United States v. Sherry Fanning , 365 F. App'x 207 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14201 ELEVENTH CIRCUIT
FEBRUARY 11, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00061-CR-T-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERRY FANNING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(February 11, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Sherry Fanning was convicted of one count of conspiracy to defraud the
United States by making materially false statements to the Department of Housing
and Urban Development (“HUD”), in violation of 18 U.S.C. § 371, and ten counts
of making materially false statements to HUD, in violation of 18 U.S.C.
§ 1001(a)(2). She appeals her conviction under the conspiracy count. Fanning
argues that there was insufficient evidence to convict her on that count because the
government failed to establish, with only a Lanett Housing Authority (“LHA”)
agent’s testimony, that she had collaborated and actually carried out the conspiracy
with her son, Kelly Fanning (“Kelly”). Fanning asserts that her own testimony
refuted the LHA agent’s testimony. Alternatively, Fanning submits that the fact
that she and Kelly were merely present at the LHA agent’s office was insufficient
to prove their involvement in the conspiracy.
We review de novo a district court’s denial of a motion for judgment of
acquittal. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). In
determining whether sufficient evidence supports the conviction, we “must view
the evidence in the light most favorable to the government and decide whether a
reasonable fact finder could have reached a conclusion of guilt beyond a
reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991).
Furthermore, a “jury’s verdict cannot be overturned if any reasonable construction
of the evidence would have allowed the jury to find the defendant guilty beyond a
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reasonable doubt.” Id. Similarly, the “evidence need not be inconsistent with
every reasonable hypothesis except guilt, and the jury is free to choose between or
among the reasonable conclusions to be drawn from the evidence presented at
trial.” United States v. Hernandez, 896 F.2d 513, 517 (11th Cir. 1990) (quotation
omitted). Credibility questions are answered by the jury, and we will assume that
the jury answered them in a manner that supports its verdict. United States v.
Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). Further, when a defendant
testifies at trial, the jury is free to disbelieve the defendant and to consider her
statements as substantive evidence of guilt. United States v. Ellisor, 522 F.3d
1255, 1272 (11th Cir. 2008).
To prove a conspiracy under 18 U.S.C. § 371, the government must establish
beyond a reasonable doubt: (1) “the existence of an agreement to achieve an
unlawful objective”; (2) “the defendant’s knowing and voluntary participation in
the conspiracy”; and (3) “the commission of an overt act in furtherance of it.”
United States v. Jordan, 582 F.3d 1239, 1246 (11th Cir. 2009) (quotation omitted).
Direct evidence is not required to prove participation in a conspiracy since the
crime of conspiracy is “predominantly mental in composition” and “it is frequently
necessary to resort to circumstantial evidence.” United States v. Garcia, 405 F.3d
1260, 1270 (11th Cir. 2005) (quotation omitted). Therefore, “a common purpose
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and plan may be inferred from a development and collocation of circumstances.”
United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994) (quotations
omitted). Even though presence is a material and probative factor, mere
association with co-conspirators or presence at the scene of crime is insufficient to
prove participation in a conspiracy. Hernandez, 896 F.2d at 518.
The district court did not err in denying Fanning’s motion for a judgment of
acquittal because sufficient evidence supports her conspiracy conviction. We will
not disturb the jury’s decision to credit the LHA agent’s testimony over Fanning’s.
Additionally, because Fanning does not contest the sufficiency of evidence
regarding her convictions on Counts 2 to 11, she has abandoned any argument as to
those claims. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.
1998) (holding that an issue is abandoned if the defendant fails to proffer argument
on its merits on appeal).
AFFIRMED. 1
1
Fanning’s motion for substitution of brief is denied because it was submitted after
Appellee’s brief was submitted. See 11th Cir. R. 31-1(b) (“A motion to file a replacement brief
generally will be denied if an opposing party has already filed an appellee’s principal brief . . .
.”).
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