UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40089
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
VERSUS
BOBBY GLEN YARBOROUGH
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(W-94-CV-357)
(September 25, 1995)
Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Appellant Yarborough was convicted of trafficking in motor
vehicles with removed identification numbers, two counts of
removing a vehicle identification number, making a false statement
to a federally insured bank for the purpose of influencing the bank
regarding a loan, and two counts of mail fraud. His motions for
1
Local Rule 47.5 provides: “The publication of opinions that have
no precidential value and merely decide particular cases on the
basis of well-settled principles of law imposes needless expense on
the public and burdens on the legal profession.” Pursuant to that
Rule, the Court has determined that this opinion should not be
published.
judgment of acquittal at the close of the Government’s case and at
the close of all the evidence were denied, as was his motion for a
new trial based upon newly discovered evidence. He appeals. We
affirm.
We review his challenge to the sufficiency of the evidence on
each count by examining the record to see if any reasonable trier
of fact could have found that the evidence established Appellant’s
guilt beyond a reasonable doubt. United States v. Martinez, 975
F.2d 159, 160-61 (5th Cir. 1992), cert. denied, 113 S. Ct. 1346
(1993). We also view the evidence in the light most favorable to
the Government. United States v. Shabazz, 993 F.2d 431, 441 (5th
Cir. 1993).
We have carefully reviewed the entire record and are satisfied
that the evidence is sufficient as to each count. Appellant’s
basic challenge to counts one and two is that the Government did
not prove that he possessed the red Chevrolet truck. Viewed as we
must view it, the evidence was sufficient for the jury to infer
that the red Chevrolet truck in Appellant’s possession was the same
that had been stolen from Bass Chevrolet and was later recovered,
stripped and burned, with the VIN plate removed. The jury could
likewise infer that Appellant switched the dashboard VIN plate on
it from the testimony of Young that the rivets holding the plate
had been changed.
The evidence is sufficient for count three because it showed
that the VIN of the 1988 black pickup which Appellant bought for
salvage was found on the red pickup in Appellant’s possession.
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The evidence is sufficient on count four (bank fraud) because
it showed that, while Appellant applied for a loan to acquire a
1988 truck for $5,000, he submitted on the application the VIN and
license plate numbers of the salvaged truck he had bought for
$3,000. These are the numbers he submitted to the bank thus
implying that the purpose of the loan was to purchase the truck
described, regardless who actually placed the information on the
loan documents.
The fifth count charged Appellant with mail fraud in
connection with reporting the black truck stolen and collecting on
that claim and in the process mailing to the insurer a fraudulent
receipt for repair to it. The preparer of the fraudulent repair
receipt testified to the facts and the jury was justified in
crediting his testimony. Likewise the sixth count, which also
charged mail fraud was supported by the evidence of the person who
drove the truck into the river at Appellant’s direction so that he
could claim the loss. Again the jury could credit the testimony of
that witness.
Finally Appellant argues that his motion for new trial based
on newly discovered evidence that the Government’s witness Aldridge
had his supervised release revoked for driving while intoxicated,
should have been granted because this was additional impeachment
evidence which Appellant could have used. The fact that the
witness was an alcoholic was clearly spelled out at the trial by
both the prosecution and defense counsel and the additional
evidence was merely cumulative.
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AFFIRMED.
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