                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4814


UNITED STATES OF AMERICA,

                  Plaintiff - Appellant,

             v.

BRENT EARL WOOD,

                  Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Terrence W. Boyle,
District Judge. (5:05-cr-00044-BO)


Submitted:    July 9, 2009                  Decided:   August 14, 2009


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


George Edward Bell Holding, United States Attorney, Ann Margaret
Hayes,   Assistant  United   States  Attorney,   Raleigh,  North
Carolina, for Appellant. Brent Earl Wood, Cary, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             The United States appeals from a judgment of acquittal

and conditional new trial granted to Brent E. Wood after a jury

convicted         him    of   eight        charges     relating       to    fraudulent

misrepresentations made to investors in a venture capital fund.

The district court found that, despite the jury’s verdict, the

Government’s evidence was insufficient as a matter of law to

sustain Wood’s convictions.                The district court granted Wood a

judgment of acquittal and, in the event of a reversal of this

judgment, a new trial.              For the following reasons, we reverse

the district court’s order, and remand for sentencing.

             Federal Rule of Criminal Procedure 29 provides that a

district court “must enter a judgment of acquittal [when] the

evidence     is    insufficient      to    sustain     a    conviction.”       Fed.    R.

Crim. P. 29(a).           We review a judgment of acquittal de novo,

determining        whether,      viewing    the   evidence       in   the   light   most

favorable to the Government, a rational fact-finder could have

found the essential elements of the charged offenses beyond a

reasonable doubt.         See United States v. Singh, 518 F.3d 236, 246

(4th Cir. 2008).

             The elements of substantive mail fraud are: (1) the

existence of a scheme to defraud, and (2) the use of mails to

perpetrate the scheme.             United States v. Vinyard, 266 F.3d 320,

326   (4th   Cir.       2001).      To     establish       the   first   element,     the

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Government must prove that Wood “acted with the specific intent

to defraud, which ‘may be inferred from the totality of the

circumstances        and     need    not    be       proven          by    direct      evidence.’”

United
 U        States      v.    Godwin,       272    F.3d         659,    666      (4th     Cir.    2001)

(quoting United States v. Ham, 998 F.2d 1247, 1254 (4th Cir.

1993)).

               To   prove     a     conspiracy           to    commit          mail    fraud,     the

Government      must       prove    (1)    the      existence             of   an     agreement    to

commit mail fraud, (2) the defendant’s willing participation,

and (3) an overt act in furtherance of the agreement.                                          United

States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999).                                             The

Government must show that the defendant acted with a specific

intent    to    defraud,       which      may       be    proven          with      circumstantial

evidence.       United States v. Burgos, 94 F.3d 849, 858 (4th Cir.

1996) (en banc).

               To establish         a conspiracy to commit money laundering,

the Government must prove (1) the existence of an agreement to

commit    money       laundering,         (2)    the       defendant            knew    the    money

laundering      proceeds       were       derived        from        illegal        activity,     and

(3) the defendant knowingly and voluntarily participated in the

conspiracy.         Singh, 518 F.3d at 248.

               Viewing the evidence in the light most favorable to

the Government, we find that the Government presented evidence

more than sufficient for a rational juror to conclude that Wood

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acted    with    specific    intent   to        defraud   investors       and     launder

money.      The     district    court       therefore       erred    in       granting    a

judgment of acquittal.

            The    Government    also       argues    that    the    district       court

erred in conditionally granting Wood a new trial.                         We review a

district    court’s     grant    of     a       new   trial    for       an    abuse     of

discretion.        United States v. Wilson, 118 F.3d 228, 237 (4th

Cir. 1997).       The district court should exercise its discretion

to award a new trial “sparingly,” and should only grant a new

trial when the evidence weighs so heavily against the verdict

that to deny a new trial would be contrary to the “interest of

justice.”       Fed. R. Crim. P. 33; see United States v. Smith, 451

F.3d 209, 216-17 (4th Cir. 2006); United States v. Campbell, 977

F.2d 854, 860 (4th Cir. 1992).                  In deciding a motion for a new

trial,    the     district   court    may        consider     the    credibility         of

witnesses and is not required to view the evidence in the light

most favorable to the government.                Campbell, 977 F.2d at 860.

            Here,     the    district       court     failed        to    explain        its

decision to grant a new trial, stating only that “the evidence

in this case weighs heavily against the verdict.”                             It appears

that the court granted a new trial based on its finding that the

evidence was insufficient to support the verdict.                             Because we

have concluded that the evidence was sufficient, we must find

the grant of a new trial an abuse of discretion.

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               For   the    foregoing    reasons,   we    reverse   the   district

court’s judgment of acquittal and its conditional grant of a new

trial.    We deny Wood’s motions to amend the informal brief and

for oral argument, and dispense with oral argument because the

facts    and    legal      contentions   are   adequately    presented     in   the

materials      before      the   court   and   argument    would    not   aid   the

decisional       process.          We    remand     for   further    proceedings

consistent with this opinion.



                                                          REVERSED AND REMANDED




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