Osborne v. Montgomery

     Case: 17-30211      Document: 00514293144         Page: 1    Date Filed: 01/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 17-30211                                 FILED
                                  Summary Calendar                         January 3, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff—Appellee,

v.

TRACY MARLER,

                                                 Defendant—Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:16-CR-40-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Tracy Marler was convicted by a jury of one count of theft of public funds
in violation of 18 U.S.C. § 641. Marler collected the Veterans Administration
(VA) benefits of Wytonia Herndon after her death in 2008 until 2014, with the
total of payments exceeding $100,000. Marler argues that the evidence was
insufficient to show that he knew that the money did not belong to him. We




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-30211    Document: 00514293144     Page: 2   Date Filed: 01/03/2018


                                 No. 17-30211

review this issue de novo. United States v. Frye, 489 F.3d 201, 207 (5th Cir.
2007).
      To prove the offense of theft of public funds, the Government must show
that (1) the money or property at issue belonged to the Government and had a
value in excess of $1,000, (2) the defendant stole or knowingly converted the
money or property to his use or the use of another, and (3) the defendant did
so with knowledge that the money or property was not his and with the intent
to deprive the owner of its use or benefit either temporarily or permanently.
See § 641; United States v. Dowl, 619 F.3d 494, 501-502 (5th Cir. 2010) (per
curiam); United States v. Dien Duc Huynh, 246 F.3d 734, 745 (5th Cir. 2001).
Section 641 requires a demonstration that the defendant knew of non-
entitlement or wrongfulness. United States v. Jones, 664 F.3d 966, 976-77 (5th
Cir. 2011).
      The evidence presented at trial, viewed in the light most favorable to the
Government, would allow the reasonable inference that Marler was aware that
the source of the money was not an insurance policy, that the source of the
money was Herndon’s VA benefits, and that alerting the VA of Herndon’s death
was contrary to his interests. See United States v. Terrell, 700 F.3d 755, 760
(5th Cir. 2012) (per curiam). This is sufficient to support a finding that Marler
knew he was not entitled to the continuing payments from the VA following
Herndon’s death. See Jones, 664 F.3d at 977. A rational juror could have found
that the evidence supported Marler’s conviction for theft of public funds. See
United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
      AFFIRMED.




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