The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge
The question for resolution on this motion to dismiss part of an indictment is whether the crime of embezzlement from an employee benefit plan is a "continuing offense" for purposes of the statute of limitations. The U.S. Court of Appeals for the Second Circuit has not addressed this question previously. However, guided by the polestar of a 37-year old U.S. Supreme Court decision, this Court concludes that the conduct charged does not constitute a "continuing offense" and therefore grants defendant's motion.
Defendant Martin Rivlin is charged in a one-count indictment dated June 12, 2007 with fraudulently endorsing and cashing pension checks that were sent to his deceased father from January 1995 through June 2003 in violation of 18 U.S.C. § 664. That statute makes it an offense for a person to embezzle or convert to his own use any funds of an employee pension benefit plan.*fn1 Rivlin has moved pursuant to Fed. R. Crim. P. 12 to dismiss the portion of the indictment that charges conduct that falls beyond the applicable five-year statute of limitations contained in 18 U.S.C. § 3282.
Because this Court concludes that the conduct with which the defendant is charged does not constitute a "continuing offense," the statute of limitations begins to run upon the completion of each individual violation of the statute.
The following background facts are not disputed by the parties:
Solomon Rivlin, the father of defendant Martin Rivlin, was a unionized pharmacist who retired after he developed Alzheimer's disease in the late 1970s. In 1984, Martin Rivlin was given power of attorney and conservatorship over his father's financial affairs, and he opened a joint checking account with his father. Monthly pension checks from the Union Mutual Fund were deposited into that account, and Martin Rivlin used that money to cover rent and his father's medical expenses.
Solomon Rivlin died in 1987, but Martin Rivlin did not inform the Fund of his father's death. As a result, the monthly pension checks of approximately $550 continued to be sent to the apartment that the defendant had shared with his father.
In January 1995, the Fund began requiring pensioners or their lawful representatives to file an affidavit every six months "acknowledging receipt of all pension checks to date" and "stating under oath" that the pensioner remains "alive." The Government alleges that pursuant to that requirement, Martin Rivlin submitted at least seventeen signed affidavits from 1995 to 2003 stating that his father was alive -- even though Solomon Rivlin had passed away in 1987 -- and that he was personally endorsing the pension checks on his father's behalf in order to cause the Fund to continue sending the checks. The Government further alleges that the amount of pension checks cashed by the defendant from 1995 to 2003 totaled approximately $55,000.
On June 12, 2007, a grand jury sitting in the Southern District of New York returned a one-count indictment charging that the defendant had willfully and knowingly embezzled and converted to his own use the funds of an employee pension benefit plan by fraudulently cashing the pension checks that were sent to his deceased father from January 1995 through June 2003. As noted, the defendant has now moved to dismiss the portion of the indictment that charges conduct that predates June 12, 2002.
A. The "Continuing Offense" Doctrine
The applicable statute of limitations provides that a defendant must be prosecuted "within five years next after such offense shall have been committed." 18 U.S.C. § 3282 (2007). In general, an offense is committed when the offense is complete, Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed. 2d 156 (1970); that is, when every element of the offense has occurred, United States v. McGoff, 831 F.2d 1071, 1078 (D.C. Cir. 1987). There is an exception to the statutory time bar, however, if the charged violation constitutes a "continuing offense." Toussie, 397 U.S. at 115.
The Supreme Court has cautioned, however, that the continuing offense doctrine "should be applied only in limited circumstances," and continuing offenses "are not to be too readily found," id. at 116, since "criminal limitations statutes are to be liberally interpreted in favor of repose," id. at 115 (internal quotation marks and citations omitted). The question here is whether a violation of 18 U.S.C. § 664 constitutes a "continuing offense" such that the Government may prosecute a defendant for ...