United States v. Dyrrle Osborne ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4351
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DYRRLE GENE OSBORNE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00204-RJC-1)
Submitted: January 5, 2012 Decided: January 24, 2012
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Angela G. Parrott, Acting Executive Director, Elizabeth A.
Blackwood, Research and Writing Attorney, Ann L. Hester,
Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Kurt W. Meyers, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dyrrle Gene Osborne appeals his conviction under 18
U.S.C. § 641 (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm.
Between 2003 and 2005, Osborne was an active member of
the United States Army. After Osborne separated from active
duty, however, he continued to receive salary payments in error
by direct deposit and spent the funds so deposited. A jury
found Osborne guilty of conversion, in violation of 18 U.S.C.
§ 641, and making false statements regarding a matter within the
jurisdiction of a Government agency, in violation of 18 U.S.C.
§ 1001 (2006). On appeal, Osborne argues that the Government
failed to prove an essential element of its conversion charge,
specifically its ownership of the funds that had been
erroneously deposited. He contends that the district court
therefore erred in denying his motion for acquittal under Fed.
R. Civ. P. 29 and preventing him from making certain arguments
to the jury.
We conclude that Osborne’s arguments are without
merit. As a matter of law, the Government retained an ownership
interest for purposes of § 641 in the erroneously-issued funds.
See United States v. Smith, 373 F.3d 561, 576 (4th Cir. 2004)
(the fact “that he had lawful possession of the funds . . . did
not give him the right to appropriate them for his own
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purposes”) (emphasis added); United States v. Gill, 193 F.3d 802
(4th Cir. 1999) (affirming § 641 conviction where social
security checks were deposited and subsequently misappropriated
by the intended beneficiary’s mother). The district court
therefore did not err in denying Osborne’s Rule 29 motion * or
precluding statements of law to the contrary in his closing
argument.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
*
Osborne does not challenge on appeal, nor did he challenge
at trial, the sufficiency of the Government’s evidence on any
other element of the conversion charge.
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