United States v. Green

United States Court of Appeals for the Second Circuit · 2018 · Criminal Law

897 F.3d 443 (2018)

Updated July 19, 2026

crimlawappeal waiverrestitutionstatute of limitationscontinuing offense18 U.S.C. § 64118 U.S.C. § 3282(a)plea agreement

Facts

After Green's mother died in January 2009, the VA continued automatically depositing monthly benefits into a joint bank account held by Green and her mother through August 2011. Green regularly wrote checks to herself from that account in amounts similar to the VA payments. In February 2016, the government filed an Information charging Green under 18 U.S.C. § 641. In her plea agreement, Green agreed to plead guilty to stealing funds between January 10, 2009, and August 2, 2011, but agreed to restitution only for payments unlawfully received within the applicable limitations period and expressly reserved the right to contest restitution outside that period.

Issue

Did Green waive her right to appeal the restitution order, did her plea agreement authorize restitution for payments stolen outside the five-year limitations period, and are violations of 18 U.S.C. § 641 continuing offenses such that losses outside the limitations period may still be included in restitution?

Rule

Plea agreements and appeal waivers are construed strictly against the government. Restitution may not be ordered for losses outside the offense of conviction as limited by the applicable statute of limitations unless the defendant agrees to such restitution in the plea agreement. Under Toussie, an offense is continuing only if the statute's explicit language compels that conclusion or the nature of the crime as defined by Congress assures that it should be treated as continuing; violations of the embezzlement/stealing/conversion paragraph of 18 U.S.C. § 641 do not satisfy that standard.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Buffalo, New York, Dana Mercer was charged under 18 U.S.C. § 641 after she repeatedly transferred federal benefit deposits from an account she controlled. Her plea agreement said she waived any appeal from a restitution order "consistent with governing law and not contrary to this agreement," but it also stated that she "reserves the right to contest restitution for any loss outside the applicable limitations period."

The district court orders restitution covering all transfers from a six-year span. If Dana appeals only the inclusion of losses older than five years, what is the strongest argument about the waiver?

Explanation. The majority held that appeal waivers in plea agreements are reviewed de novo and construed strictly against the government. Where the agreement waives appeal only as to restitution orders consistent with governing law and also expressly reserves the right to contest restitution outside the limitations period, an appeal raising that precise issue is not waived.