16‐3044‐cr
United States v. Green
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
No. 16‐3044‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTY GREEN,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Northern District of New York
SUBMITTED: DECEMBER 8, 2017
DECIDED: JULY 31, 2018
Before: CABRANES and CARNEY, Circuit Judges, and GOLDBERG, Judge.
Judge Richard W. Goldberg, of the United States Court of International
Trade, sitting by designation.
Defendant‐Appellant Christy Green (“Green”) appeals from a
judgment of the United States District Court for the Northern District
of New York (Thomas J. McAvoy, Judge) convicting her of theft of
government property in violation of 18 U.S.C. § 641 and sentencing her
principally to one year of probation and to paying restitution. The
questions for appeal are (1) whether Green waived her right of appeal
in her plea agreement with the government; (2) whether the District
Court was permitted to order restitution for property stolen outside
the period set by the applicable statute of limitations on the ground
that Green consented to pay such restitution in her plea agreement;
and (3) whether violations of 18 U.S.C. § 641 (embezzlement of
government property) constitute continuing offenses, rendering
Green liable for restitution for funds embezzled outside the limitation
period.
We hold that Green did not waive her right of appeal, and that
the District Court was not permitted to order restitution for property
stolen outside the limitation period because Green did not consent to
pay such restitution and violations of 18 U.S.C. § 641 do not constitute
continuing offenses. Accordingly, we VACATE IN PART the District
Court’s judgment and REMAND the cause for determination of the
proper restitution amount within the limitation period.
Carina H. Schoenberger, Assistant United
States Attorney, for Grant C. Jaquith, Acting
2
United States Attorney for the Northern
District of New York, Syracuse, NY, for
Appellee.
Arthur R. Frost, Frost & Kavanaugh, P.C.,
Troy, NY, for Defendant‐Appellant.
JOSÉ A. CABRANES, Circuit Judge:
Defendant‐Appellant Christy Green (“Green”) appeals from a
judgment of the United States District Court for the Northern District
of New York (Thomas J. McAvoy, Judge) convicting her of theft of
government property in violation of 18 U.S.C. § 641 and sentencing her
principally to one year of probation and to paying restitution. The
questions for appeal are (1) whether Green waived her right of appeal
in her plea agreement with the government; (2) whether the District
Court was permitted to order restitution for property stolen outside
the period set by the applicable statute of limitations on the ground
that Green consented to pay such restitution in her plea agreement;
and (3) whether violations of 18 U.S.C. § 641 (embezzlement of
government property) constitute continuing offenses, rendering
Green liable for restitution for funds embezzled outside the limitation
period.
We hold that Green did not waive her right of appeal, and that
the District Court was not permitted to order restitution for property
stolen outside the limitation period because Green did not consent to
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pay such restitution and violations of 18 U.S.C. § 641 do not constitute
continuing offenses. Accordingly, we VACATE IN PART the District
Court’s judgment and REMAND the cause for determination of the
proper restitution amount within the limitation period.
I. BACKGROUND
While she was still living, Green’s mother received monthly
benefits payments from the United States Department of Veterans
Affairs (“VA”). Each month, the VA automatically deposited
approximately $1,154 into a joint bank account that Green held with
her mother. Green’s mother died on January 10, 2009, and Green
notified the VA of her death on February 9, 2009. But the VA continued
to make automatic monthly payments to the joint bank account
through August 2, 2011. As the automatic deposits continued, Green
regularly wrote checks to herself from the account in amounts similar
to the amounts of the VA payments.
On February 8, 2016,1 the government filed an Information
charging Green with having “willfully and knowingly embezzled,
stole, and converted to her use and the use of others, money of the
United States and of a department thereof . . . in violation of Title 18,
United States Code, Section 641.”2 App. 5.
The record does not indicate why the government did not file the
1
Information until almost five years after the final VA payment.
2 Section 641 of title 18 provides, as relevant to the crime charged here:
4
Green immediately entered into a plea agreement with the
government. She agreed to plead guilty to stealing a total of $35,774
between January 10, 2009, and August 2, 2011, and to pay “restitution
. . . in an amount determined by the Court to be equal to the sum of
payments unlawfully received within the applicable limitations
period.” App. 7–8 (emphasis added). She also waived her right “to
appeal and/or collaterally attack . . . [a]ny order of . . . restitution . . .
that is consistent with governing law and is not contrary to the terms
of this agreement.” Id. at 11. But Green expressly “reserve[d] the right
to contest . . . restitution” for payments stolen outside the limitation
period. Id. at 8.
At sentencing, the parties disagreed about which payments, if
any, had been stolen outside “the applicable limitations period.” The
applicable statute of limitations, 18 U.S.C. § 3282(a), requires any
prosecution under 18 U.S.C. § 641 to be “instituted within five years.”
Whoever embezzles, steals, purloins, or knowingly converts to
his use or the use of another, or without authority, sells, conveys
or disposes of any record, voucher, money, or thing of value of
the United States or of any department or agency thereof, or any
property made or being made under contract for the United
States or any department or agency thereof; . . .
Shall be fined under this title or imprisoned not more than ten
years, or both; but if the value of such property in the aggregate,
combining amounts from all the counts for which the defendant
is convicted in a single case, does not exceed the sum of $1,000,
he shall be fined under this title or imprisoned not more than
one year, or both.
The word “value” means face, par, or market value, or cost
price, either wholesale or retail, whichever is greater.
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According to Green, this meant that she was liable only for payments
stolen within five years of the filing of the Information. According to
the government, Green’s violation of 18 U.S.C. § 641 was one
“continuing offense” that encompassed the theft of all the payments
she received after her mother died, rendering Green liable for
payments received more than five years before the Information was
filed.
The District Court agreed with the government. It sentenced
Green to one year of probation and ordered restitution in the full
amount of $35,744, covering payments stolen both within and outside
the limitation period. This appeal followed.
II. DISCUSSION
A. Whether Green Waived Her Right to Appeal
The government argues that Green’s appeal should be
dismissed because she waived her right to appeal the District Court’s
restitution order. We disagree.
We review plea agreements, including waivers of the right to
appeal, de novo and in accordance with general principles of the law
of contract. See United States v. Padilla, 186 F.3d 136, 139–40 (2d Cir.
1999). Since plea agreements waive defendants’ fundamental
constitutional rights, we construe their terms strictly against the
government, “hold[ing] prosecutors engaging in plea bargaining to
the most meticulous standards of both promise and performance.”
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United States v. Lawlor, 168 F.3d 633, 636 (2d Cir. 1999) (citation
omitted).
We conclude that Green expressly reserved the right to
challenge any order of restitution that includes funds embezzled
outside of the limitation period. The plea agreement contains a
provision stating as much: “[T]he defendant reserves the right to
contest such restitution.” App. 8. It is true that Green waived her right
to appeal “[a]ny order of . . . restitution . . . that is consistent with
governing law and is not contrary to the terms of this agreement.”
App. 11. But as we discuss below, Green’s main argument on appeal
is precisely that the restitution order in this case is not “consistent with
governing law,” in that the order applies to VA funds stolen outside
the applicable limitation period. The government’s attempt to
circumvent this language does not satisfy “the most meticulous
standards” to which we hold the government in plea bargains. Lawlor,
168 F.3d at 636. Indeed, it falls far short.
B. Whether Green’s Guilty Plea Constitutes Agreement to
Pay the Full Amount of Loss to the VA
The government next argues that the District Court was
permitted to order restitution for funds stolen outside the limitation
period because Green consented to such an order in her plea
agreement. According to the government, since Green pleaded guilty
to stealing funds both before and after the limitation period, the
District Court’s restitution order properly reflected the entire loss
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admitted in the plea agreement. We conclude that Green agreed to no
such thing in her plea agreement.
This case is similar to United States v. Silkowski, 32 F.3d 682 (2d
Cir. 1994). In Silkowski, the government prosecuted the defendant
under 18 U.S.C. § 641, the parties entered into a plea agreement under
which Silkowski pleaded guilty, and Silkowski—who stole Social
Security payments over a period that straddled the statute of
limitations—argued at sentencing that the court could not order
restitution for any money he received beyond the limitation period. Id.
at 684–85. After the district court ordered Silkowski to pay restitution
covering the full twelve years of stolen payments, Silkowski appealed.
We agreed with Silkowski, concluding that “the district court is
prohibited from ordering restitution for losses attributed to conduct
that was not part of the offense of conviction because of the applicable
statute of limitations in this case.” Id. at 687. We further noted that the
sentencing court can only order “restitution beyond the offense of
conviction when the defendant agrees to such in a plea agreement.” Id.
at 688–89 (internal quotation marks omitted).
The government argues that because the District Court based its
restitution order solely on Green’s offense of conviction, its order
differed from the one reviewed in Silkowski. In the government’s view,
Silkowski pleaded guilty only to the charge as it related to payments
stolen within the five‐year statute of limitations. By contrast, Green
pleaded guilty to the entire charge, which pertained to payments
stolen more than five years before the information charging her was
filed. Yet, under Silkowski, pleading guilty to stealing funds outside of
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the limitation period does not constitute agreement to pay restitution
for that period where, as here, the defendant expressly reserved the
right to raise the statute‐of‐limitations defense. Green’s guilty plea did
not constitute an agreement to pay the full amount of loss incurred by
the VA.
C. Whether Violations of 18 U.S.C. § 641 Constitute
“Continuing Offenses”
Having concluded that Green may challenge the restitution
order on appeal, we now address Green’s argument that the District
Court erred in ordering restitution in the full amount of $35,744
because violations of 18 U.S.C. § 641 do not constitute continuing
offenses—and thus that the government is entitled to restitution for
only the money embezzled within the five‐year statute of limitations
period. The government, by contrast, contends that while Section 641
offenses must be “instituted within five years,” they are not complete
each time funds are converted and are thus continuing offenses
encompassing multiple occasions of conversion.
We review this question of law de novo. See United States v.
Gushlak, 728 F.3d 184, 191 (2d Cir. 2013); Lawlor, 168 F.3d at 636.
Prosecutions of violations under 18 U.S.C. § 641 must be
“instituted within five years.” 18 U.S.C. § 3282(a). The statute of
limitations for prosecuting an offense runs from the moment the
offense is completed. Toussie v. United States, 397 U.S. 112, 115 (1970).
Ordinarily, completion occurs at the moment the defendant’s conduct
satisfies every element of the offense has been fulfilled. A continuing
9
offense presents an exception to the rule. It is a crime, such as a
conspiracy, that “contemplates a prolonged course of conduct.” Id. at
120. Although all the elements of the offense may already have been
fulfilled, the offense is understood to be complete only when the
conduct has “run its course.” United States v. Eppolito, 543 F.3d 25, 46
(2d Cir. 2008) (quoting United States v. Rivera‐Ventura, 72 F.3d 277, 281
(2d Cir. 1995)). If violation of section 641 is a continuing offense,
Green’s conversions of VA payments to her own use are a single crime
that ran from January 2009 to August 2011. If violation of section 641
is not a continuing offense, Green committed a separate crime each
time she converted VA funds, and the district court may not order her
to pay restitution for losses attributable to acts of conversion that she
committed outside the five‐year limitation period. Silkowski, 32 F.3d at
687.
Under Toussie, a crime is not a continuing offense “unless the
explicit language of the substantive criminal statute compels such a
conclusion, or the nature of the crime involved is such that Congress
must assuredly have intended that it be treated as a continuing one.”
397 U.S. at 115. The government concedes that “the explicit language
of Section 641 does not compel the conclusion that every chargeable
violation is a ‘continuing offense’ . . . .” Gov. Br. 24. We thus need only
consider whether “the nature of the crime” makes violation of section
641 a continuing offense.
We conclude that violations of that paragraph of section of 641
that prohibits “embezzle[ment], steal[ing], purloin[ing], or knowing[]
conver[sion]” are not by their nature continuing offenses and that the
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District Court was not permitted to order restitution for payments
stolen outside the limitation period on a continuing‐offense theory.
We acknowledge that the Fourth Circuit, in the only appellate
case to address the question, held violation of section 641 is a
continuing offense. See United States v. Smith, 373 F.3d 561 (4th Cir.
2004). In Smith, the defendant failed to report his mother’s death to a
federal agency and continued to receive her benefits payments for
several years. Id. at 563. He was charged with “knowingly,
intentionally and willfully embezzl[ing], steal[ing], purloin[ing] and
convert[ing] to his own use” the benefits payments. Id. To determine
whether Smith’s crime was a continuing offense, the Fourth Circuit
looked beyond the language of section 641 and considered Smith’s
actual charged conduct. The Fourth Circuit held that “at least in those
cases where the defendant created a recurring, automatic scheme of
embezzlement under section 641 by conversion of funds voluntarily
placed in the defendant’s possession by the government,” as in Smith,
“Congress must have intended that such be considered a continuing
offense for purposes of the statute of limitations.” Id. at 567–68.
We respectfully disagree with the Fourth Circuit’s reasoning. In
Toussie, the Supreme Court determined “the nature of the crime” as
intended by Congress by examining the statutory definition of the
offense. See 397 U.S. at 115–21. In Smith, by contrast, the Fourth Circuit
examined not only the statute but also the specific facts of the case. We
think that this approach is inconsistent with the Supreme Court’s
rationale in Toussie, which looks to Congress’s intent as expressed in
the “explicit language” of the statute. Id. at 115. Nothing in the
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statutory language indicates to us an intent to make violation of
section 641 a continuing offense.
Our analysis follows the Seventh Circuit’s interpretation of a
closely related statute, 18 U.S.C. § 666. See United States v. Yashar, 166
F.3d 873 (7th Cir. 1999). Section 666 among other things makes it a
federal crime for the agent of an entity that receives federal funds to
steal that entity’s property. The Seventh Circuit held that a violation of
section 666 does not become a continuing offense simply because the
charging instrument describes a continuing course of conduct. The
court noted that “the . . . nature of a defendant’s actions has never been
the benchmark of a continuing offense under Toussie. Instead, the
focus is on the statutory language.” Id. at 877. The statute of limitations
begins to run on a violation of section 666, it concluded, “once all
elements of the offense are established, regardless of whether the
defendant continues to engage in criminal conduct.” Id. at 880.
Moreover, the majority of district courts to reach this issue have
held that section 641 is not a continuing offense. See, e.g., United States
v. Reese, 254 F. Supp. 3d 1045, 1049 (D. Neb. 2017); United States v.
Henrickson, 191 F. Supp. 3d 999, 1001 (D.S.D. 2016); United States v.
Powell, 99 F. Supp. 3d 262, 264–66 (D.R.I. 2015).
In short, we agree with the majority of the district courts that
have reached this question in holding that violations of section 641 are
not continuing offenses. The District Court was therefore not
permitted to order restitution for theft outside the limitation period on
that basis.
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III. CONCLUSION
To summarize, we hold as follows:
(1) Green did not waive her right to appeal;
(2) the District Court was not permitted to order restitution for
VA payments stolen outside the limitation period on the
ground that Green had consented to such an order because
her plea agreement indicates no such consent; and
(3) the District Court was not permitted to order restitution for
VA payments stolen outside the limitation period on a
continuing offense theory because violations of 18 U.S.C.
§ 641 do not constitute continuing offenses.
Accordingly, we VACATE IN PART the District Court’s
judgment as to the restitution order and REMAND the cause to the
District Court to determine the proper restitution amount within the
limitation period.
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United States v. Green
Combined Opinion