Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1984)

MEMORANDUM^* 

Campbell appeals his conviction for embezzlement of government property in violation of 18 U.S.C. § 641 (1982). Campbell was employed as a revenue representative by the Internal Revenue Service in its Carson, California office. One of Campbell's duties was to accept payments from taxpayers for their outstanding tax liabilities. When these payments were made in cash, Campbell was required to go to a bank, convert the cash into money orders or cashier's checks, and submit those along with his daily report to the group secretary. In the period between December 6, 1983 and January 6, 1984, Campbell accepted four cash payments from four separate taxpayers. In each instance, Campbell filled out the proper form and gave the taxpayer a receipt, but never submitted any cashier's checks or money orders to the group secretary.

A jury found Campbell guilty on all counts. On appeal, Campbell first attacks the sufficiency of the evidence supporting his conviction, contending that the Government failed to establish three elements of 18 U.S.C. § 641: (1) that the money belonged to the United States; (2) that Campbell converted the money to his own use; and (3) that he did so "knowingly and willfully."¹  Second, Campbell asserts that the district judge erred by instructing the jury that the cash in question was the property of the United States. He contends that the ownership of the money was a question of fact for the jury. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982). We affirm.

Campbell maintains that the cash he received could not be considered property of the Government during the time it was in his possession as a revenue representative; he argues that cash payments of this sort do not become government property until they are converted to cashier's checks or money orders.

This argument lacks any merit. The money became government property when it was transferred from the taxpayer to Campbell. As its employee, Campbell acted as the Government's agent. We have previously held, in a case involving circumstances similar to these, that the Government's property interest in cash received is not suspended merely because the money passes through a clerk before being deposited into a government account. Loewe v. United States, 135 F.2d 622 (9th Cir. 1943). That case is dispositive of the issue.

Campbell next contends that the Government failed to prove beyond a reasonable doubt that Campbell converted the money to his own use. He maintains that the money orders, which he claims to have sent to the Fresno Service Center, could have been deposited in a general "unidentified remittance account," which was apparently not searched by the Government during its investigation.

The Government correctly maintains that it is not required to eliminate every hypothesis other than guilt. United States v. Whitten, 706 F.2d 1000, 1006 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). Rather, there is sufficient evidence to support a conviction if, when viewing the evidence in the light most favorable to the Government, 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, 318-19 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984).

Applying this standard, there is sufficient evidence from which a jury could conclude that Campbell converted the money to his own use. The plausibility of the funds ending up in the unidentified remittance account fades in light of Campbell's earlier explanation of what happened. Campbell told his supervisor that he mailed the checks as well as Part 1 of Form 809 to the Fresno Service Center. Evidence at trial indicated that normal processing of the checks and Part 1 of Form 809 would have resulted in automatic crediting of the taxpayers' accounts. This did not occur until mid-1985, after the IRS had investigated the matter and found that the taxpayers had, in fact, made their payments to Campbell.

Moreover, evidence at trial indicated that, after Campbell was first questioned by his supervisor about the cash payments, he purchased a money order in the amount of one of the cash payments, back-dated it and made it payable to the taxpayer's account. He sent this money order to the Fresno Service Center, writing the taxpayer's return address on the envelope. This payment was not placed in the unidentified remittance account. Campbell offers no explanation why the remaining payments, if actually sent to the center, would have been deposited in the unidentified remittance account when this one was not. The possibility of those payments being deposited in that account is a matter the jury could have considered, and we cannot say that their finding is not supported by substantial evidence.

The jury had before it ample evidence supporting a finding of intent. First, Campbell did not appear at work for 10 days after being questioned by his supervisor, and even then he appeared solely to announce that he was quitting; moreover, he never provided receipts for the money orders he claimed to have obtained.

Second, a set of daily reports were found on the desk of Campbell's supervisor after Campbell left, documenting receipt of all four cash payments; however, no cashier's checks or money orders were attached. Campbell had previously submitted daily reports for the days on which he received three cash payments, yet those did not reflect any receipt of cash. The jury could rationally conclude from this that Campbell initially tried to conceal his receipt of cash payments by failing to make note of them on the daily reports, and that after his supervisor learned of the payments, Campbell fabricated the second set of reports in an effort to mask his earlier concealment.

And finally, evidence at trial indicated that Campbell procured a money order after being questioned and sent it to the Fresno Service Center. The fact that he back-dated the money order and wrote the taxpayer's return address on the envelope could lead a rational jury to infer that Campbell was attempting to conceal an earlier embezzlement.

In light of the substantial evidence supporting all three elements of the crime, we affirm the jury's verdict.

Campbell argues that the district judge erred in instructing the jury that " [t]he money identified in counts one through four of the indictment belonged to the United States at all times relevant to this indictment." He claims that the jury should have made this determination, even though he concedes that it is a question of law.

Campbell's argument is entirely without merit. In United States v. Miller, 520 F.2d 1208, 1211 (9th Cir. 1975), this circuit stated, " [w]hether an item is government property [under 18 U.S.C. § 641] ordinarily is a question of law, and when the facts so establish, it is proper for the court to give such an instruction." In this case, the underlying facts pertaining to the ownership of the funds were not in dispute. Moreover, the trial court's determination that the funds belonged to the Government was correct. The court did not err in so instructing the jury.

AFFIRMED.