USA v. Kenneth Gordon, Jr., No. 13-30186 (5th Cir. 2013)

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Case: 13-30186 Document: 00512429191 Page: 1 Date Filed: 11/04/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 13-30186 Summary Calendar FILED November 4, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KENNETH A. GORDON, JR., Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:11-CR-219-1 Before KING, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Kenneth A. Gordon, Jr., appeals his conviction for conspiracy to commit wire fraud and wire fraud stemming from his role in a scheme to defraud an insurance company by staging a theft of heavy equipment and submitting a false claim for the loss. He challenges the sufficiency of the evidence supporting the conviction, noting his testimony that he did not commit the offenses and arguing that the Government s chief witness, co-conspirator Don 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 13-30186 Document: 00512429191 Page: 2 Date Filed: 11/04/2013 No. 13-30186 Newton, was not credible. Because he failed to renew his motion for a judgment of acquittal at the close of all of the evidence, we review for a manifest miscarriage of justice. See United States v. Rodriguez-Martinez, 480 F.3d 303, 307 (5th Cir. 2007). The verdict shows that the jury believed Newton s testimony over Gordon s. This credibility finding was within the sole province of the jury as the fact finder, and we will not second guess . . . its choice of which witness[] to believe. United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994). Contrary to Gordon s assertion, the evidence that he sold a piece of the equipment after filing the insurance claim was admissible, as it indicated his knowledge of the offenses, his plan, and his motive. See FED. R. EVID. 404(b). We find no manifest miscarriage of justice in his conviction. See RodriguezMartinez, 480 F.3d at 307. AFFIRMED. 2