U.S. v. Hurt, 06-3183.

Citation527 F.3d 1347
Decision Date13 June 2008
Docket NumberNo. 06-3183.,06-3183.
PartiesUNITED STATES of America, Appellee v. Gregory HURT, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 05cr00418-01).

Hesham M. Sharawy, appointed by the court, argued the cause for appellant. With him on the briefs was Douglas J. Behr, appointed by the court.

Amanda J. Williams, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III, Elizabeth Trosman, and Michael Atkinson, Assistant U.S. Attorneys.

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

A jury found Gregory Hurt guilty of theft of government property under 18 U.S.C. § 641. On appeal, Hurt challenges the jury instructions and his trial counsel's performance in shaping them. Seeing no reversible error, we affirm the judgment of conviction.

I.

Hurt developed Post-Traumatic Stress Disorder after serving in the Vietnam War. On December 19, 2002, the Department of Veterans Affairs ("VA") determined that Hurt was entitled to a benefits award of $243,500.10, dating back to the first manifestation of his disability in 1983. Because Hurt had already received $9,140.00 in benefits, the VA owed him $234,360.10. Hurt took his lump-sum award in a series of checks. The first check, dated January 3, 2003, was for $99,999.10; the second check, dated February 6, 2003, was for $99,999.00; the third check, dated February 12, 2003, was for $34,362.00. Upon receipt, Hurt negotiated each of the checks and deposited the funds in his account at Andrews Federal Credit Union ("AFCU").

Between April and July of 2003, Hurt went to the VA on several occasions to lodge a pair of grievances about the amount of benefits he had received: one having to do with benefits for his wife, the other with a supposedly missing check. During these visits, he met with a benefits counselor named Diana Hannah. Hurt complained that the VA's calculation of his benefits award had not included his wife as a dependent. Hannah explained that Hurt had provided insufficient marriage documentation, an error Hurt was invited to fix by submitting additional information. Hurt also complained he had not received the $99,999.10 check. When Hannah informed Hurt that he would have to fill out certain forms before the VA could send a replacement check, he demanded to speak with supervisor James Wear. Using the VA's computerized records, Wear was able to determine that all three checks had been sent to Hurt, but he could not tell whether Hurt had received and negotiated them. Hurt insisted that he had not gotten the $99,999.10 check and Wear, sympathetic to what he thought was a veteran in need, relented. Forgoing the usual paperwork, Wear directed a VA finance clerk named Bruce Britton to send a replacement check to Hurt for $99,999.10, which he did on July 28, 2003. On July 31, 2003, Hurt negotiated this fourth check and deposited the full amount into his AFCU account.

The fourth check was more than Hurt was owed because he had not actually missed any checks. The VA soon realized its slip-up. After running a tracer on the four checks, Britton learned that Hurt had negotiated the supposedly missing first check just a few days after its issuance. On August 5, 2003, Britton sent Hurt a letter demanding the return of the VA's mistakenly issued $99,999.10 replacement check. Hurt did not return any money. Instead, on August 14, 2003, Hurt moved $160,000 from his AFCU account to a new account at SunTrust Bank. On August 21, 2003, Britton sent Hurt another letter explaining that he must either return the funds or have his future VA benefits garnished. Hurt still did not return the $99,999.10 the VA had overpaid.

A grand jury returned an indictment against Hurt on the charge of theft of government property, 18 U.S.C. § 641, as well as related theft charges under local law that were later dismissed. Hurt was tried before a jury in the United States District Court for the District of Columbia. The government put on several witnesses and argued that Hurt had committed theft either through stealing the fourth check by falsely claiming he had not received the first check, or else through knowingly converting the fourth check by acting to deprive the government of the mistakenly disbursed funds. The defense, which did not call Hurt or any other witness to the stand, argued that Hurt had a good faith belief that the fourth check amounted to spousal benefits and therefore belonged to him.

Counsel clashed over the instructions the jury would receive. The district court ultimately instructed the jury it could only convict Hurt of theft of government property if the government had proved beyond a reasonable doubt that the money had a value of more than $1,000; that the money belonged to the United States; and that Hurt took the money knowing it was not his and with the intent to deprive the owner of the use or benefit of the money. The district court further explained that the government could prove theft of government property by stealing or by knowing conversion.

The unanimous jury found Hurt guilty of theft of government property. Hurt moved for a new trial, arguing that the jury instructions were flawed. The district court denied the motion and sentenced Hurt to imprisonment for time served plus twelve days; supervised release for a period of three years; a special assessment of $100.00; and restitution in the amount of $99,999.10. Hurt appeals. We have jurisdiction under 28 U.S.C. § 1291.

II.

Hurt's first argument concerns the district court's refusal to deliver a requested theory-of-defense instruction. Theft of government property under 18 U.S.C. § 641 is a specific intent crime. See Morissette v. United States, 342 U.S. 246, 270-76, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Rhone, 864 F.2d 832, 836 (D.C.Cir.1989); United States v. Baker, 693 F.2d 183, 186 (D.C.Cir.1982). As such, a thief under § 641 is one who takes property knowing it belongs to another with an intent permanently to deprive the owner of possession. A person who harbors a good faith but mistaken belief that property belongs to him lacks the necessary mens rea for theft. See 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 19.5(a) (2d ed.2003); cf. Richardson v. United States, 403 F.2d 574, 575-76 (D.C.Cir.1968) (holding that a defendant cannot be convicted of robbery, a specific intent crime, if he believed himself entitled to the money taken). Hurt asked the district court to deliver a theory-of-defense jury instruction explaining that he could not be convicted if he had a good faith but mistaken belief that the fourth check belonged to him. The district court refused this request, explaining that there was no evidence to support such an instruction because Hurt had not testified as to his state of mind. We review de novo this failure to provide a requested jury instruction. United States v. Perkins, 161 F.3d 66, 69 (D.C.Cir.1998).

The district court asked too much of Hurt in rejecting his request. A theory-of-defense instruction is in order if there is "`sufficient evidence from which a reasonable jury could find'" for the defendant on his theory. United States v. Glover, 153 F.3d 749, 754 (D.C.Cir.1998) (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). There was sufficient evidence presented at trial from which a reasonable jury could have found that Hurt had a good faith belief that the fourth check was his. Hannah, the VA benefits clerk, testified that Hurt had attempted to secure benefits for his wife and subsequently received a check. Hannah's testimony is not direct evidence of Hurt's state of mind, but courts often infer state of mind on the basis of circumstantial evidence. Indeed, it was on the basis of such inference that Hurt was convicted of theft, a specific intent crime, without taking the stand. See United States v. Schaffer, 183 F.3d 833, 843 (D.C.Cir.1999) ("[A]s with most cases in which the defendant's state of mind is at issue, it may be near impossible to establish the requisite mens rea through direct evidence. In the absence of any specific statement or other contemporaneous documentation of the defendant's subjective motivation, the trier of fact can do no more than ascribe an intent on the basis of the circumstances surrounding the defendant's actions."). The inference from the Hannah testimony is straightforward. Hurt complained to Hannah that he deserved compensation for his wife, submitted the VA's required documentation, and shortly thereafter received a check from the government that bore no mention of its purpose. One could reasonably infer that Hurt had a good faith belief that the fourth check belonged to him as a benefits award to cover his wife. Sufficient evidence supported the rejected instruction.

Hurt's victory is fleeting, however, because the district court's mistaken refusal of the requested instruction does not require reversal. "As a general rule, the refusal to give an instruction requested by a defendant is reversible error only if the instruction ... was not substantially covered in the charge actually delivered to the jury...." United States v. Taylor, 997 F.2d 1551, 1558 (D.C.Cir.1993) (citation and quotation marks omitted). Taking the instructions as a whole, Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); United States v. Whoie, 925 F.2d 1481, 1485 (D.C.Cir.1991) (Thomas, J.), our task is to determine whether the trial court adequately conveyed the substance of the requested instruction to the jury.

We conclude that the district court did so. The court stressed to the jury that theft of government property is a specific intent crime, explaining that the government must...

To continue reading

Request your trial
68 cases
  • Hernandez v. Martel
    • United States
    • U.S. District Court — Central District of California
    • 16 Agosto 2011
    ...v. Burroughs, 613 F.3d 233, 246–47 (D.C.Cir.2010) (“The Sixth Amendment ... does not pledge perfection.”) (quoting United States v. Hurt, 527 F.3d 1347, 1357 (D.C.Cir.2008).) Petitioner suggests, without demonstrating, that counsel could have used an additional expert or put Dr. Rayyes on a......
  • U.S.A v. Wilson, No. 06-3128
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 25 Mayo 2010
    ...of the enterprise. We review de novo the failure of the district court to provide a requested jury instruction. United States v. Hurt, 527 F.3d 1347, 1351 (D.C.Cir.2008). The pertinent question is “whether, taken as a whole, [the instructions] accurately state the governing law and provide ......
  • USA v. Burroughs, No. 08-3085.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 16 Julio 2010
    ...condition, counsel was not deficient in failing to object. “The Sixth Amendment ... does not pledge perfection,” United States v. Hurt, 527 F.3d 1347, 1357 (D.C.Cir.2008), and any defect in the condition is not so obvious that counsel's silence signals incompetence, see id.IV. We vacate the......
  • United States v. Brown
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 15 Junio 2018
    ...in circumstances like those in this case, the district court's failure to do so cannot constitute plain error. See United States v. Hurt , 527 F.3d 1347, 1356 (D.C. Cir. 2008). Indeed, in Hurt , this court held that "the trial court's failure to give a special unanimity instruction sua spon......
  • Request a trial to view additional results
1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 Agosto 2022
    ...2017) (unanimity not required to determine kind of sexual act defendant solicited in unlawful sexual activity conviction); U.S. v. Hurt, 527 F.3d 1347, 1353 (D.C. Cir. 2008) (unanimity not required to determine means by which defendant stole in theft of government property conviction). Fail......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT