United States v. James Treacy , 677 F. App'x 869 ( 2017 )

UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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
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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
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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.
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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
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