United States v. Tate ( 2000 )

No. 98-60462
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60462
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR LAMAR TATE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:97-CR-55-1-LN
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January 17, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Victor Lamar Tate appeals his convictions for conspiracy to
misapply bank funds and for four substantive counts of
misapplication of bank funds. The district court did not commit
plain error in including a definition of embezzlement in its
instructions to the jury. See United States v. Fletcher, 121
F.3d 187, 193 (5th Cir. 1997); United States v. Restivo, 8 F.3d
274, 279-80 (5th Cir. 1993). Tate’s argument that the evidence
supported only a claim of embezzlement and not a claim of
misapplication of bank funds is without merit.
*
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that this opinion should not be published and is not precedent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.
No. 98-60462
-2-
Tate’s argument that the district court should have given
his proposed instruction on circumstantial evidence is frivolous.
Tate’s proposed instruction is not the law of circumstantial
evidence in this circuit. See United States v. Burton, 126 F.3d
666, 669-70 (5th Cir. 1997); see also United States v. Bell, 678
F.2d 547, 549 and n.3 (5th Cir. 1982). Furthermore, this was not
a case involving only circumstantial evidence as codefendant
Kelvin M. Grissom testified about Tate’s initiation of the crime
and his participation in it.
Tate did not renew his motion for directed verdict of
acquittal at the close of the evidence, and review is limited to
a determination whether his conviction constitutes a fundamental
miscarriage of justice. United States v. Shannon, 21 F.3d 77, 83
(5th Cir. 1994). No fundamental miscarriage of justice occurred.
The record contains ample evidence of Tate’s guilt. Finally, the
district court did not abuse its discretion in denying Tate’s
postjudgment motion for a new trial. See United States v. Rasco,
123 F.3d 222, 228 (5th Cir. 1997).
AFFIRMED.