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United States v. Samson

United States District Court, S.D. Texas, Houston Division

January 15, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
FRED SAMSON, Defendant.

          MEMORU OPINION AND ORER

          SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the court is Defendant's Motion for a Judgment of Acquittal and, in the Alternative, Motion for New Trial ("Motion for Acquittal") (Docket Entry No. 64). For the reasons stated below, Defendant's Motion for Acquittal will be denied.

         I. Factual and Procedural Background

         The United States charges that Fred Samson stole government property through a scheme to continue receiving Social Security retirement benefits that were payable to his mother and father, Katarzyna and Stanislaw Bernat, after they died. Samson's father and mother died in Poland on June 26, 1995, and December 1, 1995, respectively. [1] The Social Security Administration continued dispersing monthly retirement benefits to them for almost 22 years after their deaths. [2] Samson does not dispute that the evidence shows that he negotiated United States Treasury checks intended for his parents between 1998 and 2013.[3] Starting in 2008 and 2013 the payments were directly deposited into joint bank accounts in Samson's and his mother and father's names, respectively.[4] Samson does not dispute that the evidence shows that he withdrew the benefits paid into these accounts on a monthly basis until 2017.[5]To prove that Samson collected the benefits knowing his parents were deceased, the government produced evidence that Samson traveled to Europe shortly after each of his parents died in Poland, [6] that he created and managed the joint bank accounts through forgery and fraud, [7] and that he made a statement admitting that he had knowingly used their benefits since they died.[8]

         Fred Samson was indicted by a grand jury on March 6, 2019, on two counts of theft of government property greater than $1000 in violation of 18 U.S.C. § 641.[9] A superseding indictment was filed on August 29, 2019.[10] Count One consolidates all the money alleged taken intended for Stanislaw into a single count, and Count Two consolidates that intended for Katarzyna.[11] Samson was tried before a jury beginning on November 4, 2019.[12] On November 5, 2019, the second day of trial, Samson requested a jury instruction on a statute of limitations defense, which the court denied.[13] The same day the jury unanimously found Samson guilty on both counts.[14] On November 22, 2019, Samson filed a motion for a judgment of acquittal as to both counts on the ground that the government failed to prove certain elements of the charged offense and failed to prove that the of fens es occurred within the limitations period.[15]In the alternative, Samson seeks a new trial on the ground that the court failed to instruct the jury on his statute of limitations defense. The government filed a response on December 16, 2019, [16]and Samson replied on December 23, 2019.[17]

         II. Standard of Review

         In determining whether the prosecution introduced sufficient evidence to sustain a conviction, the court must determine whether any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008) (quoting Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979)). Rather than deciding whether the jury reached the correct verdict, the court must only determine whether the jury's verdict was rational. United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).

         The court must view the evidence and the inferences that may be drawn therefrom in the light most favorable to the jury's verdict. United States v. Patino-Prado, 533 F.3d 304, 308 (5th Cir. 2008). If, however, the evidence "'gives equal or nearly equal circumstantial support to a theory of guilt or innocence,' the court should reverse because 'under these circumstances a reasonable jury must necessarily entertain a reasonable doubt.'" Id. at 309 (quoting Ramos-Garcia, 184 F.3d at 465).

         III. Analysis

         The superseding indictment alleges that Fred Samson "did knowingly and willfully steal, purloin, and convert to his own use and the use of another, money of the United States" in a continuing course of conduct between June of 1995 and November of 2017, violating 18 U.S.C. § 641. [18] Samson argues that the government failed to prove that he committed a knowing theft or conversion within the five-year limitations period and that the money allegedly stolen was "money of the United States" under the meaning of the statute. The government contends it sufficiently proved each element of the offenses.

         A. Acts of Theft or Conversion and Limitations

         Samson argues that the government produced no evidence that he committed a theft or knowing conversion within § 641's five-year limitations period.[19] He contends that the only acts that occurred within the limitations period were his withdrawal of funds from the joint bank accounts, which he argues does not constitute theft or conversion. The government responds that Samson waived any limitations defense by failing to raise it before trial, that theft or conversion under § 641 may be charged as a continuing offense, and that the evidence supports that Samson converted the money within the 5-year limitation period.[20]

         1. Waiver

         The government argues Samson should have raised his limitations defense before trial. Rule 12 requires that defendants raise objections and defenses on the basis of a defect in the indictment before trial if the motion can be determined without a trial on the merits. Fed. R. Crim. P. 12(b) (3). But a limitations defense often turns on disputed factual issues. United States v. Lewis, 774 F.3d 837, 845 (5th Cir. 2014). The court may therefore only decide a limitations issue before trial if its validity is apparent from the face of the indictment with the facts alleged in the indictment assumed true. United States v. Treacy, 677 Fed.Appx. 869, 873 (4th Cir. 2017); United States v. Ramirez, 324 F.3d 1225, 1227-28 (11th Cir. 2003).

         The superseding indictment charged Samson with two counts based on continuous conduct from June of 1995 to November of 2017, which straddles the limitations period that would have begun on March 6, 2014, five years before the original indictment. Even if the offense charged is not a continuing offense, the government may rely on such an indictment to obtain a conviction based on conduct within the limitations period. United States v. Askia, 893 F.3d 1110, 1120 (8th Cir. 2018). Samson's limitations defense therefore depends on whether the government proved that he committed a theft or conversion on or after March 6, 2014. Samson was not required to raise this fact-dependant defense before trial under Rule 12 and, accordingly, has not waived it. See United States v. Bucheit, 134 Fed.Appx. 842, 849 (6th Cir. 2005) (holding that an "at least partially factual" limitations argument raised for the first time at trial was timely).

         2. Continuing Violation

         The government argues Samson's conviction may be sustained by evidence of conduct outside the five-year limitations period because Samson's conduct from 1995 to 2017 constituted a continuing offense. The doctrine of continuing offenses applies only in limited circumstances, which the Supreme Court defined in Toussie v. United States, 90 S.Ct. 858, 860 (1970). The court construes an offense as continuing only when "(1) 'the explicit language of the substantive criminal statute compels such a conclusion,' or (2) 'the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.'" United States v. Tavarez-Levario, 788 F.3d 433, 437 (5th Cir. 2015) (quoting Toussie, 90 S.Ct. at 860). The government concedes the text of § 641 does not explicitly provide that the offense is continuing, and argues only that "the nature of the crime involved" compels such a conclusion.[21]

         The federal circuits are split as to whether under Toussie § 641 may be construed as a continuing offense. In United States v. Smith, 373 F.3d 561, 567 (4th Cir. 2004), the court held that embezzlement under§ 641 may be a continuing offense" [a]t least in those cases where the defendant create[s] a recurring, automatic scheme." One judge dissented, arguing that the inherent nature of embezzlement is not continuing and that the majority had incorrectly considered the defendant's specific conduct rather than the nature of the crime. Id. at 569 (Michael, J., dissenting). The Second Circuit agreed with the Smith dissent and concluded that embezzlement, theft, and conversion under § 641 are not by their nature continuing offenses. United States v. Green, 897 F.3d 443, 448-49 (2d Cir. 2018). District courts have also split on this question. See, e.g., United States v. Brunell, 320 F.Supp.3d 246, 248 (D. Mass. 2018) (holding that violations of § 641 may be continuing); United States v. Reese, 254 F.Supp.3d 1045, 1049 (D. Neb. 2017) (holding violations of§ 641 are not continuing).

         While the Fifth Circuit has not addressed whether § 641 is a continuing offense, it has given guidance in the context of other statutes:" [U] nder Toussie, the analysis of whether a crime constitutes a continuing offense involves examining the offense itself, not the defendant's particular conduct." Tavarez-Levario, 788 F.3d at 440. This contravenes the reasoning in Smith that § 641 violations may be a continuing offense because in particular cases the offense might be part of a repetitive, recurring scheme that runs over a long period of time. See Smith, 373 F.3d at 567-68; see also Brunell, 320 F.Supp.3d at 248. Smith requires courts to consider the particular conduct of the defendant in order to determine whether "the defendant created a recurring, automatic scheme" before it can determine if the offense was continuing. 373 F.3d at 567-68. Because the Fifth Circuit has expressly held this court should not consider the defendant's specific conduct, the court declines to follow Smith and other courts that have looked to the defendant's specific conduct to find that a crime may sometimes be continuing; instead, the court will look solely to the crime as defined in the statute.

         For a crime to be construed as continuing in the absence of explicit text, it must be by its nature a renewing and continuing process rather than a single act. Toussie, 90 S.Ct. at 864. The crime's continuing nature must be unequivocally clear. Id. "'The hallmark of the continuing offense is that it perdures beyond the initial illegal act, and that each day brings a renewed threat of the evil Congress sought to prevent even after the elements necessary to establish the crime have occurred.'" Tavarez-Levario, 788 F.3d at 436-37 (quoting United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999)). Some actual element or action inherent to the offense must involve "ongoing perpetration" that has "temporal longevity." Id. at 440. An example of a crime that is continuous by its nature is kidnapping because the illegal detention persists until the victim is emancipated. United States v. Garcia, 854 F.2d 340, 343-44 (9th Cir. 1988). Crimes that are not continuing are complete as soon as each of the elements is met, even if the offender continues to reap benefits from his crime long after its completion. Tavarez-Levario, 788 F.3d at 440. For example, the use of a counterfeit or fraudulently obtained immigration document is not a continuing offense because each single use is a crime, even though the offender may reap continued benefits from the offense such as entry into the United States and employment. Id.

         The court agrees with Green and other courts that have concluded embezzlement, stealing, and knowing conversion under § 641 are not by their nature continuing offenses. A violation under § 64l(a) is complete as soon as the offender unlawfully takes or misappropriates money or a thing of value of the United States. While the statute defines a broad range of conduct, the conduct does not inherently continue. Reese, 254 F.Supp.3d at 1050. That the conduct described in the statute can sometimes be part of a covert, long-term scheme to repeatedly steal small sums of money does not unequivocally show the crime is by its nature continuing as Toussie requires. See Reese, 254 F.Supp.3d at 1050; contra Smith, 373 F.3d at 567-68. The court concludes that § 641 is not a continuing offense, and therefore the government must prove that Samson violated § 641 within the five-year limitations period.

         3. Acts Within the Limitations Period

         Samson argues that the government failed to prove he committed any stealing or knowing conversion within the five-year limitations period.[22] Because the original indictment was filed on March 6, 2019, the government needed to prove Samson violated the statute on or after March 6, 2014. See 18 U.S.C. § 3282 (a) (providing a general five-year limitations period for federal offenses). The government argues Samson knowingly converted the Social Security benefits when he withdrew them from the joint bank accounts, which he did many times during the five-year period.[23] Samson responds that those bank withdrawals do not constitute stealing, purloining, or knowing conversion - the conduct alleged in the indictment.[24]

         Samson argues that as a co-owner of the accounts he could not "wrongfully take" the money the government mistakenly deposited there.[25] But Samson cites no authority that a person cannot wrongfully take money that he knows has been incorrectly but voluntarily deposited into his bank account. Samson points only to the principle that a bank that pays a check with a forged endorsement loses its own money rather than the money of a depositor. See United States v. Evans,572 F.2d 455, 474 n.20 (5th Cir. 1978). This ...


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