United States v. Pettaway , 111 F. App'x 734 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 8, 2004
Charles R. Fulbruge III
Clerk
No. 04-20010
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE ERVIN PETTAWAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(H-02-CR-382-3)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Bruce Ervin Pettaway was convicted by
a jury of conspiracy to commit bank fraud and one count of bank
fraud, in violation of 18 U.S.C. §§ 371, 1344, and 2. Pettaway
appeals his convictions, arguing that there was insufficient
evidence to support them. We affirm.
Pettaway submitted a motion for a FED. R. CRIM. P. 29 judgment
of acquittal after the government rested its case; however, he
failed to renew the motion after he presented his case and the
evidence was closed. Neither did he renew his motion after the
*
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this opinion should not be published and is not precedent except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.
jury returned its verdict, as authorized by Rule 29(c). Therefore
he has waived any objection to the denial of his Rule 29 motion.
See United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.
1989).
As Pettaway failed to renew his Rule 29 motion, our review is
limited to the determining “whether there was a manifest
miscarriage of justice.” Id. (citation and quotation marks
omitted). “Such a miscarriage would exist only if the record is
devoid of evidence pointing to guilt.” Id. (citation and quotation
marks omitted). “In making this determination, the evidence, as
with the regular standard . . . , must be considered in the light
most favorable to the government, giving the government the benefit
of all reasonable inferences and credibility choices.” United
States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988) (citation and
quotation marks omitted). Pettaway has not adverted to the
miscarriage-of-justice standard of review in his appellate brief.
Pettaway’s prosecution resulted from his depositing a
counterfeit check for $39,500 into his personal account at Wescom
Credit Union in Pasadena, California. The check was drawn on the
Compass Bank account of Shiloh Treatment Center in the vicinity of
Houston, Texas, and was made payable to Pettaway. It bears the
forged signature of Shiloh’s controller. Pettaway withdrew more
than $12,000 of the proceeds of the check before his Wescom account
was frozen.
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Pettaway contends that the evidence was insufficient to
support his conviction for bank fraud. Relying on his own trial
testimony, he argues that the evidence shows, at most, that he was
an unknowing participant in the effort of his codefendant, Walter
Robinson, to obtain money fraudulently from Compass Bank. Pettaway
asserts that there is no evidence that he “knew that the check was
derived from illegal means” or stolen.
The essential elements of bank fraud under 18 U.S.C. § 1344are “that the defendant knowingly executed or attempted to execute
a scheme or artifice 1) to defraud a financial institution or 2) to
obtain any property owned by, or under the custody or control of a
financial institution by means of false or fraudulent pretenses,
representations or promises.” United States v. Odiodio, 244 F.3d
398, 401 (5th Cir. 2001). A scheme to defraud includes the use of
false pretenses or representations to obtain money from the
financial institution to be deceived. See United States v. Doke,
171 F.3d 240, 243 (5th Cir. 1999).
To establish an 18 U.S.C. § 371 conspiracy, the government
must prove that the defendant voluntarily joined with at least one
other person in an agreement to commit a federal crime and that one
or more of the conspirators committed an overt act in furtherance
of the agreement. United States v. McCauley, 253 F.3d 815, 819 n.6
(5th Cir. 2001). Pettaway argues that there was no evidence of an
agreement between himself and any other named co-defendant. A
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defendant can, however, be convicted of “conspiring with unnamed or
unknown persons.” See United States v. Thomas, 348 F.3d 78, 83
(5th Cir. 2003), cert. denied, 124 S. Ct. 1481 (2004).
The scheme that was perpetrated by Pettaway and others
constituted a conspiracy to commit bank fraud; and it resulted in
numerous bank frauds. The scheme included overt acts by more than
one person fraudulently to order blank checks on a Compass Bank
account and fraudulently to write checks on that account to obtain
funds to which the conspirators were not entitled. The evidence
before the jury was sufficient for it to find that Pettaway was a
knowing member of this conspiracy and that he personally committed
the bank fraud charged in Count 15 of the indictment.
The jury heard evidence that Pettaway told several
inconsistent stories during his attempt to explain how he came to
possess the $39,500 check. The jury was entitled to consider these
inconsistent and implausible stories in determining that Pettaway
was a knowing participant in the scheme to defraud and that he
committed the crime of bank fraud when he deposited the check in
his account and began spending the money. See United States v.
Steen, 55 F.3d 1022, 1032 (5th Cir. 1995) (inconsistent or
fabricated statements can establish a defendant’s guilty
knowledge). Obviously, there was more than one participant in the
scheme, as the evidence established that one of Pettaway’s
codefendants caused the blank checks to be ordered and sent to a
third person. As the evidence was more than sufficient to support
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Pettaway’s convictions, they do not constitute a “miscarriage of
justice.” See Robles-Pantoja, 887 F.2d at 1254.
AFFIRMED.
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