U.S. v. Ransom

• Decision Date: 24 June 2011
• Docket Number: No. 10–3162.,10–3162.
• Citation: U.S. v. Ransom, 642 F.3d 1285 (10th Cir. 2011)
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Herman S. RANSOM, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

642 F.3d 1285

UNITED STATES of America, Plaintiff–Appellee,

v.Herman S. RANSOM, Defendant–Appellant.

No. 10–3162.

United States Court of Appeals, Tenth Circuit.

June 24, 2011.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, CO, appearing for Appellant.Tristram W. Hunt, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Kansas City, KS, appearing for Appellee.Before HARTZ, O'BRIEN, and MATHESON, Circuit Judges.MATHESON, Circuit Judge.

I.INTRODUCTION

This appeal follows the jury conviction of defendantHerman Ransom and the district court's denial of Mr. Ransom's motion for judgment of acquittal and/or new trial or arrest of judgment.The government accused Mr. Ransom of falsifying his timesheets and thus wrongly obtaining money from his government employer.Mr. Ransom was convicted of ten counts of wire fraud in violation of 18 U.S.C. § 1343 and ten counts of theft of public money in violation of 18 U.S.C. § 641.On appeal he challenges the sufficiency of the evidence for his conviction, an allegedly improper and prejudicial jury instruction, and the wire fraud statute as void for vagueness as applied to him.Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

II.BACKGROUND

A.Facts

Mr. Ransom worked for the United States Department of Housing and Urban Development(“HUD”) in Kansas City, Kansas.He oversaw its Office of Multifamily Housing programs in Kansas, Missouri, Iowa, Nebraska and Oklahoma.He managed and supervised approximately 89 employees at various HUD offices.He was classified as a General Schedule (GS)–15 level, supervisory employee.Because of this status, Mr. Ransom was exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act(“FLSA-exempt”).

On July 19, 2001, the HUD Deputy Secretary issued a memorandum to all supervisors and managers at GS–14 level and above regarding the abolition of the Alternative Work Schedules for that group, effective September 9, 2001.The memorandum instructed managers and supervisors to select a fixed office arrival time between 7:00 a.m. and 9:30 a.m. (subject to supervisory approval) and to ensure supervisory presence at HUD offices during official business hours.Mr. Ransom's approved working hours were from 8:00 a.m. to 4:30 p.m.(hereafter “core working hours”).

Every two weeks, Mr. Ransom submitted time records that accounted for 80 hours during that time period—explaining which hours he had worked and which hours qualified for an approved form of leave.Mr. Ransom at times used leave for partial-day as well as full-day absences.When he took full-day leave, he listed 8:00 a.m. to 4:30 p.m. as his working hours.An assistant prepared the time records, Mr. Ransom signed them, his supervisor approved them, and the records were forwarded via wire communication to the National Finance Center in New Orleans, Louisiana.Mr. Ransom's signature certified as correct: “All regular time, leave, overtime, night differential, and holiday time was worked and approved to law and regulations.”4 Aplt.App. 616.A supervisor was required to approve any leave taken by Mr. Ransom.

Mr. Ransom at times disciplined subordinate employees for abuse of timekeeping procedures.According to testimony, Mr. Ransom also once had an angry confrontation with an assistant who encouraged him to take leave for time spent playing tennis.

HUD received an anonymous complaint about Mr. Ransom's alleged frequent absences from the office.According to a government witness, Mr. Ransom was shown the complaint and told that the matter would be investigated.The government also presented as evidence a document taken from Mr. Ransom's work computer.It was captioned “Alleged that I am never in the office, time and attendance,” and stated in relevant part:

Being the senior multifamily housing manager in this region, I am on the clock 24/7....I am in the field a lot visiting my offices, staff, and also visiting properties throughout the jurisdiction.I am constantly reading new HUD notices at home during evenings, on the weekends, often hours at a time.This does not include the hours I spend visiting properties locally in Kansas and Missouri....

I visit properties after midnight to get the real feel for what our tenants are dealing with, drugs and crime.I have visited properties with staff at their request at midnight because residents were complaining that this is the time the real problems occur.

I do this because I take pride in my work and want to ensure that folks are living in safe housing.I work many hours that I am not compensated for.I don't complain because I know this is part of my job.

4 Aplt.App. 798–800.

HUD and the Federal Bureau of Investigation investigated the complaint regarding Mr. Ransom's absences.They interviewed individuals, subpoenaed records, and placed Mr. Ransom under surveillance.Agents discovered that Mr. Ransom was at times absent from the office during core working hours to play tennis or gamble at a casino.Sometimes Mr. Ransom would take an approved form of leave for those hours missed, and other times he would not—thus giving the impression in his time records that he had worked some of those hours.The investigation revealed that between 2001 and May 2007, Mr. Ransom had worked the entirety of 47% of the days.He worked, played tennis, and attended a casino on 11% of the days; worked and attended a casino on 19% of the days; and worked and played tennis on 23% of the days—all without taking leave.The evidence showed that he should have had a deficit of 598.25 hours of leave, but instead Mr. Ransom had a positive 230–hour leave balance due to his false reporting.

B.Procedural History

In May 2009, Mr. Ransom was charged in a twenty-count indictment.It alleged that Mr. Ransom had devised a scheme to defraud HUD by claiming to have worked certain hours when he was actually playing tennis and/or gambling at casinos.It charged him with ten counts of wire fraud in violation of 18 U.S.C. § 1343 and ten counts of theft of public money in violation of 18 U.S.C. § 641.The scheme allegedly existed between approximately September 10, 2001 and May 19, 2007.The wire fraud counts pertained to ten 80–hour pay periods between May 28, 2004 and April 16, 2007.The theft of public money counts pertained to ten 80–hour pay periods between September 11, 2004 and May 19, 2007.

Mr. Ransom moved to dismiss the indictment, asserting that his FLSA-exempt, salaried status precluded conviction.He argued that there is no direct relation between his time records and his paychecks—regardless of any working hours missed for gambling and tennis.The district court denied the motion to dismiss, and a jury found Mr. Ransom guilty on all counts.Mr. Ransom then moved for judgment of acquittal and/or new trial or arrest of judgment.This motion was also denied.He was sentenced to twelve months and one day of imprisonment followed by two years of supervised release.He was ordered to pay $46,925.57 in restitution to HUD.Mr. Ransom appealed to this court.

III.DISCUSSION

A.Issues and Standards of Review

Mr. Ransom presents three issues on appeal.First, he challenges the sufficiency of the evidence to convict him on the wire fraud and theft counts.In examining whether the evidence was sufficient to convict Mr. Ransom on these counts, we review de novo.SeeUnited States v. Delgado–Uribe,363 F.3d 1077, 1081(10th Cir.2004).“We must determine whether viewing the evidence in the light most favorable to the [verdict], any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.”Id.(quotations omitted).We do not weigh credibility or conflicting evidence, but “simply determine whether the evidence, if believed, would establish each element of the crime.”Id.(quotations omitted).“While the evidence supporting the conviction must be substantial and do more than raise a mere suspicion of guilt, it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt.”United States v. Erickson,561 F.3d 1150, 1158–59(10th Cir.2009)(quotations omitted), cert. denied,––– U.S. ––––, 130 S.Ct. 173, 175 L.Ed.2d 109(2009).

Second, Mr. Ransom challenges a jury instruction, which he argues was not a correct statement of law and constituted prejudicial error.Generally, “we review the district court's decision to give a particular jury instruction for abuse of discretion and consider the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law.”United States v. Platte,401 F.3d 1176, 1183(10th Cir.2005)(quotations omitted).

To determine whether the jury was adequately instructed on the applicable law, we review the instructions in their entirety de novo to determine whether the jury was misled in any way.The instructions as a whole need not be flawless, but we must be satisfied that, upon hearing the instructions, the jury understood the issues to be resolved and its duty to resolve them.

Medlock v. Ortho Biotech, Inc.,164 F.3d 545, 552(10th Cir.1999)(citations omitted), cert. denied,528 U.S. 813, 120 S.Ct. 48, 145 L.Ed.2d 42(1999).

Third, Mr. Ransom argues that the wire fraud statute is void for vagueness as applied in this case.Determinations as to the constitutionality of a statute are subject to de novo review.United States ex rel. Stone v. Rockwell Int'l Corp.,282 F.3d 787, 804(10th Cir.2002).The construction and applicability of federal statutes are issues of law.SeeUnited States v. Telluride,146 F.3d 1241, 1244(10th Cir.1998).

For the reasons discussed below, we reject each of these claims and affirm the district court judgment.

B.The Evidence Was Sufficient to Sustain the Convictions

In this appeal, Mr. Ransom does not dispute that at times he missed partial-day...