                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 29 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-3237
                                                 (D.C. No. 98-CR-20061-KHV)
    LEO LANKFORD, III,                                     (D. Kan.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before TACHA , ANDERSON , and LUCERO , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Leo Lankford, III appeals from a jury verdict finding him guilty

of one count of violating 18 U.S.C. § 1001 by knowingly concealing material

facts from the United States Navy in order to receive benefits from a government

program. We affirm.

      Defendant broke his arm in two places while serving on a Naval Reserve

training assignment. When a reservist is injured on duty, he is entitled to pay and

benefits (incapacitation pay) less any earned civilian or disability income

received. Incapacitation pay continues until a military doctor certifies the

reservist medically fit to return to the military duty to which he was assigned

when he was injured. Defendant was approved for incapacitation pay.

      Defendant held a civilian job as an account representative for the United

States Postal Service. He also worked part-time as a salesman at The Jones

Store. Defendant notified the Postal Service that he was medically unfit to

resume his civilian duties and was placed on leave without pay status. Defendant

continued to work part-time at The Jones Store.   Defendant did not notify the

Navy of his part-time employment.

      Consequently, defendant was indicted and found guilty of knowingly

defrauding the Navy by concealing the income he received from The Jones Store.

The court sentenced defendant to five months’ imprisonment to be followed by

five months’ home detention and three years’ supervised release. He was also


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ordered to pay restitution in the amount of $24,696.13, the entire amount he

received as incapacitation pay except for compensatory drill pay when he could

not participate in his active duty drills and two weeks’ pay the court determined

he properly received immediately following his injury.

      On appeal, defendant argues the trial court erred in not granting his motion

for judgment of acquittal because the government failed to produce sufficient

evidence to prove his guilt beyond a reasonable doubt. He also argues the trial

court erred in calculating the amount of loss for sentencing and restitution

purposes.

      We review the trial court’s denial of a motion for judgment of acquittal de

novo. United States v. Schluneger , 184 F.3d 1154, 1158 (10th Cir. 1999),      cert.

denied , 120 S. Ct. 800 (2000). In the course of this review we examine “the

evidence in the light most favorable to the government and ask[] whether    any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.”   Id. (quotation omitted).

      Where intent is an element of the crime charged, the issue is
      particularly one for the jury. It is the jury’s province to determine
      whether a defendant knew his conduct was an illegal act, and its duty
      to weigh evidence and draw reasonable inferences therefrom in
      making its judgment. In so doing, the determination of credibility is
      the jury’s function.

United States v. Goldstein , 695 F.2d 1228, 1234-35 (10th Cir. 1981).



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       Defendant asserts that the government failed to prove he knew he had to

report income from his part-time civilian job and, therefore, failed to prove he

intended to defraud the Navy. He contends his failure to report the income was

the result of mistake or inadvertence, not an intentional criminal act.

       Fraudulent intent is often “not susceptible to proof by direct evidence.”

See United States v. Mann , 884 F.2d 532, 535 (10th Cir. 1989). Rather, it “must

be inferred from a series of acts and pertinent circumstances.”        Id. (quotation

omitted).

       The evidence showed that defendant initialed each of the privileges and

responsibilities listed on the third page of the Notice of Eligibility he received

when his incapacitation pay was approved. Page one of that notice contains the

statement that if a reservist is “not physically qualified for [his] normal military

duties, [he is] entitled to receive [incapacitation] pay . . .    less any earned

income . . . .” Appellant’s Br., App. A (emphasis added). The government also

presented evidence that defendant’s command submitted monthly updates stating

that defendant had received no earned income for the period covered. Further, to

show his intent to defraud, the government presented evidence showing defendant

requested leave without pay from the Postal Service and erroneously told

individuals there that the Navy would not permit him to return to work.




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         Defendant contends that no evidence was presented that he had received the

Notice of Eligibility despite his initials on the third page of that notice. He notes

that nothing on page three addresses the issue of reporting income from civilian

employment. Defendant also states that no evidence was presented showing who

had submitted the information used to prepare the monthly updates. Defendant

contends that the fact that he indicated in January 1997 he knew the amount of

earned civilian income would affect the amount of incapacitation pay he received,

did not establish his knowledge of that fact during the period he received

incapacitation pay.

         Defendant’s disingenuous arguments are insufficient to overcome the jury’s

determination that his defense was not credible. A rational trier of fact could

have found the essential elements of the crime charged beyond a reasonable

doubt.

         Defendant argues the trial court erred in calculating the amount of loss for

sentencing and restitution purposes. He contends that only the net loss incurred

by the Navy should be considered, not the entire amount of benefits he received.

         We review the court’s factual findings for clear error and its legal

interpretation of the Sentencing Guidelines de novo.     See United States v. Henry ,

164 F.3d 1304, 1310 (10th Cir.),    cert. denied , 119 S. Ct. 2381 (1999). Further,




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we must give “due deference to the district court's application of the guidelines to

the facts.” Id.

       Defendant argues that he should not have to forfeit the entire amount of

incapacitation pay he received because he did not work for the Postal Service

while he was receiving incapacitation pay. Defendant contends the court erred in

relying on Henry because the government presented no evidence showing he

could have returned to his duties with the Postal Service and     Henry involved a

different statute than the one he was convicted of violating. Further, the statute

under which he was convicted provides that incapacitation pay may be reduced by

earned civilian income, a provision not available in    Henry .

       “[L]oss is the value of the money . . . unlawfully taken.” U.S.S.G.    § 2F1.1

comment (n.8) . The trial court considered defendant’s behavior with the Postal

Service as relevant conduct for sentencing purposes. Defendant’s conduct with

the Postal Service was relevant and properly considered at sentencing.       See

U.S.S.G. § 1B1.3 comment (n. 9(B)) (explaining the factors the court must

address when determining whether offenses can be considered part of the same

course of conduct).   Facts presented to show “relevant conduct must be proven by

a preponderance of the evidence.”      United States v. Fortier , 180 F.3d 1217, 1225

(10th Cir. 19 99).




                                            -6-
       The government presented evidence that defendant led the Postal Service to

believe that the Navy would not permit him to return to his civilian employment.

The government also presented evidence that defendant’s employer at the Postal

Service denied defendant’s request for sick leave rather than leave without pay

because he felt that defendant could do his job with a broken arm.     See Rec. Vol.

III at 56. No evidence was presented that the Postal Service could not

accommodate his injury. Further, defendant’s conduct only came to light after the

Navy contacted the Postal Service inquiring as to why the Postal Service would

not permit defendant to return to work.     See id. The government presented facts

showing that defendant was intentionally defrauding the Navy by receiving

incapacitation pay when he could have been working at his civilian job.

       Defendant also argues that the court erred in determining that he should

return the entire amount he received as incapacitation pay as restitution. We

review the district court’s findings of fact underlying a restitution order for clear

error and the amount of restitution ordered for abuse of discretion.   See United

States v. Copus , 110 F.3d 1529, 1537 (10th Cir. 1997).

       The restitution order was based on the actual loss to the Navy. The court

determined that he was entitled to keep some of the incapacitation pay he

received, but that he had received the majority of the funds unlawfully based on

both his part-time work at The Jones Store and his concealing of material facts


                                            -7-
from the Postal Service and the Navy about the impact of his injury on his job

with the Postal Service. The district court did not abuse its discretion in the

restitution order.   1



       The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Circuit Judge




1
      We note that Henry is inapplicable as defendant was permitted to keep
those benefits he rightfully received. Restitution was ordered only in the amount
of overpayment.

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