SDNY Judge Dismisses Portion of Embezzlement Indictment on Statute of Limitations Grounds

When is a recurring offense a "continuing" offense for statutes of limitations purposes?  Not when the offense consists of repeated acts of fraudulent conversion of pension checks sent to one's deceased father, a court ruled in United States v. Rivlin, 07CR 524 (SHS), 2007 WL 4276712 (S.D.N.Y. December 5, 2007). 

The defendant, charged with a violation of 18 U.S.C. § 664 (embezzlement from a pension fund), moved to dismiss the portion of the indictment that charged him with embezzlement beyond the applicable five-year statute of limitations.  Analyzing the "continuing offense" doctrine, which is an exception to the statutory time bar, the court granted the motion, ruling in a case of first impression in the Second Circuit, that the statute of limitations began to run upon the completion of each individual act of embezzlement.  Unlike traditional examples of continuing offenses - conspiracy, escape, kidnapping and crimes of possession - "the embezzlement of money from an employee benefit fund is not inherently a prolonged course of conduct" (emphasis in original).  Accordingly, the court held "a violation of 18 U.S.C. § 664 is not a continuing offense, regardless of how many times an individual defendant may have violated the statute or whether the defendant was engaged in an on-going course of criminal conduct."

This may however be a pyrrhic victory for Rivlin, since he faces the distinct possibility that all acts of embezzlement will be admitted at trial under Fed.R.Evid. 404(b) and, in the event of a conviction, at sentencing as relevant conduct.