* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 8, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20010

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRUCE ERVIN PETTAWAY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

(H-02-CR-382-3)

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Bruce Ervin Pettaway was convicted by

a jury of conspiracy to commit bank fraud and one count of bank

fraud, in violation of 18 U.S.C. §§ 371, 1344, and 2. Pettaway

appeals his convictions, arguing t hat there was insufficient

evidence to support them. We affirm.

Pettaway submitted a motion for a F ED

. R. C RIM

. P. 29 judgment

of acquittal after the government rested its case; however, he

fail ed to renew the motion after he presented his case and the

evidence was closed. Neither did he renew his motion after the2

jury returned its verdict, as authorized by Rule 29(c). Therefore

he has waived any objection to the denial of his Rule 29 motion.

See United States v. Robles-Pantoja

, 887 F.2d 1250, 1254 (5th Cir.

1989).

As Pettaway failed to renew his Rule 29 motion, our review is

limited to the determining “whether there was a m anifest

miscarriage of justice.” I d. ( citat ion and quotation marks

omitted). “Such a miscarriage would exist only if the record is

devoid of evidence pointing to guilt.” I d. ( citation and quotation

marks omitted). “In making this determination, the evidence, as

with the regular standard . . . , must be considered in the light

most favorable to the government, giving the government the benefit

of all reasonable inferences and credibility choice s.” U nited

S tates v. Ruiz , 860 F.2d 615, 617 (5th Cir. 1988) (citation and

quotation marks omitted). Pettaway has not adverted to the

miscarriage-of-justice standard of review in his appellate brief.

Pettaway’s prosecution resulted from his depositing a

counterfeit check for $39,500 into his personal account at Wescom

Credit Union in Pasadena, California. The check was drawn on the

Compass Bank account of Shiloh Treatment Center in the vicinity of

Houston, Texas, and was made payable to Pettaway. It bears the

forged signature of Shiloh’s controller. Pettaway withdrew more

than $12,000 of the proceeds of the check before his Wescom account

was frozen.3

Pettaway contends that the evidenc e was insufficient to

support his conviction for bank fraud. Relying on his own trial

testimony, he argues that the evidence shows, at most, that he was

an unknowing participant in the effort of his codefendant, Walter

Robinson, to obtain money fraudulently from Compass Bank. Pettaway

asserts that there is no evidence that he “knew that the check was

derived from illegal means” or stolen.

The essential elements of bank fraud under 18 U.S.C. § 1344

are “that the defendant knowingly executed or attempted to execute

a scheme or artifice 1) to defraud a financial institution or 2) to

obtain any property owned by, or under the custody or control of a

financial ins titution by means of false or fraudulent pretenses,

representations or promises.” United States v. Odiodio , 244 F.3d

398, 401 (5th Cir. 2001). A scheme to defraud includes the use of

false pretenses or representations to obtain money from the

financial institution to be deceived. See United States v. Doke

,

171 F.3d 240, 243 (5th Cir. 1999).

To establis h an 18 U.S.C. § 371 conspiracy, the government

must prove that the defendant voluntarily joined with at least one

other person in an agreement to commit a federal crime and that one

or more of the conspirators committed an overt act in furtherance

of the agreement. U nited States v. McCauley

, 253 F.3d 815, 819 n.6

(5th Cir. 2001). Pettaway argues that there was no evidence of an

agreement between himself and any other named co-defendant. A4

defendant can, however, be convicted of “conspiring with unnamed or

unknown persons.” S ee United States v. Thomas

, 348 F.3d 78, 83

(5th Cir. 2003), cert. denied , 124 S. Ct. 1481 (2004).

The scheme that was perpetrated by Pett away and others

constituted a conspiracy to commit bank fraud; and it resulted in

numerous bank frauds. The scheme included overt acts by more than

one person fraudulently to order blank checks on a Compass Bank

account and fraudulently to write checks on that account to obtain

funds to which the conspirators were not entitled. The evidence

before the jury was sufficient for it to find that Pettaway was a

knowing member of this conspiracy and that he personally committed

the bank fraud charged in Count 15 of the indictment.

The jury he ard evidence that Pettaway told several

inconsistent stories during his attempt to explain how he came to

possess the $39,500 check. The jury was entitled to consider these

inconsistent and implausible stories in determining that Pettaway

was a knowing participant in the scheme t o defraud and that he

committed the crime of bank fraud when he deposited the check in

his account and began spend ing the money. S ee United States v.

Steen

, 55 F.3d 1022, 1032 (5th Cir. 1995) ( inconsistent or

fabricated statements can establish a defendant’s guilty

knowledge). Obviously, there was more than one participant in the

scheme, as th e evidence established that one of Pettaway’s

codef endants caused the blank checks to be ordered and sent to a

third person. As the evidence was more than sufficient to support5

Pettaway’s convictions, they do not constitute a “miscarriage of

justice.” See Robles-Pantoja , 887 F.2d at 1254.

AFFIRMED.