                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2000

United States v. Dees
Precedential or Non-Precedential:

Docket 99-4054




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Recommended Citation
"United States v. Dees" (2000). 2000 Decisions. Paper 127.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/127


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Filed June 12, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-4054

UNITED STATES OF AMERICA,

       Appellant

v.

JOSEPH DEES

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 99-00122)
District Judge: Honorable Donald E. Ziegler

Argued: May 12, 2000

BEFORE: GREENBERG and MCKEE, Circuit Judges,
and SHADUR,* District Judge

(Filed: June 12, 2000)

       Harry Litman
       United States Attorney
       Paul J. Brysh (argued)
       Assistant U.S. Attorney
       633 U.S. Post Office & Courthouse
       Pittsburgh, PA 15219

        Attorneys for Appellant



_________________________________________________________________
* Honorable Milton I. Shadur, Senior United States District Judge for the
Northern District of Illinois, sitting by designation.
       Shelley Stark
       Federal Public Defender
       Karen Sirianni Gerlach (argued)
       Assistant Federal Public Defender
       415 Convention Tower
       960 Penn Avenue
       Pittsburgh, PA 15222

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on an appeal by
the Government from an order entered November 30, 1999,
dismissing an indictment of the defendant, Joseph Dees,
charging him with unauthorized use of access devices to
obtain money, goods, and services aggregating more than
$1,000 in value in a one-year period, in violation of 18
U.S.C. S 1029(a)(2) ("section 1029(a)(2)"). The district court
dismissed the indictment on Dees's motion as it agreed
with him that the statute of limitations barred the
prosecution. The district court had jurisdiction under 18
U.S.C. S 3231 and we have jurisdiction under 18 U.S.C.
S 3731. See 18 U.S.C. S 3282. We exercise plenary review
on this appeal. See United States v. Stewart, 185 F.3d 112,
123 n.4 (3d Cir.), cert. denied, 120 S.Ct. 618 (1999).

The indictment charged that from March 24, 1994,
through on or about July 29, 1994, Dees used access
devices, i.e., credit cards, "to obtain money, goods, and
services aggregating more than $1,000 in value, within a
one-year period; said offense affecting interstate commerce."
The Government proposes to prove three purchases in
support of the charge: (1) an automobile purchase of
$6,368.20 on March 24, 1994; (2) a chair purchase of
$2,000 on March 25, 1994; and (3) a cellular telephone
purchase of $100 on July 29, 1994.

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In moving to dismiss the indictment on statute of
limitations grounds Dees pointed out that section
1029(a)(2) provides:

       whoever . . . knowingly and with intent to defraud
       traffics in or uses one or more unauthorized access
       devices during any one-year period, and by such
       conduct obtains anything of value aggregating $1,000
       or more during that period . . . shall, if the offense
       affects interstate or foreign commerce, be punished.
       . . .

Dees argued that inasmuch as the grand jury returned the
indictment on July 22, 1999, 18 U.S.C. S 3282, which
states that, except as otherwise provided by law or in a
capital offense, an indictment must be found "within five
years next after such offense shall have been committed,"
barred the prosecution. He contended that the first two
purchases constituted offenses in themselves completed
more than five years before the indictment was returned, as
these purchases each exceeded the $1,000 threshold in
section 1029(a)(2). Accordingly, there could have been a
separate indictment for each of those purchases. Thus, he
contended that their prosecution in the three-purchase
indictment was barred. In his view, it therefore followed
that the indictment had to be dismissed because hisfinal
use of a credit card did not enable him to obtain a thing
equaling $1,000 or more in value.

The district court granted the motion on the theory that
the original two purchases were not within the five-year
period before the return of the indictment. It thus held that
"the only fraudulent act that is timely for purposes of this
statute of limitations occurred on July 29, 1999, and this
use does not satisfy the statutory minimum of $1,000." The
court did not suggest that its result might have been
different if the first two purchases in themselves did not
result in Dees obtaining something aggregating $1,000 or
more in value.

II. DISCUSSION

We will reverse for the following reasons. Section
1029(a)(2) provides that the offense constitutes the use of

                               3
the access device "during any one-year period" to obtain
anything of value aggregating $1,000 or more. (Emphasis
added.) Inasmuch as there is no cap on the value of
individual transactions within the one-year period which
can be aggregated to reach the $1,000 threshold, it is
simply beyond doubt that the indictment properly charged
a violation for a period ending within five years prior to the
return of the indictment. Therefore, laying aside Dees's
assertion of a statute of limitations defense, there would be
no reason for a court to dismiss the indictment. While we
do not doubt that the Government could have obtained
separate indictments for the first two transactions, that
circumstance does not in any way detract from the
conclusion that all three transactions could be prosecuted
in a single indictment. See United States v. King, 200 F.3d
1207, 1212-13 (9th Cir. 1999) (even though individual
fraudulent banking transactions in a bank scheme can be
charged separately, they can be charged in one indictment
which will not thereby be duplicitous). It therefore follows
that the offense as actually charged was completed July 29,
1994, the date of the last purchase, and, as the statute of
limitations started running at that time, the court should
have denied Dees's motion to dismiss as the indictment was
returned on July 22, 1999, a date within five years of July
29, 1994. See Toussie v. United States, 397 U.S. 112, 115,
90 S.Ct. 858, 860 (1970).

We, of course, recognize that a distinction for statute of
limitation purposes could be made between the situation
here and that in which the first two purchases were for less
than $1,000 in the aggregate, in which event only with the
third purchase could the $1,000 threshold be met. In that
circumstance, surely the offense could not be complete
until the third purchase was made, and thus if the third
purchase was within five years of the indictment, the
indictment on any theory would be timely. But this
distinction from the circumstances here does not matter
because as we have emphasized already, Congress has
defined the offense as obtaining "anything of value
aggregating $1,000 or more during" any one-year period.
Congress, however, did not provide that any particular
transaction within the one-year period had to be of any
particular amount. Nor did it provide that if a transaction

                               4
in itself exceeded the $1,000 threshold, the transaction
could not be aggregated with later transactions so as to
constitute a single offense. We, of course, will not write
such an exception to the plain language of section
1029(a)(2) into the law. Therefore, we conclude that
inasmuch as the offense is defined as activity"during any
one-year period," the offense is complete as to any one-year
period when there is or are unauthorized uses of access
devices, and the aggregated value of things obtained
through the use of those access devices within the one-year
period ending on its last day equaled or exceeded $1,000.
Thus, at that time the offense will be completed for that
period and the statute of limitations will start to run. See
Toussie, 397 U.S. at 115, 90 S.Ct. at 860.

While we reach our conclusion on the basis of the clear
language of section 1029(a)(2), we point out that our result
is certainly not unfair to Dees. As we have made clear, it
could not be argued successfully that if the $1,000
threshold would have been met only by inclusion of the
third purchase that this action would be barred. Indeed, in
his brief Dees in effect agrees with the point as he in part
relies on the fact that the first two purchases constituted
complete offenses in themselves.

We also point out that in Toussie, 397 U.S. at 114-15, 90
S.Ct. at 860, the Court indicated that a statute of
"limitation is designed to protect individuals from having to
defend themselves against charges when the basic facts
may have become obscured by the passage of time and to
minimize the danger of official punishment because of acts
in the far-distant past." If, as we believe is beyond doubt,
this prosecution would have been timely if the third
purchase had been necessary for the $1,000 threshold to
have been met, we do not comprehend how Dees has been
prejudiced merely because the first two purchases were for
more than $1,000 in themselves. Surely it would not be
thought that a person engaging in transactions possibly
involving the use of an unauthorized access device keeps
records taking into account whether individual transactions
did or did not exceed the $1,000 threshold, retaining
records longer for transactions not equaling the threshold.

                               5
It also is important to recognize that our result does not
mean that a defendant must guard against being
prosecuted for stale transactions. After all, inasmuch as the
one-year period will close with the last transaction charged,
the elements of the offense cannot include transactions
more than one year prior to the last transaction charged in
the indictment, and that transaction must be withinfive
years of the return of the indictment.1

In reaching our result, we have not overlooked our
opinion in United States v. Turcks, 41 F.3d 893 (3d Cir.
1994), where we held that there could be multiple
prosecutions and convictions under section 1029(a)(2) for
individual transactions within a one-year period equaling or
exceeding the $1,000 threshold. Id. at 899-901. Our
conclusion is consistent with Turcks because we did not
hold in that case that individual transactions could not be
aggregated and prosecuted in a single case merely because
they could have been prosecuted individually.

We recognize that the parties in their briefs discuss
whether a violation of section 1029(a)(2) constitutes a
"continuing offense." We, however, decide this case without
the use of such a label which in view of the plain language
of section 1029(a)(2) can add nothing to our analysis.
Moreover, we recognize that section 1029(a)(2) is not a
statute contemplating an indeterminate time period for the
commission of the offense as is true in a conspiracy case
which is the "classic example of a continuing offense." See
United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999).
Thus, we question whether section 1029(a)(2) should be
characterized as a statute involving a continuing offense.

Finally, we observe that we are not concerned here with
a situation in which the Government attempts to use a
single transaction to establish that a defendant committed
more than one section 1029(a)(2) offense. It will be time
enough to address that situation in the unlikely event that
it ever arises. Moreover, we are not passing on any
substantive issues that Dees has raised. Rather, we hold
_________________________________________________________________

1. Thus, this case does not involve the possibility of stale prosecutions
the court identified in United States v. Yashar, 166 F.3d 873, 878-79
(7th Cir. 1999).

                               6
only the district court should not have dismissed the case
on the ground that the statute of limitations barred the
prosecution.

III. CONCLUSION

For the foregoing reasons, the order entered November
30, 1999, dismissing the indictment will be reversed and
the matter will be remanded to the district court for further
proceedings.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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