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

                                                                            FILED
                                                                         November 6, 2008

                                       No. 07-11142                   Charles R. Fulbruge III
                                                                              Clerk


UNITED STATES OF AMERICA

                                           Plaintiff - Appellee

v.

JOHN WENTZELL DOWNS

                                           Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CR-34-D


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       This case concerns an appeal by John Wentzell Downs (“Downs”) of his
conviction, after a trial by jury, for making false statements involving aircraft
parts in violation of 18 U.S.C. § 38. Downs does not appeal the jury’s finding
that he made false statements, nor does he challenge the suspect nature of the
relevant transactions relating to work he performed on an airplane propeller



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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without the requisite legal authority. Rather, his sole ground for appeal is that
there was insufficient evidence for the jury to conclude that the conduct at issue
was “in or affecting interstate or foreign commerce,” as required by the criminal
statute at issue. 18 U.S.C. § 38(a). For the reasons provided below, we reject
Downs’s argument and affirm his conviction.
                      I. FACTS AND PROCEEDINGS
      Downs was charged by the government in a superceding indictment with
making false statements involving aircraft parts in violation of 18 U.S.C. § 38.
Downs, an aircraft propeller mechanic, owned and operated a business under the
name of Millennium Propeller Systems, Inc. (“Millennium”). In April 2000, the
Federal Aviation Administration (“FAA”) issued an air agency certificate to
Millennium, which authorized Millennium to operate an approved repair station
under the FAA’s rules and regulations. However, on March 29, 2005, after
finding that Millennium demonstrated disregard for regulatory compliance
which threatened aviation safety and was contrary to the public interest, the
FAA revoked Downs’s FAA certification. Millennium was no longer authorized
by the FAA to operate a repair station, which meant that Downs could no longer
perform certain work on aircraft parts, such as a propeller overhaul.
      On September 12, 2005, Juan Fernandez (“Fernandez”), upon a referral,
delivered a propeller to Downs for overhaul work, which included replacing the
hub of the propeller. On October 5, 2005, Fernandez retrieved his overhauled
propeller and received maintenance records from Downs which had been
backdated to falsely represent that the overhaul of Fernandez’s propeller took
place on March 1, 2005, which was before the FAA certification was revoked. In
a further effort to conceal when the propeller was overhauled, Downs falsely

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backdated several other documents, such as FAA forms and log/maintenance
books, to March 1, 2005. Most of the facts relating to the fraudulent repair seem
to have arisen from Texas—where Downs’s repair station and Fernandez’s
propeller and plane are located, and where Fernandez and Downs, as well as the
mechanic who referred Fernandez to Downs, reside. However, the propeller hub
that was installed as part of the repair was procured directly by Downs from a
company in Florida.
      At trial, Fernandez testified that he grew suspicious of Downs during the
repair process after having some difficulty contacting Downs. He conducted
research that revealed the FAA’s revocation. Fernandez contacted the FAA
based on what he claimed was a fear for his safety, as well as that of his
passengers and those on the ground. This reporting ultimately led to an
undercover investigation—which included the use of hidden camera surveillance
and the wearing of a wire by Fernandez—that resulted in the fraud charge.
      At trial, Robert Hardwick (“Hardwick”), an FAA aviation safety inspector,
testified that “air safety in this country is based upon compliance with the rules
and accurate[] record[s].” According to Hardwick, the FAA relies on accurate
documentation regarding the maintenance of aircraft parts when examining
repair stations and it cannot ensure proper maintenance activity if a repair
station falsifies records. In response to a question on whether fraudulent repair
records would meet the applicable statutory element of “in and affecting
interstate commerce,” Hardwick testified that “[w]ithout accurate maintenance
records the general public very well could lose confidence in the FAA to regulate
aviation safety.” Evidence at trial included testimony that Downs stood to make



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more by doing repairs in his shop, as opposed to farming the work out to another
repair station.
      Downs was found guilty of making fraudulent and false statements
involving aircraft parts and was sentenced to 24 months of imprisonment and
2 years of supervised release. Downs was ordered to pay $4,000 in restitution
and an assessment of $100. Downs moved for judgment of acquittal at the close
of the government’s case, at the close of the evidence, and after trial, at which
time he also moved for a new trial. Downs’s requests for acquittal and/or a new
trial were rejected by the district court. He filed a timely notice of appeal.
      Downs argues that the evidence was insufficient to support his conviction
for fraudulent and false statements involving aircraft parts. Specifically, Downs
contends that the government presented insufficient evidence for a jury to find
that his acts were in or affecting interstate commerce. The government argues
that the evidence—which included testimony on national air safety, the use of
a propeller hub from Florida, and the effect of false record-keeping on Downs’s
business and the aviation industry—was enough for the jury to convict.
                         II. STANDARD OF REVIEW
      Because Downs moved for a judgment of acquittal at the close of the
government’s case, which he renewed at the close of the evidence, his challenge
to the sufficiency of the evidence is preserved for de novo appellate review. See
FED. R. CRIM. P. 29(a), (c)(1); United States v. Izydore, 167 F.3d 213, 219 (5th Cir.
1999). A motion for a judgment of acquittal is a challenge to the sufficiency of
the evidence. United States v. Moreno, 185 F.3d 465, 470 (5th Cir. 1999). The
standard in assessing a sufficiency challenge is “whether any reasonable trier
of fact could have found that the evidence established the essential elements of

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the crime beyond a reasonable doubt.” United States v. Ortega Reyna, 148 F.3d
540, 543 (5th Cir. 1998). In applying this standard, the evidence is viewed in the
light most favorable to the verdict. Id. “The government may prove its case
through the use of circumstantial evidence so long as the total evidence,
including reasonable inferences, is sufficient to warrant a jury’s conclusion that
the defendant is guilty beyond a reasonable doubt.” United States v. Del Aguila-
Reyes, 722 F.2d 155, 157 (5th Cir. 1983). The evidence need not “‘exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt . . . . A jury is free to choose among reasonable
constructions of the evidence.’” United States v. Williams-Hendricks, 805 F.2d
496, 500 (5th Cir. 1986) (quoting United States v. Bell, 678 F.2d 547, 549 (5th
Cir. 1982) (en banc)). However, if the evidence equally, or nearly equally,
provides circumstantial support for a theory of innocence and a theory of guilt,
a conviction must be reversed because reasonable doubt necessarily exists.
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). This Court may affirm
the verdict based on any reason supported by the record. United States v. Ho,
311 F.3d 589, 602 n.12 (5th Cir. 2002).
                               III. DISCUSSION
      To be found guilty of making fraudulent and false statements involving
aircraft parts, in violation of 18 U.S.C. § 38(a)(1)(C), the government must prove:
(1) that the defendant made and used a false writing, entry, certification,
document, or record; (2) that the false writing, entry, certification, document, or
record concerned an aircraft part; (3) that the false writing, entry, certification,
document, or record was materially false; (4) that the defendant acted knowingly
and with the intent to defraud the FAA or others; and (5) that the defendant’s

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conduct was in or affecting interstate commerce. As noted above, on appeal,
Downs challenges only the sufficiency of the evidence as to whether the
government proved that his conduct was “in or affecting interstate commerce.”
We reject his challenge, particularly given our required deference to the jury’s
determinations.
      The relevant statute’s use of the phrase “in or affecting interstate . . .
commerce,” 18 U.S.C. § 38(a), “expresses an intent by Congress to exercise its
full power under the Commerce Clause” of the federal constitution. Russell v.
United States, 471 U.S. 858, 859 (1985). In United States v. Lopez, the Supreme
Court observed that its Commerce Clause decisions recognize three categories
of activity over which Congress would have authority under the clause: (1) “the
use of the channels of interstate commerce”; (2) “the instrumentalities of
interstate commerce, or persons or things in interstate commerce”; and (3)
“activities that substantially affect interstate commerce.” 514 U.S. 549, 558–59
(1995). We hold that there was sufficient evidence at trial to affirm Downs’s
conviction on any of these three alternative categories.
      As to the first two categories, regulation over “the channels of interstate
commerce” “includes the regulation of highways, railroads, air routes, navigable
rivers, and telecommunications networks,” and “also reaches the misuse” of such
channels. Ho, 311 F.3d at 597 (internal quotation marks omitted). Meanwhile,
regulation of the “instrumentalities of interstate commerce” includes such things
as “destruction of an aircraft . . . or thefts from interstate shipments.” Lopez,
514 U.S. at 558 (quotation omitted). Falsifying documents involving aircraft
parts to be installed on airplanes relates directly to both the instrumentalities
(i.e., airplanes) and channels (i.e., airways) of interstate commerce. The evidence

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that Downs’s conduct impacted airplanes and airways—not only in terms of FAA
safety rules intended to protect Fernandez and those affected by his plane, but
also in the direct procurement of an out-of-state part to facilitate the deed in
question—was enough to show that his conduct was in or affecting interstate
commerce.
      As to “activities that substantially affect interstate commerce,” there was
enough evidence of the cumulative effect of fraudulent and false documentation
regarding aircraft maintenance to meet that test as well. The test can be met
by direct interstate commercial activity, see, e.g., NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 31 (1937)—which is likely not present here—or by an
“aggregation” of similar commercial activity having a direct, or at least not too
attenuated, link to a substantial effect on interstate commerce. Ho, 311 F.3d at
599–602; see also United States v. Robinson, 119 F.3d 1205, 1208 (5th Cir. 1997).
      Hardwick testified that the FAA relies on accurate documentation on
aircraft part maintenance and that false records can result in an erosion of
public confidence in the FAA’s ability to regulate aviation safety and thus
undermine the FAA’s ability to regulate repair stations. Hardwick posited that,
if confidence in the FAA is eroded, people would be less likely to fly, and this
would affect interstate commerce. There was also evidence of unfair commercial
advantage resulting from unauthorized repairs—a factor in the “substantially
affect[ing] interstate commerce” analysis. See Ho, 311 F.3d at 603–04 (rejecting
interstate commerce challenge to federal asbestos abatement violations at a
fixed, intrastate location based on the fact that the defendant “gained a
commercial advantage on licensed abatement companies” and deprived them of
“a promising business opportunity”). Ultimately, there was sufficient evidence

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to support a finding that Downs’s fraud substantially affected interstate
commerce.
                           IV. CONCLUSION
     For the foregoing reasons, we AFFIRM the judgment of the district court.




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