(D.C. No. 6:13-CR-10058-MLB-1) (D. Kan.)
Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT [*]
Terrence L. O'Brien United States Circuit Judge
Eledria J. Bradley, a member of the Kansas Air National Guard, was convicted by a jury of wire fraud: she falsely claimed her "Home of Record" changed from Wichita, Kansas, to her father's address in Chandler, Arizona. The change, accepted as true by the Air Force, resulted in her receiving higher housing benefits (Basic Allowance for Housing) and benefits she would not have otherwise received (lodging and per diem) for approximately two years. The questions presented here are whether the district judge erred in refusing to give a proposed entrapment-by-estoppel instruction and whether the government presented sufficient evidence of her intent to defraud the United States. Because the proposed instruction misstated the law and was not supported by the evidence, it was properly refused. The evidence was sufficient. We affirm.
Bradley lived in Arizona (presumably with her father) until she graduated from high school in 2002. She then moved to Wichita, Kansas, to reside with her grandparents. In 2004, she enlisted in the Kansas Air National Guard. Four years later, in November 2008, she married Gary Bradley, an active duty serviceman with the United States Air Force stationed at McConnell Air Force Base in Wichita. The two lived in an apartment in Wichita.
In February 2009, Bradley received orders (Title 32 orders) from the Kansas Air National Guard to report to her Security Forces squadron at McConnell Air Force Base in Wichita for annual training from April 6-10, 2009. She also received orders from the United States Air Force (Title 10 orders) to report to active duty on April 11, 2009, for a one-year deployment to Saudi Arabia. Her Title 10 orders required her to first report to Fort Bliss, Texas, for desert training before leaving for Saudi Arabia. At the time she received her Title 10 and 32 orders, Bradley's military personnel file reflected her Home of Record as the apartment she shared with her husband in Wichita.
On April 10, 2009, while serving her Title 32 orders but aware of her Title 10 orders, Bradley accessed her military personnel file via a website called Virtual Military Personnel Flight (VMPF) and changed her Home of Record to her father's address in Chandler, Arizona. In order to justify a guard member changing her Home of Record, she must physically move her belongings to the new address; intent to move to a new address in the future is not enough. Although Bradley told investigators she had moved some of her belongings to a friend's house in Phoenix, Arizona, in February 2009, she did not list her friend's house as her Home of Record. Instead, she listed the address of her father, whose testimony was unequivocal: she had not moved any belongings to his residence and he did not recall her telling him she would be changing her Home of Record to his address. Bradley admitted to investigators she changed her Home of Record in order to obtain a higher Basic Allowance for Housing (BAH) while she was deployed. BAH is money guard members receive, in addition to their salary, to "help sustain their household[s] while they're on active duty orders." (R. Vol. 3 at 122.) The amount of BAH is based on the member's Home of Record. During the relevant time period (April 2009 to April 2011), the BAH for Chandler, Arizona, was greater than that for Wichita, Kansas. By changing her Home of Record from Wichita to her father's address in Chandler, Bradley increased the amount of BAH she would receive while under Title 10 orders.
On April 11, 2009, Bradley reported to Fort Bliss for desert training as ordered. Soon thereafter, she was injured during a training exercise. Due to her injury, she was not deployed to Saudi Arabia but instead was required to return to McConnell Air Force Base in Wichita. She was placed on a "medical hold, " which required her to stay in the Wichita area until a medical review board cleared her to leave. (R. Vol. 3 at 92, 228.) While on medical hold, Bradley continued to receive the increased BAH payments. She also began receiving lodging and per diem because her Home of Record—Chandler, Arizona—was outside the commuting distance for McConnell Air Force Base. Had her Home of Record remained Wichita, Kansas, she would not have been eligible for these additional benefits.
Upon her return to McConnell Air Force Base, Bradley was assigned a desk job in the Comptroller Unit (finance). In June 2009, Shellie Armstrong, the head of the Comptroller Unit and Bradley's supervisor, asked Bradley why her personnel file showed Chandler, Arizona, as her Home of Record. Bradley told her she had earlier moved her belongings to Arizona. Armstrong accepted Bradley's explanation.
Bradley remained on a medical hold until April 23, 2011, when she was medically retired from the military. During the medical hold (April 2009 to April 2011), she continued to receive BAH payments based on her Home of Record being Chandler, Arizona. She also submitted monthly vouchers to the Comptroller Unit to be paid lodging and per diem. Those vouchers were reviewed, audited, and approved by multiple members of the Comptroller Unit. In the end, Bradley received over $6, 000 more in BAH payments for the Chandler address than she would have received had her Home of Record remained Wichita. She also received over $54, 000 in lodging and per diem— benefits she would not have received had she not falsely claimed her father's Chandler, Arizona, address as her Home of Record.
In June 2012, the Air Force instigated an investigation. In speaking with the investigators, Bradley initially denied she was the one who changed her Home of Record but eventually admitted to doing so. She also gave conflicting information as to her proper Home of Record. She initially claimed her Home of Record should be Virginia because she had completed some military duty there and had left property there with an ex-boyfriend. She continued with this story after being confronted with the fact she had since married a serviceman stationed at McConnell Air Force Base. She also claimed her Home of Record should be her father's address in Chandler, Arizona, because that is where she resided prior to joining the military and where she had intended to move after her deployment. She claimed to have told her father she was going to list his address as her Home of Record. She also told the investigators she had moved a trunk-load of property to a friend's house in Phoenix, Arizona, in February 2009. Finally, as stated previously, she admitted the reason she changed her Home of Record to her father's address was so she would receive a higher BAH while she was deployed.
Bradley was indicted with one count of wire fraud. The indictment alleged her changed Home of Record from Wichita to Chandler resulted in her "receiv[ing] lodging and per diem benefits to which she was not entitled, from approximately April 11, 2009, until April 23, 2011, in the approximate amount of $54, 992.80." (R. Vol. 1 at 8 (emphasis added).) Notably, the indictment did not mention the increased BAH payments she also received as a result of the change. The jury was instructed accordingly: in addition to other elements,  it was required to find beyond a reasonable doubt that she "devised or intended to devise a scheme to obtain money by means of false or fraudulent presentences, or representations; that is, she falsely reported her address via . . . [V]MPF in order to obtain lodging expenses and per diem from the United States." (R. Vol. 1 at 23 (emphasis added).) No mention was made of the BAH payments.
At the close of the evidence, Bradley requested a jury instruction on entrapment-by-estoppel and submitted a proposed instruction. The proposed instruction required Bradley to show, inter alia, "that an agent or agents of the government affirmatively assent[ed] or by their acquiescence" misled her. (R. Vol. 1 at 14.) The district judge denied the request because the proposed instruction misstated the law and "there's no evidence in the case that [Bradley] actually went to anyone in authority and presented this scenario, . . . I want to change my address to Arizona because I think even though I'm going to be deployed . . . I can get more BAH . . . and that ...