                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4351


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DYRRLE GENE OSBORNE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00204-RJC-1)


Submitted:   January 5, 2012                 Decided:   January 24, 2012


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Angela G. Parrott, Acting Executive Director, Elizabeth A.
Blackwood, Research and Writing Attorney, Ann L. Hester,
Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.    Anne
M. Tompkins, United States Attorney, Kurt W. Meyers, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Dyrrle Gene Osborne appeals his conviction under 18

U.S.C. § 641 (2006).           We have reviewed the record and find no

reversible error.         Accordingly, we affirm.

             Between 2003 and 2005, Osborne was an active member of

the United States Army.             After Osborne separated from active

duty, however, he continued to receive salary payments in error

by direct deposit and spent the funds so deposited.                             A jury

found Osborne guilty of conversion, in violation of 18 U.S.C.

§ 641, and making false statements regarding a matter within the

jurisdiction of a Government agency, in violation of 18 U.S.C.

§ 1001 (2006).        On appeal, Osborne argues that the Government

failed to prove an essential element of its conversion charge,

specifically        its    ownership       of   the     funds       that    had    been

erroneously       deposited.     He    contends        that   the    district      court

therefore erred in denying his motion for acquittal under Fed.

R. Civ. P. 29 and preventing him from making certain arguments

to the jury.

             We    conclude    that        Osborne’s    arguments      are    without

merit.   As a matter of law, the Government retained an ownership

interest for purposes of § 641 in the erroneously-issued funds.

See United States v. Smith, 373 F.3d 561, 576 (4th Cir. 2004)

(the fact “that he had lawful possession of the funds . . . did

not   give    him    the    right     to     appropriate      them    for    his    own

                                            2
purposes”) (emphasis added); United States v. Gill, 193 F.3d 802

(4th       Cir.   1999)    (affirming     § 641      conviction        where    social

security checks were deposited and subsequently misappropriated

by   the     intended     beneficiary’s       mother).    The     district       court

therefore did not err in denying Osborne’s Rule 29 motion * or

precluding        statements   of   law   to   the   contrary     in    his    closing

argument.

              Accordingly,     we    affirm.         We   dispense       with     oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                               AFFIRMED




       *
       Osborne does not challenge on appeal, nor did he challenge
at trial, the sufficiency of the Government’s evidence on any
other element of the conversion charge.



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