University of Chicago Law Review

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For most offenses, the statute of limitations begins to run when the elements of an offense are satisfied. For continuing offenses, however, the statute of limitations begins to run when the crime stops, extending the amount of time the government has to bring charges. This Comment considers the circuit split over whether passive embezzlement schemes are continuing offenses. Typically charged under the federal embezzlement statute, 18 USC § 641, passive embezzlement schemes continue automatically once set in motion. They are distinguished from active embezzlement schemes in that active schemes require some affirmative act by the embezzler for the scheme to continue. Because their defining characteristic is inaction, passive schemes are more difficult to detect than active schemes and often push the boundaries of the statute of limitations. Circuit courts determining whether passive embezzlement schemes are continuing offenses use two divergent approaches. Some courts use a categorical approach, evaluating whether the embezzlement statute used to charge the scheme is a continuing offense based solely on its elements. Other courts adopt a charged conduct approach, looking to the embezzlement scheme charged in each case and finding only passive schemes of embezzlement to be continuing offenses.

This Comment resolves the circuit split by positing that the Supreme Court’s opinion laying out the test for whether an offense is continuing, Toussie v United States, dictates neither the charged conduct approach nor the categorical approach. Drawing a novel analogy to contexts in which the Court adopted a similar conductbased approach over a categorical approach, this Comment argues that the charged conduct approach results in a more accurate application of the continuing offense doctrine.

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