Petition for Writ of Certiorari — Kyle Melkonian, Petitioner v. United States

Supreme Court briefApr 4, 2024

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No. ________

IN THE

Supreme Court of the United States

KYLE MELKONIAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

HECTOR A. DOPICO

INTERIM FEDERAL PUBLIC DEFENDER

ANSHU BUDHRANI

Counsel of Record

ASSISTANT FEDERAL PUBLIC DEFENDER

150 West Flagler Street

Suite 1700

Miami, FL 33130

305-530-7000

Anshu_Budhrani@fd.org

Counsel for Petitioner

April 4, 2024

QUESTION PRESENTED

The federal theft-of-government-property statute lays out two distinct offenses

in two separate paragraphs, punishing the initial theft of government property and

subsequent receipt of already-stolen government property. See 18 U.S.C. § 641.

The question presented is whether the Eleventh Circuit’s conflation of 18

U.S.C. § 641’s two distinct offenses runs afoul of the plain text of the statute, its

application by every other circuit court that has addressed the issue, as well as this

Court’s precedents.

PARTIES TO THE PROCEEDING

The case caption contains the names of all parties to the proceedings.

RELATED PROCEEDINGS

The following proceedings are directly related to this petition:



United States v. Melkonian, No. 1:21-cr-20414-DPG (S.D. Fla.)

(Judgment entered Oct. 24, 2022).



United States v. Melkonian, No. 22-13543 (11th Cir. Nov. 8, 2023),

reh’g denied, DE 50 (Jan. 5, 2024).

There are no other related proceedings within the meaning of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

RELATED PROCEEDINGS......................................................................................... iii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF APPENDICES ........................................................................................... vi

TABLE OF AUTHORITIES ........................................................................................ vii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINION BELOW......................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 2

STATUTORY PROVISION INVOLVED ...................................................................... 2

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE....................................................................................... 4

Factual Background ............................................................................................. 4

II.

Procedural History ............................................................................................. 10

REASONS FOR GRANTING THE PETITION .......................................................... 12

The Eleventh Circuit’s Conflation of § 641’s Separate Offenses—Which

Prohibits the Stealing of Government Property and the Receipt of

Already-Stolen Government Property “Knowing It to Have Been” Stolen

—Is Wholly Inconsistent With the Statute’s Structure and Plain

Language ........................................................................................................... 12

Section 641’s Structure and Plain Text Illuminate the Absurdity

of the Eleventh Circuit’s Holding .......................................................... 12

The Eleventh Circuit’s Melding of § 641’s Two Offenses into One

Contemporaneous Offense Directly Conflicts with This Court’s

Holdings and Longstanding Principles of Common Law...................... 15

The Eleventh Circuit’s Holding Here Creates a Circuit Split

Because It Allows for Prosecution on a Theory Not Previously

Advanced Because of Its Outright Conflict With the Statute’s

Plain Language....................................................................................... 16

II.

The Question Presented Is Important .............................................................. 17

III.

This Petition Is an Ideal Vehicle ....................................................................... 19

CONCLUSION............................................................................................................. 20

TABLE OF APPENDICES

Appendix A: Opinion of the U.S. Court of Appeals for the Eleventh Circuit (Oct. 27,

2023) ............................................................................................................................. 1a

Appendix B: Order Denying Rehearing (Jan. 5, 2024)............................................... 1b

TABLE OF AUTHORITIES

Cases

Barrett v. United States,

423 U.S. 212 (1976) ............................................................................................. 13, 14

Carr v. United States,

560 U.S. 438 (2010) ................................................................................................... 13

Dobrova v. Holder,

607 F.3d 297 (2d Cir. 2010) ...................................................................................... 14

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,

484 U.S. 49 (1987) ..................................................................................................... 14

Milanovich v. United States,

365 U.S. 551 (1961) ............................................................................................. 15, 16

United States v. Brunell,

320 F. Supp. 3d 246 (D. Mass. 2018)........................................................................ 16

United States v. Maher,

955 F.3d 880 (11th Cir. 2020) ................................................................................... 18

United States v. Smith,

373 F.3d 561 (4th Cir. 2004) ..................................................................................... 16

United States v. Wilson,

503 U.S. 329 (1992) ................................................................................................... 13

vii

Statutes

18 U.S.C. § 3282(a) ...................................................................................................... 18

18 U.S.C. § 641 ............................................................................................. 2, 10, 12, 13

28 U.S.C. § 1254(1) ........................................................................................................ 2

Other Authorities

Bryan A. Garner, Garner’s Modern English Usage (4th Ed. 2016) ........................... 14

PART III OF THE RULES OF THE SUPREME COURT OF THE UNITED STATES ...................... 2

The Chicago Manual of Style § 5.132 (17th ed. 2017) ................................................ 14

William Admussen, Passive Embezzlement Schemes As Continuing Offenses,

86 U. CHI. L. REV. 1397 (2019).................................................................................. 17

William Strunk Jr. & E.B. White, The Elements of Style (4th ed. 2000).................. 15

viii

IN THE

Supreme Court of the United States

KYLE MELKONIAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Kyle Melkonian (“Petitioner”) respectfully seeks a writ of certiorari to review

the judgment of the United States Court of Appeals for the Eleventh Circuit in this

case.

OPINION BELOW

The Eleventh Circuit’s opinion (App. A) is unreported, and available at 2023

WL 7391695 (11th Cir. Nov. 8, 2023).

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and Part III of

the Rules of the Supreme Court of the United States. The Eleventh Circuit issued its

decision on November 8, 2023 (App. A), and Petitioner timely moved for rehearing on

November 29, 2023. The Eleventh Circuit denied rehearing on January 5, 2024 (App.

B.), making Petitioner’s petition due on or before April 4, 2024. This petition is timely

filed.

STATUTORY PROVISION INVOLVED

18 U.S.C. § 641

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 any property made or being made under contract for the United States or 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.

INTRODUCTION

The theft-of-federal-property statute—18 U.S.C. § 641—makes it a crime to

embezzle, steal purloin, or knowingly convert federal property, and to receive,

conceal, or retain the same, “knowing it to have been embezzled, stolen, purloined, or

converted.” 18 U.S.C. § 641. This petition presents a question concerning the two

separate offenses § 641 delineates—the latter requiring receipt, concealment, or

retention of already-stolen federal property—and the Eleventh Circuit’s collapsing of

them into one amalgamated offense that defies the plain language of the statute and

this Court’s precedents.

Petitioner Kyle Melkonian was convicted of one count of receiving, concealing,

and retaining his deceased father’s Social Security benefits, knowing the money to

have previously been stolen, purloined, and converted. Petitioner, in proceeding to a

stipulated bench trial, maintained that the government could never satisfy the

elements of § 641’s second paragraph—which punishes the receipt, concealment, or

retention of already-stolen government property—because doing so under the facts

alleged would require the court to find that he simultaneously stole and received from

himself his deceased father’s Social Security benefits. The government, however,

persisted on this novel theory and obtained a conviction, and the Eleventh Circuit

affirmed. In so affirming, the Eleventh Circuit approved of the government’s novel

argument—that Petitioner knew the improperly-deposited funds were stolen from

the government immediately upon deposit into his father’s bank account, where he

contemporaneously received them. He was, per the government, the individual who

both stole and received what he stole from himself in one simultaneous action. In

adopting the government’s theory, the Eleventh Circuit broadened the scope of § 641’s

reach far beyond what Congress explicitly intended, and in a manner that allows the

government to circumvent applicable statutes of limitations.

This petition that follows satisfies all the criteria for this Court’s review. First

and foremost, the Eleventh Circuit, in affirming Petitioner’s conviction on the above

facts and the government’s novel theory, has created a circuit split. Every other

circuit to address these facts has done so under § 641’s first paragraph, because that

is where such a prosecution belongs. This expansion of § 641’s second paragraph to

encapsulate a simultaneous stealing and receipt is unheard of and in direct opposition

to the plain language and structure of the statute. This expansion of an already

widely-used statute cannot stand, especially when it directly contravenes Congress’s

intent.

The Court should grant certiorari and reverse.

STATEMENT OF THE CASE

Factual Background

The parties agreed to the following factual stipulations:

KYLE MELKONIAN (the “Defendant”)

hereby acknowledges and voluntarily stipulates and agrees

to the following facts set forth below:

Title 2 retirement benefits are funds owned by

the United States federal government, administered by the

Social Security Administration (SSA), and paid by the

United States Department of Treasury to certain eligible

individuals.

The Defendant’s father, an individual with

initials P.M., lawfully started receiving Title 2 retirement

benefits from SSA in July 1992 after applying for these

benefits at age 65.

P.M. resided in Miami-Dade County, in the

Southern District of Florida, from the date he received

these Title 2 benefits until his death on October 15, 2006,

in Miami Beach, Florida, at the age of 79.

P.M. was survived by his three adult children,

including the Defendant. The Defendant did not notify

SSA of P.M.’s death.

A Title 2 recipient’s entitlement to receive

retirement benefits from SSA legally ceases in the month

of his or her death. P.M.’s entitlement to receive Title 2

retirement benefits ceased in October 2006. Beginning

November 1, 2006, SSA did not owe P.M. Title 2 retirement

benefits.

The defendant was not entitled to receive,

retain, or use P.M.’s Title 2 retirement benefits after P.M.’s

death.

The Defendant and P.M. lived together at 230

NW 143rd Street in Miami, Florida (the “Residence”) from

November 2000 through the date of P.M.’s death. The

Defendant continued to live at the Residence through

present day.

P.M. owned the Residence until June 8, 1992,

when he transferred title to the Residence to the Defendant

by warranty deed filed in the Miami-Dade public record.

10.

From at least January of 2001 to May of 2020,

the landline phone number associated with the Residence

was 305-688-3686.

11.

P.M. had a checking account in Miami,

Florida located at American Bank ending in 0837 ("the

American Bank Account"), which he opened in November

2000. P.M. was the sole owner and authorized signer on

the American Bank Account.

12.

P.M.’s Title 2 retirement benefits were

directly deposited by SSA into the American Bank Account

since November 2000. P.M.’s Title 2 retirement benefits

were visibly marked on the American Bank Account

statements as deposits from “SSA TREAS 310 - XX SOC

SEC.”

13.

The Defendant knew P.M.’s Title 2 retirement

benefits were deposited by SSA into the American Bank

Account and that these benefits were paid to P.M. by an

agency of the United States of America.

14.

The Defendant knew that he had no lawful

authority to access the American Bank Account or to

receive, retain, or use any of the Title 2 retirement benefits

deposited by SSA into that account after P.M.’s death.

15.

Because SSA did not receive notice of P.M.’s

death, SSA continued to deposit Title 2 retirement benefits

for P.M. into the American Bank Account from on or about

November 3, 2006 through on or about January 3, 2020 in

the total amount of $286,944.

16.

The SSA made the following deposits of Title

2 retirement benefits into the American Bank Account

after P.M.’ s death:

Approximate Payment

Date

Number of

Payments

Net Payment Amount

Monthly

Totals

11/3/2006 - 12/3/2006

$1533

$3066

I /3/2007-12/3/2007

$1581

$18972

1 /3/2008-12/3/2008

$1617

$19404

1/3/2009-12/3/2011

$1716

$61776

1/3/2012-12/3/2012

$1828

$21936

1/3/2013-12/3/2013

$1845

$22140

1/3/2014-12/3/2014

$1856

$22272

1/3/2015-12/3/2015

$1963

$23556

1/3/2016-12/3/2016

$1917

$23004

1/3/2017-12/3/2017

$1892

$22704

1/3/2018-12/3/2018

$1908

$22896

1/3/2-2019-12/3/2019

$1938

$23256

1/3/2020

$1962

17.

The Defendant knew the above deposits were

improperly made by SSA and that these Title 2 retirement

benefits should have ceased at the time of his father’s

death.

18.

The Defendant knowingly and willfully kept

his father’s death concealed from SSA so that SSA

continued to deposit the Title 2 retirement benefits into the

American Bank Account so that he could receive, retain,

and use these funds for his benefit.

19.

After P.M.’s death, the Defendant continually

unlawfully accessed the American Bank Account online

using after P.M.’s death using IP address 65.6.207.159,

which was the IP address assigned to the Residence under

his deceased father’s AT&T account.

20.

The Defendant knew that each time he

unlawfully accessed the American Bank Account after

November 1, 2006, that he was not entitled to receive,

retain or use the Title 2 retirement benefits deposited into

that account. The Defendant also knew the Title 2

retirement benefits deposited into American Bank account

by SSA were wrongfully paid benefits which should have

ceased at the time of P.M.’s death.

21.

The Defendant used the Title 2 retirement

benefits deposited in the American Bank Account after

November 1, 2006, to pay his own bills at the Residence,

including Florida Power & Light, AT&T, and Direct TV

after P.M.’s death.

22.

The Defendant also used the benefits

deposited by SSA in American Bank account to pay his

Chase Bank credit card account ending in 5540, which was

previously designated by numbers ending in 8664, 9781,

and 5258. This credit card account was jointly titled in the

Defendant’s and P.M.’s name.

23.

The Defendant used the Chase credit cards

after P.M.’ s death for personal purchases from Amazon,

Pay Pal, and a variety of other retailers in Miami-Dade

County and elsewhere.

24.

In addition to the American Bank Account,

P.M. had a bank account at J.P. Morgan Chase Bank

ending in 2570 (“Chase Account”) that he opened on March

18, 2003. P.M. was the sole owner and authorized signer

on this account. The Defendant knew that he did not have

lawful authority to access the Chase Account.

25.

The Defendant had a recurring check issued

every three months in P.M.’s name from the American

Bank Account and automatically deposited in the Chase

Bank account. The checks were issued in amounts between

$1,500 to $2,000.

26.

Once the checks were deposited in the Chase

Account, the Defendant withdrew the Title 2 retirement

benefits in cash from the account at various ATMs located

in Miami-Dade County for his own use and gain. On

January 3, 2021, an ATM camera captured the Defendant

withdrawing Title 2 retirement benefits from the Chase

Account.

27.

From 2011 to 2020, the Defendant received

multiple written correspondences sent to his Residence

from SSA. These correspondences were addressed to P.M

and contained information about his Title 2 retirement

benefits referencing P .M.' s receipt of Title 2 retirement

benefits.

28.

On or about November 21, 2019, the

Defendant received one of these letters from SSA

addressed to P.M. advising that Lisa Rossi, an SSA

technical expert employee, would call P.M. on December 2,

2019. The letter stated that the purpose of the call was to

speak with P.M. about the correct payment of Title 2

retirement benefits.

29.

On or about December 2, 2019, Lisa Rossi

called the landline number ending in 3686 at the

Defendant’s Residence.

30.

The Defendant answered Lisa Rossi’s call

impersonating his deceased father, P.M, and falsely

claimed that P.M. was alive. The Defendant provided his

deceased father’s personal information and claimed that he

was currently living with his son “Kyle.” The Defendant

denied receiving any prior letters from SSA.

31.

The Defendant knowingly and willfully

misrepresented himself as P.M. to intentionally conceal his

father’s death from SSA so that he could continue to retain

his deceased father’s Title 2 retirement benefits.

32.

After the telephone call with Ms. Rossi, the

Defendant received follow-up letters from SSA dated

December 13, 2019, and December 16, 2019, requesting

P.M. appear in-person at a local SSA field office. The

Defendant did not respond or appear at the field office.

33.

On February 11, 2020, agents from SSA’s

Office of Inspector General (OIG) knocked on the door of

the Residence and asked to speak to P.M. The Defendant

answered the door and advised agents that his father could

not speak with them and instructed them to leave the

property.

34.

SSA terminated P.M.’s Title 2 retirement

benefit payments in February of 2020 after receiving

confirmation of his death and a copy of his death certificate

from the State of Florida.

35.

On April 22, 2020, the United States Treasury

reclaimed the remaining funds in the American Bank

Account, which was a total of $2,784.03.

36.

By signing this stipulation, Defendant

acknowledges the truth of the facts set forth above and that

he understands this stipulation will be used against him at

trial and any subsequent proceeding. The Defendant

further acknowledges that a factual basis exists for the

stipulation.

(Dist. Ct. Dkt. No. 37.)

II.

Procedural History

On August 4, 2021, a federal grand jury sitting in the Southern District of

Florida returned a one-count indictment against Petitioner, charging him with

receiving, concealing, and retaining his father’s social security benefits, knowing the

money to have been stolen, purloined, and converted, in violation of 18 U.S.C. § 641.

(Dist. Ct. Dkt. No. 3.)

Petitioner elected to proceed to a bench trial. In anticipation of trial, the

parties entered into certain factual stipulations.

(Dist. Ct. Dkt. No. 37.)

The

stipulated bench trial commenced on June 17, 2022 and lasted two days. ((Dist. Ct.

Dkt. No. 39; (Dist. Ct. Dkt. No. 42.) The government rested on the factual stipulations

and did not introduce any further evidence at trial. (Dist. Ct. Dkt. No. 76 at 7.)

Petitioner than moved under Fed. R. Crim. P. 29 for a judgment of acquittal, which

the district court denied. (Dist. Ct. Dkt. No. 76 at 8, 30.) Petitioner then renewed his

motion for a judgment of acquittal at the close of all of the evidence, which the district

court indicated it would deny. (Dist. Ct. Dkt. No. 76 at 31, 38.) The court did,

however, allow the parties to submit written briefing on the issues raised and

discussed at trial prior to closing arguments. (Dist. Ct. Dkt. No. 76 at 39.) Petitioner

filed a motion to reconsider the district court’s denial of his motion for judgment of

acquittal, which the government opposed. (Dist. Ct. Dkt. No. 40; Dist. Ct. Dkt. No.

41.)

The district court, after hearing further argument, denied Petitioner’s motion

and adjudged him guilty. (Dist. Ct. Dkt. No. 77 at 39; Dist. Ct. Dkt. No. 45.) In so

denying the motion, however, the district court did note that the “issues raised by

[Petitioner] are interesting, and it is a novel legal issue,” which will most likely need

to be resolved by the court of appeals. (Dist. Ct. Dkt. No. 77 at 40–41.)

Petitioner appealed his conviction to the Eleventh Circuit, and in an

unpublished per curiam opinion, a three-judge panel of the Eleventh Circuit affirmed

Petitioner’s conviction, conflating the two paragraphs of § 641. While the panel

recognized longstanding precedent dictating that “a defendant cannot be convicted

under § 641 for both stealing government property and receiving the same property,”

App. A at 3a, it then affirmed a conviction under § 641’s second paragraph involving

a contemporaneous stealing and receipt of the same government property. In so

affirming, the panel reasoned that Petitioner “knew the improperly deposited funds,

induced by his continued wrongdoing, were stolen from the government upon deposit

into [his father’s] American Bank account.” App. A at 3a. But such a holding requires

what § 641 expressly prohibits in both structure and plain language—a

contemporaneous stealing and receipt of the same property, which writes out of

§ 641’s second paragraph the requirement that the defendant receive the funds

knowing them “to have been” stolen at some previous moment in time. 18 U.S.C.

§ 641.Petitioner moved for rehearing, which the court denied. See App. B.

This petition follows.

REASONS FOR GRANTING THE PETITION

The Eleventh Circuit’s Conflation of § 641’s Separate Offenses—Which

Prohibits the Stealing of Government Property and the Receipt of

Already-Stolen Government Property “Knowing It to Have Been”

Stolen —Is Wholly Inconsistent With the Statute’s Structure and Plain

Language

The Eleventh Circuit’s collapsing of 18 U.S.C. § 641 into one super offense that

encompasses a simultaneous stealing of government property and receipt of that

same already-stolen property creates a circuit split where none existed before. The

court below affirmed Petitioner’s conviction for receiving stolen government property

when the government’s evidence demonstrated a simultaneous stealing and receipt

of the same property. That decision is out of line with every other circuit court to

address § 641, as well as with the plain language of the statute and this Court’s very

clear precedent. This case is an ideal vehicle to resolve this conflict and reaffirm

§ 641’s proper structure and reach.

A. Section 641’s Structure and Plain Text Illuminate the Absurdity of the

Eleventh Circuit’s Holding

Petitioner was adjudicated guilty—after a bench trial—of violating the second

paragraph of 18 U.S.C. § 641, which prohibits the receipt, concealment, or retention

of property belonging to the United States, “knowing it to have been embezzled,

stolen, purloined, or converted.” 18 U.S.C. § 641 (emphasis added). The government

chose to charge him under the second paragraph of § 641, which penalizes the receipt,

concealment, or retention of previously-stolen property—not the stealing itself, which

is penalized separately under § 641’s first paragraph. It did so presumably to avoid

a statute of limitations issue.

But because the government made that choice, the Eleventh Circuit, in

affirming Petitioner’s conviction, had to twist itself into a logical impossibility,

utilizing reasoning that conflates both paragraphs of § 641 and fails to account for

the plain language and structure of the statute.

The court’s holding cannot be

squared with the plain text of the statute.

The second paragraph of § 641 prohibits the receipt, concealment, or retention

of money belonging to the United States “with intent to convert it to [one’s] own use

or gain, knowing it to have been embezzled, stolen, purloined or converted.” 18 U.S.C.

§ 641 (emphasis added). That is, the “proscribed act,”—the receipt, concealment, or

retention of the money with intent to convert it to one’s own use or gain—is “in the

present tense,” while the reference to the money’s status as stolen or converted—

knowing it to have been stolen or converted—is in the perfect tense, “denoting an act

that has been completed.” Barrett v. United States, 423 U.S. 212, 216–17 (1976).

Congress’s use of both the present tense and the perfect tense is significant here. See

id. at 217 (“Congress knew the significance and meaning of the language it

employed.”). The clauses cover different periods of time and are not coterminous.

“Consistent with normal usage, [courts] have frequently looked to Congress’

choice of verb tense to ascertain a statute’s temporal reach.” Carr v. United States,

560 U.S. 438, 448 (2010) (citing United States v. Wilson, 503 U.S. 329, 333 (1992)

(“Congress’ use of a verb tense is significant in construing statutes”); Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987)

(“Congress could have phrased its requirement in language that looked to the past

. . . , but it did not choose this readily available option”); Barrett, 423 U.S. at 216

(observing that Congress used the present perfect tense to “denot[e] an act that has

been completed”)).

Here, Congress used the perfect tense—have been—to describe what was

required of the object being received, concealed, or retained—here, the Social Security

benefits. That is, the benefits needed to have been previously stolen or converted.

See Barrett, 423 U.S. at 216 (indicating that verbs in the perfect tense—which use

the words “have” or “has”—“denot[e] an act that has been completed at some point in

the past”); see also Bryan A. Garner, Garner’s Modern English Usage 896–97 (4th Ed.

2016) (noting that the perfect tense denotes “an action having been completed at some

indefinite time in the past”); Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010)

(“Congress’s use of the present perfect tense—‘has . . been admitted’—is significant

here. The present perfect tense refers to . . . a time in the indefinite past”) (quotation

marks omitted); The Chicago Manual of Style § 5.132 (17th ed. 2017) (making clear

that the present-perfect tense refers to “a time in the indefinite past”).

Congress’s choice of verb tense in the second paragraph of § 641 is directly

adverse to the Eleventh Circuit’s holding.

It cannot be that the funds were

simultaneously stolen and received by Petitioner because Congress’s use of the

perfect tense requires that the benefits have been stolen or converted in the past,

prior to their receipt. See William Strunk Jr. & E.B. White, The Elements of Style 31

(4th ed. 2000) (noting that “antecedent action” is expressed by the perfect tense).

Petitioner cannot have simultaneously stolen the benefits and received them from

himself. The plain language of the statute simply does not allow such an argument.

B. The Eleventh Circuit’s Melding of § 641’s Two Offenses into One

Contemporaneous Offense Directly Conflicts with This Court’s

Holdings and Longstanding Principles of Common Law

This Court has noted that in prohibiting the receipt of stolen property,

“Congress was trying to reach a new group of wrongdoers, not multiply the offense of

the robbers themselves.” Milanovich v. United States, 365 U.S. 551, 554 (1961)

(quotation marks omitted). That is, the provision of § 641 that makes the receipt of

stolen property an offense came into the law later than the provision relating to

robbery. Id. So, from its inception through its evolution, the two paragraphs of § 641

were meant to punish entirely separate conduct—separated both by action taken and

the passage of time. This is so because “[i]t is hornbook law that a thief cannot be

charged with committing two offenses—that is, stealing and receiving the goods he

has stolen.” Milanovich, 365 U.S. at 558 (Frankfurter, J., dissenting). “[A] man who

takes property does not at the same time give himself the property he has taken.” Id.

But that is precisely what the Eleventh Circuit approved of here. The conduct

charged—Petitioner’s alleged stealing and simultaneous receipt of his father’s social

security checks—is a legal impossibility.

It depends upon a simultaneous or

contemporaneous stealing and receipt, which is antithetical to the plain language of

§ 641 and its overall structure, because “a man who takes property does not at the

same time give himself the property he has taken.” Id.

In Milanovich, this Court vacated both the larceny and receiving counts and

remanded for a new trial with jury instructions making clear that “a guilty verdict

could be returned upon either count but not both.” Id. at 554–55. That is, this Court

made clear that a defendant can be convicted of either larceny or receiving, “but not

of both.” Id. at 555. Precisely so here. It defies logic, longstanding principles of

common law, and the plain language of § 641 to collapse its two paragraphs to allow

for a conviction reliant upon a simultaneous stealing and receipt.

C. The Eleventh Circuit’s Holding Here Creates a Circuit Split Because

It Allows for Prosecution on a Theory Not Previously Advanced

Because of Its Outright Conflict With the Statute’s Plain Language

Every other case of Social Security fraud of the sort alleged here has been

charged under § 641’s first paragraph—either as stealing or embezzling. See, e.g.,

United States v. Smith, 373 F.3d 561 (4th Cir. 2004); United States v. Brunell, 320 F.

Supp. 3d 246 (D. Mass. 2018). This is so because the core of the crime is the stealing

of social security funds to which one is not entitled—mainly in the form of continuing

to passively receive the funds without every informing the Social Security

Administration of the passing of the intended payee.

But, in order to circumvent a five-year statute of limitations here, which

indisputably applies to § 641’s first paragraph, the government got creative and

charged Petitioner under § 641’s second paragraph, which, in the Eleventh Circuit, is

analyzed as a continuing offense. Thus, the statute of limitations did not begin to

run here until Social Security’s mistake was uncovered and its payments stopped. In

order to fit Petitioner’s conduct under § 641’s second paragraph, however, the

government had to propound a novel theory, which the Eleventh Circuit adopted. In

so doing, the Eleventh Circuit has stranded itself on an island, out of line with the

plain language and structure of the statute and with every other court to address this

factual scenario.

II.

The Question Presented Is Important

Section 641 has far-reaching applications, beyond the Social Security

context. Because it prohibits the theft or misuse of federal government “thing[s] of

value”—a broad, as-yet undefined term—its application is broad. But even when

honing in on the Social Security context, its proper application has far-reaching

consequences.

For example, schemes involving the fraudulent receipt of Social

Security benefits are both pervasive and, due to their difficulty to detect, costly to the

government.

William Admussen, Passive Embezzlement Schemes As Continuing

Offenses, 86 U. CHI. L. REV. 1397, 1438 & n.25 (2019). In 2015, for example, the Office

of the Inspector General for the Social Security Administration closed 529 cases of

individuals fraudulently receiving their deceased relatives’ benefits, which is similar

to what occurred here. See id. at 1438 & n.26.

Additionally, what the Eleventh Circuit approved of here has far-

reaching consequences for all theft-related offenses that punish both the stealing and

receipt of already-stolen goods. This is so because the Eleventh Circuit’s approval of

the government’s charging decision here allows the government to circumvent

statutes of limitations. Here, the government charged Petitioner under § 641’s second

paragraph instead of the first paragraph—the paragraph it has always used when

prosecuting such an offense—because it was bumping up against a five-year statute

of limitations.

The current default federal criminal statute of limitations provides that

“[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried,

or punished for any offense, not capital, unless the indictment is found or the

information is instituted within five years next after such offense shall have been

committed.” 18 U.S.C. § 3282(a). In the Eleventh Circuit, while paragraph one of

§ 641 is a determinate offense, paragraph two is considered a continuing offense,

whereby the statute of limitations commences running on the date of the last act that

furthers the crime. See United States v. Maher, 955 F.3d 880, 885 (11th Cir. 2020).

Thus, in order to hold Petitioner accountable for all social security funds erroneously

deposited, the government had to turn his offense into a continuing offense, which

required the court to find a simultaneous stealing and receipt. That is, because the

conduct spanned over a decade, the government urged, and the Eleventh Circuit

adopted, a reading of § 641 that is incompatible with the plain language of the statute

as well as with the applicable statute of limitations, which exists precisely to limit

exposure to criminal prosecution following an allegedly illegal act.

As such, the question presented is one of great public importance, not only

because of the far and wide-reaching applications of § 641, but also because of the far

and wide-reaching implications of allowing the government to charge its way around

statutes of limitations in this manner. This Court’s intervention is required

III.

This Petition Is an Ideal Vehicle

This case presents the perfect opportunity for the Court to clarify the

application of § 641, and especially the distinction Congress intended between its two

paragraphs. The last time the Court substantively addressed § 641 was in 1961, over

sixty years ago. The statute’s use has only expanded since then, and this Court’s

guidance is required.

Procedurally, the question is squarely presented here. And factually, this case

is ideal because the lower court’s erroneous denial of Petitioner’s motion for a

judgment of acquittal resulted in error that merits reversal.

Both in the district court and on appeal, Petitioner challenged the validity of

his conviction under § 641’s second paragraph. The district court denied his motion

for a judgment of acquittal, but not before noting that the “issues raised by

[Petitioner] are interesting, and it is a novel legal issue,” which will most likely need

to be resolved by the court of appeals. (Dist. Ct. Dkt. No. 77 at 40–41.) He raised the

same issue before the Eleventh Circuit, and, when denied, raised the issue again in

a petition for rehearing. See App. A and App. B.

Factually, too, this case is an ideal vehicle because of the significance of the

erroneously denied motion for a judgment of acquittal. The motion is case dispositive.

That is, if this Court reverses the Eleventh Circuit, Petitioner’s conviction must be

vacated.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

HECTOR A. DOPICO

INTERIM FEDERAL PUBLIC DEFENDER

By:

/s/ Anshu Budhrani

Anshu Budhrani

Assistant Federal Public Defender