United States v. Kenneth Kevin Cochrane, Jr. , 274 F. App'x 746 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 15, 2008
No. 07-13381 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00026-CR-WLS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH KEVIN COCHRANE, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 15, 2008)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Kenneth Kevin Cochrane appeals his jury conviction for one
count of bank fraud, in violation of 18 U.S.C. §§ 1344, 2. On appeal, Cochrane
argues that the government failed to produce any evidence that he knew of the
existence or purpose of the bank fraud scheme, or that he was a part of it; therefore,
his conviction should be reversed.
When a defendant properly preserves his motion for acquittal, we review
the “sufficiency of the evidence to support a conviction de novo, viewing the
evidence in the light most favorable to the government and drawing all reasonable
inferences and credibility choices in favor of the jury’s verdict.” United States v.
Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007), cert. denied, 128 S. Ct. 130 (2007).
The government bears the burden of proving all elements of the offense beyond a
reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310,
2313, 132 L. Ed. 2d 444 (1995).
We must view the facts, and draw all reasonable inferences therefrom, in the
light most favorable to the government. United States v. Hansen, 262 F.3d 1217,
1236 (11th Cir. 2001). “Reasonable inferences, and not mere speculation, must
support the jury’s verdict.” United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th
Cir. 1994). “It is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, provided a reasonable trier of fact could find that the evidence
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establishes guilt beyond a reasonable doubt.” United States v. Young, 906 F.2d
615, 618 (11th Cir. 1990). This is so because “[a] jury is free to choose among
reasonable constructions of the evidence.” United States v. Vera, 701 F.2d 1349,
1357 (11th Cir. 1983) (citations and internal quotations omitted).
“A false explanatory statement may be viewed by a jury as substantive
evidence tending to prove guilt.” United States v. Eley, 723 F.2d 1522, 1525 (11th
Cir. 1984). Further, “wholly incredible explanations may form a sufficient basis to
allow the jury to find that the defendant had the requisite guilty knowledge.”
United States v. Contreras, 667 F.2d 976, 980 (11th Cir. 1982) (citations and
internal quotations omitted). The existence of an agreement or scheme “may be
proven by circumstantial evidence, including inferences from the conduct of the
alleged participants.” See United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir.
2005) (citations and internal quotations omitted).
The bank fraud statute has two parts: “[s]ection 1344(a)(1) requires the
government to prove that the defendant (1) intentionally participated in a scheme
or artifice to defraud another of money or property; and (2) that the victim of the
scheme or artifice was an insured financial institution.” United States v. Goldsmith,
109 F.3d 714, 715 (11th Cir. 1997). Subsection 2 requires the government to
establish three elements: “(1) that a scheme existed in order to obtain moneys,
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funds or credit in the custody of the federally insured financial institution; (2) that
the defendant participated in the scheme by means of false pretenses,
representations or promises, which were material; and (3) that the defendant acted
knowingly.” Id. “To satisfy either of these two subsections, the Government must
prove specific intent to defraud.” Id. at 716. “Where the indictment and
instructions to the jury charge both clauses of the statute . . . the defendant’s
conviction may be sustained under either clause.” Id.Likewise, aiding and abetting occurs under 18 U.S.C. § 2 when the
defendant has “the same willfulness and unlawful intent as the actual perpetrators
of the fraud, that is, [he acts] with the intent to defraud.” United States v. Williams,
390 F.3d 1319, 1324 (11th Cir. 2004). However, “[w]hile the Government must
show intent, it need not show Defendant’s knowledge of the particular means the
principals employed to carry out the criminal activity.” Id. at 1324 n.4.
Because the record demonstrates that Cochrane’s version of events was
directly controverted by the circumstantial evidence submitted by the government,
which showed, among other things, that Cochrane knew the large sum of money in
his bank account was not his, that he nonetheless withdrew over $19,000 of that
money, and that he failed to inform the bank of the mistake, we conclude that the
evidence was sufficient to establish that Cochrane knew of the scheme to defraud
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the Navy Federal Credit Union, and he intentionally participated in that scheme.
Accordingly, we affirm his conviction.
AFFIRMED.
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