts of embezzlement (assuming, of course, that
he acted with the requisite fraudulent intent in each case).13 Sampson would have
then “completed” the embezzlement for the $8,000 at issue in Count 1 only “on or
about February 13, 2008,” when the indictment alleges that he took the $8,000 out
of the account (assuming, again, that he did so with the requisite fraudulent mens
rea).14
would routinely retain surplus funds in escrow accounts until a court ordered
their distribution, despite judgments requiring such funds to be remitted promptly
to a court‐designated depository. See In re Ball’s Will, 115 N.Y.S.2d 148, 149 (N.Y.
Sup. Ct. 1952) (addressing referee treatment of surplus funds from foreclosures in
Queens County, New York).
We do not opine on facts to be established at trial, nor take any view as to
13
the validity of Sampson’s statute‐of‐limitations defense. We note, however, that
Eric Newton, a Kings County Court clerk, testified at Sampson’s trial on the
indictment’s other counts that, on at least one occasion, Sampson remitted surplus
funds from a foreclosure action on an untimely basis. See Notice of Filing of Official
Transcript of Proceedings as to John Sampson Held on 6/24/2015, No. 1:13‐cr‐
00269‐DLI‐1 (E.D.N.Y. Aug. 12, 2015), ECF 219 at 84. This testimony may constitute
evidence that Sampson did not form the requisite fraudulent intent to embezzle
the funds in the Forbell Street Account until he transferred them into his personal
account. We also note that Ahmad testified that Sampson feared that law
enforcement officials would discover that he had removed funds from the escrow
accounts—not that he had failed to remit those funds in the first place. Id. at 107.
Count 2 presents a more complex issue than Count 1. Count 2 alleges that
14
Sampson embezzled $82,677.94 of the Eighth Avenue Surplus on or about June 7,
2008. Gov’t App’x at 53, ¶ 56. According to the facts outlined earlier in the
32
To be clear, on the record before us, we do not know if the government will
be able to prove that Sampson completed the alleged embezzlements within the
statute of limitations. But that fact alone is not enough to mandate dismissal of
Sampson’s embezzlement counts, for “we simply cannot approve dismissal of an
indictment on the basis of predictions as to what the trial evidence will be.” United
States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000). On remand, if the government
proceeds with Sampson’s prosecution, a jury must be presented with the evidence
as to when (if ever) Sampson’s fraudulent intent arose regarding the $8,000 that he
indictment, however, Sampson had embezzled $27,500 of the $82,677.94 Eighth
Avenue Surplus by July 21, 2006. Id. at 43, ¶ 24. The fact that Sampson is later
alleged to have attempted to replace that money is irrelevant; an embezzlement
offense is complete when all the elements are met, even if the defendant later
attempts to return the money he took. See United States v. Angelos, 763 F.2d 859, 861
(7th Cir. 1985). Thus, even if Sampson lacked fraudulent intent for the remainder
of the funds in the account until 2008, taking the indictment’s allegations as true,
Sampson could have embezzled—at most—$55,167.94 on or about June 7, 2008,
not $82,677.94. Nonetheless, $55,167.94 is still “$5,000 or more,” which is what
§ 666(a)(1)(A) requires for jurisdictional purposes. See, e.g., United States v. Stringer,
730 F.3d 120, 124 (2d Cir. 2013) (“An indictment ‘need not be perfect, and common
sense and reason are more important than technicalities.’” (quoting United States
v. De La Pava, 268 F.3d 157, 162 (2d Cir. 2001))). Because Count 2 “contains the
elements of the offense intended to be charged, and sufficiently apprises the
defendant of what he must be prepared to meet,” we consider it sufficient for Rule
12(b) purposes. See Russell v. United States, 369 U.S. 749, 763 (1962) (internal
quotation marks omitted).
33
allegedly transferred from the Forbell Street Referee Account in 2008, and the
$55,167.94 reflected in the bank check payable to the KCC that he allegedly
exchanged that same year for bank checks made payable to himself.
In sum, the question of the timing of Sampson’s alleged fraudulent
conversions is factual, not legal. And a factual dispute such as this one, going to a
statute‐of‐limitations defense that is itself inextricably intertwined with an
element of the crime (here, the mens rea of embezzlement) cannot be resolved on a
Rule 12(b) motion—at least when, as here, the government has not yet proffered
all of its evidence. The district court thus applied an erroneous legal standard to
reach a premature conclusion. Accordingly, its pretrial order concluding that
Sampson’s alleged embezzlements were outside the statute of limitations as a
matter of law must be vacated.
III
Sampson argues that notwithstanding the above error, we should affirm the
district court’s decision on other grounds. We disagree.
First, Sampson contends that because the government purportedly took
inconsistent positions on the fraudulent intent issue during its prosecution of the
other counts in the indictment, it is somehow estopped from arguing that the
34
alleged embezzlements were “complete” in 2008. Sampson, however, cites no
relevant support for this proposition. The cases that Sampson cites in his brief—
United States v. GAF Corp., 928 F.2d 1253 (2d Cir. 1991); United States v. Salerno, 937
F.2d 797 (2d Cir. 1991), rev’d on other grounds, 505 U.S. 317 (1992); United States v.
Lopez‐Ortiz, 648 F. Supp. 2d 241 (D.P.R. 2009); and United States v. Bakshinian, 65 F.
Supp. 2d 1104 (C.D. Cal. 1999)—all concern the admissibility of a prior inconsistent
statement by the government as an admission by a party‐opponent under Federal
Rule of Evidence 801(d)(2). These cases are far from enough to rebut the
extraordinarily strong presumption against applying equitable estoppel against
the government. See, e.g., Drozd v. I.N.S., 155 F.3d 81, 90 (2d Cir. 1998) (“The
doctrine of equitable estoppel is not available against the government ‘except in
the most serious of circumstances,’ and is applied ‘with the utmost caution and
restraint.’” (internal citations omitted) (first quoting United States v. RePass, 688
35
F.2d 154, 158 (2d Cir. 1982); then quoting Estate of Carberry v. Comm’r of Internal
Revenue, 933 F.2d 1124, 1127 (2d Cir. 1991))).15
Second, Sampson argues that we should affirm the dismissal of the two
embezzlement counts on lack of subject‐matter jurisdiction grounds. To the extent
that Sampson’s argument concerns the sufficiency of the government’s evidence,
we decline to address his argument, for the reasons explained above. To the extent
that Sampson’s argument challenges the sufficiency of the indictment, however,
we reject his argument on the merits.
As described above, an individual can be convicted of federal‐program
“embezzlement” only if he was an “agent of an organization, or of a State, local,
or Indian tribal government, or any agency thereof” that “receive[d], in any one
year period, benefits in excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, or other form of Federal assistance.” 18
15 To the extent that Sampson claims the indictment is deficient because it
somehow alleges that Sampson embezzled the funds at issue both before and
during 2008, we reject his argument. Nothing in the indictment stands for the
proposition that Sampson embezzled all of the surplus funds when he failed to
remit them in 1998 and 2002. Rather, the indictment alleges that Sampson began to
embezzle surplus funds from the relevant accounts around that period. See Gov’t
App’x at 42, ¶ 20; id. at 43, ¶ 23.
36
U.S.C. §§ 666(a)(1)(A), 666(b). “Agent” is defined as “a person authorized to act on
behalf of another person or a government,” id. § 666(d)(1), and government
“agency” includes “a subdivision of the . . . judicial . . . branch of government,” id.
§ 666(d)(2). Sampson’s indictment alleges that he “act[ed] on behalf of the Supreme
Court [of the State of New York]” when he served as a referee for the foreclosure
proceedings, and, as a result, was the Supreme Court’s “agent.” Gov’t App’x at 37,
¶ 4; id. at 52, ¶ 54; id. at 53, ¶ 56. Furthermore, the indictment insists, “[i]n or about
and between 2007 and 2009, the Supreme Court received in excess of $10,000 in
federal grants each year.” Id. at 40, ¶ 13. Therefore, the indictment claims, the
Supreme Court was an “agency of state government that received benefits in
excess of $10,000 under one or more Federal programs.” Id. at 52, ¶ 54; id. at 53,
¶ 56.
Sampson challenges the indictment’s—and, by extension, the
government’s—allegation on three grounds. First, Sampson claims that he was not
an agent of the “Supreme Court of the State of New York” when he served as a
referee, but rather an agent of the “Kings County Supreme Court.” Sampson
argues that “nothing authorized [him] to act on behalf of an entity known as ‘the
Supreme Court of the State of New York,’” and that “[t]he entity known as the
37
‘Supreme Court of the State of New York’ does not exist in any physical sense.”
Br. for Def.‐Appellee at 25, 38. The problem, however, is that the New York State
Constitution mentions only one “supreme court.” See N.Y. Const. art. VI, § 1; id.,
§ 7 (“The supreme court shall have general original jurisdiction in law and equity.”
(emphasis added)). Accordingly, New York’s highest tribunal, the New York
Court of Appeals, has made clear that
the Supreme Court is a single great tribunal of general state‐wide
jurisdiction, rather than an aggregation of separate courts sitting in the
several counties or judicial districts of the state. “There is,” we have
stated, “but one supreme court in the state and the jurisdiction of its
justices is coextensive with the state.” That unity has been preserved
throughout the court’s history, as local tribunals of civil and of
criminal jurisdiction have been merged with it.
Schneider v. Aulisi, 307 N.Y. 376, 381 (1954) (citations omitted) (emphasis added)
(quoting People ex rel. New York Cent. & Hudson Riv. R.R. Co. v. Priest, 169 N.Y. 432,
435 (1902)). Because “[t]he interpretation of a state statute or constitutional
provision made by that state’s highest court is binding on a federal court,”
Auerbach v. Rettaliata, 765 F.2d 350, 352 (2d Cir. 1985), we cannot question the Court
of Appeals’ determination that, for the purposes of jurisdiction, there is no such
entity as the “Kings County Supreme Court,” but rather simply one “Supreme
Court of the State of New York.” While Sampson may therefore be correct that
“[t]he entity known as ‘the Supreme Court of the State of New York’ does not exist
38
in any physical sense,” it does exist in a legal sense, and that is all that matters for
purposes of Sampson’s argument.
Second, Sampson submits that even if he was an “agent” of a pertinent
government agency, his agency terminated when the Forbell Street and Eighth
Avenue Foreclosure Actions ended in 1999 and 2002, respectively. But the court
orders that appointed Sampson as a referee contain no expiration date for his
agency. And “[i]f the parties do not specify a duration for the agent’s actual
authority, it terminates after a reasonable period of time. What is a reasonable time
is an issue for the trier of fact.” Restatement (Third) Of Agency § 3.09 cmt. d (2018)
(emphasis added). Accordingly, absent a voluntary and full proffer of the
government’s evidence, the issue of whether Sampson’s agency terminated along
with the foreclosure actions is one for the jury to resolve.
Finally, and in the alternative, Sampson argues that his agency terminated
before 2008 when, according to the indictment, he committed multiple discrete
acts of embezzlement. It is true that agency can sometimes terminate when,
“without knowledge of the principal,” the agent commits “a serious breach of
loyalty to the principal.” Restatement (Second) of Agency § 112 (1958). But we
decline to read this principle into the definition of “agent” under § 666. If we did,
39
a government employee’s “agency” would terminate the moment that he commits
any crime, thereby rendering him outside the scope of § 666 for any future crime
that he commits. That conclusion would not only run counter to the basic idea of
§ 666—i.e., to “protect the integrity of the vast sums of money distributed through
Federal programs from theft, fraud, and undue influence by bribery,” Sabri v.
United States, 541 U.S. 600, 606 (2004)—but would also be deeply in conflict with
the cases in which we have affirmed convictions for multiple, separate violations of
§ 666, see, e.g., United States v. Boyland, 862 F.3d 279, 291 (2d Cir. 2017); United States
v. Coyne, 4 F.3d 100, 108 (2d Cir. 1993). We reject Sampson’s invitation to read such
an obvious opportunity for subterfuge and abuse into § 666. Accordingly, we
cannot affirm the district court’s order dismissing of Sampson’s embezzlement
counts on alternative grounds.
CONCLUSION
For the foregoing reasons, we VACATE the district court’s August 12, 2015
judgment, REINSTATE Count 1 and Count 2 of Sampson’s indictment, and
REMAND to the district court for further proceedings consistent with this
opinion.
40