Argued: December 6, 2017
from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:13-cr-00125-3-Kevin H.
Sharp, District Judge.
C. Brandon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant.
P. Taddei, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
C. Brandon, Ronald C. Small, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Nashville, Tennessee, for Appellant.
Stephanie N. Toussaint, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Before: CLAY, GIBBONS, and BUSH, Circuit Judges.
Defendant Aaron Osborne ("Osborne") appeals from
the judgment of conviction and sentence entered by the
district court for aiding and abetting the theft of
government money in violation of 18 U.S.C. § 641 and 18
U.S.C. § 2. For the reasons set forth below, we
REVERSE Osborne's conviction and
VACATE his sentence.
case arises out of the Guard Recruiting Assistance Program
("G-RAP"), a civilian-run program designed to
increase recruiting to the Air National Guard
("ANG") during the "War on Terror." The
program was intended to incentivize airmen, officers, and
retirees to serve as Recruiting Assistants ("RAs").
The program was run by Document and Packaging Brokers, Inc.
("Docupak"), a private corporation. Docupak was
responsible for selecting RAs from the pool of applicants and
training them. The RAs were to reach out into their
communities to find potential future airmen, and then direct
those potential airmen to full-time recruiters, who would
sign up the new recruits. The program provided a monetary
incentive to the RAs to sign up people to the ANG and
encourage them to complete the training process. The RAs
would receive a $1, 000 pre-loaded Visa gift card upon actual
enlistment of the potential airman and an additional $1, 000
upon the airman's completion of basic training. The
government argues that a central rule of the G-RAP program
was that the RAs were required to "identify individuals
that were not already working with a full time ANG
Recruiter" and that the RAs were prohibited from
splitting the G-RAP payment with full-time recruiters. (R. 1,
Indictment, PageID at # 1-2.) This rule gave rise to the
criminal charges against Osborne and his co-defendants.
was a full-time recruiter for the ANG. He was accused of
working with two RAs, Arvalon Michelle Harleston
("Harleston") and Max P. Andolsek
("Andolsek"), to share in the cash incentives
offered by the program. Essentially, Osborne was accused of
referring names of pre-existing recruits to Harleston and
Andolsek so that they could claim the recruiting incentive.
Harleston and Andolsek would then pay kickbacks to Osborne.
Osborne, Andolsek, and Harleston were charged in a
seven-count indictment. Relevant for this appeal is Count
Four, which alleged that Osborne aided and abetted Andolsek
in embezzling, stealing, purloining, or converting
"money or a thing of value greater than $1, 000 from the
United States Department of Defense" in violation of 18
U.S.C. § 641 and 18 U.S.C. § 2. (Id. at #
11.) Specifically, the indictment alleged that Andolsek,
aided and abetted by Osborne, represented that approximately
18 potential airmen had been recruited by Andolsek in
compliance with G-RAP rules, when they really had not been,
which "caused the United States Department of the
Defense to reimburse Docupak for approximately $9, 000 in
payments it made to him under the G-RAP." (Id.
at 11- 12.) Andolsek pleaded guilty prior to trial and
testified against Osborne at trial.
close of the government's case-in-chief and again at the
close of all the evidence, Osborne moved for a judgment of
acquittal. He argued that the theft of the funds was not a
prosecutable offense because the funds were stolen from a
private contractor, and not a governmental agency, and
because in doing so Defendants only violated Docupak's
internal policy, and not a federal rule or regulation. The
district court denied both motions. The jury convicted
Osborne on the one count of aiding and abetting Andolsek in
the theft of government funds (Count 4) and acquitted him on
the remaining six counts. The jury acquitted Harleston on all
October 5, 2015, Osborne filed a post-trial motion for
judgment of acquittal under Federal Rule of Criminal
Procedure 29(c). In his motion, he argued that the verdict
should be set aside because: "(1) the government failed
to produce evidence sufficient to allow a reasonable jury to
conclude that the allegedly stolen funds were 'government
property'; and (2) the jury's verdicts finding that
Mr. Osborne did not conspire with Mr. Andolsek to
steal from the government or to make false claims to the
government are entirely inconsistent with their verdict
finding that Mr. Osborne did aid and abet Mr.
Andolsek in a 'theft' of government property."
(R. 136, Mot. for J. of Acquittal, PageID # 922.)
April 5, 2016, the district court denied Osborne's
motion. With regard to the first claim, the district court
found that "a reasonable jury could have found that the
finder fees paid in this case were a 'thing of value'
to the United States." United States v.
Osborne, 180 F.Supp.3d 507, 513 (M.D. Tenn. 2016). The
district court reasoned that "the Department of Defense
created the G-RAP program and Docupak executed it, "
"Docupak received federal funds to run the G-RAP
program, " "the Government placed restrictions on
how G-RAP funds could be used, " and "Docupak was
required to submit monthly, quarterly and annual reports to
the Department of Defense, and agreed to comply with other
mandatory reporting requirements as mandated by the Secretary
of the Army and his designee." Id. at 513-14.
With regard to the second claim, the district court found
that the verdicts were not mutually exclusive.
district court sentenced Osborne to time served, two years
supervised release, a $10, 000 fine, and $9, 000 in
restitution. Judgment was entered against Osborne on December
timely filed a notice of appeal that same day. On appeal, he
argues that there is insufficient evidence to sustain his
conviction for theft of government property because the
government failed to prove that the money involved was
"government property" or that it was
MONEY OF THE UNITED STATES
Court reviews a district court's denial of a motion for
judgment of acquittal de novo. United States v.
Graham, 622 F.3d 445, 448 (6th Cir. 2010). When
considering a challenge to the sufficiency of the evidence,
"the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original). "All reasonable
inferences and resolutions of credibility are made in the
jury's favor." United States v. Tragas, 727
F.3d 610, 617 (6th Cir. 2013) (quoting United States v.
Washington, 702 F.3d 886, 891 (6th Cir. 2012)). "We
may not 'weigh the evidence presented, consider the
credibility of witnesses, or substitute our judgment for that
of the jury.'" Graham, 622 F.3d at 448
(quoting United States v. M/G Transp. Servs., Inc.,
173 F.3d 584, 588-89 (6th Cir. 1999)).
have treated the ultimate question of whether something is
government property as a legal question for a court to review
de novo. See United States v. Foulks, 905
F.2d 928, 929-30 (6th Cir. 1990); United States v.
McKay, 274 F.3d 755, 759 (2d Cir. 2001); United
States v. Littriello, 866 F.2d 713, 716 (4th Cir. 1989);
United States v. Long, 996 F.2d 731, 732 (5th Cir.
1993) ("When the question of ownership of property
depends upon the construction or existence of a statute, it
is a matter of law for the court's determination, and
therefore subject to de novo review.")
(reversed on other grounds). Again, while ...