Submitted: April 12, 2018
from United States District Court for the Western District of
Arkansas - El Dorado
GRUENDER, MELLOY, and GRASZ, Circuit Judges.
MELLOY, Circuit Judge.
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 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
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?
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.
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
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.
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. §
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.
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.
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.
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.
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."