     Case: 13-30186      Document: 00512429191         Page: 1    Date Filed: 11/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 13-30186                         November 4, 2013
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KENNETH A. GORDON, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:11-CR-219-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Kenneth A. Gordon, Jr., appeals his conviction for conspiracy to commit
wire fraud and wire fraud stemming from his role in a scheme to defraud an
insurance company by staging a theft of heavy equipment and submitting a
false claim for the loss.        He challenges the sufficiency of the evidence
supporting the conviction, noting his testimony that he did not commit the
offenses and arguing that the Government’s chief witness, co-conspirator Don


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-30186     Document: 00512429191      Page: 2   Date Filed: 11/04/2013


                                   No. 13-30186

Newton, was not credible.        Because he failed to renew his motion for a
judgment of acquittal at the close of all of the evidence, we review for a
manifest miscarriage of justice. See United States v. Rodriguez-Martinez, 480
F.3d 303, 307 (5th Cir. 2007).
      The verdict shows that the jury believed Newton’s testimony over
Gordon’s. This credibility finding “was within the sole province of the jury as
the fact finder,” and we “will not second guess . . . its choice of which witness[]
to believe.” United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994).
Contrary to Gordon’s assertion, the evidence that he sold a piece of the
equipment after filing the insurance claim was admissible, as it indicated his
knowledge of the offenses, his plan, and his motive. See FED. R. EVID. 404(b).
We find no manifest miscarriage of justice in his conviction. See Rodriguez-
Martinez, 480 F.3d at 307.
      AFFIRMED.




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