United States of America v. Michael N. Leighton

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL N. LEIGHTON,
Defendant-Appellant.
No. 18-30070
D.C. No.
2:17-cr-00013-TSZ-1
MEMORANDUM*
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.
FILED
FEB 07 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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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