United States v. Vernon Harrison ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15323
Non-Argument Calendar
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D.C. Docket No. 2:12-cr-00193-MEF-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERNON HARRISON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(September 2, 2014)
Before TJOFLAT, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Vernon Harrison appeals his convictions for one count of conspiracy to file
false claims, in violation of 18 U.S.C. § 286; eight counts of mail fraud, in
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violation of 18 U.S.C. § 1341; eight counts of aggravated identity theft, in violation
of 18 U.S.C. § 1028A(a)(1), (c)(5); and six counts of embezzlement of mail, in
violation of 18 U.S.C. § 1709. These charges relate to a scheme in which
Harrison, a former mail carrier, was charged with intercepting mail related to false
tax returns filed by co-conspirators. Harrison raises two issues on appeal. First, he
argues that the district court erred in denying his motion for a new trial because the
evidence weighed heavily against the verdicts. Second, he argues that the district
court erred in denying his motion for judgment of acquittal because the
government failed to prove the necessary elements of embezzlement of mail. After
careful review, we affirm.
I.
We review the denial of a motion for new trial for abuse of discretion.
United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001) (per curiam). We
will affirm the district court unless we find that it made a clear error of judgment or
applied the wrong legal standard. United States v. Frazier, 387 F.3d 1244, 1259
(11th Cir. 2004).
When considering a motion for a new trial based on the weight of the
evidence, the district court “need not view the evidence in the light most favorable
to the verdict. It may weigh the evidence and consider the credibility of the
witnesses.” United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).
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However, the court may not reweigh the evidence and set aside the verdict simply
because it feels some other result would be more reasonable. Id. at 1312–13. “The
evidence must preponderate heavily against the verdict, such that it would be a
miscarriage of justice to let the verdict stand.” Id. at 1313.
Harrison argues that the evidence from three key parts of the government’s
case, rather than supporting the verdict, actually weighed against it. First, he
argues that a statement he made to a special agent with the U.S. Postal Service’s
Office of the Inspector General was not the confession the government portrayed it
to be because he was not feeling well during the interview, which led him to be
incoherent. Second, he argues that the trial testimony of his alleged co-conspirator
Harvey James deserves no weight because James never made an in-court
identification and had a history of lying. And third, he argues that although the
pieces of mail identified in the indictment were addressed to residents on
Harrison’s mail route, suspicious mail was going to other routes as well and
residents on his route continued to receive suspicious mail after he was removed
from the route.
None of these three arguments persuade us that it would be a “miscarriage of
justice to let the verdict stand.” Martinez, 763 F.2d at 1313. On the first point, the
record reflects that Harrison coherently and unequivocally admitted in his
statement to giving pieces of mail to co-conspirator Greg Slaton in exchange for
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money. On the second point, we agree with the district court that James’s
testimony was adequately credible, and that the absence of an in-court
identification did not eliminate the reasonable inference that Harrison was the
person about whom James testified. In any event, the jury listened to James’s
testimony, heard about his criminal history, and was free to believe or disbelieve
him. See United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). On the
third point, the district court credibly found that the patterns of suspicious mail on
Harrison’s route weighed in favor of affirming the jury’s inference that Harrison
was involved in the crime. Harrison conceded that the majority of addresses used
to obtain fraudulent tax refunds were on his postal route. Taken together, the three
challenged pieces of evidence do not meet the standard for granting the motion for
a new trial. Thus, the district court did not abuse its discretion by denying
Harrison’s motion for a new trial.
II.
Harrison’s argument regarding the denial of his motion for judgment of
acquittal for embezzlement of mail hinges on the sole claim that the mail and debit
cards he gave to Slaton did not belong to the people whose names appeared on the
cards. We review de novo the denial of his motion for judgment of acquittal,
drawing all reasonable inferences in the government’s favor. United States v.
Bowman, 302 F.3d 1228, 1237 (11th Cir. 2002) (per curiam).
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Harrison’s argument is contradicted by the relevant statute and not supported
by any case law. The statute at issue, 18 U.S.C. § 1709, provides:
Whoever, being a Postal Service officer or employee, embezzles any
letter, postal card, package, bag, or mail, or any article or thing
contained therein entrusted to him or which comes into his possession
intended to be conveyed by mail, or carried or delivered by any
carrier, messenger, agent, or other person employed in any department
of the Postal Service, or forwarded through or delivered from any post
office or station thereof established by authority of the Postmaster
General or of the Postal Service; or steals, abstracts, or removes from
any such letter, package, bag, or mail, any article or thing contained
therein, shall be fined under this title or imprisoned not more than five
years, or both.
The government proved the necessary elements of embezzlement of mail. The
statute requires that the embezzled item was “intended to be conveyed by mail.”
18 U.S.C. § 1709. Despite Harrison’s claim, the statute does not require that the
item belong to the person whose name, if any, appears on it. Harrison cites no
authority for that proposition, and we have otherwise found none. Harrison refers
to only one case for support, which he admits “is not squarely on point with the
issue presented in the instant matter.”
Construed in the light most favorable to the government, the evidence
permitted the jury to find Harrison guilty of the embezzlement of mail charges
beyond a reasonable doubt. Bowman, 302 F.3d at 1237. As a result, the district
court did not err in denying Harrison’s motion for judgment of acquittal.
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III.
The district court did not abuse its discretion by denying Harrison’s motion
for a new trial, and it did not err in denying his motion for judgment of acquittal
for embezzlement of mail. Therefore, the district court is AFFIRMED.
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