US v. James Treacy

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:13-cr-00018-MFU-1. Copies to all parties and the district court/agency. [1000018460]. [15-4742]

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UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

1

individuals,

including

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).

2

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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

divorced
behalf

individual’s

husbands

of

may

deceased

be

wives

earnings.
entitled
under

to

Widowers

and

survivors’

certain

surviving

benefits

circumstances.

on

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

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SSA

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learned

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the

truth

about

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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
used,

the

defendant

(2)

(1)

without

knowingly

lawful

transferred,

authority,

or

a

(3)

possessed,

of

means

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
4

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

expired

in

limitations

period

before

government

the

filed

contended
January

the

that

2011,

indictment.

the

over

five-year
two

Treacy

years

did

not

simply rest on his factual assertion that he only used K.G.’s
social

security

number

once.

pertinent

legal

question

identity

theft

is

a

is

Instead,
whether

continuing

he

the

explained
crime

offense

of

for

that

the

aggravated
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

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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,
number

possessing,

without

lawful

and/or

using

authority.”

her

J.A.

social
49

security

(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

permitted

the

the

SSA

to

Treacy.

parties

to

file

J.A.

143.

memoranda

The

court

addressing

also
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
6

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

social

number

security

pretrial

stage

that

once

(in

only

he

had

January

used

K.G.’s

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

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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

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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

sufficiency

ordinarily
of

the

be

used

evidence

as

a

behind

vehicle

the

to

test

allegations.

the

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.

pretrial
overlooked

The

motion
when

United

States

made

proceeding,

but

it

the

and

the

parties

this

point

appears
court

to

during
have

focused

on

the
been
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
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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

Pennsylvania

was

but

a

continuing

continued

into

offense
the

that

Eastern

began

in

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

indictment,
contained

was
which

in

the

a
is

challenge

to

ordinarily

indictment.”

the

limited
Id.

at

sufficiency
to
415.

the

of

the

allegations

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

defendant

to

“was

warrant
required

dismissal
to

for

demonstrate

improper

venue,

that

allegations

the

the

therein, even if true, would not establish venue.” Id. Applying
those

principles,

we

concluded
10

that

because

the

government

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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
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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
timeliness.

confirms

the

Specifically,

Indictment
the

three

allegations

letters

the

SSA

regarding
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
denied

in

motion

accord

to

Pg: 13 of 13

dismiss

with

our

should

Engle

therefore

decision.

In

have

been

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

process

at

identifying
the

information

direction

of

the

during
claims

the

pre-interview

representative

is

inaccurate.” J.A. 951. Therefore, to the extent that factual
matters beyond the allegations of the Indictment bear on the
issue,

those

prosecution

is

facts

refute

untimely,

and

Treacy’s
this

assertion

provides

another

that
basis

the
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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