CRIMINAL LAW—AN EMBEZZLEMENT INTERMEZZO: SCHEMING TO SIDE-STEP TOUSSIE V. UNITED STATES’S CONTINUING OFFENSE TEST

Though federal statutes of limitations normally act as predictable time bars on prosecution, if a crime is a continuing offense then the statute will be tolled until the last act in furtherance of the crime is complete. Recently, a split has emerged among the federal circuit courts, and even within the Federal District Courts of Massachusetts, as to whether the crime of embezzlement is a continuing offense when it is performed as a passive scheme, such as via automated deposits into a checking account. The author argues that embezzlement, as codified in 18 U.S.C. § 641, should never be considered a continuing offense. The plain language of the statute does not label embezzlement a continuing offense.

Furthermore, the Toussie v. United States decision, which created the modern test for whether a crime is a continuing offense, supports a narrow interpretation of the doctrine. The test for whether a crime is a continuing offense turns on the nature of a crime, not the manner in which it is committed in a specific case. Therefore, embezzlement cannot become a continuing offense when the particular mechanism used in the theft is automated. Rather, the continuing offense exception should not apply to embezzlement because embezzlement is closely related to larceny, an instantaneous offense.

In addition, a narrow application of the continuing offense doctrine reduces the chance of unfair trials and limits the potential abuse of prosecutorial discretion. Instead of expanding the continuing offense doctrine, the judiciary should adhere to the legislature’s decision to provide a five-year cutoff date for prosecutions of embezzlement.