Concurring in Part and Dissenting in Part:
I agree with most of the majority opinion. There is sufficient evidence to support Bre-chtel’s convictions on counts two and four and Gattuso’s conviction on count one. I concur in the affirmance of the convictions on these counts. I find the evidence in support of Gattuso’s convictions on counts two and four to be woefully inadequate. I must dissent from the majority’s holding to the contrary.
It is not the function of an appellate court to fill in the gaps and voids in the evidence and to rule on the basis of evidence which could have or might have been offered. We are to review solely on the basis of what in fact was offered in evidence at trial.
In order to sustain a conviction the evidence need not eliminate all hypotheses of innocence. Our precedents, however, make equally clear that mere consistency with a theory of guilt will not suffice. Rather, where the evidence viewed most favorably to the government provides equal or near equal support to inferences of guilt and innocence, *1121a rational jury necessarily must entertain a reasonable doubt.1
The majority initially reasons that, in view of Government Exhibit 20 and Gattuso’s testimony regarding EFS & L loan approval practices, a rational jury could conclude that the full EFS & L board considered and approved the Yao transaction at its March 19, 1985 meeting. Government Exhibit 20 consists of two pages detailing approval of loans by the bank executive committee. Its first page indicates that the executive committee considered those transactions on March 7, 1985. At the top of its second page, which contains the reference to the initial Yao transaction, Government Exhibit 20 bears the notation “March 19,1985, Cont.” Further, during cross-examination, Gattuso testified to his belief that, in early 1985, loans generally required approval from both the full board and the executive committee.2 Certainly, if the EFS & L board approved the initial Yao transaction at that time— concededly in Gattuso’s presence — a jury could infer the mental state required by § 1006. I cannot, however, agree that the evidence relied upon so heavily by the majority would permit a rational jury to reach that conclusion beyond a reasonable doubt.
The record is silent about the discrepancy in dates between the first and second pages of Exhibit 20 or the significance of the “March 19, Cont.” notation. At best, that exhibit permits an inference as to the date on which the executive committee approved the initial Yao transaction. It does not purport to indicate when or if the full board acted on the transactions detailed. Although Gattuso testified that transactions generally required approval by the full board as well as the executive committee, the government produced no evidence tying the initial Yao loan to any particular meeting. Documentary evidence suggests that the EFS & L board never considered this transaction: although copies of minutes filed in evidence reflect approval of executive committee actions on many occasions, the record is devoid of any evidence indicating approval of actions taken by the executive committee on March 7 or March 19. In any event, Gattuso’s testimony, corroborated by board minutes, indicates that with near uniformity, the board gave its assent to loans about two weeks after executive committee action.3 Considering the record as a whole, Gattuso’s bare and equivocal statement that the board “generally” approved loan transactions after executive committee action, even supplemented by Exhibit 20, simply does not amount to proof beyond a reasonable doubt that the board considered the Yao transaction on March 19, 1985 in Gattuso’s presence.
Alternatively, the majority suggests that even if Gattuso did not vote to approve the initial Yao loan on March 19, the jury could have inferred his knowledge that EFS & L financed the Ames Farm purchase from his presence at the April 1 closing. The majority opines that if Gattuso learned of EFS & L’s interest in the loan on April 1, his failure to stop the transaction and inform the bank of his interest gives rise to an inference of intent to defraud under § 1006. I simply cannot accept this proposition.
Lynn Yao produced a cashier’s check — not a bank check — at closing. Further, Roy Gat-tuso — not Phillip Gattuso — managed the Ames Farm partnership. The government produced no evidence that Roy Gattuso ever informed Phillip Gattuso regarding Yao’s financing, or even that he generally provided such information to his cousin regarding real *1122estate sales.4 Further, Phillip Gattuso had an extremely attenuated interest in the Yao transaction: his father’s estate owned ten percent of the parcel sold. In view of these facts, I do not believe that a jury could infer, from Gattuso’s mere presence at the Ames Farm closing, that he knew EFS & L had provided funds to Lynn Yao for the purchase. Even if I agreed with the majority’s proposition, I could not agree that Gattuso’s knowledge at the closing would support criminal liability under § 1006. It is not contested that when Yao arrived at the Ames Farm closing EFS & L had completed the transaction, at least to the extent of $96,000, without a suggestion of the exercise of influence or even passive approval by Gattuso. The insider participation provisions of § 1006 seek to protect financial institutions from influence by fiduciaries with divided loyalties.5 Acceptance by an insider of benefit from a bank transaction where the insider learns of the transaction only after its completion cannot give rise to that concern. I would hold that a jury could not infer the intent to defraud required by § 1006 merely from such facts.
As to Count 4, the majority reasons that receipt of Roy Gattuso’s April 29, 1986 letter placed Phillip Gattuso on notice of his interest in the latter Yao transaction. It then holds that, given such knowledge, the jury could infer intent to defraud from Gattuso’s failure to make disclosure, notwithstanding his absence from the meeting at which the board approved that loan and the absence of any evidence indicating his active pursuit of its approval. The April 29 letter, in relevant part, stated “Mr. Yao is seeking financial arrangements with Enterprise Federal for payment of the above captioned debt. If Enterprise fails to extend credit to Mr. Yao, I will commence foreclosure proceedings immediately.” Receipt of this letter does not establish Gattuso’s knowledge that Yao actually followed through on his expressed intention, or that his application met with sufficient lower-echelon approval at EFS & L to bring a proposed transaction before the board for approval. I am persuaded that a rational jury could not find, beyond a reasonable doubt, on the basis of the April 29 letter alone, that Gattuso knew the EFS & L board was considering the Yao workout loan. The jury perforce could not find, therefore, that Gattuso’s failure to disclose gave rise to an inference of criminal intent.6
For these reasons, I concur in part and dissent in part.
. Clark v. Procunier, 755 F.2d 394 (5th Cir.1985).
. I note that Gattuso expressed reservation about that statement. The record reflects the following exchange:
Q. The board of directors had not stopped ratifying the actions of the executive committee at this time, had it?
A. To my knowledge, no, I guess. I don't have that information in front of me to know that.
Q. The loans which the executive committee approves, that still would go over to the board for approval; isn’t that right?
A. I would think so.
Trial Transcript, at 491 (emphasis added).
.Such a delay would place approval of the initial Yao loan at the April 1985 board meeting. The minutes of that meeting reflect that Gattuso was not in attendance.
. See United States v. Thompson, No. 92-1037, slip op. at 9 n. 14 (5th Cir. March 24, 1993) [990 F.2d 625 (Table) ] (mere fact that defendant lent car to his brother did not permit inference that he knew of criminal purpose for which car would be used).
. See United States v. Munna, 871 F.2d 515 (5th Cir.1989); Beaudine v. United States, 368 F.2d 417 (5th Cir.1966).
.I would not today determine whether failure by a responsible insider to disclose a known interest in a transaction under consideration could give rise to an inference of intent to defraud in the absence of affirmative acts to procure it.