180 F. Supp. 3d 507
M.D. Tenn.2016Background
- Aaron L. Osborne was a full‑time Air National Guard Recruiter; co‑defendant Arvalon Harleston was acquitted and Max Andolsek pleaded guilty and testified for the prosecution.
- Docupak, a contractor, ran the Guard Recruiting Assistance Program (G‑RAP) for DoD, paying Recruiting Assistants $1,000 upon enlistment and $1,000 at shipping, funded by DoD reimbursements to Docupak.
- Full‑time Recruiters (like Osborne) were ineligible for G‑RAP payments; Recruiting Assistants were required to be the first contact with potential recruits per program rules.
- Count Four charged Osborne with aiding and abetting Andolsek in theft/ conversion of a thing of value of the United States under 18 U.S.C. § 641 (approximately $9,000 relating to ~18 potential airmen).
- Osborne moved for a judgment of acquittal after conviction, arguing (1) the government failed to prove the payments were federal “property”/a “thing of value” to the United States and (2) the guilty verdict was inconsistent with acquittals on other counts.
- The court denied the motion, finding sufficient evidence for the jury to conclude the payments were government‑funded and rejecting the inconsistent‑verdicts challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether payments to Recruiting Assistants were a “thing of value” of the United States under 18 U.S.C. § 641 | Government: Docupak was paid with DoD funds, subject to contract terms and reporting; DoD controlled/disbursed funds, so misappropriated payments were federal property | Osborne: Docupak operated the program independently; DoD lacked sufficient control/oversight so funds were private once in Docupak’s hands | Court: Evidence (contract/task order terms, invoices, reporting, program structure) was sufficient for a rational jury to find payments were a thing of value of the U.S. |
| Sufficiency of proof for aiding and abetting under § 2 (elements: contribution + intent) | Government: testimony and circumstantial evidence supported that Osborne aided Andolsek and intended to facilitate theft/conversion | Osborne: contended government failed to prove elements and relied on weak testimony (Crane) and incomplete documentary record | Court: Under Jackson standard, substantial circumstantial evidence sufficed; motion denied |
| Whether inconsistent verdicts require acquittal of Count Four | Government: inconsistent acquittals are permissible; different counts alleged different elements and victims/facts | Osborne: Conviction on Count Four is mutually exclusive with acquittal on Count Two (and Counts Six/Seven) | Court: Jury may reach inconsistent results; counts involved different elements/factual bases, so conviction stands |
| Applicability of § 641 categories (whether this is like Hall’s third category) | Government: case fits the category where funds originated with government and retained federal character due to contract/reimbursement/control | Osborne: Relied on Hall and related cases to argue government lacked the supervisory controls present in those precedents | Court: Hall and related authority inform but do not limit § 641; given the record, jury could conclude funds retained federal character |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- Rosemond v. United States, 134 S. Ct. 1240 (2014) (aiding and abetting liability under § 2)
- United States v. Hall, 549 F.3d 1033 (6th Cir. 2008) (discussing categories when funds retain federal character under § 641)
- United States v. Powell, 469 U.S. 57 (1984) (juries may return inconsistent verdicts)
- Dunn v. United States, 284 U.S. 390 (1932) (recognizing permissible inconsistent jury verdicts)
- United States v. Forman, 180 F.3d 766 (6th Cir. 1999) (elements of theft under § 641)