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United States v. Green

United States Court of Appeals, Second Circuit

July 31, 2018

United States of America, Appellee,
v.
Christy Green, Defendant-Appellant.

          Submitted: December 8, 2017

          On Appeal from the United States District Court for the Northern District of New York

         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 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.

          Before: Cabranes and Carney, Circuit Judges, and Goldberg, Judge. [*]

          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 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.

         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." 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 ...


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