[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JULY 08, 2008
                             No. 07-15767
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                               CLERK
                       ________________________

                 D. C. Docket No. 07-00234-CR-IPJ-HGD

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

PENNY MORRIS,

                                                        Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                              (July 8, 2008)

Before ANDERSON, HULL and FAY, Circuit Judges.

PER CURIAM:
      Penny Morris appeals her conviction for theft of government funds, in

violation of 18 U.S.C. § 641. On appeal, Morris argues that the government failed

to present evidence that she willfully, knowingly, and intentionally took

government funds that did not belong to her. Morris contends that the evidence

presented at trial demonstrated only that (1) she verified her mother’s date of

death, as requested by the Department of Veterans Affairs (“VA”); (2) the VA

eventually terminated the payment of benefits in May 2006, but did not notify her

that the benefits should have ceased upon her mother’s death; and (3) when she

finally was advised that she was not entitled to VA benefits, she immediately

offered to repay the value of the benefits that she had received. Although Morris

concedes that she spent a small amount of the benefit payments that had been

deposited in her mother’s checking account, she argues that the government failed

to prove, beyond a reasonable doubt, that she knew that she was not entitled to the

payments or that she spent a portion of those funds with the specific intent to

deprive the government.

      For the reasons set forth more fully below, we affirm.

      We review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds. United States v. Yates, 

, 1311-12

(11th Cir. 2006) (en banc). In reviewing a sufficiency of the evidence challenge,

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we consider “the evidence in the light most favorable to the government.” United

States v. Garcia, 

, 1269 (11th Cir. 2005). We also make all

reasonable inferences and credibility choices in favor of the government and the

jury’s verdict. 

affirm “unless, under no reasonable construction of

the evidence, could the jury have found the [defendant] guilty beyond a reasonable

doubt.” 

need not exclude every hypothesis of innocence or be

completely inconsistent with every conclusion other than guilt because a jury may

select among constructions of the evidence.” United States v. Bailey, 

, 1391 (11th Cir. 1997).

             Whoever embezzles, steals, purloins, or knowingly converts to
      his use or the use of another, or without authority, sells, conveys or
      disposes of any . . . thing of value of the United States or of any
      department or agency thereof. . . Shall be fined under this title or
      imprisoned not more than ten years, or both.

18 U.S.C. § 641. A defendant may be convicted for theft of government property,

under 18 U.S.C. § 641, if the government establishes: (1) that the money described

in the indictment belonged to the United States or an agency thereof; (2) that the

defendant stole or converted the property to her own use; and (3) that the

defendant did so knowingly with intent to deprive the government of the money.

See United States v. Moore, 

, 1348 (11th Cir. 2007).

      Here, the testimony in the instant case established that the VA benefits paid

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to Morris’s mother, Wanda Joyce Gillis, should have ceased upon Gillis’s death in

May 2003. Upon request from the VA Insurance Office, Morris verified the date

of her mother’s death in 2003, and the Insurance Office subsequently stopped

making deposits to Gillis’s account. The VA, however, continued to deposit

Gillis’s other benefits into her account for three years after her death, and Morris

spent a portion of those funds. Morris does not dispute these facts.

      Similar to the facts presented in Moore, the VA did not send Morris any

notification that she was not entitled to receive her mother’s VA benefits or advise

her of any overpayment. See 

. In Moore, however, the

defendant believed that he was entitled to the VA benefits that were deposited into

an account he previously held together with his mother, who had told him that the

payments resulted from an annuity that would continue after her death. 

Here, there was no evidence or testimony to suggest that Morris converted

the funds in her mother’s account for her own personal use under the belief that

she was entitled to receive such benefits. To the contrary, the testimony presented

at trial established that Morris spent a portion of the funds deposited by the VA

with the knowledge that those benefits should not have continued past her

mother’s death and, thus, intended to deprive the government of those funds.

      The VA frequently advised beneficiaries and their families to report any

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changes in status, such as a death or remarriage. Upon verifying her mother’s

death with the VA Insurance Office, Morris inquired about the overpayment of

insurance benefits and sent a check to reimburse the VA. SouthTrust Bank

employees advised Morris that the VA continued to deposit other benefits into her

mother’s account and told Morris that it was her responsibility to notify the VA of

her mother’s death and to close her mother’s account once any outstanding checks

had cleared. SouthTrust employees further advised Morris that the VA could

reclaim any funds that were erroneously deposited to the account. Morris

acknowledged that the VA could reclaim funds from the account and told the bank

that she expected that the VA would do so. Nevertheless, Morris failed to close

her mother’s checking account and continued to spend the funds deposited by the

VA. Morris further offered to repay the benefits that she had spent and admitted

that she knew that the payments would not have continued had the VA known of

her mother’s death. Based on this evidence, the jury could infer that Morris knew

that she was not entitled to the VA benefits and, therefore, intended to deprive the

government of those funds when she spent them. Accordingly, the evidence

presented was sufficient to sustain Morris’s conviction for theft of government

property.

      In light of the foregoing, Morris’s conviction is AFFIRMED.

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