                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 November 24, 2008
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 08-3012
                                               (D.C. No. 2:06-CR-20108-JWL-1)
    RODERICK C. WRIGHT, II,                                (D. Kan.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.



         Defendant, Roderick C. Wright, II, was convicted after a bench trial of

impersonating an officer in the United States Army in violation of 18 U.S.C.

§ 912. He appeals his conviction arguing there was insufficient evidence to

support the verdict. Finding no error, we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I.

      This case concerns Wright’s discharge from the United States Army in

February 2006 and his misguided attempt later that year to undo the discharge by

taking advantage of a glitch in the Army’s computer system that indicated he was

still on active duty. Viewed in the light most favorable to the government, the

record reveals the following facts.

      In late 2005 while Wright was enrolled in Officer Candidate School

(“OCS”) at Ft. Benning, Georgia, his commanding officer gave him a direct order

to cease all contact with a fellow classmate towards whom Wright had been

making unwelcome overtures. Over the Christmas holidays, Wright disobeyed the

order and as a result, he was discharged from the Army for misconduct shortly

before graduation. As part of the “separation proceedings,” Wright received

numerous documents detailing his rights and the reason for his discharge,

including a Certificate of Release or Discharge from Active Duty (“DD Form

214”) dated February 10, 2006. 1 Wright refused to sign the DD Form 214, but

according to Denise Parker of human resources at Ft. Benning, she informed

Wright he was separated from the Army regardless of whether he signed the form.




1
       A DD Form 214 is used to document a soldier’s changed status. For
example, when an officer candidate graduates from OCS, a DD Form 214 is filled
out to effectuate his discharge as an enlisted soldier the day before he accepts his
commission as an officer.

                                         -2-
      Despite his discharge, Wright proceeded to Ft. Sill, Oklahoma, seeking to

enroll in officer basic course, which would have been his next step had he

graduated from OCS. Officers at Ft. Sill quickly discovered his discharge and

called military police, who escorted Wright off post and told him in no uncertain

terms he was neither an enlisted soldier nor an officer in the Army. He then

sought to join the Army Reserve and National Guard. During that process, he

learned the Reserve’s computer database incorrectly noted that he had been

discharged from the Army for being absent without leave (“AWOL”). In trying to

correct this mistake, he was told to contact the nearest Army installation. Being

closest to Ft. Leavenworth, Wright called its personnel division and was put in

touch with Lawrence DeSouza, project manager of the Adjutant General Division.

      According to DeSouza’s testimony, during that first conversation, Wright

identified himself as a second lieutenant who was having problems with his pay.

DeSouza told Wright to come into his office, which he did on July 18, 2006.

During that visit, Wright told DeSouza he had graduated from OCS and had

subsequently been turned away from Ft. Sill for allegedly impersonating an

officer. He displayed several documents to prove he was a second lieutenant,

including a different DD Form 214, which stated Wright was separated from the

Army on January 18, 2006, in order to accept an officer’s commission. He also

provided a Department of Army (“DA”) Form 71 indicating that he had taken an

officer’s oath of office on January 19, 2006. Wright had apparently printed these

                                        -3-
forms from the Army’s computer database and had the DA Form 71 notarized off

post. After reviewing the documents, DeSouza asked an employee to search for

Wright in the Defense Eligibility Enrollment System (“DEERS”), the database

most relied on by his division. DEERS incorrectly indicated Wright was a second

lieutenant in the Army. 2 At no point during their visit did Wright mention his

discharge for misconduct or show DeSouza the February 10, 2006, DD Form 214.

      Armed with the information and documents that Wright gave him and the

confirmation in DEERS, DeSouza sent Wright to obtain a military I.D. and called

Human Resources Command (“HRC”) in Virginia to enroll Wright in the next

officer basic course. HRC told DeSouza that Wright had been discharged from

the Army for misconduct. He immediately went to find Wright at the I.D. card

station, only to find Wright had been issued an I.D. and was en route to the

finance office. There, Wright met Nancey Parsons who testified Wright told her

that DeSouza had sent him to get his pay “straightened out,” explaining that he

had not been paid in several months. Parsons verified in the finance database that

Wright’s pay had stopped in February 2006. He professed ignorance as to why

this could have happened, however, and did not tell Parsons about his misconduct

2
       When asked at trial about the discrepancy between the February 10, 2006,
DD Form 214 and the notation in DEERS, DeSouza testified that the document
controls, explaining that a DD Form 214 is a “source document” that “retires . . .
or transitions a person from the military.” Aplt. App. at 141. He also clarified
that a DD Form 214 separates a person from the Army “[r]egardless of whether
the Army did all the follow-up paperwork and computer entries and so forth
properly[.]” Id.

                                        -4-
discharge or show her the corresponding DD Form 214. Instead, he gave her a

stack of documents to prove he was a second lieutenant in the Army. He also told

Parsons what had happened to him at Ft. Sill, at which point, she called in her

boss, Sharon Schroeder, the finance office director. Upon hearing Wright’s story,

Schroeder contacted Ft. Sill to verify the information Wright had given them. In

the meantime, Parsons had Wright complete the forms necessary to restart his pay

and reimburse him for travel expenses. Ultimately, someone from the finance

office at Ft. Sill told Schroeder that Wright had been discharged from the Army

and was potentially dangerous. Schroeder then called the military police who

came and apprehended Wright.

                                         II.

      Title 18 U.S.C. § 912 provides that

      [w]hoever falsely assumes or pretends to be an officer or employee
      acting under the authority of the United States or any department,
      agency or officer thereof, and acts as such, or in such pretended
      character demands or obtains any money, paper, document, or thing
      of value, shall be fined under this title or imprisoned not more than
      three years, or both.

We have held that the statute criminalizes two types of conduct: (1) assuming

and pretending to be an officer or employee of the United States and acting as

such; 3 and (2) demanding or obtaining something of value in such pretended

3
      There is no uniformly accepted definition of the phrase “acting as such,”
and courts disagree with respect to the amount of independence required to
separate an overt act from the original act of impersonation. Compare United
                                                                     (continued...)

                                         -5-
manner. United States v. Milton, 421 F.2d 586, 587 (10th Cir. 1970). In this

case, the district court convicted Wright of both offenses. With respect to the

first, it found Wright guilty of falsely presenting himself as a second lieutenant to

DeSouza, Parsons, and Schroeder and of committing several overt acts in keeping

with that pretense. One of those acts was demanding military pay and

reimbursement for travel expenses to which he was not entitled, which the court

concluded was a violation of the second part of the statute.

      Wright’s appeal focuses solely on the sufficiency of the evidence

concerning his state of mind. He concedes awareness of the discharge on

February 10, 2006, but claims he began to question its effectiveness when he

found out about the AWOL notation in the Army Reserve’s database. His doubts

were further fueled by the Army’s failure to send him documents he had been

promised relating to the incident at Ft. Sill. In short, Wright argues that by the

time he contacted DeSouza, he was genuinely confused about his status with the

Army and believed his discharge may have been reversed. He claims he went to

Ft. Leavenworth solely in search of answers and did not intend to deceive anyone.

3
 (...continued)
States v. Rosser, 528 F.2d 652, 657 (D.C. Cir. 1976) (“the act that completes a
violation of Section 912(1) must be something more than merely an act in keeping
with the falsely assumed character”) with United States v. Gayle, 967 F.2d 483,
488 (11th Cir. 1992) (holding that “an indictment [under § 912] need not allege
additional acts beyond the general act of impersonation”). This case does not
require us to weigh in on that debate. As discussed below, Wright’s actions went
beyond mere bravado and were sufficient to satisfy even the most rigid
interpretation of the statute.

                                          -6-
When DeSouza told him, after checking in DEERS, that he was a second

lieutenant in the Army, he believed him and acted accordingly. Thus, he argues,

no reasonable factfinder could have found him guilty of impersonating an officer

because he genuinely believed he was one.

      “We review the sufficiency of the evidence supporting a guilty verdict

de novo. We will not disturb the verdict unless no rational trier of fact could have

found the defendant guilty beyond a reasonable doubt.” United States v.

Hardridge, 379 F.3d 1188, 1196 (10th Cir. 2004) (quotation omitted). “We must

view the evidence and the reasonable inferences to be drawn therefrom in the

light most favorable to the government.” Id. (quotation omitted). Viewed in that

light, the evidence in this case was clearly sufficient to support the conviction.

Wright’s entire argument hinges on the assumption that he went to Ft.

Leavenworth with no other purpose than to determine whether he had, in fact,

been discharged from the Army. But the evidence does not support this theory.

If that were the case, why did Wright not disclose the fact of his misconduct

discharge to DeSouza or anyone else at Ft. Leavenworth? When confronted with

the computer discrepancies, why did he not produce the February 10, 2006, DD

Form 214 and ask for clarification? When Parsons asked why he had not been

paid since February 10, why profess ignorance instead of telling her about his

discharge?




                                          -7-
      The district court reasonably inferred that Wright concealed this

information to protect his false title, particularly given DeSouza’s testimony that

Wright identified himself as a second lieutenant during their initial phone

conversation, long before he learned of the discrepancy in DEERS. Moreover,

Wright’s explanation utterly fails to justify his possession and presentation of

apparently forged documents reflecting his acceptance of an officer’s

commission, which never occurred. “[T]he factfinder is traditionally in the better

position to evaluate conflicting evidence and determine credibility.” United

States v. Mendoza-Salgado, 964 F.2d 993, 1002 (10th Cir. 1992). Wright has

given us no reason to depart from this maxim here. The district court rejected his

defense after hearing at least three Ft. Leavenworth witnesses testify that Wright

never disclosed to them that he had been discharged at Ft. Benning. Their

testimony coupled with the documentary evidence was more than sufficient to

conclude Wright was impersonating an officer on July 18, 2006, rather than

making innocent inquiries.

      The conviction is AFFIRMED.

                                               Entered for the Court



                                               David M. Ebel
                                               Circuit Judge




                                         -8-
