Indictment Particularity Does Not Convert Specific Property into an Element of 18 U.S.C. § 666 Federal Program Theft
1. Introduction
This appeal arose from a fraud and theft scheme committed by Emiliya Radford while she served first as a contractor and later as the office manager for Smith Spinal Care Center (“SSCC”), a Georgia chiropractic office owned by James C. Smith. While entrusted with payroll and account access—including authority as an authorized bank signer—Radford purchased Apple products using SSCC funds, increased and duplicated her compensation, and issued large unauthorized checks to her marketing company, Cyber Pinecone, LLC. The conduct overlapped with SSCC’s receipt of an SBA disaster-related loan during the Covid-19 period.
After a jury convicted Radford of bank fraud (18 U.S.C. § 1344(2)), wire fraud (18 U.S.C. § 1343), and federal program theft (18 U.S.C. § 666(a)(1)(A)), the district court imposed 66 months’ imprisonment and ordered $298,042.72 in restitution. On appeal, Radford challenged (i) the § 666 conviction (constructive amendment and sufficiency), (ii) several guidelines enhancements (loss amount; the U.S.S.G. § 2B1.1(b)(12) “§ 1040 disaster-fraud” enhancement; and the U.S.S.G. § 3B1.3 position-of-trust enhancement), and (iii) restitution.
2. Summary of the Opinion
The Eleventh Circuit affirmed in full. It held:
- No constructive amendment occurred where the § 666 count’s indictment listed certain Apple products by serial number, but the government’s proof included an additional/different computer—because the specific property is not an essential element of § 666 (only conversion of property valued at $5,000+ is).
- Sufficient evidence supported the § 666 conviction because the government proved Radford converted at least $5,164.73 of SSCC money to purchase unauthorized computer products shipped to her home and recovered there.
- Loss-amount challenge barred by invited error because Radford’s sentencing memorandum expressly stated the 12-level loss enhancement was “appropriate and not disputed,” and she did not challenge the PSR loss figures below.
- Restitution affirmed under plain error because Radford failed to object and the order rested on undisputed PSR facts.
- U.S.S.G. § 2B1.1(b)(12) applied because Radford’s offense involved conduct described in 18 U.S.C. § 1040: a false certification in the SBA loan documents about fees, followed by her issuance of a “consulting fee” to her company.
- No plain error on “double counting” because the claimed double-counting issue was not “specifically and directly resolved” by on-point precedent.
- U.S.S.G. § 3B1.3 applied because Radford’s office-manager role gave her meaningful discretion (access to accounts, authority to sign checks), which significantly facilitated and concealed theft from her employer.
3. Analysis
A. Precedents Cited
1) Sufficiency of evidence framework
- United States v. Pirela Pirela — de novo review of denial of a judgment of acquittal for sufficiency.
- United States v. Jiminez — evidence viewed in the light most favorable to the government; verdict sustained if a reasonable factfinder could find guilt beyond a reasonable doubt.
- United States v. Bell — sufficiency does not require excluding every hypothesis of innocence.
2) Constructive amendment doctrine
- United States v. Holt — constructive amendment generally reviewed de novo; but new-on-appeal claims reviewed for plain error.
- United States v. Howard — no constructive amendment where trial evidence differs in non-element particulars (there, two kickback checks proved though indictment mentioned one) because the “amount” was not an element; used as the principal analogy for “non-element detail in indictment ≠ element.”
- United States v. Leon — defines constructive amendment as alteration of “essential elements” broadening the bases of conviction beyond the indictment.
- United States v. Achey — addresses when indictment references (e.g., specific controlled substances) function as elements versus sentencing facts; distinguished because § 666 does not create property-type-specific offenses.
3) Elements of § 666 and the “property” concept
- United States v. Williams — sets out § 666 elements (agent; organization receives $10,000+ federal program funds; theft/fraud/conversion/intentionally misapplies $5,000+ property under the organization’s control).
- Kelly v. United States — confirms “property” includes money; critical to rejecting Radford’s attempt to force the government to prove the fate of specific serial-numbered devices rather than conversion of money exceeding $5,000.
4) Plain error, invited error, and issue preservation
- United States v. Sanchez — an error is not “plain” unless directly resolved by statute/rule or on-point Supreme Court/Eleventh Circuit precedent.
- United States v. Vandergrift — procedural sentencing issues not raised below reviewed for plain error.
- United States v. Brannan — invited error doctrine: a party who invites the error cannot complain on appeal.
- United States v. Duldulao — invited error applies when the error is attributable to the defendant’s own actions.
- United States v. Boone — express concession in a sentencing memorandum can invite/waive a challenge to an enhancement.
- United States v. Love, United States v. Fulford, United States v. Baker — examples where a defendant’s agreement/solicitation/acknowledgment triggers invited error principles.
- United States v. Utsick — restitution challenges raised first on appeal reviewed for plain error.
- United States v. Hasson — no plain error where restitution rests on undisputed PSR facts.
5) Guidelines interpretation and factfinding
- United States v. Westry and United States v. White — standards for guidelines application (de novo) and factual findings (clear error).
- United States v. Garrison — legal standard for § 3B1.3 position of trust; identifies two fraud contexts and stresses the victim-focused trust inquiry.
- United States v. Louis — positions of trust “narrowly” defined based on professional discretion; inquiry is fact sensitive.
- United States v. Linville — signature authority used to forge checks supports § 3B1.3 enhancement (a key “employer theft” comparator).
- United States v. Britt (and reinstatement history) — significant discretion and loose supervision supports § 3B1.3.
- United States v. Ghertler, United States v. Hall, United States v. Mullens — cited to distinguish “non-employer” trust theories (personal/fiduciary relationships) from the “employee stealing from employer” paradigm.
B. Legal Reasoning
1) Constructive amendment: detail in the indictment did not become an “essential element”
The court treated the serial-number listing as descriptive surplusage rather than an element-creating limitation. Applying United States v. Leon and United States v. Howard, it asked whether the trial evidence altered an essential element of § 666. It did not.
Under § 666 (as framed by United States v. Williams), the government needed to prove conversion (or theft/fraud/misapplication) of property valued at $5,000 or more. Nothing in the statute makes the precise identity of the property (e.g., a specific device by serial number) an element. The panel underscored that, under Kelly v. United States, “property” includes money; thus, proof that SSCC funds were converted to unauthorized purchases exceeding $5,000 satisfied the property element.
Radford’s reliance on United States v. Achey failed because Achey turned on drug statutes where the indictment’s reference to specific substances can function as an element in certain circumstances. The Radford panel saw no analogous statutory structure under § 666—no property-type “subset offense” and no authority converting particular property descriptions into elements.
2) Sufficiency: money conversion exceeding $5,000 was proved
Using the United States v. Jiminez framework, the court concluded that Apple records and bank records showed at least $5,164.73 in unauthorized purchases shipped to Radford’s home and recovered there. A reasonable jury could therefore find conversion of SSCC’s property (money) valued at $5,000+ beyond a reasonable doubt.
3) Loss amount: invited error foreclosed appellate review
The opinion’s most practice-significant sentencing move is procedural: Radford’s explicit concession that the 12-level loss enhancement was “appropriate and not disputed” triggered invited error under United States v. Brannan and, specifically in the sentencing memorandum context, United States v. Boone.
The panel rejected Radford’s attempt to recharacterize the concession as “unintentional,” emphasizing that Eleventh Circuit invited-error analysis focuses on whether the defendant’s actions induced the district court to proceed on the conceded premise, not on subjective intent to waive appellate review.
4) Restitution: plain error review plus undisputed PSR facts
Because Radford did not object to restitution at sentencing, the panel applied United States v. Utsick plain-error review. Under United States v. Hasson, a district court does not plainly err by basing restitution on undisputed PSR facts; that ended the inquiry.
5) Disaster-related fraud enhancement: § 2B1.1(b)(12) and “conduct described in 18 U.S.C. § 1040”
The court upheld the two-level enhancement by tying Radford’s conduct to a false certification in SBA loan documents: the loan agreement represented no prohibited fees were paid in connection with applying for or closing the loan, yet Radford issued a “Consulting Fee” payment to her company immediately after the loan increase was received.
The panel treated the falsity as straightforward: the document’s representation (no unapproved fees; such fees prohibited) was contradicted by Radford’s knowledge and follow-on conduct. Even if the loan document could be viewed as SSCC’s statement, § 1040 reaches “whoever” makes or uses a false writing. The district court’s finding that Radford steered the process and signed documents supported the conclusion that she “made” or “used” the false writing knowingly.
The court also rejected the “attenuation” argument about the phrase “in any matter involving” a Stafford Act benefit. Because the false statement was in the very agreement used to secure the disaster benefit, it necessarily was “in a matter involving” that benefit.
6) Double counting: not “plain” absent controlling precedent
Radford’s double-counting argument failed on the third prong of plain error: even assuming arguable overlap, she conceded no court had decided whether applying § 2B1.1(b)(12) constitutes impermissible double counting when there is also a conviction under 18 U.S.C. § 666(a)(1)(A). Under United States v. Sanchez, that absence of on-point authority meant any error could not be “plain.”
7) Position of trust: employee theft turns on discretion, not fiduciary status
The panel applied a well-developed Eleventh Circuit distinction: where the defendant steals from her employer, § 3B1.3’s applicability turns primarily on the employee’s discretion and access, rather than a “fiduciary-like” relationship. Relying on United States v. Garrison and the “paradigmatic case” approach in United States v. Linville, the court held that Radford’s authority as an office manager—with access to accounts and check-signing power—significantly facilitated her theft and concealment.
The court contrasted “non-employer” cases—United States v. Ghertler, United States v. Hall, United States v. Mullens—which require careful limitation to avoid transforming ordinary reliance into “trust” for enhancement purposes. Those overbreadth concerns were less salient because SSCC’s trust was based on Radford’s formal position and delegated discretion.
C. Impact
1) Charging practice: descriptive particulars do not necessarily narrow the theory of guilt
The decision reinforces a pragmatic rule in § 666 prosecutions: even if an indictment identifies particular items (here, Apple products by serial number), the government does not necessarily assume the burden of proving the identity of each listed item so long as the statutory element is conversion of property (including money) valued at $5,000+. For defendants, the opinion signals that “variance” arguments should be framed carefully and tied to elements, not merely to indictment detail.
2) Sentencing preservation: explicit concessions can be dispositive (invited error)
The panel’s reliance on the sentencing memorandum concession under United States v. Boone underscores a high-stakes lesson: affirmatively stating that an enhancement is “appropriate and not disputed” can function as a complete appellate bar, even if later counsel believes the underlying computation was erroneous. This is more than forfeiture; it is invited error, eliminating review altogether.
3) Disaster-fraud enhancement: broadened exposure where disaster-relief financing intersects with internal embezzlement
Although § 1040 is often associated with fraudulent receipt of disaster funds, this opinion confirms that § 2B1.1(b)(12) can apply where the false statement occurs in disaster-loan documentation and the benefit is real, but the fraud takes the form of prohibited fee extraction by an insider. Future cases involving SBA disaster programs (or analogous benefit regimes) can cite this reasoning to argue that prohibited-fee certifications are materially enforceable hooks for § 1040-described conduct.
4) Position-of-trust enhancement remains robust for payroll/account-access employees
The decision fits comfortably within United States v. Linville and United States v. Britt, signaling continued receptivity to § 3B1.3 for office managers, bookkeepers, and others with check-signing authority or loosely supervised access to financial systems—especially where that access enabled both commission and concealment.
4. Complex Concepts Simplified
- Constructive amendment: A constitutional problem arises if the government (through proof or jury instructions) effectively changes the crime charged so the jury can convict on a broader basis than the grand jury alleged. Here, the court said the government did not change any statutory element; it proved the same crime even if it mentioned slightly different items.
- Variance vs. constructive amendment: A “variance” is a mismatch between indictment details and proof; a “constructive amendment” is a mismatch that changes an element or the allowable basis for conviction. This opinion treats the serial numbers as non-element details.
- 18 U.S.C. § 666 federal program theft: Targets theft/fraud from organizations receiving significant federal funds. The key “property” element is $5,000+ in property (including money) under the organization’s control.
- Plain error review: A demanding appellate standard for issues not preserved below. The defendant must show an obvious legal error under controlling authority that affected substantial rights and undermined the fairness of proceedings.
- Invited error: If a defendant affirmatively tells the district court to proceed in a certain way—such as conceding a guidelines enhancement—she generally cannot challenge that action on appeal.
- U.S.S.G. § 2B1.1(b)(12) and 18 U.S.C. § 1040: The guideline increases punishment where the offense involved conduct described in § 1040 (disaster/emergency benefits fraud), including false statements in matters involving Stafford Act emergency benefits (here, an SBA disaster-loan program).
- Double counting: Using the same conduct to increase punishment twice under the guidelines. Even if arguably present, an appellate court often will not reverse on plain-error review unless controlling precedent clearly forbids it.
- U.S.S.G. § 3B1.3 position of trust: Applies when the defendant had special discretion/access and used it to significantly facilitate or conceal the offense. In employer-theft cases, the focus is usually on discretion (e.g., check-signing, unsupervised financial authority), not on a formal fiduciary title.
5. Conclusion
United States v. Emiliya Radford consolidates several practical appellate rules in fraud sentencing and § 666 litigation: (1) indictment specificity about property does not automatically transform that specificity into an element, defeating constructive amendment theories where the statute requires only conversion of $5,000+ in property/money; (2) sufficiency under § 666 can rest on proof of converted funds rather than proof that each specifically described item was recovered or matched; (3) explicit sentencing concessions can trigger invited error and foreclose review of major enhancements; (4) restitution and novel double-counting theories face steep headwinds under plain-error review; and (5) office-manager discretion and check-signing authority remain a strong basis for the § 3B1.3 position-of-trust enhancement.
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