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 ...