United States v. Robert Nixon

465 F. App'x 912
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 10, 2012
Docket11-10697
StatusUnpublished

This text of 465 F. App'x 912 (United States v. Robert Nixon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robert Nixon, 465 F. App'x 912 (11th Cir. 2012).

Opinion

PER CURIAM:

Robert Nixon appeals his convictions and sentences for conspiracy to steal or misapply funds from an organization that receives federal assistance and to commit wire fraud, in violation of 18 U.S.C. §§ 371,1349, 666(a)(1)(A), and 1343; stealing or misapplying funds from an organization that receives federal assistance, and aiding and abetting, in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2; and misapplying funds as a credit union employee, and aiding and abetting, in violation of 18 U.S.C. §§ 657 and 2. On appeal, Nixon argues that the evidence at trial was insufficient to convict him of the crimes charged. Nixon also argues that the district court clearly erred at sentencing in calculating a reasonable loss amount under U.S.S.G. § 2B1.1(b)(1). 1

I. The Sufficiency of the Evidence

Nixon argues that the district court erred in denying his motion for judgment of acquittal, and that the evidence at trial was insufficient to convict him of any of the crimes charged, because the evidence showed that his alleged co-conspirator, Eugene Telfair, had a contract for consulting services with Florida Agricultural and Mechanical University (“FAMU”). Nixon asserts generally that, pursuant to the terms of the consulting services agreement (“CSA”) Telfair had with FAMU, Telfair was entitled to $150,000.00 that was at issue in the case. So, Nixon argues, as a matter of law, he and Telfair cannot be convicted of stealing or conspiring to steal *914 money that is lawfully Telfair’s, which Tel-fair shared with Nixon. Nixon asserts that, although FAMU remitted the $150,000.00 check at issue to FAMU Federal Credit Union (“FAMU FCU”), the cheek was intended for Telfair pursuant to the CSA, and Telfair had the authority as President of FAMU FCU to negotiate the check.

We review de novo the denial of a motion for judgment of acquittal, and in reviewing the sufficiency of the evidence underlying a conviction, we consider the evidence “in the light most favorable to the government, with all inferences and credibility choices drawn in the government’s favor.” United States v. DuBose, 598 F.3d 726, 729 (11th Cir.2010) (quotation omitted). The standard of review for sufficiency of the evidence is whether a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. United States v. Godinez, 922 F.2d 752, 755 (11th Cir.1991). “The question is whether reasonable minds could have found guilt beyond a reasonable doubt, not whether reasonable minds must have found guilt beyond a reasonable doubt.” United States v. Bacon, 598 F.3d 772, 775 (11th Cir.2010) (quotation and alteration omitted). Accordingly,

It is not necessary for the evidence to exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.... The jury is free to choose between or among the reasonable conclusions to be drawn from the evidence presented at trial, and the court must accept all reasonable inferences and credibility determinations made by the jury.

United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir.2006) (quotations omitted).

We are “bound by the jury’s credibility choices, and by its rejection of the inferences raised by the defendant.” United States v. Peters, 403 F.3d 1263, 1268 (11th Cir.2005). Additionally, “when a defendant takes the stand in a criminal case and exposes his demeanor to the jury, the jury may make adverse determinations about his credibility and reject his explanation as a complete fabrication.” United States v. Vazquez, 53 F.3d 1216, 1225 (11th Cir.1995). Furthermore, we have held that if the jury does not believe the defendant’s version of events, the statements made by the defendant may be considered by the jury as substantive evidence of the defendant’s guilt, at least where some corroborative evidence exists for the charged offense. United States v. Brown, 53 F.3d 312, 314-15 (11th Cir.1995). “This rule applies with special force where the elements to be proved for a conviction include highly subjective elements: for example, the defendant’s intent or knowledge....” Id.

In order to convict someone of engaging in a conspiracy, the government must prove: “1) the existence of an agreement to achieve an unlawful objective, 2) [the defendant’s] knowing and voluntary participation in the agreement, and 3) the commission of an act in furtherance of the agreement.” United States v. Tampas, 493 F.3d 1291, 1298 (11th Cir.2007); 18 U.S.C. § 371. “The knowledge requirement is satisfied when the [government shows a defendant’s awareness of the essential nature of the conspiracy.” United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir.2006). The agreement and participation in the conspiracy need not be explicit and may be inferred from circumstantial evidence. United States v. Prince, 883 F.2d 953, 957 (11th Cir.1989). “[T]he defendant’s assent can be inferred from acts that furthered the conspiracy’s purpose.” United States v. Miller, 693 F.2d 1051, 1053 (11th Cir.1982) (quotation omitted).

*915

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Bluebook (online)
465 F. App'x 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-nixon-ca11-2012.