REVISED FEBRUARY 23, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-11006

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DARREN L REAGAN

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before KING, BARKSDALE, and ELROD, Circuit Judges.

KING, Circuit Judge:

Defendant–appellant Darren L. Reagan was charged with five counts of

theft of public money in violation of 18 U.S.C. § 641. A jury convicted on all five

counts. The district court sentenced Reagan to 12 months of imprisonment on

each count, to be served concurrently, and two years of supervised release;

imposed a $100 special assessment for each count; and ordered restitution.

Reagan timely appealed his conviction and sentence. For the following reasons,

we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

February 4, 2010

Charles R. Fulbruge III

Clerk
No. 08-11006

1 Debra Kirvin spells her last name “Kirvin,” while her mother uses alternate spellings

including “Kirvin,” “Kervin,” and “Kirven.”

2

I. Factual and Procedural Background

Reagan was charged under 18 U.S.C. § 641 for improperly receiving

$41,832 over five years in Section 8 program payments from the Dallas Housing

Authority (DHA), which administers funding provided by the Department of

Housing and Urban Development (HUD). The Section 8 program subsidizes rent

for low income persons. Reagan jointly owned a residential property with his

wife, Debra Kirvin, and, in 2002, leased this property to his wife’s mother,

Leatha Kervin,1 a participant in the Section 8 program. One of the documents

that Reagan signed and filed with the DHA to initiate Section 8 benefits

included the disclaimer that“the owner (including a principal or other interested

party) is not the parent, child, grandparent, sister, or brother of any member of

the family.” In another document signed and filed with the DHA, Reagan

similarly promised that he had “no blood, marital or other familial relationship”

with the Section 8 recipient. Reagan received monthly checks from the DHA

from March 2002 until September 2007, when his relationship to Leatha Kervin

was discovered. Reagan was charged under § 641 with five counts of receipt of

public funds, one count for each year that he received monthly Section 8

payments.

Before trial, Reagan filed a motion to limit or dismiss the indictment,

arguing that the five-count charge under § 641 was multiplicitous; that § 641

was not the appropriate statute under which to charge HUD fraud; and that the

indictment was unconstitutionally vague. The district court denied the motion.

At trial, Reagan requested cautionary instructions regarding his wife’s
No. 08-11006

3

testimony. The district court refused to give the proposed instructions. Reagan

now appeals the denial of the motion to dismiss and the denial of the requested

instructions.

II. The Multiplicity Challenge

Reagan asserts that the indictment was multiplicitous because although

it charged five separate offenses, all “stem[med] from a single fraudulent ac[t]

in the first year.” The Government counters that each time Reagan received a

housing assistance payment he violated § 641, so multiple counts were

appropriate. The Government contends that the indictment’s infirmity, if any,

was that it was duplicitous for joining multiple offenses in each count. See

United States v. Miller, 520F.3d 504, 512 (5th Cir. 2008) (“Duplicity occurs when

a single count in an indictment contains two or more distinct offenses. Even if

an indictmentis duplicitous, a defendant must be prejudiced to receive relief[.]”).

Reagan did not raise a duplicity challenge before the district court and does not

raise one on appeal. Accordingly, we do not consider whether the sentence was

duplicitous.

Although Reagan was sentenced to concurrentterms of imprisonment,the

district court imposed a $100 special assessment for each count under 18 U.S.C.

§ 3013(a). Accordingly, Reagan’s multiplicity challenge is still viable. See

United States v. Soape, 169 F.3d 257, 266 n.4 (5th Cir. 1999) (“While the district

court sentenced Soape to concurrent . . . terms of imprisonment . . . it also

imposed a $50 special assessment for each count. Soape’s monetary sanctions

therefore depend on the validity of each count, including the allegedly

multiplicitous ones, and the concurrent sentence doctrine does not apply.”).
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4

“Multiplicity claims are reviewed de novo.” United States v. Planck, 493

F.3d 501, 503 (5th Cir. 2007). “An indictment is multiplicitous if it charges a

single offense in multiple counts, thus raising the potential for multiple

punishment for the same offense, implicating the [F]ifth [A]mendment double

jeopardy clause.” United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir. 1993)

(footnotes omitted). To determine “whether separate and distinct prohibited

acts, made punishable by law, have been committed,” the court looks to the

“allowable unit of prosecution,” starting with the language of the statute.

Planck, 493F.3d at 503 (internal quotation marks and citations omitted); United

States v. Reedy, 304 F.3d 358, 365 (5th Cir. 2002).

Section 641 penalizes “[w]hoever embezzles, steals, purloins, or knowingly

converts to his use or the use of another . . . any record, voucher, money, or thing

of value of the United States.” 18 U.S.C. § 641. No case has been reported

discussing the “allowable unit of prosecution” under § 641. Courts interpreting

similarly-worded statutes, however, have concluded that each distinct taking of

funds constitutes a separate violation under the statute.

In United States v. Brechtel, 997 F.2d at 1111, for example, the defendant

was convicted of two counts of violating 18 U.S.C. § 1006 after issuing two

improper loans in the course of a single real estate transaction. Section 1006

punishes bank officials who “receive[ ] . . . any money, profit, property, or

benefits through any transaction, loan, commission, contract, or any other act

of . . . [the] institution.” 18 U.S.C. § 1006. We rejected the defendant’s

contention that the counts were multiplicitous, reasoning that the plain

language of § 1006 penalizes the “receipt of improper benefit from individual

transactions, rather than from overarching schemes.” Brechtel, 997 F.2d at
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5

1112. We distinguished the language of § 1006 from that of 18 U.S.C. § 1344,

which punishes “[w]hoever knowingly executes, or attempts to execute, a scheme

or artifice . . . to defraud a financial institution” (emphases added), and under

which we have found the “allowable unit of prosecution” to be the overarching

scheme, not individual steps in furtherance of that scheme. See United States

v. Lemons, 941 F.2d 309, 317–18 (5th Cir. 1991). We concluded that, by contrast,

the language of § 1006, which punishes the receipt of “any money . . . through

any transaction,” makes clear that a defendant “violate[s] § 1006 each time he

benefit[s] from an extension of credit.” Brechtel, 997 F.2d at 1112.

The Sixth Circuit reached a similar conclusion as to a similarly-worded

statute in United States v. Busacca, 936 F.2d 232, 234, 239 (6th Cir. 1991). The

defendant was accused of embezzling from an employee benefit plan, for which

he was a fiduciary, in order to pay his legal defense fees in an action relating to

his operation of the plan. He was convicted of six counts of embezzlement under

18 U.S.C. § 664, one for each employee benefit plan check that he caused to be

issued to himself. Busacca, 936 F.2d at 235–36. Section 664 penalizes “[a]ny

person who embezzles, steals, or unlawfully and willfully abstracts or converts

to his own use or to the use of another, any of the moneys, funds, . . . or other

assets of any employee welfare benefit plan or employee pension benefit plan.”

18 U.S.C. § 664. The defendant contended that the charges were multiplicitous

because the issuance of each check was merely part of a single scheme of

embezzlement. Busacca, 936 F.2d at 239. The Sixth Circuit rejected this

argument, accepting the government’s argumentthat“the use ofthe phrase ‘any

moneys’ indicates the intent of Congress that each taking of funds from an

employee benefit plan constitutes a separate violation of the statute.” Id. The
No. 08-11006

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court concluded that each time the defendant caused a check to be issued to

himself, he violated the statute. Id.

Like the statutes discussed in Brechtel and Busacca, § 641 punishes

“[w]hoever embezzles, steals, purloins or knowingly converts to his use . . .

any record, voucher, money, or thing of value of the United States.” 18 U.S.C.

§ 641 (emphasis added). Accordingly, we hold that the “allowable unit of

prosecution” under § 641 is each individual transaction in which government

money is received, even if the transaction is part of an overarching scheme.

Reagan violated § 641 each time he converted a HUD check. The five counts

against Reagan therefore were not multiplicitous.

III. The Remaining Bases for Relief

Reagan asserts thatthe district court erred in refusing to grant his motion

to dismiss the indictment. He contends that the indictment improperly charged

him under § 641 rather than under the HUD fraud statute, 18 U.S.C. § 1012,

and failed to set outthe charges against him in a “plain and intelligible manner.”

Reagan, who is represented by appointed counsel, does nothing beyond listing

these points of error—he offers no further arguments or explanation. This is a

failure to brief and constitutes waiver. See United States v. Stalnaker, 571 F.3d

428, 439–440 (5th Cir. 2009) (holding that the defendant’s failure to explain her

assertions or provide citations to the record or relevant law constituted waiver

for failure to adequately brief); see also FED. R. APP. P. 28(a)(9)(A) (“The

appellant’s brief must contain . . . [the] appellant’s contentions and the reasons

for them, with citations to the authorities and parts of the record on which the

appellant relies.”). We therefore do not address these points of error.
No. 08-11006

2 Reagan’s proposed instructions would have instructed the jury that Kirvin was an

accomplice and could have been charged for the same crime, and that these facts could provide

bases to find her testimony less credible. Reagan contends, without providing any citations

to the record,thatthese proposedinstructionswere necessary because “this case is replete with

evidence that [he and Kirvin] were at one another’s throats at the time of the trial,” and that

“[t]heir marriage was in the process of dissolution and the bitterness between them was

palpable.” Reagan argues that “[t]he law favors cautioning jurors under such circumstances

to take the testimony of the hostile, accomplice witness with a grain of salt,” but offers no

further legal analysis. 

7

For similar reasons, we do not address Reagan’s contention that the

district court abused its discretion by failing to give the jury cautionary

instructions about the testimony of his wife, Debra Kirvin.2 The party

challenging the denial of requested jury instructions must show that “there

[wa]s sufficient evidentiary foundation for . . . [the] requested instruction[s],”

viewing the evidence in the light most favorable to him. United States v.

Giraldi, 86 F.3d 1368, 1376 (5th Cir. 1996). The party must then show that the

district court abused its discretion in denying the requested instructions because

those instructions were substantively correct, not covered in the charge given to

the jury, and their omission seriously impaired his ability to present his defense.

Id. Reagan does not provide citations to any evidence in the record to support

his claim. By failing to do so, Reagan has failed to show a “sufficient evidentiary

foundation” for the requested instruction and therefore cannot establish abuse

of discretion. This is also a failure to brief. See United States v.

Delgado–Martinez, 564 F.3d 750, 752 (5th Cir. 2009) (“Delgado–Martinez’s

briefing is devoid of any citations to the record in support of his allegations.

Accordingly, we do not consider [this] issue on appeal.” (citation omitted)); FED.

R. APP. P. 28(a)(9)(A). We therefore do not address Reagan’s contentions as to

jury instructions.
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IV. Conclusion

Accordingly, we AFFIRM the conviction and sentence.