United States v. Kenneth Gordon, Jr. , 544 F. App'x 504 ( 2013 )


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  •      Case: 13-30186      Document: 00512429191         Page: 1    Date Filed: 11/04/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-30186                         November 4, 2013
    Summary Calendar
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    KENNETH A. GORDON, JR.,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 5:11-CR-219-1
    Before KING, DAVIS, and ELROD, Circuit Judges.
    PER CURIAM: *
    Kenneth A. Gordon, Jr., appeals his conviction for conspiracy to commit
    wire fraud and wire fraud stemming from his role in a scheme to defraud an
    insurance company by staging a theft of heavy equipment and submitting a
    false claim for the loss.        He challenges the sufficiency of the evidence
    supporting the conviction, noting his testimony that he did not commit the
    offenses and arguing that the Government’s chief witness, co-conspirator Don
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 13-30186     Document: 00512429191      Page: 2   Date Filed: 11/04/2013
    No. 13-30186
    Newton, was not credible.        Because he failed to renew his motion for a
    judgment of acquittal at the close of all of the evidence, we review for a
    manifest miscarriage of justice. See United States v. Rodriguez-Martinez, 
    480 F.3d 303
    , 307 (5th Cir. 2007).
    The verdict shows that the jury believed Newton’s testimony over
    Gordon’s. This credibility finding “was within the sole province of the jury as
    the fact finder,” and we “will not second guess . . . its choice of which witness[]
    to believe.” United States v. Zuniga, 
    18 F.3d 1254
    , 1260 (5th Cir. 1994).
    Contrary to Gordon’s assertion, the evidence that he sold a piece of the
    equipment after filing the insurance claim was admissible, as it indicated his
    knowledge of the offenses, his plan, and his motive. See FED. R. EVID. 404(b).
    We find no manifest miscarriage of justice in his conviction. See Rodriguez-
    
    Martinez, 480 F.3d at 307
    .
    AFFIRMED.
    2
    

Document Info

Docket Number: 13-30186

Citation Numbers: 544 F. App'x 504

Judges: King, Davis, Elrod

Filed Date: 11/4/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024