Case: 10-30994 Document: 00511502082 Page: 1 Date Filed: 06/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2011
No. 10-30994
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CHARLES Q. SKYM,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:09-CR-56-1
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Charles Q. Skym, formerly a sergeant in the United States Air Force,
contests his bench-trial conviction, tried by a magistrate judge and affirmed by
the district court, for knowingly and fraudulently demanding payment on a
claim against the United States, in violation of 18 U.S.C. § 1003. He was
sentenced, inter alia, to two months’ imprisonment.
Skym asserts that the evidence is insufficient to support his conviction,
claiming the Government failed to establish that his moving-expenses
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-30994
reimbursement claim was fraudulent. Along that line, Skym contends that the
magistrate judge and district court erred in: considering the weight-estimator
results (a computer program that estimated weight of shipment based on items
being moved), because the estimator program contained a disclaimer that results
may be inaccurate and some of his inventory did not appear, or received
inadequate coverage, under the estimator; and relying on the listed maximum
capacity of the moving truck, because the Government did not call an expert to
testify about whether such a vehicle could function with a load exceeding its
capacity and the extent to which such capacity could be exceeded before vehicle
damage occurred.
Where, as here, an action is tried before a magistrate judge and affirmed
by the district court, pursuant to 28 U.S.C. § 636, our court “will affirm the
magistrate’s findings if they are supported by substantial evidence”. United
States v. Lee, 217 F.3d 284, 288 (5th Cir. 2000). The evidence is sufficient to
support the conviction unless “no rational trier of fact could find substantial
evidence establishing [Skym’s] guilt beyond a reasonable doubt.” Id.
The magistrate judge’s conclusion that Skym’s reimbursement claim was
fraudulent is supported by substantial evidence. Following his release from the
Air Force, Skym claimed reimbursement for 9,000 pounds of household goods
that he personally moved, far exceeding the amount claimed by an average
service member in his position, and two times as much as was calculated by the
weight estimator. Two Government witnesses testified that Skym’s claimed
weight looked suspicious, that it far exceeded the estimated weight of his
inventoried goods, and that the estimator provided a close weight to what was
expected of a staff sergeant with a single dependent. There was also evidence
that the estimator generally exceeded the actual weight of the inventoried items,
and that it usually estimated within 500 pounds of the actual weight of the
items. Further, Skym’s assertion that the estimator did not consider, or
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Case: 10-30994 Document: 00511502082 Page: 3 Date Filed: 06/08/2011
No. 10-30994
undervalued, some of his items is unavailing; the estimator included 900 pounds
of unspecified items.
The magistrate judge’s finding that it was not possible to exceed the
vehicle’s payload capacity without damaging the vehicle is also supported by
substantial evidence. Skym claimed that he moved 9,040 pounds of household
goods in a truck that had a maximum payload capacity of 5,544 pounds. Even
with the additional items Skym added, at trial, to the initial inventory, his total
estimated weight was substantially below the claimed 9,040 pounds. Two
Government witnesses testified that neither of them had seen a truck the size
of the one used by Skym carrying that weight of goods. Accordingly, there was
sufficient evidence for the magistrate judge to conclude that no expert witness
was required. See United States v. Wright, 797 F.2d 245, 254 (5th Cir. 1986).
AFFIRMED.
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