United States v. Ferrell

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-60380
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KYLE C. FERRELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CR-81
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Kyle C. Ferrell appeals his conviction following a jury
trial for making a false statement to a financial institution and
wire fraud. Ferrell argues for the first time on appeal that he
was denied a fair trial by the prosecutor’s mischaracterization
of certain testimony; he also argues that the district court’s
subsequent refusal to re-instruct the jury was error. We find no
error, plain or otherwise, because the transcript shows that the
prosecutor did not mischaracterize the testimony. See United
*
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this opinion should not be published and is not precedent except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. 05-60380
-2-
States v. Cotton, 535 U.S. 625, 631 (2002); United States v.
Montgomery, 210 F.3d 446, 454-55 (5th Cir. 2000).
We also reject Ferrell’s assertion that there was
insufficient evidence to support the jury’s finding of fraudulent
intent. Ferrell complains that the testimony against him was not
trustworthy. However, the credibility of witnesses is a matter
for the jury. See United States v. Rodriguez, 278 F.3d 486, 490
(5th Cir. 2002). Ferrell has failed to show that a reasonable
juror could not have found him guilty beyond a reasonable doubt.
See United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)(en
banc).
Finally, we find that the district court did not err in
denying Ferrell’s motion for a new trial. Ferrell asserts that
he should receive a new trial because the district court did not
re-instruct the jury that the prosecutor’s statements were not
evidence and because there was insufficient evidence to prove his
fraudulent intent. Ferrell has not shown that the jury’s verdict
was against the great weight of the evidence such that it would
be a serious miscarriage of justice to let it stand. See United
States v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997).
AFFIRMED.