                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 07 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-30070

              Plaintiff-Appellee,                D.C. No.
                                                 2:17-cr-00013-TSZ-1
 v.

MICHAEL N. LEIGHTON,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Thomas S. Zilly, District Judge, Presiding

                           Submitted February 4, 2019**
                               Seattle, Washington

Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,*** Judge.

      Michael Leighton appeals his conviction following a jury trial for

embezzlement of federal property in violation of 18 U.S.C. § 641. We affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
      Viewing the evidence “in the light most favorable to the prosecution,”

Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational trier of fact could have

found that the federal government exercised sufficient supervision and control over

the funds that Leighton embezzled from the Naval Sea Cadet Corps (NSCC) to

make the funds property of the United States for purposes of 18 U.S.C. § 641. See

United States v. Kranovich, 401 F.3d 1107, 1113–14 (9th Cir. 2005); United States

v. Von Stephens, 774 F.2d 1411, 1413 (9th Cir. 1985) (per curiam). Contrary to

Leighton’s argument, evidence that the NSCC failed to exercise adequate internal

supervision and control over the funds does not undermine such a conclusion. See

Von Stephens, 774 F.2d at 1413.

      Because the total amount of embezzled federal funds is not an element of the

offense under 18 U.S.C. § 641, the district court did not err in declining to instruct

the jury that it must determine that amount. Moreover, the absence of such an

instruction did not deprive Leighton of his right to have “the jury instructed on his

. . . theory of defense,” United States v. Perdomo-Espana, 522 F.3d 983, 986–87

(9th Cir. 2008), given that the jury was properly instructed on the intent

requirement of 18 U.S.C. § 641.

      AFFIRMED.




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