United States v. Hay

95 F.4th 1304

UNITED STATES of America, Plaintiff - Appellee, v. Bruce L. HAY, Defendant - Appellant.Reporters Committee for Freedom of the Press;First Amendment Coalition; Freedom of the Press Foundation;the Media Institute; National Press Photographers Association;the News Leaders Association; News/Media Alliance;Radio Television Digital News Association;Society of Environmental Journalists, Amici Curiae.

No. 22-3276

United States Court of Appeals, Tenth Circuit

FILED March 19, 2024

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:19-CR-20044-JAR-1)

Rachel Tennell, Debevoise & Plimpton LLP, New York, New York (Benjamin Leb and Anagha Sundararajan, Debevoise & Plimpton LLP, New York, New York; David A. O'Neil, Debevoise & Plimpton LLP, Washington, D.C.; and Melody Brandon, Federal Public Defender, and Paige

A. Nichols, Assistant Federal Public Defender, Kansas Federal Public Defender's Office, Topeka, Kansas, with her on the briefs) for Defendant-Appellant.

Kevin J. Barber, United States Department of Justice, Criminal Division, Appellate Section, Washington, D.C. (Nicole M. Argentieri, Acting Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, United States Department of Justice, Criminal Division, Appellate Section, Washington, D.C.; and Kate E. Brubacher, United States Attorney, District of Kansas, and James A. Brown, Assistant United States Attorney, Appellate Chief, District of Kansas, Topeka, Kansas, with him on the brief) for Plaintiff-Appellee.

Brett Max Kaufman, American Civil Liberties Union Foundation, New York, New York; Sharon Brett, American Civil Liberties Union of Kansas, Overland Park, Kansas; Tim Macdonald, American Civil Liberties Union of Colorado, Denver, Colorado; and Tom McBrien, Electronic Privacy Information Center, Washington, D.C., filed an Amicus Curiae Brief of American Civil Liberties Union, American Civil Liberties Union of Kansas, American Civil Liberties Union of Colorado, Brennan Center for Justice, Center for Democracy & Technology, and Electronic Privacy Information Center in Support of Defendant-Appellant.

Katie Townsend, Counsel of Record for Amici Curiae, and Gabe Rottman, Grayson Clary, and Emily Hockett, Reporters Committee for Freedom of the Press, Washington, D.C., filed an Amicus Curiae Brief of The Reporters Committee for Freedom of the Press and 8 Media Organizations in Support of Defendant-Appellant.

Before TYMKOVICH, MURPHY, and CARSON, Circuit Judges.

TYMKOVICH, Circuit Judge.

Does the Fourth Amendment permit the government to surveil a home for months on end without a warrant? This case requires us to decide.

The Department of Veterans Affairs (VA) offers lifetime benefits to permanently disabled veterans. A Kansas jury convicted Bruce Hay of ten counts of stealing government property and six counts of wire fraud as part of a scheme to defraud the VA by exaggerating his disability. As part of its investigation, VA agents installed a pole camera across the street from his house to film his activities.

Mr. Hay appeals his conviction. He contends that (1) the evidence presented at trial is insufficient to support a conviction, (2) the VA's installation of a pole camera violated his Fourth Amendment rights, and (3) the district judge wrongfully admitted evidence to the extent that it deprived him of a fair trial.

We affirm the district court.

I. Background

Bruce Hay is a U.S. Army veteran. In 2005, while at home in Kansas, he was involved in a serious car accident. Doctors diagnosed him with "functional neurological disorder," or FND, a psychological disorder that impaired his mobility. Following this diagnosis, Mr. Hay applied for disability benefits from the VA. In 2006, the VA determined that Mr. Hay was permanently disabled and therefore entitled to benefits.

Six years later, the VA Inspector General's office received an anonymous tip alleging that Mr. Hay was not, in fact, permanently disabled. It initiated an investigation into Mr. Hay's disability status. Mr. Hay lived in Osawatomie, a small town in eastern Kansas. To investigate Mr. Hay's mobility, officers feigned an operation involving deer poaching on a nearby farm so that they could monitor Mr. Hay from a closer distance. They also tailed him to medical appointments and other events. For a more robust record of his daily activities, they installed a pole camera on a school rooftop across the street from Mr. Hay's house. The camera was remote-controlled and activated by motion, and it recorded near constant footage of Mr. Hay's house as visible from across the street. All told, the camera captured 15 hours of footage per day for 68 days.

Over the course of a six-year investigation, the VA finally developed enough evidence to suggest that Mr. Hay was faking his disability and that he was not entitled to disability benefits. Subsequently, a grand jury indicted Mr. Hay on ten counts of stealing government property in violation of 18 U.S.C. § 641 and six counts of wire fraud in violation of 18 U.S.C. § 1343. A jury found Mr. Hay guilty of all counts.

II. Analysis

Mr. Hay argues that he was entitled to a judgment of acquittal or a new trial for three reasons: (1) the evidence presented at trial was insufficient to support a conviction for stealing government property or for wire fraud; (2) the district court admitted pole camera footage that was obtained in violation of the Fourth Amendment; and (3) the district court admitted other incriminating evidence and testimony in violation of the Federal Rules of Evidence.

A. Sufficiency of the evidence

1. Stealing government property

Mr. Hay first contends his conviction should be vacated because the government did not supply sufficient evidence to prove that he stole government property. In reviewing motions for a judgment of acquittal, we must consider whether "viewing the evidence in the light most favorable to the Government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt." United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004).

Mr. Hay was charged with fraudulently taking government property under 18 U.S.C. § 641. That statute makes it a crime to take government property in four different ways. It applies to:

Whoever [1] embezzles, [2] steals, [3] purloins, or [4] knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof.

18 U.S.C. § 641 (brackets added).

Mr. Hay argues that because his scheme involved fraud and deception, but not theft, the statute does not cover his misconduct. The question, then, is whether "steal[ing]," as used in the statute, encompasses acts of fraud and deception. It does.

The term " 'steal' may denote the criminal taking of personal property either by larceny, embezzlement, or false pretenses." United States v. Turley, 352 U.S. 407, 412, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (citing Black's Law Dictionary (4th ed. 1951)) (emphasis added). See also Steal, Black's Law Dictionary (3d ed. 1933) (defining "steal" as "the criminal taking of personal property by larceny, embezzlement, or false pretenses."). Accordingly, circuit courts have consistently affirmed convictions under 18 U.S.C. § 641 for submitting fraudulent paperwork to the government in order to obtain money. See United States v. Ransom, 642 F.3d 1285, 1289-1290 (10th Cir. 2011) (affirming conviction under 18 U.S.C. § 641 for falsification of government timesheets); United States v. Rivera-Ortiz, 14 F.4th 91, 101 (1st Cir. 2021) (affirming conviction under 18 U.S.C. § 641 for misrepresenting the defendant's occupation on a social security disability insurance application); United States v. Oliver, 238 F.3d 471, 472-473 (3d Cir. 2001) (similar); and United States v. Dowl, 619 F.3d 494, 501-502 (5th Cir. 2010) (affirming conviction under 18 U.S.C. § 641 for falsifying loan applications). Mr. Hay feigned a permanent disability to access government benefits. That qualifies as "stealing" under 18 U.S.C. § 641.

Mr. Hay resists this conclusion, arguing that "none of the offenses enumerated in the statute—embezzlement, theft, conversion—extend to offenses that require, as necessary elements, proof of both a material misrepresentation and an intent to deceive." Aplt. Br. at 23. According to Mr. Hay, the term "steal" refers to a "range of common-law theft offenses that all require the 'wrongful taking' of property without the consent of the owner." Id. at 24-25 (citing United States v. Hill, 835 F.2d 759, 763 (10th Cir. 1987); C.R.S. Recovery, Inc. v. Laxton, 550 Fed. App'x 512, 513 (9th Cir. 2013); and Steal, Merriam-Webster Dictionary). Mr. Hay also distinguishes "stealing" from "fraud," which "requires proof that the defendant obtained property by means of 'false pretenses, representations, or promises' that is 'reasonably calculated to deceive persons of ordinary prudence.' " Id. at 25 (citing United States v. Cochran, 109 F.3d 660, 664 (10th Cir. 1997); and Fraud, Black's Law Dictionary (3d ed. 1933)).

Mr. Hay's definition of "stealing" is overly narrow and unsupported by the text of the statute or by precedent. As the Supreme Court explained in Turley, "steal[ing]" includes the "criminal taking of personal property . . . by . . . false pretenses." Turley, 352 U.S. at 412, 77 S.Ct. 397. "[T]he courts interpreting [stolen and steal] have declared that they do not have a necessary common-law meaning coterminous with larceny and exclusive of other theft crimes." Id. This reasoning forecloses Mr. Hay's argument.

Mr. Hay points to our decision in United States v. Hill, where we held that "while § 641 defines a broad crime against property, it nonetheless circumscribes the means by which that crime can be...