                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                               No. 09-14175                  ELEVENTH CIRCUIT
                                                               OCTOBER 13, 2010
                           Non-Argument Calendar
                                                                  JOHN LEY
                         ________________________
                                                                   CLERK

                   D. C. Docket No. 08-00313-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

LARRY P. NARDELLI,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (October 13, 2010)

Before BLACK, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

     Larry Nardelli appeals his convictions after a jury found him guilty of one
count of conspiracy to commit bank fraud, loan fraud, and money laundering, in

violation of 18 U.S.C. § 371, two counts of making false statements to a bank, in

violation of 18 U.S.C. § 1014, two counts of scheming to commit bank fraud, in

violation of 18 U.S.C. § 1344, and one count of money laundering in violation of

18 U.S.C. § 1957. Nardelli argues that the district court erred in denying his

motions for judgment of acquittal and for a new trial. After review, we hold that

the evidence presented at trial was sufficient to support his convictions. We also

hold that the district court did not abuse its discretion in denying Nardelli’s motion

for new trial because the evidence did not preponderate heavily against the jury’s

verdicts. For the reasons that follow, we affirm.

                                          I.

      Nardelli argues that the district court erred in denying his motion for

judgment of acquittal. He claims that because two bank officers testified that they

did not believe that Nardelli defrauded them and because they could not point to

any particular fraudulent actions Nardelli had taken, there was no “cause and

effect” relationship between Nardelli’s conduct and their lending decisions. Thus,

Nardelli argues, no reasonable jury could have found him guilty of conspiracy,

making false statements, bank fraud, and money laundering. We disagree.

      We review de novo whether there is sufficient evidence in the record to



                                           2
support a jury’s verdict in a criminal trial, taking the evidence in the light most

favorable to the government.1 United States v. Maxwell, 579 F.3d 1282, 1299

(11th Cir. 2009). “Accordingly, we are obliged to resolve any conflicts in favor of

the Government, draw all reasonable inferences that tend to support the

prosecution’s case, and assume that the jury made all credibility choices in support

of the verdict.” Id. “We will not overturn a conviction on the grounds of

insufficient evidence unless no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Wright, 392

F.3d 1269, 1273 (11th Cir. 2004) (quotation marks omitted). It is therefore “not

enough for a defendant to put forth a reasonable hypothesis of innocence, because

the issue is not whether a jury reasonably could have acquitted but whether it

reasonably could have found guilt beyond a reasonable doubt.” United States v.

Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). “Because the jury is free to

choose among reasonable constructions of the evidence, the evidence may be

sufficient even if it is not entirely inconsistent with conclusions other than guilt.”

United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006).

       1
          We note that the basis for Nardelli’s motion to the district court appears to differ
substantially from the argument he now makes. Where a defendant raises a sufficiency of the
evidence challenge on appeal, but presents different arguments than were raised before the
district court, we review only for plain error. See United States v. Hunerlach, 197 F.3d 1059,
1068 (11th Cir. 1999). We need not decide whether the arguments Nardelli now makes were
sufficiently preserved, however, because we find the evidence sufficient even under a de novo
standard of review.

                                                3
         “To obtain a conspiracy conviction under § 371, ‘the Government must

prove (1) that an agreement existed between two or more persons to commit a

crime; (2) that the defendant knowingly and voluntarily joined or participated in

the conspiracy; and (3) a conspirator performed an overt act in furtherance of the

agreement.’” United States v. Ternus, 598 F.3d 1251, 1255 (11th Cir. 2010)

(quoting Ndiaye, 434 F.3d at 1294). “[T]he existence of the agreement and a

defendant’s participation in the conspiracy may be proven entirely from

circumstantial evidence.” United States v. McNair, 605 F.3d 1152, 1195 (11th Cir.

2010).

         Section 1014 makes it illegal to knowingly make a false statement or report

to a federally insured bank. See 18 U.S.C. § 1014. The focus of § 1014 “is on the

defendant’s intent rather than on the victim.” United States v. Johnson, 585 F.2d

119, 124 (5th Cir. 1978).2 The bank need not be aware that the statement was

false, nor does it need to be influenced by the false statement. Id. For these

reasons, a defendant may be found guilty of violating § 1014 if he merely had “a

reasonable expectation that the [false] statement would reach [the bank],” and a

defendant cannot shield himself from criminal liability by having a third party


         2
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.


                                               4
present the false statement to the bank. United States v. Lentz, 524 F.2d 69, 71

(5th Cir. 1975). In order to sustain a conviction for bank fraud under § 1344, the

government must show that the defendant knowingly participated in a “scheme or

artifice . . . to defraud” a federally insured bank of money or property. United

States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002). As with conspiracy,

the government may prove a defendant’s knowledge and participation in the

scheme through circumstantial evidence. See United States v. Williams, 390 F.3d

1319, 1325 (11th Cir. 2004) (explaining that “circumstantial evidence may prove

knowledge and intent”). “Money laundering occurs when one ‘knowingly engages

or attempts to engage in a monetary transaction in criminally derived property.’”

United States v. Nolan, 223 F.3d 1311, 1315 (11th Cir. 2000) (quoting 18 U.S.C. §

1957). To prove that a defendant aided and abetted any of these offenses, the

government must show “that [the] substantive offense was committed, that the

defendant associated himself with the criminal venture, and that he committed

some act which furthered the crime.” United States v. Hamblin, 911 F.2d 551, 557

(11th Cir. 1990).

      The evidence presented at trial was sufficient to support Nardelli’s

convictions. As the district court found, there was ample evidence that Nardelli

was a knowing participant in the conspiracy and was guilty of money laundering.



                                          5
There was also sufficient evidence that Nardelli, at a minimum, aided and abetted

the making of false statements and bank fraud.

      Viewed in a light most favorable to the government, two of his co-

conspirators, Tringali and Yanchek, testified and implicated him in the fraudulent

scheme. Tringali specifically testified that Nardelli was “on our team,” and that

Nardelli and his co-conspirators were concerned about criminal liability resulting

from their frauds. The evidence at trial showed that Nardelli proposed that the co-

conspirators enter into sham contracts with entities he controlled, which were then

submitted to the lenders for the purpose of falsely demonstrating that his co-

conspirators had sufficient capital to meet the banks’ lending requirements. The

evidence further showed that Nardelli requested that another individual, Robert

Perkins, execute one of these contracts to conceal his involvement in the

transaction, which strongly supports Nardelli’s knowledge of the fraudulent

activity. There was also evidence that Nardelli was present when statements he

knew to be false were made to lenders in an effort to secure financing, and that

Nardelli actually submitted financial statements to at least one lender that he knew

to be falsified. This evidence is more than sufficient to support the jury’s

conclusion that Nardelli knowingly participated in the conspiracy, and that he at

least aided and abetted the making of false statements and bank fraud. Given the



                                           6
evidence that Nardelli knowingly participated in the conspiracy and actively

furthered the commission of the offenses, there was also sufficient evidence to

establish that Nardelli knew that the proceeds he received from the Mercantile

Bank loan were derived from the illegal activities. This evidence therefore

supports his money laundering conviction.

      Nardelli’s argument regarding the bank officers’ testimony is unpersuasive.

Nardelli’s guilt or innocence does not turn on the bank’s understanding, or lack

thereof, regarding the nature of the fraud or Nardelli’s role in it. See, e.g., Johnson,

585 F.2d at 124 (“The [bank’s] awareness of the fraud is not relevant” to whether a

violation of § 1014 occurred). In any event, the other evidence presented at trial

was more than sufficient to sustain Nardelli’s convictions. The district court did

not err in denying Nardelli’s motion for judgment of acquittal.

                                           II.

      Nardelli argues that the district court abused its discretion when it denied his

motion for new trial. He claims that the district court relied too heavily on

testimony from codefendants who had pleaded guilty and were seeking a reduced

sentence, to the exclusion of bank officers who testified that Nardelli did not

induce them to make the loans in question. Relying on our decision in United

States v. Hands, 184 F.3d 1322 (11th Cir. 1999), he says that he is entitled to a new



                                           7
trial because the testimony of the codefendants was the “backbone” of the

government’s case, and that it would be “a miscarriage of justice” if the bank

officers’ testimony received “less respect than the jaded testimony of cooperating

witnesses seeking a reduced sentence from the prosecutor.”

      We review a district court’s denial of a motion for new trial for abuse of

discretion. United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996). A

motion for a new trial on the ground that the verdict is contrary to the weight of the

evidence raises issues different from those involved in a motion for a judgment of

acquittal based on the sufficiency of the evidence. United States v. Martinez, 763

F.2d 1297, 1312 (11th Cir. 1985). “‘On a motion for a new trial based on the

weight of the evidence, the court need not view the evidence in the light most

favorable to the verdict. It may weigh the evidence and consider the credibility of

the witnesses.’” United States v. Hernandez, 433 F.3d 1328, 1335 (11th Cir. 2005)

(quoting Martinez, 763 F.2d at 1312). “If the court concludes that, despite the

abstract sufficiency of the evidence to sustain the verdict, the evidence

preponderates sufficiently heavily against the verdict that a serious miscarriage of

justice may have occurred, it may set aside the verdict, grant a new trial, and

submit the issues for determination by another jury.” Id. (quotation marks

omitted). That said, the district court “‘may not reweigh the evidence and set aside



                                           8
the verdict simply because it feels some other result would be more reasonable.

The evidence must preponderate heavily against the verdict, such that it would be a

miscarriage of justice to let the verdict stand.’” Butcher v. United States, 368 F.3d

1290, 1297 (11th Cir. 2004) (quoting Martinez, 763 F.2d at 1312–13). “Motions

for new trials based on weight of the evidence are not favored” and should be

granted “sparingly and with caution,” and only in “exceptional cases.” Martinez,

763 F.2d at 1313 (quotation marks omitted).

      The district court did not abuse its discretion in concluding that the evidence

did not preponderate heavily against the jury’s verdicts. As explained above, there

was significant evidence establishing Nardelli’s guilt on the counts of conviction.

Although some of that evidence consisted of co-conspirator testimony, the district

court found their testimony credible and it was sufficiently corroborated by other

evidence presented at trial. Against this evidence, Nardelli relies only on the

“favorable” testimony of the two bank officers. But those individuals had no

knowledge of Nardelli’s role in the conspiracy or the commission of the frauds.

Their testimony was therefore of minimal value and it does not outweigh, much

less heavily so, the evidence of Nardelli’s guilt. Accordingly, this is not an

“exceptional” case in which the evidence heavily preponderates against the jury’s

verdicts, such that it would be a miscarriage of justice to allow the verdicts to



                                           9
stand.

         Nardelli’s reliance on our decision in Hands is misplaced. In that case, we

held that the district court erred by admitting irrelevant evidence that the defendant

abused his wife. Hands, 184 F.3d at 1326–29. In evaluating whether the error was

harmless, we considered the potential prejudice that might have resulted against the

record as a whole. Id. at 1329–33. We noted that the evidence against Hands

consisted almost entirely of “highly questionable” and uncorroborated testimony

from alleged co-conspirators. Id. at 1330–32. Because the jury was required to

make its decision based on the conflicting testimony of the defendant and his

alleged co-conspirators—in essence, to decide “which biased witnesses [it] chose

to believe”—Hands’s credibility was central to his defense. Id. at 1332. We

concluded, therefore, that “[e]vidence that tended to erode Hands’s credibility and

to prejudice the jury against him . . . could have had a substantial-perhaps

overpowering-impact on the jury’s deliberations,” and thus introduction of the

evidence of spousal abuse, which the government highlighted, was not harmless.3

Id. at 1332–33.

         To the extent Hands, which was a harmless error decision, is relevant to the



         3
         We were, of course, careful to point out that a jury may properly convict a defendant on
the basis of credible testimony from individuals seeking favorable treatment from the
prosecution. See Hands, 184 F.2d at 1331.

                                               10
district court’s evaluation of Nardelli’s motion for new trial, it does not support a

finding of error. In contrast to the case in Hands, the government’s case against

Nardelli did not rest solely on the uncorroborated and “highly questionable”

testimony of co-conspirators. To the contrary, Tringali’s and Yanchek’s testimony

was consistent, each corroborated the other’s version of events, and the district

court found that they testified credibly. Furthermore, their testimony was

corroborated by substantial documentary evidence, which supported the jury’s

conclusion that Nardelli committed the charged offenses. And finally, as explained

above, the evidence Nardelli relies upon is of minimal value. Thus, the district

court did not err in denying Nardelli’s motion for new trial.

      AFFIRMED.




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