* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 26, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41383

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUY E. SPARKMAN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:03-CR-21-ALL

--------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Guy E. Sparkman appeals his conviction following jury trial 

for theft of Government funds in violation of 18 U.S.C. § 641(a). 

Sparkman first contends that § 641 is unconstitutional because it

is overbroad, vague, and imprisons a person for his debts. 

Sparkman does not specify in what manner § 641 is overbroad or

vague, and his claim thus fails. See Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993). His argument that the statute is

unconstitutionally overbroad (or is unconstitutional as applied)
No. 03-41383

-2-

because it imprisons a person for his debts is facially without

merit. See 18 U.S.C. § 641. The thrust of Sparkman’s argument

is that he should have been prosecuted under a different, less

punitive statute, but the decision as to which statute an

offender will be charged under is “wholly within the discretion

of the prosecution.” See United States v. McCann, 465 F.2d 147,

162 (5th Cir. 1972).

Sparkman next contends that the indictment was defective

because it employed “generic terms” and failed to allege each of

the essential elements of the offense. Because he does not

specify which essential elements of the charge were omitted, he

has abandoned the claim. See Yohey, 985 F.2d at 224-25. 

Sparkman also argues that the indictment impermissibly charged

numerous offenses, which “compromised” the required specificity

of the charge. This claim is frivolous because the indictment

charged Sparkman with committing the same offense on 18 different

occasions, each comprising a separate offense. The indictment

adequately notified Sparkman of the charges against him and is

thus sufficient. FED. R. CRIM. P. 7(c)(1); see United States v.

Nevers, 7 F.3d 59, 62 (5th Cir. 1993).

Sparkman argues that the jury instructions were erroneous

and violated his due process rights. Because none of these

allegations were raised in the district court, our review is

limited to plain error. United States v. Vasquez, 216 F.3d 456,

459 (5th Cir. 2000). Sparkman first contends that the jury
No. 03-41383

-3-

charge did not require the jury to unanimously find each element

of the offense beyond a reasonable doubt. He is incorrect. The

district court’s charge did require unanimity.

Sparkman next contends that the jury charge was flawed

because it did not include his requested instruction regarding

his intent to repay. Because the requested instruction was a

misstatement of the relevant law, the district court did not err

in refusing to give it. See United States v. Maseratti, 1 F.3d

330, 336 (5th Cir. 1993); 18 U.S.C. § 641(a); Fifth Circuit

Pattern Jury Instructions § 2.33 (West 2001). Sparkman

additionally contends that the district court incorrectly

instructed the jury regarding the definition of “theft” because

it included the term “conversion,” which he urges was not

included in the indictment. However, the indictment stated that

Sparkman did “convert to his own use” money belonging to the

government. To the extent that Sparkman seeks to renew his

objection to the variation between the conjunctive charging

language in the indictment and the disjunctive language in the

jury charge, the claim fails. See Schad v. Arizona, 501 U.S.

624, 631 (1990).

Sparkman further contends that the evidence was insufficient

to sustain his conviction. Although Sparkman moved for a

judgment of acquittal at the close of the Government’s case, he

did not renew his motion at the close of all of the evidence. As

a result, our review “is limited to determining whether there was
No. 03-41383

-4-

a manifest miscarriage of justice.” United States v. Inocencio, 

40 F.3d 716, 724 (5th Cir. 1994). Sparkman has not made the

required showing. His claim that there was insufficient evidence

that the money he took was government property is factually

frivolous, and his argument that the evidence failed to show that

he intended to deprive the Government of the funds permanently is

unpersuasive. 

The argument is flawed because the Government was not

required to prove a permanent deprivation; a temporary taking

also violates the statute. See 18 U.S.C. § 641; Fifth Circuit

Pattern Jury Instructions § 2.33 (West 2001). Moreover, the

evidence was sufficient to show that Sparkman intended to convert

the funds to his own use, temporarily and/or permanently. 

Testimony indicated that Sparkman attempted to employ the term

“loan” on the checks he drew on his mother’s account only to

avoid detection. Trial testimony also showed that Sparkman had

more than adequate funds to reimburse the Government after he

received his mother’s life insurance proceeds but chose not to do

so despite his characterization of his takings as a loan. 

Sparkman additionally argues that the Government engaged in

prosecutorial misconduct when it presented false and misleading

testimony. However, Sparkman’s contention that Terry Lindsey

perjured himself is conclusional and devoid of any support in the

record. His contention that Agent Peter Moore deliberately misled

the jury is also incorrect.
No. 03-41383

-5-

Similarly, Sparkman’s allegation that the district court had

an “obvious personal prejudice” against him, which deprived him

of a fair trial, is unpersuasive because he fails to provide any

specific evidence to support his claim.

Sparkman has not demonstrated any error in the district

court’s judgment. Accordingly, the judgment is AFFIRMED.