On Appeal from the District Court of the Virgin Islands. D.C. No. 92-00107.
Before: Greenberg, Scirica and Garth Circuit Judges.
Under 18 U.S.C.A. § 287 (West Supp. 1992), federal law proscribes the filing of false claims with the federal government or any agency thereof. The instant appeal requires us to determine whether the September 10, 1987 submission by the appellants, Albert George and Hecliffe Benjamin (the "defendants"), to the Government of the Virgin Islands ("GVI") violated § 287 and, if so, whether the five year statute of limitations bars prosecution. We conclude that the September 10, 1987 submission was a claim within the meaning of § 287 and that its prosecution is not barred by the statute of limitations.
The defendants were doing business as George and Benjamin General Contractors when they entered into a contract with the GVI to build a juvenile Justice center for a total contract price of $1,215,000.00. Funding for the project was supplied by a federal grant administered by the United States Department of the Interior.
On July 14, 1987, the defendants filed with the GVI a form entitled "Schedule of Amounts for Contract Payments," on which they stated that the total cost for bonds and insurance in connection with the contract would be $175,000.00 (A19-20). On August 12, 1987, the defendants filed another form with the GVI entitled "Periodical Estimate for Partial Payment." This form stated that it covered the period from July 29, 1987 through August 10, 1987 and sought reimbursement in the amount of $145,000.00 for expenditures for bonds and insurance in connection with the construction contract. Under the heading "Value of Uncompleted Work," the form listed $30,000.00 for bonds and insurance (A21-22).
On September 10, 1987, the defendants filed a second "Periodical Estimate for Partial Payment" for the period August 11, 1987 through September 10, 1987. This estimate, submitted on the same pre-printed standardized form on which the first "Periodical Estimate" was submitted, indicated that the remaining $30,000.00 for insurance and bonds had been paid and reiterated that the total amount incurred for those items was $175,000.00 (A24-25).
On September 9, 1992, after an investigation revealed that the defendants had not paid $175,000.00 for bonds and insurance but had only expended $42,525.00, a Virgin Islands grand jury returned a two count indictment against the defendants. Count I, the subject of this appeal, charged:
That on or about the 10th day of September, 1987, [the defendants] willfully made and presented and caused to be made and presented to the United States Department of the Interior, a Department of the United States, and the Government of the United States Virgin Islands, a claim upon and against the United States, that is, a Periodical Estimate for Partial Payment, requesting reimbursement in the amount of $175,000.00 for "Bonds and Insurance," knowing that such claim was false, fictitious, and fraudulent, in that [the defendants] had, in truth and fact, paid only $42,525.00 for payment and performance bonds; in violation of Title 18, United States Code, Sections 287 and 2.
Count II charged that from July 14, 1987 until September 10, 1987, the defendants had conspired to make false claims against the United States in violation of 18 U.S.C.A. § 286 (West 1969).*fn1
Before the district court, the defendants moved to dismiss both counts of the indictment on the grounds that the applicable five year statute of limitations (18 U.S.C.A. § 3282 (West 1985)) had run. The defendants claimed that submission of the July 14, 1987 and August 12, 1987 documents had comprised the $175,000.00 claim upon which both counts of the indictment were based and that therefore the relevant statute of ...