United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 26, 2004
Charles R. Fulbruge III
Clerk
No. 03-41383
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUY E. SPARKMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CR-21-ALL
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Guy E. Sparkman appeals his conviction following jury trial
for theft of Government funds in violation of 18 U.S.C. § 641(a).
Sparkman first contends that § 641 is unconstitutional because it
is overbroad, vague, and imprisons a person for his debts.
Sparkman does not specify in what manner § 641 is overbroad or
vague, and his claim thus fails. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). His argument that the statute is
unconstitutionally overbroad (or is unconstitutional as applied)
*
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this opinion should not be published and is not precedent except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.
No. 03-41383
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because it imprisons a person for his debts is facially without
merit. See 18 U.S.C. § 641. The thrust of Sparkman’s argument
is that he should have been prosecuted under a different, less
punitive statute, but the decision as to which statute an
offender will be charged under is “wholly within the discretion
of the prosecution.” See United States v. McCann, 465 F.2d 147,
162 (5th Cir. 1972).
Sparkman next contends that the indictment was defective
because it employed “generic terms” and failed to allege each of
the essential elements of the offense. Because he does not
specify which essential elements of the charge were omitted, he
has abandoned the claim. See Yohey, 985 F.2d at 224-25.
Sparkman also argues that the indictment impermissibly charged
numerous offenses, which “compromised” the required specificity
of the charge. This claim is frivolous because the indictment
charged Sparkman with committing the same offense on 18 different
occasions, each comprising a separate offense. The indictment
adequately notified Sparkman of the charges against him and is
thus sufficient. FED. R. CRIM. P. 7(c)(1); see United States v.
Nevers, 7 F.3d 59, 62 (5th Cir. 1993).
Sparkman argues that the jury instructions were erroneous
and violated his due process rights. Because none of these
allegations were raised in the district court, our review is
limited to plain error. United States v. Vasquez, 216 F.3d 456,
459 (5th Cir. 2000). Sparkman first contends that the jury
No. 03-41383
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charge did not require the jury to unanimously find each element
of the offense beyond a reasonable doubt. He is incorrect. The
district court’s charge did require unanimity.
Sparkman next contends that the jury charge was flawed
because it did not include his requested instruction regarding
his intent to repay. Because the requested instruction was a
misstatement of the relevant law, the district court did not err
in refusing to give it. See United States v. Maseratti, 1 F.3d
330, 336 (5th Cir. 1993); 18 U.S.C. § 641(a); Fifth Circuit
Pattern Jury Instructions § 2.33 (West 2001). Sparkman
additionally contends that the district court incorrectly
instructed the jury regarding the definition of “theft” because
it included the term “conversion,” which he urges was not
included in the indictment. However, the indictment stated that
Sparkman did “convert to his own use” money belonging to the
government. To the extent that Sparkman seeks to renew his
objection to the variation between the conjunctive charging
language in the indictment and the disjunctive language in the
jury charge, the claim fails. See Schad v. Arizona, 501 U.S.
624, 631 (1990).
Sparkman further contends that the evidence was insufficient
to sustain his conviction. Although Sparkman moved for a
judgment of acquittal at the close of the Government’s case, he
did not renew his motion at the close of all of the evidence. As
a result, our review “is limited to determining whether there was
No. 03-41383
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a manifest miscarriage of justice.” United States v. Inocencio,
40 F.3d 716, 724 (5th Cir. 1994). Sparkman has not made the
required showing. His claim that there was insufficient evidence
that the money he took was government property is factually
frivolous, and his argument that the evidence failed to show that
he intended to deprive the Government of the funds permanently is
unpersuasive.
The argument is flawed because the Government was not
required to prove a permanent deprivation; a temporary taking
also violates the statute. See 18 U.S.C. § 641; Fifth Circuit
Pattern Jury Instructions § 2.33 (West 2001). Moreover, the
evidence was sufficient to show that Sparkman intended to convert
the funds to his own use, temporarily and/or permanently.
Testimony indicated that Sparkman attempted to employ the term
“loan” on the checks he drew on his mother’s account only to
avoid detection. Trial testimony also showed that Sparkman had
more than adequate funds to reimburse the Government after he
received his mother’s life insurance proceeds but chose not to do
so despite his characterization of his takings as a loan.
Sparkman additionally argues that the Government engaged in
prosecutorial misconduct when it presented false and misleading
testimony. However, Sparkman’s contention that Terry Lindsey
perjured himself is conclusional and devoid of any support in the
record. His contention that Agent Peter Moore deliberately misled
the jury is also incorrect.
No. 03-41383
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Similarly, Sparkman’s allegation that the district court had
an “obvious personal prejudice” against him, which deprived him
of a fair trial, is unpersuasive because he fails to provide any
specific evidence to support his claim.
Sparkman has not demonstrated any error in the district
court’s judgment. Accordingly, the judgment is AFFIRMED.