IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50642

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DAVID JULIUS MCMILLIAN, also known as Cowboy,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:12-CR-343-1

Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

Following a jury trial, David Julius McMillian was convicted of 

interstate transportation of stolen property, in violation of 18 U.S.C. § 2314. 

McMillian was sentenced to six months’ imprisonment and three years’

supervised release. As a condition of his supervised release, McMillian was 

ordered, inter alia, to pay $18,000 in restitution to Jerry McKay, the owner of 

the property at issue. McMillian contends: there was insufficient evidence to 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 6, 2014

Lyle W. Cayce

Clerk

 

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No. 13-50642

convict him of a violation of § 2314; and the district court erred in ordering 

restitution as a condition of his supervised release.

The sufficiency challenge was preserved in district court. Therefore, in 

determining whether the evidence was sufficient, the relevant question is 

“whether the evidence, when reviewed in the light most favorable to the 

[G]overnment with all reasonable inferences and credibility choices made in 

support of a conviction, allows a rational fact finder to find every element of 

the offense beyond a reasonable doubt”. United States v. Cannon, 750 F.3d 

492, 506 (5th Cir. 2014) (citations omitted). This standard “leaves juries broad 

discretion in deciding what inferences to draw from the evidence presented at 

trial, requiring only that jurors draw reasonable inferences from basic facts to 

ultimate facts”. Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (citation and 

internal quotation marks omitted). “[W]e accept all credibility choices and 

reasonable inferences made by the trier of fact which tend to support the 

verdict” and “will not second guess the jury in its choice of which witnesses to 

believe”. United States v. Jefferson, 751 F.3d 314, 320–21 (5th Cir. 2014)

(citations and internal quotation marks omitted).

A conviction for interstate transportation of stolen property requires 

proof of “(1) the interstate transportation of (2) goods, merchandise, wares, 

money, or securities valued at $5,000 or more . . . (3) with knowledge that such 

items have been stolen, converted, or taken by fraud”. United States v. 

Onyiego, 286 F.3d 249, 253 (5th Cir. 2002); see 18 U.S.C. § 2314. As noted by 

both parties, the only element at issue is whether McMillian took the property 

(an indirect heater) by fraud. The jury could have reasonably inferred from 

the evidence that McMillian entered into the lease-purchase agreement with 

McKay in order to induce McKay to release possession of the indirect heater to 

him. McMillian’s failure to make a single payment and his lack of a response 

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to McKay’s numerous attempts to discuss and settle the matter support the 

inference that McMillian possessed the intent to defraud. See, e.g., United 

States v. Saks, 964 F.2d 1514, 1518–19 (5th Cir. 1992) (discussing intent in 

bank fraud context). Accordingly, the record, viewed in the light most 

favorable to the verdict, contains sufficient evidence to support McMillian’s 

conviction. 

Regarding McMillian’s having to pay restitution to McKay as a condition 

of supervised release pursuant to 18 U.S.C. § 3583(d) (inclusion of supervised 

release term after imprisonment), “[a] federal court cannot order restitution 

except when authorized by statute”. United States v. Espinoza, 677 F.3d 730, 

732 (5th Cir. 2012) (citation and internal quotation marks omitted). Because 

McKay ultimately sold the indirect heater for a profit, there was no “victim” 

within the meaning of the Victim and Witness Protection Act or the Mandatory

Victims Restitution Act. Therefore, as the Government concedes, the court 

could not order restitution to McKay as a condition of McMillian’s supervised 

release pursuant to § 3583(d). See United States v. Maturin, 488 F.3d 657, 

660–61 & n.1 (5th Cir. 2007). As the Government states, “the district court’s 

reliance upon the supervised release statute as authority for the imposition of 

a restitution order . . . was misplaced”.

AFFIRMED IN PART; VACATED IN PART; REMANDED FOR 

RESENTENCING REGARDING SUPERVISED RELEASE. 

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