United States v. Venti , 687 F.3d 501 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1385
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT J. VENTI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Ronald W. Bourget, with whom Bourget & Bourget, P.A. was on
brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Thomas E.
Delahanty, II, United States Attorney, was on brief, for appellee.
July 24, 2012
HOWARD, Circuit Judge. After a two-day jury trial,
defendant Robert J. Venti was convicted on all counts of a nine-
count indictment for theft of government property in violation of
18 U.S.C. § 641 and sentenced to be incarcerated for 15 months on
each of the counts, with the sentences to run concurrently. On
appeal, Venti argues that one count of the indictment should be
dismissed as time-barred. The status of the challenged count is of
some significance; without it, the incarcerative term to which
Venti could be sentenced is limited to one year, and he would be
treated as a misdemeanant rather than as a felon. 18 U.S.C. §§ 641and 3559(a)(6). After due consideration, we reject the argument in
favor of dismissal and affirm the conviction.
I.
The relevant facts are not controverted. Venti’s father
was entitled to and received federal Civil Service Retirement
System ("CSRS") benefits. Venti’s father died on December 17,
1990, an event that should have terminated his benefits.
Nonetheless, the Office of Personnel Management ("OPM") continued
to deposit the CSRS funds into a checking account that Venti had
shared with his father at the Rockland Federal Credit Union
("RFCU") in Massachusetts. In 2003, Venti opened a new joint
checking account at RFCU in the names of himself and his father.
Venti arranged for the CSRS benefits, as well as his own Social
Security benefits, to be deposited in the new RFCU account. In
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October of 2005, OPM learned of the death of Venti's father and
stopped depositing the CSRS benefits.
On December 9, 2009, a federal grand jury in Maine, where
Venti resides, handed up a nine-count indictment charging him with
theft of government property – one count for each of nine checks
written in his father’s name during 2005. See id. § 641.1 The
jury convicted Venti on all nine counts and returned a special
verdict that the aggregate amount of the nine counts exceeded
$1,000, subjecting him to imprisonment for longer than a year.
Id.; see id. § 3559(a)(3) (classifying such offense as a felony).
The district court denied Venti's post-trial motion to dismiss
Count One, and this appeal followed.
1
18 U.S.C. § 641 provides:
Whoever embezzles, steals, purloins, or knowingly
converts to his use or the use of another, or
without authority, sells, conveys, or disposes of
any record, voucher, money, or thing of value of
the United States or of any department or agency
thereof . . . or whoever receives, conceals, or
retains the same with intent to convert it to his
use or gain, knowing it to have been embezzled,
stolen, purloined or converted – shall be fined
under this title or imprisoned not more than ten
years, or both; but if the value of such property
in the aggregate, combining amounts from all the
counts for which the defendant is convicted in a
single case, does not exceed the sum of $1,000, he
shall be fined under this title or imprisoned not
more than one year, or both.
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II.
It is undisputed that the evidence supported the jury's
verdict with respect to the amounts alleged to have been stolen in
Counts Two through Nine of the indictment, totaling $807.89. That
leaves an amount exceeding $192.11 to be accounted for in Count One
in order to surpass the $1,000 felony threshold. Venti contends,
however, that the statute of limitations requires the dismissal of
Count One.2 Because the applicable statute of limitations is five
years, and the statute begins to run when a crime is complete,
Venti must have completed Count One on or after December 9, 2004
for his conviction on that count to be upheld. See 18 U.S.C. §
3282; United States v. Rouleau, 894 F.2d 13, 14 (1st Cir. 1990)
("The statute of limitations for an offense begins to run when the
crime is complete.").
At the close of the case, the jury was instructed that it
could return a guilty verdict only if the government proved that
Venti "committed each of the elements of the crime of theft of
government property for each of the nine counts on or after
2
Venti also includes one sentence in the facts section of his
brief stating that, "[i]n the alternative, the government failed in
the charging instrument to properly reference the 'conversion' of
government funds as being within the five year statute of
limitations." As he does not advance any argument in support of
this assertion, we do not consider it further. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that
perfunctory arguments are deemed waived).
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December 9, 2004."3 Having been so instructed, the jury
necessarily found that Venti committed the offense in Count One on
or after December 9, 2004, and thus within the limitations period.
See Morales-Vallelanes v. Potter, 605 F.3d 27, 34-35 (1st Cir.
2010) ("A basic premise of our jury system is that the jury follows
the court's instructions, and therefore we assume, as we must, that
the jury acted according to its charge." (citation and internal
quotation marks omitted)). We will uphold that finding "unless the
evidence was so strongly and overwhelmingly inconsistent with the
verdict[] that no reasonable juror could have returned [it]."
Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc.,
552 F.3d 47, 57 (1st Cir. 2009) (quoting Crowley v. L.L. Bean,
Inc., 303 F.3d 387, 393 (1st Cir. 2002)). We review questions of
law de novo. E.g., State Street Bank & Trust Co. v. Denman Tire
Corp., 240 F.3d 83, 87 (1st Cir. 2001).
III.
Count One alleged a conversion of government property by
a check for the amount of $330 cashed on January 21, 2005. The
3
The adequacy of this instruction is not at issue in the
specific circumstances of this case. Writ large, however, the
instruction appears to be generous toward the defendant.
Ordinarily, if some but not all of the elements of a crime are
completed outside the limitations period, prosecution can still
proceed so long as at least one of the elements occurred within the
limitations period. See United States v. Walsh, 928 F.2d 7, 11-12
(1st Cir. 1991) (holding that prosecution was only barred by the
statute if "the evidence irrefutably established that all elements
of the embezzlement were committed" outside the statute).
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following bank account activity preceded the January 21 check: a
January 3, 2005 deposit of $210 in CSRS benefits brought the
balance in the RFCU account to $373.97, and then a January 13 check
for $39.74 reduced the balance to $334.23. Thus, the January 21
check for $330 charged in Count One depleted the account of all
funds but $4.23.
Venti’s basic contention is that Count One charges theft
by conversion of $330, but in order for the check to have
represented a total of $330 in illegally received funds, it
necessarily included CSRS benefits received outside of the
limitations period. Count One therefore should be dismissed as
stale. He begins by asserting that the date on which the
conversion occurred was the date that the CSRS benefits were
deposited, not the date that the funds were withdrawn to support
the check. Any wrongfully obtained funds deposited before December
9, 2004 were converted outside of the statute of limitations, his
thesis runs, and the conversion of those funds is not a "continuing
offense" such that the crime may be said to be ongoing after that
date. Venti emphasizes that the $210 deposit of CSRS benefits on
January 3, 2005 – the only such deposit that is both prior to
January 21 and still within the limitations period – was not itself
sufficient to cover the $330 check referenced in Count One. Thus,
he concludes, in order for the check to have represented the
conversion of $330 in CSRS benefits, the check must have been
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partially backed by CSRS funds that had been deposited at an
earlier time outside of the limitations period. Because some of
the $330 drawn on the Count One check consisted of CSRS funds that
were deposited outside of the statute of limitations, Count One
should have been dismissed as untimely brought.
The main problem with the argument is that the government
did not have to allege or prove that the entire amount necessary to
cover the January 21 check derived from CSRS benefits received
within the limitations period. The precise value of the property
stolen is not a necessary element of 18 U.S.C. § 641. Accordingly,
that the face amount of the check identified in the indictment may
not precisely match the value of the converted property does not
require dismissal. The evidence need only show that the purloined
item be a "thing of value." 18 U.S.C. § 641 (prohibiting the theft
of a "thing of value"); see United States v. Donato-Morales, 382
F.3d 42, 49 (1st Cir. 2004) (holding that the evidence at trial was
sufficient for the jury to conclude that the defendant intended to
steal a "thing of value" even without direct evidence that the
defendant knew the item's specific value); United States v. Torres
Santiago, 729 F.2d 38, 40 (1st Cir. 1984) (holding that § 641
"merely requires the government to show that a thing of value of
the United States has been knowingly received, concealed, or
retained by the accused with the proper intent."). The verdict
form in this case accurately reflects this principle, describing
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Count One as "theft of an item of value from the government," and
Venti concedes that some of the $330 represented by the January 21
check came from the January 3, 2005 deposit of CSRS benefits, a
deposit that was within the limitations period.
We have previously rejected an argument closely analogous
to Venti's position that Count One must be dismissed because it
does not exclusively relate to money received illegally within the
statute of limitations. Where a check that is alleged to be a
conversion is drawn on an account containing both legal and illegal
funds, we have held that the government need only show that illegal
funds constitute a substantial portion of the account's total in
order to support a conviction. See United States v. García-
Pastrana, 584 F.3d 351, 369-70 (1st Cir. 2009) (interpreting 18
U.S.C. § 669's prohibition of converting health care funds as a
close "analogue" to 18 U.S.C. § 641 and affirming the conviction
where a "substantial portion" of the account consisted of health
care funds). The same rule applies here. Venti's account had only
$334.23 available to cover the $330 check. We have no trouble
concluding that a reasonable jury could have found that a
substantial portion of the account consisted of the $210 in
illegally obtained funds that were deposited within the limitations
period; the check charged in Count One would have bounced without
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that deposit.4 Moreover, we note that accepting Venti's position
would have troubling implications. Under his theory, one could
always avoid conviction simply by writing a check in any amount
greater than the sum of illegally obtained benefits in an account,
in effect using the commingled funds as a shield. We reject this
conception.
IV.
The conviction is affirmed.
4
Venti does not argue that the jury was prohibited from
finding that more than $192.11 of the $330 in funds drawn on
January 21 came from the $210 January 3 CSRS deposit, nor does he
allege a prejudicial variance in the proof between the drawing of
the $330 check charged in the indictment and the $210 deposit that
supplied some of the funds for the check. Accordingly, even
accepting, arguendo, the premise that a conversion occurs when a
CSRS deposit is made, see United States v. Miller, 520 F.2d 1208,
1210 (9th Cir. 1975) (upholding a § 641 conviction where defendant
deposited a government check into his personal account), the
evidence in any event supports the jury finding that the $1,000
threshold was met.
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