                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4650
ALFRED SMITH,
                Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
              Henry Coke Morgan, Jr., District Judge.
                            (CR-03-13)

                      Argued: February 27, 2004

                       Decided: June 24, 2004

      Before LUTTIG and MICHAEL, Circuit Judges, and
     William D. QUARLES, Jr., United States District Judge
       for the District of Maryland, sitting by designation.



Affirmed by published per curiam opinion. Judge MICHAEL wrote
a dissenting opinion.


                             COUNSEL

ARGUED: Nia Ayanna Vidal, Research and Writing Attorney,
Office of the Federal Public Defender, Norfolk, Virginia, for Appel-
lant. Arenda L. Wright Allen, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr.,
Federal Public Defender, Larry M. Dash, Assistant Federal Public
2                       UNITED STATES v. SMITH
Defender, Norfolk, Virginia, for Appellant. Paul J. McNulty, United
States Attorney, Norfolk, Virginia, for Appellee.


                              OPINION

PER CURIAM:

   Appellant, Alfred Smith, appeals his conviction for embezzling,
stealing, purloining and converting to his own use funds belonging to
the Social Security Administration ("SSA") in violation of 18 U.S.C.
§ 641. Smith asserts that the indictment against him was unconstitu-
tionally duplicitous, i.e., that it joined two or more distinct and sepa-
rate offenses in one single count. United States v. Burns, 990 F.2d
1426, 1438 (4th Cir. 1993). When an indictment impermissibly joins
separate offenses that occurred at different times, prosecution of the
earlier acts may be barred by the statute of limitations. United States
v. Beard, 713 F. Supp. 285 (S.D. Ind. 1989).

   The district court held that aggregation of Smith’s individual
offenses was proper because each was part of a single scheme or plan.
For the reasons that follow, we affirm.

                                   I.

  On January 24, 2003, a Grand Jury returned a one-count indictment
against Smith, charging:

    Estelle Smith died on February 4, 1994. The defendant,
    ALFRED SMITH did not report the death of Estelle Smith
    to the Social Security Administration and continued on a
    monthly basis to receive Estelle Smith’s monthly Social
    Security benefits until February 3, 1998. Beginning in or
    about March 1994, and continuing until in or about February
    1998, in the Eastern District of Virginia and elsewhere, the
    defendant ALFRED SMITH, did knowingly, intentionally
    and willfully embezzle, steal, purloin and convert to his own
    use, on a recurring basis, a record, voucher, money and
    thing of value belonging to the Social Security Administra-
                        UNITED STATES v. SMITH                         3
    tion, to wit: Social Security Administration benefits issued
    to Estelle Smith, totaling approximately $26,336.00.

    (In violation of Title 18, United States Code, Section 641).

   Section 641 provides that theft of property with a value in excess
of $1,000 is a felony punishable by a maximum term of imprisonment
of ten years. If the property has a value of less than $1,000, the viola-
tion is a misdemeanor with a term of imprisonment not to exceed one
year. 18 U.S.C. § 641 (2004).

   From March 1994 through February 1998, 48 payments were elec-
tronically deposited into Smith’s joint account with his mother; each
deposit was between $525 and $583. In all, Smith received approxi-
mately $26,336 after his mother’s death.

   Smith wrote checks and withdrew funds from the account. When
interviewed by SSA agents, Smith admitted writing numerous checks
on the account and acknowledged that he knew it was wrong for him
to receive the benefit payments after his mother’s death.

                                   II.

   The purpose of a statute of limitations is to limit exposure to crimi-
nal prosecution following an illegal act. Toussie v. United States, 397
U.S. 112, 114 (1970). A statute of limitations protects individuals
from having to defend against charges "when the basic facts may have
become obscured by the passage of time," and minimizes "the danger
of official punishment because of acts in the far-distant past." Id. at
114-15.

   Statutes of limitations should not be extended "‘except as otherwise
expressly provided by law.’" Id. at 115 (quoting 18 U.S.C. § 3282).
Normally, the statute of limitations will begin to run when a single
criminal act is complete. Id. Criminal acts over an extended period,
however, may be treated as a "continuing offense" for limitations pur-
poses when a criminal statute explicitly compels that result, or if "the
nature of the crime involved is such that Congress must assuredly
have intended that it be treated as a continuing one." Id.
4                       UNITED STATES v. SMITH
   But we must first decide whether Smith’s charged conduct was
properly aggregated into a single count. In determining whether a
series of takings are properly aggregated, the court must examine the
intent of the actor at the first taking. United States v. Billingslea, 603
F.2d 515, 520 (5th Cir. 1979). If the actor formulated "a plan or
scheme or [set] up a mechanism which, when put into operation,
[would] result in the taking or diversion of sums of money on a recur-
ring basis," the crime may be charged in a single count. Id.

   Smith’s failure to report his mother’s death evidences the intent to
establish a mechanism for the automatic and continuous receipt of
funds for an indefinite period. Smith’s criminal conduct was patterned
and methodical. Therefore, the indictment properly aggregated his
charged conduct into one count.

   The indictment charges the acts of its single count in the conjunc-
tive. See J.A. 46-47 (alleging that Smith "did knowingly . . . embez-
zle, steal, purloin, and convert to his own use" the funds at issue)
(emphasis added). But given that section 641 lists those acts disjunc-
tively, the government, of course, only was required to prove that
Smith’s conduct satisfied one of those acts to convict on that count.
See United States v. Brandon, 298 F.3d 307, 314 (4th Cir. 2002). The
indictment, therefore, would be sufficient if embezzlement, a distin-
guishable act, can be charged as a continuing offense.

   We think that it can; the nature of embezzlement is such that Con-
gress must have intended that, in some circumstances, it be treated in
section 641 as a continuing offense. The term "embezzle" includes
"the fraudulent appropriation of property" — e.g., "the deliberate tak-
ing or retaining of the . . . property of another with the intent to
deprive the owner of its use or benefit" — "by a person . . . into
whose hands it has lawfully come. It differs from larceny in the fact
that the original taking of the property was lawful, or with the consent
of the owner." Kevin F. O’Malley et al., Federal Jury Practice and
Instructions, §§ 16.01, 16.03 (2000 & Supp. 2003) (quoting from and
elaborating on "the classic, almost standard, definition of ‘embezzle-
ment’ . . . given by the Supreme Court in" Moore v. United States,
160 U.S. 268, 269-70 (1895)).

   Although many state embezzlement statutes require that the embez-
zled property be acquired through some relationship of trust, it is not
                        UNITED STATES v. SMITH                         5
a universal requirement. See 3 Wayne R. LaFave, Substantive Crimi-
nal Law § 19.6 (2d ed. 2003) (noting that while, "in general, [embez-
zlement] may be defined as: (1) the fraudulent (2) conversion of (3)
the property (4) of another (5) by one who is already in lawful posses-
sion of it," "some statutes limit the scope of embezzlement by requir-
ing that the property be ‘entrusted’ . . . to the embezzler") (emphasis
added). We do not think that section 641 imposes this requirement,
a conclusion that is amply supported by a leading Supreme Court case
on the scope of embezzlement under federal law, as well as by the
interpretations made by other circuits of section 641 in particular. See,
e.g., Paul C. Jorgensen, Embezzlement, 24 Am. Crim. L. Rev. 513,
514 (1987) ("A defendant accused of violating Section 641’s embez-
zlement provisions initially must have lawfully acquired the property
at issue, although he need not have received it through holding a
position of trust or fiduciary relation.") (emphasis added) (citations
omitted).

   Indeed, the classic definition of "embezzlement" set forth in Moore
v. United States, 160 U.S. 268, 269-270 (1895) implicitly suggests
that lawful possession need not be acquired through a relationship of
trust. The Moore Court, interpreting a precursor to section 641,
defined embezzlement under that statute to be "the fraudulent appro-
priation of property by a person to whom such property has been
intrusted, or into whose hands it has lawfully come." 160 U.S. at 270
(emphases added).

   If the distinction made by this phrasing were not enough, the rea-
soning set forth in Moore firmly supports the conclusion that a fidu-
ciary relationship is not an essential element of embezzlement. Moore
involved a challenge to an indictment for embezzlement under the Act
of March 3, 1875 ("the 1875 Act") based, in part, on the ground that
while the indictment named the defendant as a post office employee,
it did not allege that the embezzled government monies "came into
the possession of the defendant by virtue of his employment." Id. at
270. In assessing the requirements for embezzlement under the 1875
Act, the Court discussed several earlier state and English cases that
made the existence of a fiduciary or other employment relationship a
necessary element of embezzlement. Id. at 270-73.

  The Moore Court explained that "[t]he ordinary form of an indict-
ment for larceny" simply would require a sufficiently specific "allega-
6                       UNITED STATES v. SMITH
tion that the defendant stole, took, and carried away certain specified
goods belonging to the person named," without regard to a particular
relationship between the thief and the victim. Id. at 273. Notably, the
prohibitions of the 1875 Act "applie[d] to ‘any person,’ and use[d] the
words ‘embezzle, steal, or purloin’ in the same connection, and as
applicable to the same persons and to the same property." Id. In con-
trast, "[t]he cases reported from the English courts and from the
courts of the several states have usually arisen under statutes limiting
the offense to certain officers, clerks, agents, or servants of individu-
als or corporations." Id. at 272; see also LaFave, supra, § 19.6 (noting
the distinction between the specificity of embezzlement statutes his-
torically and the "modern view" which "is to make it embezzlement
. . . fraudulently to convert another’s property in one’s possession,"
avoiding "the danger of omitting someone who ought to be included"
from the list of persons covered by an embezzlement statute). The
Court concluded that cases interpreting the requirements for embez-
zlement under more specific statutes "are not wholly applicable to a
statute [such as the 1875 Act] which extends to every person, regard-
less of his employment." 160 U.S. at 272 (emphasis added). Rather,
the Moore court, although eventually holding the indictment defective
on a different ground, went only so far as to say that, as to the neces-
sary relationship for an embezzlement indictment under the 1875 Act,
"the rules of good pleading would suggest, even if they did not abso-
lutely require, that the indictment should set forth the manner or
capacity in which the defendant became possessed of the property."
Id. at 274 (emphasis added).

   An indictment alleging embezzlement under the current form of
that statute, i.e., under section 641, requires no more. Section 641 is
indistinguishable from the 1875 Act in all relevant respects; its stric-
tures cover "whoever embezzles, steals, purloins, or knowingly con-
verts to his use or the use of another" property of the government.
(Emphasis added). Moreover, other circuits have similarly interpreted
embezzlement under section 641 in light of Moore, and held that law-
ful possession need not be acquired through any particular relation-
ship. See United States v. Miller, 520 F.2d 1208, 1211 (9th Cir. 1975)
("Section 641 is not limited to persons who come into possession of
property by virtue of a particular fiduciary relationship, but rather
applies to all persons, regardless of their employment."); United
States v. Davila, 693 F.2d 1006, 1007 (10th Cir. 1982) (citing Miller
                        UNITED STATES v. SMITH                         7
and adding that "[u]nder [Moore’s] definition [of embezzlement],
lawful original possession is enough to support the crime of embez-
zlement [under section 641]; it is not necessary to prove a breach of
fiduciary duty."); but see, e.g., Colella v. United States, 360 F.2d 792,
799 (1st Cir. 1966) (interpreting embezzlement in 29 U.S.C. § 501(c)
and concluding that the term "carries with it the concept of a breach
of fiduciary relationship").

   Our opinion in United States v. Stockton, 788 F.2d 210 (4th Cir.
1986), which dealt not with section 641 but with 29 U.S.C. § 501(c),
does not require a contrary result. Admittedly, the Stockton court did
say that the extent of "embezzlement" in federal statutes "should be
viewed as roughly identical to the scope of the offense as generally
interpreted under state law." Id. at 215. More importantly, however,
after enunciating that general principle, the court went into detail as
to what that actually meant as to the requirements of embezzlement
in section 641. The Stockton court first explained that at the core of
embezzlement is the act of conversion, which, of course, requires no
relationship of trust. Id. at 216. The court then stated that

    [t]he crime of embezzlement builds on the concept of con-
    version, but adds two further elements. First, the embezzled
    property must have been in the lawful possession of the
    defendant at the time of its appropriation. Second, embez-
    zlement requires knowledge that the appropriation is con-
    trary to the wishes of the owner of the property.

Id. at 216-217 (emphasis added). Notably, the court did not enunciate
any requirement that a defendant’s lawful possession be acquired
through a relationship of trust, despite our recognition only a page
earlier that prosecuting conversions made after gaining lawful posses-
sion through some fiduciary capacity was a motivating force for the
creation of many embezzlement statutes.

   The fact remains that Congress has seen fit to enact numerous stat-
utes criminalizing various forms of embezzlement, and all indications
are that where Congress has thought a particular capacity or relation-
ship to be a necessary element of embezzlement in a given circum-
stance, it has specified as much in the statute. See, e.g., 18 U.S.C.
§ 656 (2000) (criminalizing embezzlement of a bank’s funds by
8                       UNITED STATES v. SMITH
"[w]hoever, being an officer, director, agent or employee of, or con-
nected in any capacity with [such] bank"); 18 U.S.C. § 666(a)(1)(A)
(2000) (proscribing embezzlement by "agent[s] of an organization, or
of a State, local, or Indian tribal government" of those organization’s
or government’s funds when those entities receive federal grants); 29
U.S.C. § 501(c) (2000) (proscribing embezzlement of the property "of
a labor organization of which [a person] is an officer"). But where,
as in section 641, a federal embezzlement statute applies, by its
express terms, to all persons; does not specify any manner or capacity
in which an act of embezzlement must be carried out; and lists embez-
zlement with other acts that apply to the same persons and property
but that, even traditionally, do not require the defendant to have any
particular relationship with the property’s owner, we should not read
a relationship of trust into the definition of embezzlement under that
statute. This is especially true when precedent indicates that the pro-
hibited acts in section 641 were not meant to be so narrowly read.
See, e.g., United States v. Morison, 844 F.2d 1057, 1077 (4th Cir.
1988) ("Manifestly, as the Court in Morissette said[,] [section 641]
was not intended simply to cover ‘larceny’ and ‘embezzlement’ as
those terms were understood at common law but was also to apply to
‘acts which shade into those crimes but which, most strictly consid-
ered, might not be found to fit their fixed definitions.’") (quoting
Morissette v. United States, 342 U.S. 246, 268 n. 28 (1952)).

   Accordingly, we believe that if an indictment for embezzlement
under section 641 alleges the manner or capacity in which the defen-
dant came into lawful possession of the property that he willfully con-
verted, it is adequate in this respect. The instant indictment satisfies
this standard, and is sufficient to fairly inform Smith of the conduct
for which he was being charged with embezzlement, among other
acts, pursuant to section 641, and to support a claim of double jeop-
ardy in a future prosecution on the same basis.

  As a joint owner of the checking account, Smith had legal control
over the funds therein, including the ability to withdraw the full
amount of such funds. See Va. Code Ann. § 6.1-125.9 (Michie 1999).
As such, when the government voluntarily placed these funds into the
account, they came into his lawful control, i.e., his lawful possession.
But that he had lawful possession of the funds — the issue disputed
by Smith in his reply memorandum below — did not give him the
                        UNITED STATES v. SMITH                         9
right to appropriate them for his own purposes. Thus, it was his lack
of legal entitlement to own the funds that renders his misappropriation
of them after their deposit embezzlement.

   Smith’s lawful right to control the funds after their initial deposit
in his account distinguishes his possession from that which follows a
common-law larceny, in that Smith’s possession did not require a
"trespass in the taking"; rather, the government voluntarily, though
incorrectly, continued to deposit his mother’s Social Security benefits
into their jointly owned checking account after her death. See LaFave,
supra, §§ 19.2, 19.6 (explaining this distinction between larceny and
embezzlement); Moore, 160 U.S. at 269-70 ("[Embezzlement] differs
from larceny in the fact that [with embezzlement] the original taking
of the property was lawful, or with the consent of the owner . . . .").
In the present case, however, the indictment can be fairly construed
to aver a charge of embezzlement that could be proven, without sur-
prise to Smith, by evidence showing that Smith, having legal posses-
sion of the funds as they were initially deposited into his account,
then, after realizing that his continued possession was improper, will-
fully retained the funds for his own use, and maintained that recur-
ring, automatic scheme of embezzlement during the charged period.

   Embezzlement is the type of crime that, to avoid detection, often
occurs over some time and in relatively small, but recurring, amounts.
See, e.g., MacEwen v. State, 71 A.2d 464, 468-69 (Md. 1950) ("While
embezzlement is sustained by the diversion of a single sum of money
at a particular time, in many cases it runs for a long period of time
and consists of converting different sums of money on many dates to
the use of the thief."). At least in those cases where the defendant cre-
ated a recurring, automatic scheme of embezzlement under section
641 by conversion of funds voluntarily placed in the defendant’s pos-
session by the government, and maintained that scheme without need
for affirmative acts linked to any particular receipt of funds — cases
in which there is a strong "temporal relationship between the [com-
pletion of the] offense and culpability," United States v. Blizzard, 27
F.3d 100, 103 (4th Cir. 1994) — we think that Congress must have
intended that such be considered a continuing offense for purposes of
the statute of limitations.

   And, of course, that is precisely what Smith has done, a conclusion
that is supported by our analysis under Billingslea. Accordingly, we
10                      UNITED STATES v. SMITH
believe that the specific conduct at issue here is more properly charac-
terized as a continuing offense rather than a series of separate acts.
The facts found by the district court were sufficient to prove that he
set into place and maintained an automatically recurring scheme
whereby funds were electronically deposited in his account and
retained for his own use without need for any specific action on his
part, a scheme which continued from his mother’s death until pay-
ments were terminated in February of 1998.

   This is not to say that all conduct constituting embezzlement may
necessarily be treated as a continuing offense as opposed to merely
"a series of acts that occur over a period of time"; indeed, it may well
be that different embezzlement conduct must be differently character-
ized in this regard. Nor do we lightly dismiss the dissent’s citation to
cases from other circuits that might require a different conclusion as
to the application of the "continuing offense" doctrine. We are satis-
fied, however, that in addition to being properly aggregated into a sin-
gle count, the particular kind of embezzlement that occurred in this
case is correctly considered, under Toussie, to be a continuing
offense.

  Smith’s embezzlement scheme concluded on February 3, 1998.
The Grand Jury returned an indictment against him on January 24,
2003, within five years of the final deposit of social security funds.
Smith’s indictment, therefore, was timely.

   For the reasons discussed above, we conclude that Smith’s conduct
constituted a single continuous scheme to embezzle government funds
and was of a nature that Congress must have intended that it be
treated as a continuing offense. Accordingly, the judgment of the dis-
trict court is

                                                          AFFIRMED.

MICHAEL, Circuit Judge, dissenting:

   The majority’s opinion concludes that a particular offense, in this
case embezzlement, may be treated as either a continuing offense or
a non-continuing offense for statute of limitations purposes, depend-
                        UNITED STATES v. SMITH                        11
ing on how the crime is carried out. See ante at 9-10. Because I do
not believe this conclusion is consistent with the teachings of Toussie
v. United States, 397 U.S. 112 (1970), I respectfully dissent. Toussie
begins with a word of caution from the Supreme Court: "the doctrine
of continuing offenses should be applied in only limited circum-
stances." Id. at 115. The Court held that an offense should be consid-
ered continuing for statute of limitations purposes only if "[1] the
explicit language of the substantive criminal statute compels such a
conclusion, or [2] the nature of the crime involved is such that Con-
gress must assuredly have intended that it be treated as a continuing
one." Id. The crime charged in Toussie, failure to register for the
draft, was not a continuing offense because (1) "there is no language
in [the registration] Act that clearly contemplates a prolonged course
of conduct," id. at 120, and (2) "[t]here is also nothing inherent in the
act of registration itself which makes a failure to do so a continuing
crime," id. at 122.

   The majority relies on the second Toussie factor — the nature of
the crime — to conclude that embezzlement is a continuing offense
"at least in those cases where the defendant created a recurring, auto-
matic scheme . . . ." Ante at 9. The majority goes on to say that "it
may well be that different embezzlement conduct must be differently
characterized" for purposes of the continuing offense doctrine. Ante
at 10. See also ante at 10 ("the particular kind of embezzlement that
occurred in this case is correctly considered . . . to be a continuing
offense"). Under Toussie, however, whether an offense is continuing
"turns on the nature of the substantive offense, not on the specific
characteristics of the conduct in the case at issue." United States v.
Niven, 952 F.2d 289, 293 (9th Cir. 1991). See also United States v.
Yashar, 166 F.3d 873, 877 (7th Cir. 1999) (continuing offense doc-
trine does not apply simply because "the charged conduct is continu-
ous in nature"); United States v. Jaynes, 75 F.3d 1493, 1506 n.12
(10th Cir. 1996) (same). In other words, whether an offense is contin-
uing in nature does not change depending on the manner in which the
offense is committed. See, e.g., United States v. Bailey, 444 U.S. 394,
413 (1980) (escape from prison is continuing offense); United States
v. Blizzard, 27 F.3d 100, 102 (4th Cir. 1994) ("possession [of stolen
government property] is by nature a continuing offense"); United
States v. Garcia, 854 F.2d 340 (9th Cir. 1988) (kidnaping is continu-
ing offense).
12                      UNITED STATES v. SMITH
   There is nothing inherent in the act of embezzlement that makes it
a continuing offense. See Toussie, 397 U.S. at 122. Embezzlement is
simply a variant of larceny with the additional element that "the origi-
nal taking of the property was lawful or with the consent of the
owner." Ante at 9. The majority says that embezzlement is frequently
conducted "over some time and in relatively small, but recurring,
amounts." Id. But to say that embezzlement is frequently conducted
in this way does not alter the substantive (or inherent) nature of the
offense. Indeed, the fact that embezzlement can be completed in one
distinct transaction undermines the notion that it is inherently a con-
tinuing crime. I realize that Congress in some circumstances punishes
acts that involve the execution of a scheme, see, e.g., 18 U.S.C.
§ 1344 ("Whoever knowingly executes . . . a scheme . . . to defraud
a financial institution . . . shall be fined . . ."), and in those circum-
stances the underlying crime might be a continuing offense. See
United States v. Nash, 115 F.3d 1431, 1441 (9th Cir. 1997) ("Section
1344 punishes the execution of a scheme to defraud or obtain money
— language that suggests the violation should be treated as continu-
ing."). But when, as here, the language of the statute ("Whoever
embezzles . . . money . . . of the United States") does not "clearly con-
template a prolonged course of conduct," Toussie, 397 U.S. at 120,
the manner in which the offense is carried out cannot provide justifi-
cation for finding a continuing offense. By introducing the prospect
that an offense may be either continuing or non-continuing, depend-
ing on the manner in which it is committed, the majority brings about
an unwarranted expansion of the continuing offense doctrine. As the
Supreme Court said in Toussie, "continuing offenses are not to be too
readily found." 397 U.S. 116.

   I would resolve this case by applying the principles enunciated in
United States v. Yasher, 166 F.3d 873 (7th Cir. 1999). There, the Sev-
enth Circuit was presented with facts almost identical to those here.
The defendant Yasher was "indicted for a violation of 18 U.S.C.
§ 666, which makes it a federal crime for an agent of a local govern-
ment to embezzle, steal, obtain by fraud, or otherwise misapply prop-
erty of that government or agency, that is valued at more than $5000
during any one-year period." Id. at 875 (emphasis added). The indict-
ment alleged that Yasher was on the payroll of a local government
committee from June 1, 1989, until September 1, 1992. It charged that
from September 1, 1991, until September 1, 1992, Yasher received
                        UNITED STATES v. SMITH                         13
almost $10,000 in compensation, although he did little or no work.
The indictment was returned on August 13, 1997, more than five
years after Yasher had received most, but not all, of the compensa-
tion. The Seventh Circuit thus had to decide how the statute of limita-
tions applied to an ongoing embezzlement scheme that "straddle[d]
the limitations period." Id. at 876. The court, relying on Toussie,
rejected the argument that embezzlement could be treated as a contin-
uing offense merely because it was charged as a continuing course of
conduct. Id. at 877. It held that the statute of limitations begins to run
on embezzlement, like other non-continuing offenses, "once all ele-
ments of the offense are established, regardless of whether the defen-
dant continues to engage in criminal conduct." Id. at 880.

   Yasher compels the conclusion that Alfred Smith was indicted for
certain conduct that falls outside the five-year statute of limitations.
The indictment was returned on January 24, 2003. It says that "begin-
ning in or about March 1994, and continuing until in or about Febru-
ary 1998 . . . Alfred Smith did knowingly, intentionally and willfully
embezzle, steal, purloin and convert to his own use, on a recurring
basis, a record, voucher, money, and thing of value belonging to the
Social Security Administration, to wit: Social Security Administration
benefits issued to Estelle Smith totaling approximately $26,336.00."
It appears that Smith received these monies in an amount between
$525.00 and $583.00 on or about the 3rd of each month. Under 18
U.S.C. § 641 Smith was chargeable with a felony as soon as he
embezzled $1000 of the government’s money. Therefore, by April 3,
1994, Smith had embezzled enough money to support a felony
charge. At that point, the continuing course of conduct with which
Smith was charged was complete, and the statute of limitations began
to run. The date April 3, 1994, and every other date before January
24, 1998, on which Smith received government money fall outside the
five-year statute of limitations. Accordingly, I would vacate the judg-
ment and remand for application of the statute of limitations as set
forth in Yasher. This does not mean that Smith will automatically
avoid punishment. The record indicates that some of Smith’s conduct
occurred within the applicable limitations period, that is, on or after
January 24, 1998. The government would be able to obtain a super-
seding indictment charging that conduct. Thus, if Smith embezzled
$1000 on or after January 24, 1998, he would still be guilty of a fel-
14                   UNITED STATES v. SMITH
ony. If he embezzled less than $1000 in that period, he would be
guilty of a misdemeanor.
