     Case: 10-60687     Document: 00511554122         Page: 1     Date Filed: 07/28/2011




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

                                                                            FILED
                                                                            July 28, 2011
                                     No. 10-60687
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILLIAM T. TACKER, II,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:09-CR-40-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant William T. Tacker, II, appeals his jury convictions
for one count of aiding and abetting in defrauding the government, eight counts
of aiding and abetting in making false statements to receive government funds,
and one count of aiding and abetting in fraudulently receiving government
funds. He contends that the district court erred in refusing to give a jury
instruction concerning the testimony of a codefendant, Max Speight. The issue
of the weight to be given to a codefendant’s testimony who has pled guilty under

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-60687

a plea agreement was substantially covered by the actual instruction given by
the district court. See United States v. Simkanin, 420 F.3d 397, 410 (5th Cir.
2005). The district court did not abuse its discretion because the instruction
given fairly and adequately covered the issue presented in this case, that the
testimony of an accomplice should be viewed “with caution and weighed with
great care.” See id.
       According to Tacker, the district court abused its discretion in admitting
Speight’s testimony concerning a conversation that he had with Susan Williams,
Tacker’s girlfriend, because it was hearsay. The district court did not abuse its
discretion in admitting this testimony for the limited purpose of providing a
context for a subsequent conversation between Speight and Tacker, and the
court so instructed the jury.      Juries are presumed to have followed the
instructions. See United States v. Reedy, 304 F.3d 358, 368 (5th Cir. 2002). The
testimony regarding Tacker’s statement to Williams was not hearsay because it
was an admission by a party opponent. See FED. R. EVID. 801(d)(2)(A); see also
United States v. Thompson, 130 F.3d 676, 683 n.7 (5th Cir. 1997). As Tacker
does not challenge the admission of Speight’s testimony regarding his
subsequent conversation with Tacker, he has abandoned this issue on appeal.
See United States v. Davis, 603 F.3d 303, 308 n.5 (5th Cir. 2010). Moreover,
Tacker’s statement to Speight was admissible as an admission by a party
opponent. See FED. R. EVID. 801(d)(2)(A); see also Thompson, 130 F.3d at 683
n.7.
       Tacker contends that the evidence was insufficient to support his
convictions because the only evidence against him was Speight’s testimony, and
Speight was not a credible witness. Because he moved for a judgment of
acquittal at the close of the government’s case without presenting any evidence,
Tacker preserved his challenge to the sufficiency of the evidence. United States
v. Resio-Trejo, 45 F.3d 907, 911 n. 6 (5th Cir. 1995).



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                                 No. 10-60687

      Viewing the evidence in the light most favorable to the government,
a rational trier of fact could have found that the evidence established beyond a
reasonable doubt that Tacker was guilty of all of the offenses. United States v.
Villarreal, 324 F.3d 319, 322 (5th Cir. 2003). Credibility determinations are
“within the exclusive province of the jury.” United States v. Johnson, 381 F.3d
506, 508 (5th Cir. 2004). Tacker was the president and majority owner of
Biodiesel; he worked every day at Biodiesel’s Mississippi plant; and he knew that
Biodiesel was purchasing little soybean oil and producing little if any biodiesel
fuel during the relevant time. Speight testified that he signed and submitted on
behalf of Biodiesel five quarterly claims forms and received payments of
approximately $3 million dollars; some of these funds were ultimately
transferred to Tacker; these payments were the sole income of Biodiesel for the
relevant time period; and Tacker knew of and approved of this scheme.
Inasmuch as Tacker knew that Biodiesel was not producing any biodiesel fuel
and the funds received from the USDA were the only income of Biodiesel during
the relevant time period, it is reasonable to infer that Tacker must have known
that the funds which Biodiesel was receiving from the USDA were obtained
through fraudulent applications. See United States v. Percel, 553 F.3d 903, 910
(5th Cir. 2008). Further, Tacker did not respond or make any inquiries
concerning letters from the United States Department of Agriculture (USDA)
questioning the biodiesel claims and threatening to seek a refund for the
payments made to Biodiesel. Speight’s testimony was also corroborated by other
witnesses. Paul Callahan, Jim Crowley, and Traci Plaxico confirmed that
Biodiesel bought limited amounts of soybean oil during this period. Plaxico also
confirmed that Biodiesel did not actually make any biodiesel fuel during this
period. Plaxico and Alan Kennedy, a special agent with the USDA, testified that
Tacker received some of the funds paid to Biodiesel by the USDA. A rational
trier of fact could have found that this evidence established beyond a reasonable



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doubt that Tacker was guilty of all of the offenses. See Villarreal, 324 F.3d at
322.
       AFFIRMED.




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