FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 December 18, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13894

Non-Argument Calendar

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D. C. Docket No. 07-00373-CR-5-UWC-RRA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANKIE M. YARBROUGH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Alabama

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(December 18, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Frankie Yarbrough appeals his jury conviction for willfully and knowingly
stealing, purloining, and converting to use without authority, money of the United

States Department of Veteran Affairs (“VA”), in violation 18 U.S.C. § 641. On

appeal, Yarbrough argues that the government failed to prove the requisite intent.

After review, we affirm.

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To be convicted under § 641, the government must prove beyond a

reasonable doubt that: (1) the money described in the indictment belonged to the

United States or an agency thereof; (2) the defendant stole or converted the money

to his own use; and (3) the defendant did so knowingly with intent to deprive the

government of the money. United States v. McRee, 7 F.3d 976, 980 (11th

Cir.1993). With respect to the intent element, the defendant must know that his

taking of property is an unlawful conversion. Morrisette v. United States, 342 U.S.

246, 270-71, 72 S. Ct. 240, 254 (1952). “[K]nowing conversion requires more

than knowledge that defendant was taking the property into his possession. He

must have had knowledge of the facts, though not necessarily the law, that made

the taking a conversion.” Id.

At trial, the government presented evidence that in October 2002, after

Yarbrough suffered a heart attack, he applied for disability benefits with the VA

We review de novo whether the record contains sufficient evidence to support a guilty 1

verdict, viewing the evidence in the light most favorable to the government and resolving “all

reasonable inferences and credibility evaluations in favor of the jury’s verdict.” United States v.

Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007). 

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and claimed he was unable to work. However, Yarbrough was only on unpaid

leave from his job and returned to full-time work in December 2002. Nonetheless,

Yarbrough received VA disability benefits from March 2003 until September

2006.

Yarbrough argues that the government presented no evidence that he knew

he was not entitled to the VA benefits. We disagree. The government presented:

(1) Yarbrough’s application for benefits, in which he stated that he was not

working and could not work because of his heart condition; (2) his award letter,

which he received after he had returned to work, informing him that he was being

awarded benefits due to his inability to work and that he must inform the VA if his

income or earnings changed; (3) two eligibility verification forms sent to

Yarbrough stating that he must inform the VA if his income changed; and (4)

evidence that Yarbrough did not inform the VA of changes in his income. From

this evidence the jury could conclude that Yarbrough knew his benefits were

conditioned on his unemployed status and that he knowingly converted the VA

benefits when he failed to report to the VA increases in his employment income.

Yarbrough points to evidence that he told a state investigator he did not

know he was wrong in receiving benefits and that he reported his income to the

IRS. However, the jury was free to reject Yarbrough’s statement to the

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investigator as self-serving and inconsistent with other statements he made to the

investigator. Furthermore, while this evidence might be probative of Yarbrough’s

defense, it does not render the jury’s verdict unreasonable given the other evidence

of intent. See United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997)

(explaining that a jury verdict must stand “unless no trier of fact could have found

guilty beyond a reasonable doubt” (quotation marks omitted)).

The documentary evidence of notice distinguishes this case from United

States v. Moore, 504 F.3d 1345 (11th Cir. 2007), upon which Yarbrough relies. In

Moore, the government failed to present evidence that the VA notified the

defendants that they were not entitled to continue receiving their father’s VA

benefits after their parents died. 504 F.3d at 1349. Here, the application for

benefits, the award letter and the eligibility verification forms put Yarbrough on

notice that he was only eligible for the VA benefits as long as he was unable to

work and that he needed to inform the VA if his income changed. Thus, there was

ample evidence for the jury to conclude that Yarbrough knew he was not entitled to

the VA benefits he received.

AFFIRMED.

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