UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ELEDRIA J. BRADLEY, Defendant - Appellant. No. 14-3011 (D.C. No. 6:13 -CR-10058-MLB-1) (D. Kan.)

ORDER AND JUDGMENT *

Before HARTZ , O'BRIEN , and HOLMES , Circuit Judges.
Eledria J. Bradley, a member of the Ka nsas Air National Guard, was convicted by a jury of wire fraud: she falsely claime d her “Home of Record” changed from Wichita, Kansas, to her father’s address in Chandler, Arizona. The change, accepted as true by the Air Force, resulted in her receiving highe r housing benefits (Basic Allowance for

* This order and judgment is an unpub lished decision, not bi nding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### November 4, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - Housing) and benefits she wo uld not have otherwise receiv ed (lodging and per diem) for approximately two years. The questions pres ented here are whether the district judge erred in refusing to give a proposed entrap ment-by-estoppel instruction and whether the government presented sufficient evidence of her intent to defraud the United States. Because the proposed instru ction misstated the law and was not supported by the evidence, it was properly refused. The evidence was sufficient. We affirm. I. BACKGROUND Bradley lived in Arizona (presumably wi th her father) until she graduated from high school in 2002. She then moved to Wichita, Kansas, to reside with her grandparents. In 2004, she en listed in the Kansas Air Nationa l Guard. Four years later, in November 2008, she married Gary Bradley, an active duty serviceman with the United States Air Force stationed at McConnell Air Fo rce Base in Wichita. The two lived in an apartment in Wichita. In February 2009, Bradle y received orders (Title 32 or ders) from the Kansas Air National Guard to report to her Security Forces squadron 1 at McConnell Air Force Base in Wichita for annual training from April 6- 10, 2009. She also re ceived orders from the United States Air Force (Title 10 orders) 2 to report to active duty on April 11, 2009, for a

1 The Security Forces squa dron provides law enforcemen t services to the military base to which it is assigned. 2 “Since 1933 all persons who have enlis ted in a State National Guard unit have simultaneously enlisted in the National Gu ard of the United States,” “a reserve component of the national armed forces.” See Perpich v. Dep’t of Def. , 496 U.S. 334, 345, 347 n.19 (1990). When state guard memb ers are called to active duty by the United (Continued . . . )- 3 - one-year deployment to Saudi Ar abia. Her Title 10 orders required her to first report to Fort Bliss, Texas, for desert training before leaving for Saudi Arabia. At the time she received her Title 10 and 32 orders, Bradley’s military personnel file reflected her Home of Record as the apar tment she shared with her husband in Wichita. 3 On April 10, 2009, while serving her T itle 32 orders but aware of her Title 10 orders, Bradley accessed her military personnel file via a website called Virtual Military Personnel Flight (VMPF) 4 and changed her Home of Record to her father’s address in Chandler, Arizona. 5 In order to justify a guard memb er changing her Home of Record, she must physically move her belongings to the new address; intent to move to a new address in the future is not enough. Alth ough Bradley told investigators she had moved
States, they lose their status as members of the Stat e militia and serve the federal military. Id. at 346-47. “At all other times, [however, they] serve solely as members of the State militia under the command of a state governor.” Clark v. United States , 322 F.3d 1358, 1366 (Fed. Cir. 2003). In this case, Bradley was under federal Title 10 orders when she received the benefits to which she was not en titled; the United States was defrauded, not the State of Kansas. 3 Although this case involves a fraudulent chan ge of address, the trial transcript provided for this appeal unexp lainably redacts addresses thro ughout. We were able to discern from context the addresses to whic h the witnesses were testifying but the redactions made our re view more burdensome. 4 In order to access VMPF, an individual needs a military identification card, a password and a pin number. The server for VMPF is located at Randolph Air Force Base in San Antonio, Texas. Thus, when Brad ley changed her address on the system in Wichita, Kansas, it had to travel to Texas via the Internet, thus esta blishing the “use of interstate wire communications” element of the offense. See United States v. Porter , 745 F.3d 1035, 1051 (10th Cir. 2014). 5 The government’s brief says the change occurred on April 9, 2009. But the evidence at trial show ed that although Br adley changed her Home of Record on a computer program called My Pa y on April 9, 2009, the chan ge on VMPF occurred on April 10, 2009.- 4 - some of her belongings to a friend’s house in Phoenix, Arizona, in February 2009, she did not list her friend’s house as her Home of Record. Instead, she listed the address of her father, whose testimony was unequivocal: she had not moved a ny belongings to his residence and he did not recall her telling him she would be changing her Home of Record to his address. Bradley admitted to investigators she changed her Home of Record in order to obtain a higher Basic Allowance for Housing (BAH) while she was deployed. BAH is money guard members recei ve, in addition to their salary, to “help sustain their household[s] while they’re on act ive duty orders.” (R. Vol. 3 at 122.) The amount of BAH is based on the member’s Ho me of Record. During the relevant time period (April 2009 to April 2011), the BAH fo r Chandler, Arizona, was greater than that for Wichita, Kansas. 6 By changing her Home of Reco rd from Wichita to her father’s address in Chandler, Bradley increased th e amount of BAH she would receive while under Title 10 orders. On April 11, 2009, Bradley re ported to Fort Bliss for desert training as ordered. Soon thereafter, she was injured during a training exercise. Due to her injury, she was not deployed to Saudi Arabia but instead was required to return to McConnell Air Force Base in Wichita. She was placed on a “medical hold,” which required her to stay in the

6 At trial the government presented eviden ce that in 2009 th rough 2011, the BAH for a guard member ranked E3 without depe ndents for Wichita, Kansas, was $648, $669 and $663, respectively. The BAH for Phoenix, Arizona, the area applicable to Chandler, Arizona, was $909 in 2009 and 2010; $873 in 20 11. As applied to Br adley, however, the numbers were somewhat distorted because her rank was E4, not E3—a mistake first recognized during trial.- 5 - Wichita area until a medical review board cleared her to leave. (R. Vol. 3 at 92, 228.) While on medical hold, Bradley continued to receive the increased BAH payments. She also began receiving lodging and per diem because her Home of Record—Chandler, Arizona—was outside the commuting distance for McConnell Air Force Base. Had her Home of Record remained Wichita, Kansas, sh e would not have been eligible for these additional benefits. Upon her return to McConnell Air Force Base, Bradley was assigned a desk job in the Comptroller Unit (finance). In June 2009, Shellie Armstrong, the head of the Comptroller Unit and Bradley’s supervisor, as ked Bradley why her pe rsonnel file showed Chandler, Arizona, as her Home of Record. Bradley told her she had earlier moved her belongings to Arizona. Armstr ong accepted Bradley’s explanation. 7 Bradley remained on a medical hold until April 23, 2011, when she was medically retired from the military. During the medical hold (April 2009 to April 2011), she continued to receive BAH payments based on her Home of Record being Chandler, Arizona. She also submitted monthly voucher s to the Comptroller Unit to be paid lodging and per diem. Those vouchers were reviewed, audited, a nd approved by multiple members of the Comptroller Un it. In the end, Bradley re ceived over $6,000 more in BAH payments for the Chandler address than she would have receiv ed had her Home of

7 Bradley may have only expressly told Armstrong that she moved belongings to Arizona, but the address given as her Home of Record in her personnel file was her father’s home in Chandler. Armstrong co uld reasonably assume the move was to the listed address, not elsewhere. For that reason we refer to the Arizona move as a move to her father’s house.- 6 - Record remained Wichita. She also rece ived over $54,000 in lodging and per diem— benefits she would not have received had she not falsely claimed her father’s Chandler, Arizona, address as her Home of Record. In June 2012, the Air For ce instigated an investigati on. In speaking with the investigators, Bradley initially denied she wa s the one who changed her Home of Record but eventually admitted to do ing so. She also gave conf licting information as to her proper Home of Record. She initially claime d her Home of Record should be Virginia because she had completed some military duty there and had le ft property there with an ex-boyfriend. 8 She continued with this story after being confronted with the fact she had since married a serviceman stationed at McCo nnell Air Force Base. She also claimed her Home of Record should be her father’s addr ess in Chandler, Arizona, because that is where she resided prior to jo ining the military and where sh e had intended to move after her deployment. She claimed to have told he r father she was going to list his address as her Home of Record. She al so told the investigators she had moved a trunk-load of property to a friend’s house in Phoenix, Arizon a, in February 2009. Finally, as stated previously, she admitted the re ason she changed her Home of Record to her father’s address was so she would receive a higher BAH while she was deployed. Bradley was indicted with one count of wire fraud. The indictment alleged her changed Home of Record fro m Wichita to Chandler resulted in her “receiv[ing] lodging

8 The trial testimony indicated Bradley had served at Langley Air Force Base in Virginia but the dates of her service were unclear. The PSR states she was stationed there from December 2 007 to July 2008.- 7 - and per diem benefits to which she was not entitled, fro m approximately April 11, 2009, until April 23, 2011, in the approximate amount of $ 54,992.80.” (R. Vol. 1 at 8 (emphasis added).) Notably, the indict ment did not mention the increased BAH payments she also received as a result of the change. The ju ry was instructed accordingly: in addition to other elements, 9 it was required to find beyond a reasonable doubt that she “devised or in tended to devise a scheme to obtain money by means of false or fraudulent presentences, or representations; that is, she falsely reported her address via . . . [V]MPF in order to obtain lodging expenses and per diem from the United States .” (R. Vol. 1 at 23 (emphasis added).) No mention was made of the BAH payments. At the close of the evidence, Bradley re quested a jury instru ction on entrapmentby-estoppel and submitted a proposed instruc tion. The proposed instruction required Bradley to show, inter alia , “that an agent or agents of the government affirmatively assent[ed] or by their acquies cence” misled her. (R. Vol. 1 at 14.) The district judge denied the request because the proposed in struction misstated the law and “there’s no evidence in the case that [Bradley ] actually went to anyone in authority and presented this scenario, . . . I want to change my addre ss to Arizona because I think even though I’m going to be deployed . . . I can get more BAH . . . and that the person said that’s okay,

9 The jury was also required to find Bradley “acted with specific intent to obtain money by means of false or fraudulent pretense s, or representations,” “used interstate wire communication facilities for the purpose of carrying out the scheme,” and “the scheme employed false or fraudulent pretenses, or representations that were material.” (R. Vol. 1 at 23.)- 8 - you can do that.” (R. Vol. 3 at 301-02.) The jury f ound Bradley guilty. She was sentenced to three years of probation. 10
II. DISCUSSION A. Entrapment-by-Estoppel Instruction Bradley claims government agents misled her into believing the change of her Home of Record was proper. After all, sh e says, her monthly vouchers for lodging and per diem were continuously reviewed an d approved by multiple employees of the Comptroller Unit. Moreover, Armstrong knew her Home of Record was Chandler, Arizona, yet did nothing to correct it. 11

10 This sentence was a downward variance from the guideline range of 12 to 18 months. We know the variance was based on the judge’s consideration of the factors set forth in 18 U.S.C. § 3353(a). We do not know, however, th e specific reasons for the variance because the sentencing transcript was not provided. 11 Bradley violated a military regulation by changing her Home of Record while under orders. At trial, Ar mstrong erroneously testified that the pertinent military regulation did not go into effect until 2011. On re-direct examin ation (after a noon recess) she corrected herself, saying the regulation was in effect when Bradley changed her Home of Record in April 2009. Brad ley attempts to capitalize on Armstrong’s temporary memory lapse, arguing “[that] the person overseeing the very office in charge of such matters believed the regulation didn’t go into effect until much later is evidence that shows the procedures follo wed by Ms. Bradley were not just allowed, but were the standard operating procedures . . . . As such, Ms. Bradley should have been allowed her theory of defense instruction of entrapment by estoppel.” (Appellant’s Op. Br. at 16.) Bradley reads too much into Armstrong’s testim ony. That Armstrong could not recall at trial, four years after the fact, the effective date of the regulation does not mean she or the Comptroller Unit waived the regulation at the time. In any event, assuming, arguendo , that the regulation was not followed in Apr il 2009, a physical move of belongings was required in order to justify a change of a ddress and the evidence clearly demonstrated Bradley’s knowledge of the requirement. Bradley does not argue Armstrong actively misled her as to the physical move require ment—something Bradley did not satisfy when she changed her Home of Record.- 9 - “A defendant is entitled to an instruction as to any re cognized defense for which there exists evidence suffici ent for a reasonable jury to find in her favor.” United States v. Rampton , 762 F.3d 1152, 1156 (10th Cir. 2014). Ordinarily, we review for abuse of discretion a district court’s refusal to give a requested theory-of-def ense instruction. Id. However, where, as here, the district judge concludes there was insufficient evidence to justify the instruction, our review is de novo. Id. “The defense of entrapment by estoppel is implicated where an agent of the government affirmatively misleads a party as to the state of the law and that party proceeds to act on the misrepresentation so that criminal prosecution of the actor implicates due process concerns under th e Fifth and Fourteenth Amendments.” United States v. Nichols , 21 F.3d 1016, 1018 (10th Cir. 1994); see also Rampton , 762 F.3d at 1157 (“A claim of entrapment by estoppel is at heart a due process challenge. To convict a person for exercising a privilege which the St ate had clearly told him was available to him would be to dispense with the basic requi rement that citizens receive fair warning of what actions are criminal.”) (citation and quotations omitted). “To establish [the] defense, a defendant must s how (1) an active misleading by a government agent who is responsible for interpreting, administering, or enforcing the law defining the offense; and (2) actual reliance by the defendant, which is reasonable in light of the identity of the agent, the point of law misr epresented, and the substance of the misrepresentation.” Rampton , 762 F.3d at 1157 (quotations omitted). In this case, Bradley claims to have requested and proposed an entrapment-byestoppel instruction. Not exactly. As defens e counsel admitted to th e district judge, the- 10 - proposed instruction modified the first elem ent of the defense. While our case law requires an active misleading by the government agent, the proposed instruction merely required an “affirmative[] assent” or “acquies cence.” (R. Vol. 1 at 14.) Bradley could not then, nor does she now, point to any case law suppor ting such modification and we have found none. For that r eason alone, the district judge properly denied her proposed instruction. See United States v. McKinney , 822 F.2d 946, 949 (10th Cir. 1987) (“[R]equested instructions that are misstatements of the law . . . are correctly refused.”). Assuming, arguendo, she had proposed a pr oper instruction, the district judge correctly concluded there was insufficient eviden ce to support its subm ission to the jury. That is because the evidence did not establish either (1) an “active misleading” by a government agent or (2) reasonable reliance. We have yet to define the exact contours of the “active misleading” element of the defense. But we do know that inaction alone is insufficient. See United States v.
Westover , 107 F. App’x 840, 844 (10t h Cir. 2004) (unpublished). 12 The Supreme Court cases from which the defens e originated involved gove rnment agents explicitly misadvising defendants as to the law. See Raley v. Ohio , 360 U.S. 423, 437-39 (1959) (convictions for failure to answer questions of a state commission violated due process because chairman of commissi on informed defendants they could decline to answer by invoking their Fifth Amendment rights); see also Cox v. Louisiana , 379 U.S. 559, 570-71

12 Unpublished opinions are not binding pre cedent. 10th Cir. R. App. P. 32.1(A). We mention Westover because of its persuasi ve and reasoned analysis.- 11 - (1965) (reversing conviction of a protestor for demonstrating “near” a courthouse because police had advised the protestor wher e he could demonstrat e but then arrested him for demonstrating in that area). This case does not come close to meeting the demanding elements of the asserted defense. See United States v. Gutierrez-Gonzalez , 184 F.3d 1160, 1166 (10th Cir. 1999) (“We have held that the courts invoke the doctrine of estoppel against the government with great reluctance.”) (quotations omitted ). Neither Armstrong nor the employees of the Comptroller Unit explicitly informed Bradley she could ch ange her Home of Record without a physical move of her belongings in order to receive increased benefits. There was no active misleading as to the law. Ar mstrong’s conduct amounts to nothing more than inaction—she in quired about the Home of Re cord and accepted Bradley’s explanation that she had moved her belong ings to her father’s home in Arizona. 13 Armstrong’s misplaced trust hardly amounts to active misleading. And there is another compelling reason why the evidence did not support an entrapment-by-estoppel instruction—any relia nce by Bradley on the “approval” of her Home of Record by Armstrong or others in the Comptroller Unit was not reasonable. “[A] defendant’s reliance [is] unreasonable if the defendant obtain ed the government’s inaccurate guidance by providing false information or om itting relevant information.” Rampton , 762 F.3d at 1157. For instance, in Rampton , the defendant claimed she reasonably believed her conduct concerning the filing of certain tax forms was lawful

13 See supra n.7.- 12 - because the Internal Revenue Service sent her a refund check. Id. at 1158. We concluded such reliance was unreasonable because the forms she filed falsely reported certain income had been withheld. Id. “Obviously the government took the [tax] forms as true, and no one could reasonably infer th at the government’s response implied that she was entitled to a refu nd even if the information reporte d on the . . . forms was false.” Id. Similarly, in Gutierrez-Gonzalez , the defendant argued a clerk with the Immigration and Nationalization Service affi rmatively misled him into be lieving he was lawfully in the United States by issuing him a work author ization permit even thou gh he told her he was in the country illegally. 184 F.3d at 1168. We concluded his reliance on the issuance of the work permit was unreasona ble because it was based on his “fraudulent application that affirmatively stated that he had never been deported .” Id. at 1168-69. Here, any “approval” by Armstrong was ba sed on Bradley falsely informing her that she had moved her belongings to her fa ther’s address in Chandler, Arizona. As Armstrong testified, she did not question Bradley further because “when [a guard member] tells me they’re going to live somewhere, the core values of the Air Force are integrity first, service before self and exce llence in all we do. I shouldn’t have to question an E4’s integrity.” 14 (R. Vol. 3 at 214.) Likewise , the approval of her vouchers by various employees of the Comptroller Unit was based on the same false premise that her Home of Record was her father’s addr ess in Chandler, Arizona, as Bradley had

14 Again, Bradley’s rank was E4. See supra n.6.- 13 - reported. Bradley cannot now claim she re asonably relied on the “approval” of these government agents when that “approval” was based on her lies.
B. Sufficiency of the Evidence “Whether the government presented suffici ent evidence to support a conviction is a legal question we review de novo.” United States v. Hernandez , 509 F.3d 1290, 1295 (10th Cir. 2007) (quotations omitted). “[W] e view the evidence and all reasonable inferences drawn therefrom in the light mo st favorable to the jury’s verdict.” United States v. Espinoza , 338 F.3d 1140 , 1146-47 (10th Cir. 2003). “We will reverse the verdict only if no rational jury could have found [the] [d]efendant guilty beyond a reasonable doubt.” Id. at 1147. “To convict a defendant of wire fraud un der 18 U.S.C. § 1343, the government must show (1) a scheme or artifice to defraud or obtain property by means of false or fraudulent pretenses, representations, or promis es, (2) an intent to defraud, and (3) use of interstate wire communications to execute the scheme.” United States v. Porter , 745 F.3d 1035, 1051 (10th Cir. 2014 ). Bradley focuses on the intent to defraud element of the indictment, viz., defrauding the United States of lodging and per diem by changing her Home of Record before her deployment. Bu t, as the argument goes, she could not have intended to receive those benefits at the tim e she changed her Home of Record on April 10, 2009. That is because, at the critical time, she did not expect to receive those benefits because she was being deployed to Saudi Arab ia. She actually received those benefits- 14 - only after she was unexpectedly injured, return ed to McConnell, and forced to stay there on a medical hold. 15 This is superficially a thorny issue. Without doubt, the government presented sufficient evidence for th e jury to conclude Bradley inte nded to defraud the United States of increased BAH payments. Indeed, the jury heard from one of the investigators who related Bradley’s admission of having changed her Home of Record in order to obtain a higher BAH. Ordinarily, that would be enough to sustain he r conviction because the type of property intended to be ob tained by the fraud is not an element of wire fraud. See 18 U.S.C. § 1343 (referring simply to “money or property”); see also Porter , 745 F.3d at
1051. But the indictment narrowed its scope by needlessly specifying the type of property obtained by the fraud—lodging and per diem. And the jury instructions specifically told the jury that to convict Bradley it had to find she “devised or intended to devise a scheme to obtain money by means of false or fraudulent presentences, or representations; that is, she falsely reported her address via . . . [V]MPF in order to obtain lodging expenses and per diem from the United States.” (R. Vol. 1 at 23 (emphasis added)). Consequently, while th e statute does not require proo f of the type of property

15 Bradley challenged the sufficiency of the evidence as to her in tent to defraud of lodging and per diem (as opposed to BAH) in the district court in her motion for judgment of acquittal. Although she did not raise a varian ce argument, the district judge first addressed the issue in that context, co ncluding that even if there was a variance between the indictment and the trial eviden ce, Bradley had not shown her substantial rights had been affected by it. He then de cided the evidence was su fficient to support the jury’s verdict.- 15 - intended to be obtained, both th e indictment and the jury inst ructions did. “It is settled law in this circuit, as elsewhere, that th e language employed by the government in its indictments becomes an essential and delimiting part of the char ge itself, such that if an indictment charges particulars, the jury instru ctions and evidence intr oduced at trial must comport with those particulars.” United States v. Farr , 536 F.3d 1174, 1181 (10th Cir. 2008) (collecting cases) (quotations omitted); 16 but see United States v. Miller , 471 U.S. 130, 136 (1985) (“A part of the indictme nt unnecessary to and independent of the allegations of the offense proved may normally be treated as a useless averment that may be ignored.”) (quotations omitted). Thus, we consider whether there was sufficient evidence at trial to show Brad ley intended to defraud the Un ited States of lodging and per diem. No evidence suggested an intent to defraud (as to lodging and per diem) on April 10, 2009, when she changed her Home of Record. As she argues, at that time she

16 Farr is a constructive amendment case—t he indictment charged Farr with evading payment of the quarterly employment ta x but the evidence and jury instructions at trial allowed the jury to convict her fo r evading payment of the trust fund recovery penalty. 536 F.3d at 1181-84; see also United States v. Alexander , 447 F.3d 1290, 1297- 98 (10th Cir. 2006) (“An indictment is constr uctively amended if the evidence presented at trial, together with the jury instructions , raises the possibility that the defendant was convicted of an offense other than that charged in the indictment.”) (quotations omitted). There was no constructive amendment of the indi ctment in this case—both the indictment and the jury instructions refe rred to lodging and per diem. Nor does Bradley raise a variance argument on appeal. See United States v. Caballero , 277 F.3d 1235, 1243 (10th Cir. 2002) (“ A variance arises when the evidence adduced at trial establishes facts different from those alleged in the indictment, and denigrates the Sixth Amendmen t right to be informed of the nature and cause of the accusation.”) (quotations omitted). Thus she has waived it. Garcia v. Lemaster , 439 F.3d 1215, 1216 n.2 (10th Cir. 2006).- 16 - did not know she would be injured and required to return to Wichita rather than deploy with her unit to Saudi Arabia. Her return to Wichita trigge red her receipt of lodging and per diem; she would not have received these benefits had she deployed to Saudi Arabia. 17
But that does not end the matter. The indictme nt charged her with a scheme to defraud “[b]eginning on or about Ap ril 10, 2009, and c ontinuing until approx imately April 23, 2011.” (R. Vol. 1 at 8.) This temporal pe riod permitted the jury to find Bradley had the intent to defraud the United States—initially by an increased BHA a nd later by obtaining improper lodging and per diem payments. Armstrong correctly testified that a physic al move of belongings was required in order to justify a guard member’s change of her Home of Record. Bradley obviously knew this—she initially told one of the investigators that her Home of Record should be Virginia because she left property there with an ex-boyfriend and, when confronted by Armstrong regarding her Home of Record be ing Chandler, Bradle y explained she had moved her belongings to Arizon a. Moreover, Bradley worked (twice) in the Comptroller Unit which handles the payment of benefits. 18 Therefore, a permissible (and logical) inference is that she was aware of the requi rements for changing her Home of Record.

17 There was no direct evidence at trial that Bradley would not have received lodging and per diem had she deployed to Saudi Arabia as planned. However, there was evidence that lodging and per diem are paid to guard members who are not provided housing at their respective base. A logical inference is that Bradley would have been provided housing while deployed in Saudi Ar abia and thus would not have been paid these benefits. Bradley drew on this inference in her moti on for judgment of acquittal. 18 Bradley admitted to investigators that he r work in the finance department “gave her a better understanding of the finance re gulations regarding tr avel pay and pay of (Continued . . . )- 17 - Similarly, Bradley knew her Home of R ecord affected the amount and type of benefits to which she would be entitled. She had worked in the Comptroller’s Unit, but, more importantly, she admitted to changing her Home of Reco rd in order to receive an increased BAH while deployed. A reasonable jury could infer Brad ley also knew her later receipt of the lodging and per diem bene fits was based on her Home of Record being Chandler. And because her Home of Record was fa lsely reported, she was entitled to no benefits. Nevertheless, she made no effort to change her Home of Record back to Wichita once she was returned to McConnell Air Force Base af ter her injury. That is a sufficient showing of an intent to defraud th e United States of l odging and per diem. See United States v. Prows , 118 F.3d 686, 692 (10th Cir. 1997) (“Intent to defraud may be inferred from the defendant’s misrepresentations [or] knowledge of a false statement.”) (quotations omitted). Service members are responsible for keep ing the personal information contained in their personnel files, in cluding their Home of Record , current. Bradley claims, however, that she could not ha ve changed her Home of Reco rd back to Wichita once she was injured and returned to McConnell Air Fo rce Base because military regulations at that time would not allow a guard member to change her Home of Record while under active orders. See supra n.10. And, according to her, she had to remain under active orders not only because she was placed on a me dical hold but also to remain eligible for health insurance. Her “any port in a storm” argument is unavailing. Nothing of record entitlements in general.” (R. Vol. 3 at 53.)- 18 - supports this argument, made for the first ti me on appeal. In any event, she changed her Home of Record from Wichita to Chandl er while under active orders; she was unconcerned at that time as to whether the change was pr ohibited by military regulations. For her to now claim she could not have co rrected an obvious fra ud because military regulations prohibited her from doing so is disingenuous. If nothing else, Bradley could have alerted Armstrong or ot her employees in the Comptroller’s Unit of her change in circumstance and asked that her Home of R ecord be corrected. Her failure to do so, while at the same time pocke ting the money, is telling. 19 Bradley also claims that after her injury she could not move to Chandler, Arizona, because she was placed on a medical hold whic h required her to remain at McConnell Air Force Base until she was cleared medically by a review board and th at did not occur until April 23, 2011. We fail to see the relevance of this argument. While Bradley may have been required to remain at McConnell Air Force Base until her injuries were resolved, she was not required to falsely change her Home of Record to Chandler, Arizona, in the

19 There were references throughout tria l to military regulations and whether Bradley violated them. While certainly a violation of an agency regulati on can provide proof of the elements of an offense, for instance, fraudulent intent, Bradley was not on trial for violating military regulations. See United States v. Ransom , 642 F.3d 1285, 1291-92 (10th Cir. 2011) (although the rules a nd regulations of the government agency helped establish the underlying facts necessary to prove the cr imes of wire fraud and theft of public money, defendant was not being he ld criminally liable for violating the rules and regulations). As the district judge aptly stated: “We’re talking about fraud here, not some sort of violation of Air Force regulations.” (R. Vol. 3 at 292.) “[T]he issue before the jury was whether the addr ess listed by [Bradley—her father’s address—] was a false and material statement and was made in fu rtherance of a scheme to obtain money from the government using false [or fraudulent] pret enses.” (R. Vol. 1 at 103 n.2.) The jury said yes and there was sufficient evidence to support its verdict.- 19 - first place or to perpetuate the fraud by no t correcting the “misunderstanding” once she was returned to Wichita after her injury. See supra pp. 9-11 (reasonable reliance discussion). Finally, she claims it was entirely reasona ble for her to change her Home of Record from her apartment in Wichita to her father’s address in Chandler because at the same time she received her orde rs, her husband also learned he was going to be deployed

overseas. 20 According to her, and acknowledged by Armstrong at trial, “[s]ince [Bradley and her husband] were both depl oying, there’s no sense of leaving a house open if you’re both [going to] be gone.” (R. Vol. 3 at 164.) Thus, on April 1, 2009, Bradley’s husband gave the apartment manager the required sixty- day notice to cancel the apartment’s lease; the apartment was vacated on J une 27, 2009. Consequently , Bradley argues, when she changed her Home of Record on April 10, she knew she wo uld not be returning to the Wichita apartment. But, once again, a physical move of bel ongings is required in order to justify a change in a guard member’s Home of Record and Bradley knew this. Yet, at the time Bradley changed her Home of R ecord on April 10, she was s till living in the apartment in Wichita. Although she claimed to have mo ved belongings to a friend’s address in Phoenix, Arizona, in February 2009, the evid ence supporting her claim was equivocal. Other evidence was not. She did not list her friend’s address as her Home of Record.

20 His deployment was later changed to a Permanent Change in Duty Station to Turkey.- 20 - Instead, she listed her father’s Chandler addr ess and, as her father testified, she had moved no belongings to his address. 21 Moreover, and tellingly, her grandfather testified to having helped her move her belongings to a storage unit in Wi chita in May 2009. And, of course, we have Bradley’s admissio n that she changed her Home of Record in order to receive increased benefits while depl oyed and her failure to change her Home of Record back to Wi chita once she was required to return there after her injury. The jury could, and apparently did, co nclude that her claimed move of belongings to Arizona did

not occur. AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge

21 Her father testified about it. Accordi ng to him, Bradley and her husband drove to his house in Chandler, Arizona, for a visit in February 2009. Although they brought a number of items with them, he believed they le ft with everything they had brought. But he could not say for sure because he did no t know exactly what they had brought to Arizona. He also said Bradley and her husba nd had visited friends du ring their stay in Arizona; those friends included Alicia Young, the friend Bradley ha d referenced in her interview with investigators. While this testimony could support a number of inferences, a plausible one is that Bradley left no items w ith Young. In any event, her father stated unequivocally she had not left any belongings at his address, the address she listed as her Home of Record.