Single Felony or Multiple Misdemeanors?

July 22, 2014
By Hanging Out with Carl Gunn


  • The government often errs by charging continuing thefts over a period of time as a single theft of the larger amount when it’s really multiple separate thefts of the smaller amounts.
  • Both older case law and more recent case law reaffirming the older case law support challenges to indictments charging a single theft in such circumstances.
  • You can use this case law in various ways, including to get multiple misdemeanor convictions instead of a felony conviction, challenge indictments as duplicitous, and argue for a unanimity instruction.


Today I thought I’d share an epiphany that came to me some years back when I had a client charged with a felony theft of government property based on multiple takings of relatively small amounts (all under $1,000) over a period of several months. I thought back to my first year criminal law class in law school and the elements of common law larceny and in particular the larceny element of a “taking.” Since there were multiple “takings” in my client’s case, this led me to the thought that what my client had really done was commit multiple thefts rather than one single theft. If this were true in my client’s case, it would make a big difference, because each individual “taking” had been of an amount less than $1,000, which meant he had committed multiple misdemeanor offenses under 18 U.S.C. § 641, not the single felony offense he was charged with. That would give him a way to avoid the disabilities of what would have been his first felony conviction.

So I sat down and researched whether there was case law on the question and found that there was some. Even better (and more rare than I’d like), the case law supported my thoughts rather than rejecting them.

The cases go all the way back to at least 1944, with the Fifth Circuit case of United States v. Cartwright, 146 F.2d 133 (5th Cir. 1944). The court there rejected an argument that multiple misdemeanor larcenies could be combined into one felony larceny.

While the evidence does, we think, sufficiently show that the value of all the articles enumerated in the indictment as taken was in excess of $50 [the then dividing line between felony and misdemeanor theft of government property], it conclusively establishes not that all of these articles were taken at one time, but that they were taken as the result of single or separate larcenies, and it is settled law that the value of things taken in separable larcenies cannot be aggregated to make up one felonious larceny. (Footnote omitted.)

Id. at 135.

Cartwright hasn’t faded with time, moreover. It was distinguished, but not rejected, by the Ninth Circuit in United States v. Paulino, 717 F.2d 1276 (9th Cir. 1983), where the court reasoned a requirement that a gas station attendant account for funds at the end of the day made all the attendant’s takings over one day a single crime. See id. And Cartwright was reaffirmed by the Fifth Circuit in United States v. Billingslea, 603 F.2d 515 (5th Cir. 1979). See id. at 518 (stating that “[t]he law of this circuit is that separate takings punishable individually as misdemeanors cannot be aggregated to make up one felonious taking” and citing Cartwright).

The court in Billingslea did “elaborate” on the test for whether a series of takings could be treated as a single offense and suggested that the answer to the question “must turn on the factual circumstances of each case.” It then offered the following guidance:

While factors such as the temporal and geographical proximity of the several takings may be germane, the focus of the inquiry should be at or near the starting point of the illegal activity. Of critical importance is the state of mind or intent of the actor prior to and simultaneously with the first taking. (Footnote omitted.) Closely related, and of equal importance, is evidence of acts done by the accused, either in preparation for the several takings or as integral part of the first taking, which facilitate the subsequent takings or in some way aid the defendant in accomplishing them. Under this approach, therefore, the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, will result in the taking or diversion of sums of money on a recurring basis, will produce but one crime. Conversely, if all that can be attributed to the accused is an original intent to purloin and the evidence merely shows that this intent was acted on from time to time, the nature of the acts must be measured by the separate takings.

Billingslea, 603 F.2d at 520.

Note that this fact-specific approach may not be permissible in the Ninth Circuit. The general rule in the Ninth Circuit is that whether an offense is a “continuing offense,” at least for statute of limitations and sentencing purposes, “turns on the nature of the substantive offense, not on the specific characteristics of the conduct at issue.” United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991). The court held in Niven that this prevented mail fraud and wire fraud offenses, which are based on a specific use of the mail, from being treated as a “continuing offense,” and the same holding would presumably apply to theft.

There are various ways in which you can use this analysis. One is the use suggested at the beginning of this post – to prevent your client’s conviction of a felony (assuming multiple misdemeanor convictions are preferable). But there are other possible uses as well. Judge Morrow of the Central District of California, in the lengthy order/opinion attached here, used this analysis to limit a government prosecution to just those thefts within the five-year statute of limitations. Another way to use the analysis is to challenge a single-count charge as duplicitous and seek dismissal, or, in the alternative, a unanimity instruction requiring the jury to unanimously agree on a particular taking. (For an example of this argument, see the brief attached here.) Finally, there are no doubt other possible uses that I haven’t thought of and you may think of, so keep those brains working.