United States v. Tate

Opinion

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.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:97-CR-55-1-LN --------------------

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.