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United States v. Askia

United States Court of Appeals, Eighth Circuit

June 29, 2018

United States of America Plaintiff- Appellee
v.
Kwame Ali Askia Defendant-Appellant

          Submitted: April 12, 2018

          Appeal from United States District Court for the Western District of Arkansas - El Dorado

          Before GRUENDER, MELLOY, and GRASZ, Circuit Judges.

          MELLOY, Circuit Judge.

         Kwame Ali Askia managed an organization that received federal grant funds to subsidize an after-school program for children. After misappropriating over $5, 000 of those funds for personal expenditures, Askia was charged on March 6, 2013, with theft concerning programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A). Askia moved to dismiss the indictment, arguing that it violated the applicable statute of limitations. Specifically, Askia claimed that the five-year statute of limitations barred his indictment for offenses committed before March 6, 2008, and that his crime was committed before that date. In fact, and complicating the issue, Askia's alleged criminal conduct straddled this limitations bar; the indictment charged criminal conduct from August 23, 2007, to April 11, 2008. The district court[1] denied Askia's motion, concluding that the offense was a "continuing offense," meaning the crime was not committed until the last date charged in the indictment, and thus the indictment was timely. The district court alternatively held that, even assuming the offense was not a continuing offense and Askia had committed an offense before the limitations bar, the indictment charged a separate § 666(a)(1)(A) offense within the limitations period. The case proceeded to trial, and a jury returned a guilty verdict.

         On appeal, Askia raises several questions, including one of first impression in this circuit: When an offense prohibits unlawfully taking at least $5, 000 from an organization receiving federal funds, is that crime "committed" once all elements are established or is the crime continually committed over time?

         I.

         The United States government, through a grant program known as the "21st Century Community Learning Centers," provides grant money to subsidize community learning centers, typically for children attending high-poverty, low-performing schools. The Arkansas Department of Education received grant funds from the 21st Century program and then awarded grants to approved entities.

         Askia, the owner of Askia Learning Concepts, submitted an application on behalf of Askia Learning for a 21st Century grant. The application sought a grant in order to establish a community learning center in Arkansas during the 2007-2008 school year. The application was approved, and Askia Learning received a grant for $149, 280, the full amount requested in the application.

         On November 1, 2007, Arkansas Department officials visited Askia Learning's location and discovered several compliance issues. Based on these issues, the Department ordered Askia Learning to cease spending grant funds and to send the Department a current expenditure report with supporting documentation. Department officials then held several meetings with Askia, repeatedly requested documentation, and continually ordered Askia to stop spending grant funds. Askia neither supplied the requested documentation nor stopped spending grant funds. On March 27, 2008, the Department sent Askia Learning a letter, terminating the 21st Century grant based on Askia Learning's failure to comply with grant requirements and demanding repayment of most of the grant. After investigating Askia Learning and Askia, the Government identified numerous expenditures where he allegedly misappropriated grant funds for personal expenditures.

         On March 6, 2013, more than five years after Askia Learning received the 21st Century grant, a one-count indictment was returned, charging Askia with a violation of 18 U.S.C. § 666(a)(1)(A). The indictment specifically charged:

From on or about August 23, 2007, to on or about April 11, 2008, in the Western District of Arkansas, El Dorado Division, the defendant, KWAME ALI ASKIA, being an agent of, Askia Learning Concepts, a for profit organization, said organization receiving in the one year period beginning August 23, 2007, benefits in excess of $10, 000 under a 21st Century Community Learning Centers Grant, embezzled, stole, without authority knowingly converted, obtained by fraud, and intentionally misapplied property worth at least $5, 000 and owned by and under the care, custody and control of Askia Learning Concepts, that is, grant funds provided for educational services to Strong High School, Strong, Arkansas, in violation of 18 U.S.C. § 666(a)(1)(A).

         Askia moved to dismiss the indictment, arguing that the applicable five-year statute of limitations barred his indictment for offenses committed before March 6, 2008. This date landed toward the end of the timeline charged in the indictment (i.e., August 23, 2007, to April 11, 2008). At a hearing on the motion, the Government offered proof of seventeen supposedly personal expenditures, including at least four occurring after March 6, 2008. These four expenditures totaled $5, 503.36.

         The district court denied Askia's motion to dismiss, for two reasons. First, the court concluded that § 666(a)(1)(A) was a "continuing offense" and thus the statute of limitations did not begin to run until the last date charged, i.e., April 11, 2008, placing the indictment within the limitations period. Second, even assuming § 666(a)(1)(A) was a completed offense and thus the statute of limitations began to run once all elements of the offense were established, the court concluded that the four expenditures after March 6, 2008, established a separate offense within the limitations period.

         The case proceeded to trial, where Askia represented himself pro se with standby counsel. Notwithstanding the district court's earlier alternative ruling that the indictment charged an offense committed after March 6, 2008, Askia did not challenge the Government's evidence of expenditures before March 6. Askia also did not request a jury instruction or a special verdict form as to the dates of his alleged misappropriations. A jury then returned a guilty verdict. The sentencing court sentenced Askia to twenty-four months of imprisonment, to be followed by thirty-six months of supervised release, and ordered $148, 416 in restitution. Askia timely appealed.

         II.

         On appeal, Askia raises four challenges regarding: (A) the statute of limitations, (B) evidentiary issues, (C) his due-process rights, and (D) the sufficiency of the evidence.

         A.

         Askia first asserts that the applicable statute of limitations barred the indictment charging him with violating 18 U.S.C. § 666(a)(1)(A). "This court reviews de novo the denial of a motion to dismiss the indictment." Un ...


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