                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4742


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JAMES MARTIN TREACY,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.  Michael F. Urbanski,
District Judge. (5:13-cr-00018-MFU-1)


Argued:   December 8, 2016               Decided:   February 7, 2017


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.


ARGUED: Louis Kirk Nagy, LAW OFFICE OF LOUIS K. NAGY,
Harrisonburg, Virginia, for Appellant.    Elizabeth G. Wright,
OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg, Virginia,
for Appellee.   ON BRIEF: John P. Fishwick, Jr., United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

     James      Martin    Treacy     used       his    deceased       ex-wife’s   social

security number to receive social security survivors’ benefits.

Alleging    this    use   to   be    illegal,         the    United    States   indicted

Treacy for concealment of a material fact from the government

(Count 1); theft of government money (Count 2); social security

fraud (Count 4); and aggravated identity theft (Counts 3 and 5). 1

Before trial, Treacy moved to dismiss Counts 1, 3, and 5 on

statute    of   limitations     grounds.         The    district       court    dismissed

Count 1, but it declined to dismiss Counts 3 and 5 based on its

conclusion      that     aggravated      identity           theft     is   a   continuing

offense. Subsequently, a jury convicted Treacy on Counts 2-5,

and he now appeals his convictions on Counts 3 and 5. For the

reasons that follow, we affirm.

                                            I

     The United States filed the Indictment on August 1, 2013.

The parties agree that under 18 U.S.C. § 3282(a) the applicable

statute of limitations for the charged crimes is five years.

     As      the       Indictment        explains,           the      Social     Security

Administration (“SSA”) administers payment of federal benefits

under     various   programs        to   qualifying          individuals,       including

     1 See 18 U.S.C. § 1001 (Count 1); 18 U.S.C. § 641 (Count 2);
42 U.S.C. § 408(a)(4) (Count 4); and 18 U.S.C. § 1028A(a)(1)
(Counts 3 and 5).



                                            2
certain surviving family members of individuals who had worked

and   were      insured     under    the   Social      Security    Act.    Payments    to

those surviving family members are based on contributions from

the   deceased        individual’s         earnings.         Widowers   and   surviving

divorced     husbands        may    be   entitled      to    survivors’    benefits    on

behalf     of    deceased      wives     under     certain      circumstances.    Among

these circumstances are that a widower must have been married to

the deceased wife at the time of her death, and a surviving

divorced husband must have been married to the deceased wife for

a   period      of   ten    years    immediately       before    the    divorce   became

effective. See J.A. 13-14.

      The    United        States   alleges       in   the    Indictment   that   on   or

about January 23, 2006, Treacy applied for survivors’ benefits

on behalf of his deceased ex-wife (“K.G.”) using her name and

social security number. Treacy indicated on the application that

he and K.G. were married from November 19, 1965, until April 1,

1984, 2 when she died. Treacy also indicated that he was “last

married” to K.G. However, contrary to Treacy’s representations,

he divorced K.G. in October 1973 and, therefore, was actually

married to her for less than 8 years. Moreover, Treacy was not

married to K.G. at the time of her death. Instead, Treacy was

married to another person when K.G. died. In November 2011, the

      2   This date was subsequently amended to October 4, 1986.



                                              3
SSA    learned      the    truth       about   Treacy’s         marriage   to        K.G.    and

suspended benefits payments to him. By that time, the SSA had

paid Treacy over $109,000 in survivors’ benefits.

       Counts 3 and 5 charge Treacy with aggravated identity theft

under § 1028A(a)(1), which “provides an enhanced penalty for

those    who     unlawfully        use     another’s       identifying             information

during and in relation to a broad array of predicate offenses.”

United States v. Abdelshafi, 592 F.3d 602, 609 (4th Cir. 2010).

To establish a violation of § 1028A(a)(1), the government “must

prove    the    defendant        (1)    knowingly     transferred,         possessed,         or

used,     (2)       without       lawful       authority,          (3)     a        means    of

identification of another person, (4) during and in relation to

a    predicate      felony    offense.”        Id.   at    607.    Count       2    (theft   of

government money) is the predicate felony offense for Count 3,

and   Count     4   (social      security      fraud)      is    the   predicate        felony

offense for Count 5. Each of these counts charges Treacy with

committing the crimes “[b]etween on or about January 23, 2006,

and on or about November 17, 2011.” See J.A. 15-17.

       In moving to dismiss Counts 3 and 5 before trial, Treacy

asserted that he committed aggravated identity theft – if at all

– only in January 2006, when he used K.G.’s social security

number to apply for benefits. Treacy acknowledged in his motion

that if he had “at a later time and within the five year statute

of    limitations,        used    or    provided     the    social       security       number

                                               4
again then the statute of limitations could [begin] running at

that point.” J.A. 30. He noted, however, that “this evidently

did not occur. It appears that the affirmative act of providing

the social security number only occurred in 2006.” Id. Based on

his recitation of the facts, which at the pretrial stage had yet

to    be   established,       Treacy    thus          contended       that    the    five-year

limitations      period      expired        in       January   2011,     over       two    years

before     the   government        filed     the       indictment.       Treacy       did    not

simply rest on his factual assertion that he only used K.G.’s

social     security    number      once.         Instead,      he     explained      that    the

pertinent     legal    question        is    whether       the      crime     of    aggravated

identity      theft     is     a    continuing           offense        for        statute    of

limitations purposes, 3 and he argued that the question must be

answered in the negative.

       With   the     continuing       offense         issue     at    play,       the    United

States disputed Treacy’s legal argument. In doing so, the United

States asserted that the aggravated identity theft charges are

not    time-barred       in     any     event          because        Treacy’s       transfer,

possession, and/or use of K.G.’s social security number “was

repeated and continuing within five years of the date of the

       3
       See, e.g., United States v. Perry, 757 F.3d 166, 173 (4th
Cir. 2014) (noting that “statutes of limitations normally begin
to run when the crime is complete,” but that criminal acts over
an extended period “may be treated as a continuing offense for
limitations purposes” in certain circumstances).



                                                 5
Indictment.” J.A. 49. The United States explained that each of

the payments the SSA made to Treacy was under K.G.’s account and

displayed her social security number and, therefore, “[w]ith the

deposit of each payment into his bank account, [Treacy] both

committed a new instance in his course of conduct of theft of

government funds . . . and a new violation of . . . § 1028A by

transferring,        possessing,          and/or    using       her     social       security

number   without          lawful     authority.”             J.A.     49      (emphasis      in

original). The United States further noted “the language of the

Indictment itself makes clear, [that] the timeframes of these

violations extended well into the last five years, being from

‘[b]etween     on    or     about    January       23,       2006,    and     on    or     about

November 17, 2011.’” J.A. 49.

      After    conducting        a   hearing       on    the    motion,       the    district

court ordered the United States to produce certain material that

had   been    referenced      during       the     hearing,         “including      documents

reflecting direct deposits, checks, and other means of financial

transfer”     from    the    SSA     to    Treacy.       J.A.   143.       The     court    also

permitted      the    parties        to     file        memoranda       addressing         this

material.

      Among    the    material        submitted         by     the    United       States    in

response to the order are three letters the SSA sent to Treacy

tending to show that he contacted the SSA in 2010 and 2011 to

change   the    manner      in     which    he     received         payment      from    K.G.’s

                                             6
account. In one letter, dated June 14, 2010, the SSA informed

Treacy    that    his   benefits      payments      would      be    paid   by    physical

check rather than direct deposit. Concerning this letter, the

United States explained that “[a]ccording to usual processes,

this change was initiated by [Treacy] through contact to the SSA

and use of K.G.’s Social Security account number from which he

was drawing.” J.A. 147. Responding to this assertion, Treacy

asserted    that    whether      he    initiated        the    contact      “is       of    no

consequence” because the alleged contact did not include his use

of K.G.’s social security number. J.A. 151-52. However, Treacy

admitted that if he had used K.G.’s social security number to

initiate    the    change,    “the      government        would      have   a    stronger

argument.” J.A. 152.

      The foregoing makes one important point obvious. Treacy’s

assertion during        the   pretrial       stage      that    he    had   used      K.G.’s

social     security     number        only       once   (in     January      2006)         was

contradicted by both the Indictment allegations and the United

States’ forecast of the trial evidence. Without addressing this

point, the district court denied the motion to dismiss Counts 3

and   5   based    on   the   continuing          offense      doctrine.        The    court

reasoned that because the essential elements of both § 1028(A)

charges (Counts 3 and 5) include underlying predicate felonies

(Counts 2 and 4), and because both of those predicate felonies



                                             7
are continuing offenses, the § 1028(A) charges “are themselves

properly construed as continuing offenses.” J.A. 171.

      The case proceeded to trial and the jury convicted Treacy

on Counts 2-5. During trial, the United States presented the

expert testimony of Pamela Tomlinson about basic SSA functions

and   procedures.   Ms.   Tomlinson       confirmed   the   United   States’

pretrial assertion that Treacy would have been required to use

K.G.’s social security number in 2010 and 2011 to effect changes

in the account payment method. The district court subsequently

summarized this testimony in a post-trial order:

      [T]he evidence at trial established that after he
      began receiving benefits on K.G.’s record, Treacy
      requested certain changes in those benefits. Ms.
      Tomlinson testified that Treacy would have been
      required to provide K.G.’s social security number as a
      means of identifying the account from which he was
      drawing benefits in order to make those changes.
      Treacy’s argument that he only used K.G.’s identifying
      information during the pre-interview process at the
      direction of the claims representative is inaccurate.

J.A. 951. The United States also presented evidence supporting

its pretrial assertion that Treacy used K.G.’s social security

number each time the SSA paid benefits to him. Treacy did not

raise the statute of limitations issue either at trial or in his

post-trial Rule 29 motion for judgment of acquittal.

                                  II

      On appeal, Treacy reiterates his argument that aggravated

identity theft is not a continuing offense. For that reason, he


                                      8
contends that the district court erred by denying his pretrial

motion to dismiss Counts 3 and 5, and he asks us to set aside

his convictions on those counts. Without deciding the continuing

offense issue, we will affirm the convictions for other reasons.

       It is important to bear in mind the procedural context in

which the statute of limitations issue comes before us. Treacy

moved before trial (and at no other time) to dismiss Counts 3

and 5 of the Indictment. At that stage of a criminal case, the

indictment allegations are presumed to be true, and the motion

should     not    ordinarily        be   used    as     a    vehicle     to    test     the

sufficiency       of     the    evidence   behind       the        allegations.      United

States v. Stewart, 744 F.3d 17, 21 (1st Cir. 2014).

       However, as we have noted, Treacy put forward a version of

facts in which he claimed to have used K.G.’s social security

number only one time in January 2006, and that assertion does

not comport with the allegations of the Indictment, which charge

that he committed aggravated identity theft “[b]etween on or

about January 23, 2006, and on or about November 17, 2011.” See

J.A.   16-17.      The     United    States      made       this    point     during   the

pretrial     motion       proceeding,      but     it       appears     to    have     been

overlooked       when     the   parties    and     the       court     focused    on   the

technical aspects of the continuing offense issue.

       In United States v. Engle, 676 F.3d 405 (4th Cir. 2012), we

were presented with a similar set of circumstances. There, the

                                           9
defendant – who was being prosecuted in the Eastern District of

Virginia       –    moved        before       trial      to    dismiss       one    count     of    the

indictment on venue grounds, arguing in part that the alleged

illegal    activity             occurred       only      in    Pennsylvania.          The    district

court denied the motion, finding venue to be proper because the

alleged        crime           was     a     continuing          offense       that         began    in

Pennsylvania            but      continued         into        the      Eastern       District       of

Virginia. The defendant challenged that ruling on appeal.

       Although           we     eventually         addressed          the     district       court’s

continuing offense ruling, we initially affirmed the denial of

the dismissal motion on a more basic ground. We explained that

because the defendant moved to dismiss the count before trial,

“his     motion         was      a     challenge         to      the     sufficiency          of    the

indictment,          which       is        ordinarily         limited    to     the      allegations

contained          in     the        indictment.”        Id.     at     415.       Continuing,       we

observed that a district court may dismiss an indictment before

trial “where there is an infirmity of law in the prosecution; a

court may not dismiss an indictment, however, on a determination

of     facts       that        should       have    been       developed       at     trial.”       Id.

(citation and internal quotation marks omitted). Accordingly, we

stated     that         to      warrant       dismissal         for     improper         venue,     the

defendant          “was      required        to    demonstrate          that    the      allegations

therein, even if true, would not establish venue.” Id. Applying

those    principles,             we        concluded      that       because       the    government

                                                    10
alleged that the defendant had committed crimes “in the Eastern

District      of   Virginia     and   elsewhere,”    the    indictment   “clearly

designate[d] ‘the Eastern District of Virginia and elsewhere’ as

the location of [his] illegal acts.” Id. at 416. We therefore

held that the motion to dismiss on venue grounds should have

been denied for that reason.

       Engle dealt with venue and this case involves the statute

of limitations, but that difference is inconsequential. Here, as

in Engle, Treacy challenged the sufficiency of the Indictment

before trial. Properly considered, Treacy bore the burden of

establishing that the Indictment allegations, even if true, do

not establish that the crimes charged in Counts 3 and 5 are

timely. This is a burden that Treacy could not have met because

the United States plainly alleged that he committed aggravated

identity theft (as charged in Counts 3 and 5) between January

2006    and     November    2011.     Based   on    these   allegations,     those

alleged crimes are within the five-year statute of limitations,

and the motion should have been denied on that basis.

       To be sure, we recognized in Engle that a district court

may look beyond the indictment allegations to decide a pretrial

dismissal       motion     in   the    limited     circumstance    “‘where      the

government does not dispute the ability of the court to reach

the    motion      and   proffers,    stipulates,     or    otherwise    does   not

dispute the pertinent facts.’” Id. at 416 n.7 (quoting United

                                         11
States v. Weaver, 659 F.3d 353, 356 n.* (4th Cir. 2011)). Here,

after conducting a hearing on the dismissal motion, but before

ruling, the district court requested material from the United

States pertaining to the statute of limitations. Whether this

post-hearing    procedure      comports         with       the   circumstance        we

recognized in Engle is doubtful, but we note in any event that

at least some of the material submitted by the United States

essentially    confirms      the     Indictment            allegations       regarding

timeliness.    Specifically,       the    three      letters     the   SSA    sent   to

Treacy – which reflect changes in the manner that he received

payment from K.G.’s account - tend to show that he contacted the

SSA in 2010 and 2011 to effect the changes, and in doing so he

would have been required to use K.G.’s social security number.

     Treacy acknowledged below that if he had used K.G.’s social

security number after January 2006, the statute of limitations

would have started anew each time he used it. However, Treacy

disputed the United States’ assertion that he used K.G.’s social

security number again, and he therefore argued that whether he

initiated   contact   with    the        SSA   “is    of    no   consequence.”       Of

course, Treacy is not entitled to the benefit of his version of

the facts at the pretrial stage, and his disagreement about the

facts of the case amply reinforces the general inappropriateness

of deciding pretrial dismissal motions of this sort on factual

matters beyond the indictment allegations.

                                         12
       Treacy’s      motion     to   dismiss          should    therefore       have   been

denied     in   accord        with   our        Engle       decision.      In   addition,

regardless of what transpired before trial, the United States

presented evidence during trial tending to establish that Treacy

used K.G.’s social security number in 2010 and 2011, well within

the    limitations       period.     As    the       district      court   stated      while

summarizing the trial evidence, “Treacy’s argument that he only

used   K.G.’s     identifying        information           during    the   pre-interview

process    at     the    direction        of        the   claims     representative      is

inaccurate.” J.A. 951. Therefore, to the extent that factual

matters beyond the allegations of the Indictment bear on the

issue,     those        facts    refute         Treacy’s        assertion       that     the

prosecution     is      untimely,    and       this       provides   another     basis   to

affirm his convictions. See generally United States v. Han, 74

F.3d 537, 539 (4th Cir. 1996) (recognizing that we can consider

trial evidence in reviewing the denial of a pretrial suppression

motion).

                                           III

       Based on the foregoing, we affirm Treacy’s convictions on

Counts 3 and 5.

                                                                                  AFFIRMED




                                               13
