     Case: 15-11248      Document: 00513600004         Page: 1    Date Filed: 07/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-11248                                   FILED
                                  Summary Calendar                             July 19, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

RUDGEWELL CHAMUTINYA,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:15-CR-2-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Rudgewell Chamutinya, a citizen of Zimbabwe, appeals his jury
convictions for four counts of willfully failing or refusing to apply for documents
necessary to depart from the United States in violation of 8 U.S.C.
§ 1253(a)(1)(B). Chamutinya claims that the evidence was insufficient to prove
that he acted willfully with respect to any of his four convictions.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-11248      Document: 00513600004     Page: 2    Date Filed: 07/19/2016


                                  No. 15-11248

        In reviewing a claim of insufficient evidence, we must “view the evidence
in the light most favorable to the jury verdict and . . . affirm if a rational trier
of fact could have found that the government proved all essential elements of
the crime beyond a reasonable doubt.” United States v. Lankford, 196 F.3d
563, 575 (5th Cir. 1999) (internal quotation marks and citation omitted). To
be sufficient, the evidence is not required to exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt. Id. Moreover, the jury is free to choose among reasonable
constructions of the evidence. Id. The jury is the final arbiter of the credibility
of witnesses, “and, unless testimony is incredible as a matter of law, [this court]
will not disturb the jury’s findings.” Id. at 575-76 (citations omitted).
        A preserved challenge to the sufficiency of the evidence is reviewed de
novo.    See United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).
Although Chamutinya unsuccessfully moved for a judgment of acquittal after
the Government rested its case, he failed to renew that motion at the close of
all evidence. Accordingly, Chamutinya’s sufficiency claim is reviewed for “a
manifest miscarriage of justice, which is found if the record is devoid of
evidence pointing to guilt.” United States v. Green, 293 F.3d 886, 895 (5th Cir.
2002) (internal quotation marks and citation omitted).
        The elements of failing to depart under § 1253(a)(1)(B) are: (i) the
defendant was an alien at the time alleged in the indictment; (ii) there was a
final order of removal outstanding against the defendant; and (iii) the
defendant willfully failed or refused to make timely application in good faith
for travel or other documents necessary for his departure. Chamutinya does
not dispute that he was an alien subject to a final order of removal to Zimbabwe
at the time of the four offenses alleged in the indictment. Rather, he argues




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                                 No. 15-11248

that there was insufficient evidence to show that he willfully refused to make
an application for travel documents.
      At trial, an immigration officer testified for the Government.        The
Government also introduced into evidence videotaped recordings of meetings
between Chamutinya and various immigration officers, which showed
attempts made by the officers to obtain Chamutinya’s cooperation to facilitate
his travel back to Zimbabwe. The Government’s evidence established that, on
the four offenses alleged in the indictment, Chamutinya refused to cooperate
with immigration officers by refusing to sign documents required by the
Zimbabwean embassy to facilitate his travel, even after having been advised
that his refusal to cooperate violated U.S. law. Chamutinya briefly testified on
his own behalf and implicitly averred that he did not understand the
documents he was asked to sign, and only refused to sign them until such time
that his attorney explained them to him.
      Even if a lack of understanding were sufficient to negate Chamutinya’s
willfulness, given the countervailing evidence offered by the Government, the
jury could have reasonably construed Chamutinya’s testimony as not credible.
See Lankford, 196 F.3d at 575.      The jury’s conclusion that Chamutinya’s
actions constituted willful refusals to apply “in good faith for travel or other
documents necessary” for his departure, § 1253(a)(1)(B), was not a “manifest
miscarriage of justice,” Green, 293 F.3d at 895, and was a reasonable
construction of the evidence, see Lankford, 196 F.3d at 575. We will not disturb
the jury’s findings on appeal.
      AFFIRMED.




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