           Case: 12-13094   Date Filed: 04/16/2013   Page: 1 of 6




                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-13094
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:11-cr-00135-WSD-LTW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

ERNEST EDGAR BLACK,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (April 16, 2013)



Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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          Following a two-day trial, a jury convicted Ernest Edgar Black on thirteen

counts of mail fraud 1 and one count of Social Security fraud.2 He appeals, seeking

the reversal of his convictions for lack of evidence sufficient to convict or,

alternatively, a new trial on the ground that the District Court erred in overruling

his Batson 3 objection to the Government’s exercise of peremptory challenges. We

affirm.

                                                I.

          The Government contended that Black applied for and knowingly collected

social security benefits on his son’s behalf during a time when Black’s son did not

live with him, and instead of using the money for his son’s benefit, he converted it

to his own use. Black’s ex-wife testified that Black applied for and collected social

security benefits for their son without telling her. The son testified that he lived

with his mother during the period that Black collected benefits for him, that Black

never told him about the benefits, and that he was not in contact with Black at that

time. A Social Security Administration representative who processed Black’s

applications for the benefits also testified, and the Government introduced a record

of the benefits checks sent to Black via U.S. mail.

          Black argues that this evidence was insufficient because (1) Black’s former

wife had a motive to lie and (2) the Government failed to provide documentary
1
    18 U.S.C. § 1341.
2
    42 U.S.C. § 408(a)(5).
3
    Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
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evidence of how Black allegedly spent the benefits that he collected on behalf of

his son.

      We review a defendant’s challenge to sufficiency of the evidence de novo.

We will not overturn a jury’s verdict unless no trier of fact could have found guilt

beyond a reasonable doubt. United States v. Hill, 643 F.3d 807, 856 (11th Cir.

2011). The question is not whether reasonable minds must have found guilt

beyond a reasonable doubt, but whether they could have done so. United States v.

Bacon, 598 F.3d 772, 775 (11th Cir. 2010). Weighing witnesses’ credibility is

within the jury’s province, and the jury may believe or disbelieve any part or all of

a witness’s testimony. United States v. Prince, 883 F.2d 953, 959 n.3

(11th Cir. 1989). We draw all reasonable inferences “and resolve all questions of

credibility” in the verdict’s favor. Hill, 643 F.3d at 856.

      Representative payee fraud requires proof that the defendant (1) applied to

receive payment for the benefit of another; (2) received such a payment; and (3)

willfully and knowingly converted that payment or any part of it to use other than

for the use and benefit of the beneficiary. See 42 U.S.C. § 408(a)(5). Mail fraud

consists of the following elements: (1) intentional participation in a scheme to

defraud someone of money or property; and (2) use of the mail in furtherance of

that scheme. Hill, 643 F.3d at 858.




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      Black’s sufficiency-of-the-evidence argument rests primarily on the

credibility of his former wife’s testimony. The argument fails because, as noted

above, credibility is within the province of the jury, and we resolve all questions of

credibility in favor of the verdict. Hill, 643 F.3d at 856; Prince, 83 F.2d at 959 n.3.

Even if Black’s ex-wife had a motive to lie, the jury was entitled to believe her

testimony. Moreover, the Government did not need to prove specifically how

Black spent the benefits checks in order to sustain a conviction for representative

payee fraud, only that Black knowingly and willfully converted the payments (or

any part of them) to a use other than his son’s support and care. See 42

U.S.C. § 408(a)(5). In sum, we affirm the § 408(a)(5) convictions.

                                          II.

      Black argues that the court erred in overruling his Batson objection to the

Government’s exercise of five peremptory strikes against white venirepersons. In

Batson, the Supreme Court held that the use of peremptory strikes due to a

prospective juror’s race denies such person his or her constitutional right to equal

protection of the laws. United States v. Hill, 643 F.3d 807, 837 (11th Cir. 2011). A

trial court uses a three-part inquiry to determine if race motivated a party’s strikes.

Id. First, the court must determine if the party challenging the strikes has made out

a prima facie case by showing facts sufficient to support an inference of

discriminatory motive. Id. Second, if the party made a prima facie showing, the


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striking party must then offer a race-neutral explanation. Id. Nevertheless, the

party challenging the strikes has the ultimate burden of persuasion. Id. Third, the

court evaluates the purported reason’s persuasiveness to determine if, considering

all relevant circumstances, the objecting party has met its burden. Id.

       When Black objected to the Government’s strike of the five whites, the

Government responded that it struck them not because of their race, but whether

they were childless, and, if not, whether their children were grown. The court

determined that Black had not made out a prima facie case of racial discrimination,

but, in any event, it accepted the Government’s proffered nondiscriminatory

reasons for its strikes.

       In reviewing the resolution of a Batson challenge, we give great deference to

the trial court’s finding as to the existence of a prima facie case. United States v.

Allen-Brown, 243 F.3d 1293, 1296 (11th Cir. 2001). Its determination as to why a

venireperson is excused is a finding of fact which we review for clear error. Id.

       In determining whether the evidence before the trial court created an

inference of discrimination, we consider (1) whether members of the relevant

racial group served unchallenged on the jury; (2) whether the striking party struck

all of the relevant racial group from the venire—or at least, as many as the striker

had strikes; and (3) whether there was a substantial disparity between the

percentage of jurors of one race struck and the percentage of their representation


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on the jury. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044-45 (11th Cir.

2005). The only evidence Black points to as establishing a prima facie case is the

Government’s use of five of its peremptory strikes to excuse white venirepersons.

Obviously, that evidence alone did not give rise to an inference that the strikes

were racially discriminatory. Black’s claim of Batson

error therefore fails.

       AFFIRMED.




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