                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
__________________________
                            )
UNITED STATES OF AMERICA, )
                            )
     v.                     )
                            )    Criminal Action No. 10-178 (RWR)
CALEB GRAY-BURRISS,        )
                            )
     Defendant.            )
__________________________ )

                         MEMORANDUM ORDER

     At the close of the government’s case-in-chief and his own

case, defendant Caleb Gray-Burriss moved under Federal Rule of

Criminal Procedure 29 for a judgment of acquittal.   Rule 29(a)

requires the court, on the defendant’s motion, to enter a

judgment of acquittal for “any offense for which the evidence is

insufficient to sustain a conviction.”   Fed. R. Crim. P. 29(a).

The motion for judgment of acquittal may be granted where “‘there

is no evidence upon which a reasonable mind might find guilt

beyond a reasonable doubt.’”   United States v. Byfield, 928 F.2d

1163, 1165 (D.C. Cir. 1991) (quoting United States v. Hernandez,

780 F.2d 113, 120 (D.C. Cir. 1986)).   “The evidence must be

viewed ‘in the light most favorable to the Government.’”    Id.

(quoting United States v. Singleton, 702 F.2d 1159, 1163 (D.C.

Cir. 1983)).   Under Rule 29(b), when the court reserves ruling on

the motion, the court must “decide the motion on the basis of the

evidence at the time the ruling was reserved.”   Fed. R. Crim. P.

29(b).
                                 -2-

     The court reserved ruling on the motion as to Count Twelve

of the second superseding indictment, which charged Burriss with

embezzlement and theft from a labor organization in violation of

29 U.S.C. § 501(c).   Count Twelve alleged that Burris embezzled

from the National Association of Special Police and Security

Officers (“NASPSO”) by making fifteen unauthorized direct deposit

payments to Gaby Fraser from the NASPSO bank account totaling

$43,374.99.

     One essential element of the statute outlawing embezzlement

and theft from a labor organization that must be proven beyond a

reasonable doubt is that the defendant acted with fraudulent

intent in taking or diverting the union’s money.   United States

v. Hammond, 201 F.3d 346, 349 (5th Cir. 1999); United States v.

Welch, 728 F.2d 1113, 1116 (8th Cir. 1984); see also United

States v. DeFries, 129 F.3d 1293, 1306, 1308 (D.C. Cir. 1997)

(stating that the lack of authorization element is distinct from

the fraudulent intent element of embezzlement in 29 U.S.C.

§ 501(c)).    At trial, the government established in its case-in-

chief that NASPSO employed Fraser in September 2011 and the

NASPSO board authorized her $45.00 per hour wage rate on

October 15, 2011.   Two days later, Burriss directed a payroll

management company to have Fraser paid $2,925 semimonthly from

NASPSO’s account through direct deposit, the equivalent of a

$70,200 annual salary.    Government witness John Tresvant
                                  -3-

testified that an annual salary would cost the union less money

than paying Fraser the $45.00 hourly wage in light of the number

of hours she worked.    Testimony of John Tresvant, November 21,

2012.    Further, government witness Kenric Michael stated, during

cross-examination, that Fraser was paid less as a salaried

employee than she would have been paid as an hourly employee

based on the number of hours she worked.    Testimony of Kenric

Michael, November 19, 2012.    This testimony that putting Fraser

on a yearly salary was intended to save the union money was

unrebutted with any testimony to the contrary.    That called into

question the sufficiency of the evidence of Burriss’ fraudulent

intent.

        A closer review of the evidence presented in the

government’s case-in-chief reveals a sufficient amount, when

viewed in the light most favorable to the government, to have

permitted a reasonable jury to find fraudulent intent beyond a

reasonable doubt.    Burriss switching Fraser to a $70,200 per year

salaried basis just two days after the board authorized instead

only wages of $45 per hour was neither disclosed to nor

authorized by the board when he made the switch.    Nor did the

actual number of hours Fraser worked while paid hourly reflect

any savings to NASPSO by switching her to a salary or that her
                                 -4-

hours justified the salary that she received.1     Government

Exhibits 100b and 210 show that between September 21 and November

30, 2011, Fraser was paid for working roughly 11 to 30 hours per

week which cost far less at $45 per hour than the salary rate to

which Burriss switched Fraser.

     In light of all of the other evidence with which the jury

found theft, misappropriation, and falsification by Burriss, a

reasonable juror could have found that the salary was

unauthorized and Burriss engineered it with fraudulent intent.

Since the government provided in its case-in-chief sufficient

proof as to Count Twelve, and the defense’s case did not nullify

that evidence, it is hereby

     ORDERED that the defendant’s motion made at trial for

judgment of acquittal as to Count Twelve be, and hereby is,

DENIED.

     SIGNED this 6th day of February, 2013.



                                               /s/
                                       RICHARD W. ROBERTS
                                       United States District Judge




     1
       Burriss’s argument that his home detention forced Fraser
to work additional hours, Def.’s Reply to Govt.’s Opp’n to MJOA
at 3 (citing testimony of defense witness Jones) does not hold
water for most of the unlawful payments charged in Count 12.
Burriss was not placed on home detention until April 2012. The
direct deposit authorization and salary change occurred well
before then.
