As the embezzlement statute requires conversion with intent, summary judgment for the deft based on the statute of limitations was error -- the intent to deprive can arise after the inappropriate withholding. Discovery under the FRCrimPro does not require the government to make a proffer of when such intent arises.
Claims about the theory of the made during liminal proceedings do not estop the government's right to make other assertions at trial. Theory of indictment claiming that the statewide state supreme court was a single agency is sufficiently supported by state court rulings and the state constitution. Where the appointment as referee has no firm ending date, whether the deft was acting in that capacity presents a question for trial.
http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/doc/15-2869_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/3ff0cc90-c7b5-4314-86a0-7ea64e6c2c6a/3/hilite/
