                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.                               No. 99-4581
DONALD S. PRITT,
              Defendant-Appellant.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                               No. 99-4651
DONALD S. PRITT,
               Defendant-Appellee.
                                        
           Appeals from the United States District Court
    for the Southern District of West Virginia, at Parkersburg.
             Joseph Robert Goodwin, District Judge.
                           (CR-98-176)

                      Argued: September 29, 2000

                      Decided: November 14, 2000

         Before WILKINS and MOTZ, Circuit Judges, and
                HAMILTON, Senior Circuit Judge.



Affirmed in part, vacated in part, and remanded for resentencing by
unpublished per curiam opinion.
2                       UNITED STATES v. PRITT
                              COUNSEL

ARGUED: James McCall Cagle, Charleston, West Virginia, for
Appellant. Hunter P. Smith, Jr., Assistant United States Attorney,
Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A.
Betts, United States Attorney, Charleston, West Virginia, for Appel-
lee.


                              OPINION

PER CURIAM:

   In the mid to late 1980s, the appellant, Donald Pritt (Donald), was
a successful podiatrist in West Virginia and Ohio.1 During this time,
however, he suffered several personal financial setbacks. To over-
come these setbacks, Donald devised a scheme to defraud in which
he submitted false claims to various insurance companies for injuries
allegedly sustained in an all-terrain vehicle (ATV) accident on
December 9, 1990. As part of this scheme to defraud, Donald brought
a lawsuit in West Virginia state court against, among others, the
ATV’s manufacturer, Suzuki Motor Company, Limited (Suzuki), and
the local dealer who sold him the ATV. This lawsuit falsely alleged,
among other things, that the ATV accident was caused by Suzuki’s
negligence and that, as a result of the accident, Donald suffered
severe, permanent physical and mental injuries, which forced him to
walk in a stooped fashion with the assistance of a cane. During dis-
covery, Donald proffered numerous false discovery responses to the
defendants. A mistrial was declared after videotapes were played at
trial showing Donald executing mentally and physically demanding
activities, and the state court reserved ruling on final dismissal of the
lawsuit pending the filing of motions for attorneys’ fees.

  Facing substantial claims for attorneys’ fees, Donald devised a sec-
ond scheme to defraud. This scheme involved his efforts to defraud
Suzuki’s counsel, as well as his own, out of over $600,000 in attor-
    1
   Donald was born in October 1932. He began his career as a podiatrist
in West Virginia and Ohio in 1957.
                        UNITED STATES v. PRITT                       3
neys’ fees by fraudulently transferring and concealing ownership of
assets.

   On September 30, 1998, a federal grand jury sitting in the Southern
District of West Virginia indicted Donald and his son, Thomas Pritt
(Thomas), on fourteen counts of mail fraud, and aiding and abetting
the same, in violation of 18 U.S.C. §§ 1341 and 2. The mail fraud
counts involved two schemes to defraud. The first scheme involved
the submission of false claims to insurance companies (Counts One
and Six through Eleven) and various fraudulent discovery responses
in the fraudulent lawsuit against Suzuki (Counts Two through Five).
The second scheme involved a scheme to defraud various individuals
and corporations out of the attorneys’ fees ordered after the Suzuki
trial and was charged in Counts Twelve through Fourteen. Donald
and Thomas were also indicted on three counts (Counts Eighteen
through Twenty) of various money laundering offenses. In addition,
Donald was indicted on one count (Count Fifteen) of making a false
claim for Social Security disability benefits in violation of 18 U.S.C.
§ 287, and two counts (Counts Sixteen and Seventeen) of bankruptcy
fraud in violation of 18 U.S.C. § 152(3).

   The case went to trial on February 24, 1999. After the government
and the defendants completed their cases, the defendants moved for
a judgment of acquittal on all counts. The district court granted the
motion in part, but denied it in part. With respect to Donald, the dis-
trict court granted the motion as to counts Twelve, Fourteen, and
Eighteen through Twenty, but denied it as to the remaining counts.
With respect to Thomas, the district court granted the motion as to
Counts One, Six through Fourteen, and Eighteen through Twenty, but
denied it as to the remaining counts.

   On March 5, 1999, the jury convicted Donald on Counts One
through Eleven, Thirteen, and Fifteen through Seventeen, but acquit-
ted Thomas of all of the remaining counts against him (Counts Two
through Five). On March 12, 1999, Donald moved for a new trial,
arguing, among other things, that the jury’s verdict was against the
weight of the evidence. On August 3, 1999, the district court granted
Donald’s motion for a new trial on Counts One through Eleven and
Fifteen, but denied it on Counts Thirteen, Sixteen, and Seventeen. The
district court sentenced Donald to thirty months’ imprisonment,
4                       UNITED STATES v. PRITT
ordered him to serve a three-year term of supervised release, ordered
restitution of $193,909.38, and ordered Donald to pay special assess-
ments totaling $300. Both Donald and the government separately filed
timely notices of appeal.

   On appeal, the government argues that the district court erred when
it granted in part Donald’s motion for a new trial. Donald challenges
the sufficiency of the evidence on Counts Thirteen and Seventeen,
and argues that the district court erred when it refused to give his pro-
posed diminished capacity instruction. For the reasons stated below,
we agree with the government that the district court erred when it
granted Donald a new trial on Counts One through Eleven and Fif-
teen, and disagree with Donald’s contentions that there is insufficient
evidence to support his convictions on Counts Thirteen and Seventeen
and that the district court erred when it refused to give his proposed
diminished capacity instruction. Accordingly, the judgment of the dis-
trict court is affirmed in part, vacated in part, and the case is
remanded for resentencing.

                                    I

   In the mid to late 1980s, Donald operated a successful podiatry
practice in West Virginia and Ohio. During this time, however, he
suffered several personal financial setbacks. For example, following
a 1988 audit, the Internal Revenue Service (IRS) assessed a tax delin-
quency of $250,000 plus interest and penalties against Donald. To
meet this obligation, Donald had to liquidate a retirement account and
an annuity in early 1990, suffering penalties for early withdrawal and
incurring additional IRS tax liabilities. In addition, during the late
1980s, Donald’s wife, Charlene Pritt (Charlene), filed for divorce,
and, in December 1989, the state court awarded her $925 per week
in alimony and child support.2 During this time period, Donald also
was being sued by several patients for malpractice.

   Notwithstanding his financial woes, in the late 1980s, Donald
began applying for numerous life, business overhead, and disability
insurance policies. In all, Donald made over thirty applications for
    2
   From a previous marriage, Donald was paying $800 per month in
child support.
                        UNITED STATES v. PRITT                         5
insurance; twenty-one were made between March 31, 1989 and
December 1, 1990. For the nineteen policies issued,3 Donald incurred
annual insurance premiums of approximately $100,000, but in the
event of an accidental disability stood to make $30,175 per month in
disability income benefits and $30,000 per month in business over-
head benefits. Donald also obtained life insurance coverage of $4.3
million, most of which was accumulating cash value maintained by
the insurers due to Donald’s decision to pay for disability premium
waivers.

   In order to get such extensive insurance coverage, Donald made
numerous misrepresentations to the insurance companies. In general,
he failed to disclose the existence of other policies and applications,
of declinations and cancellations of policies, and of his history of psy-
chiatric treatment.

   On December 9, 1990, Thomas and his friend, Darren Anderson
(Anderson), were riding ATVs near Parkersburg, West Virginia.
Shortly after noon on that day, Donald and Thomas expressed the idea
of going to Elkins, more than two hours from Parkersburg, to ride
ATVs. The three left Parkersburg a short time later and arrived at
Elkins after dark.

   When Donald, Thomas, and Anderson arrived in Elkins, they
parked at the bottom of a steep hill. Donald’s ATV was unloaded
first. After his ATV was unloaded, Donald, an inexperienced ATV
operator, started it, turned on its headlights, and rode off alone on a
trail leading up the hill. Anderson and Thomas followed approxi-
mately ten minutes later, but, after riding for a few minutes, they
could not find Donald. In an effort to find Donald, Anderson and
Thomas separated, but, during that search, they still failed to find
Donald. After they rejoined, Anderson and Thomas continued to
search for Donald on the hill’s trails. A short time later, Anderson
heard Donald screaming for help.

  After they parked their ATVs, Anderson and Thomas descended
over a steep portion of the hill to where Donald lay. Anderson stayed
  3
   Some of the applications were rejected because they were incomplete
or because Donald was deemed overinsured.
6                       UNITED STATES v. PRITT
with Donald, and Thomas went to get help. Donald was complaining
of pain in his neck and back. Despite apparently falling forty to fifty
feet off the trail, Donald did not lose consciousness and suffered no
broken bones, bruises, lacerations, or torn clothing.

   After initial treatment at Elkins Hospital, Donald was transported
to a hospital in Morgantown, West Virginia. X-rays and a CT scan
revealed no fractures but showed degenerative arthritis of the lumbar
and thoracic spine and narrowing of the disc spaces between verte-
brae. The record shows that these degenerative conditions were
related to aging and were not related to trauma caused by any acci-
dent.

   After the ATV accident, Donald began filing claims against his
insurance policies. By the time of Donald’s trial in this case, he had
received $1,689,766.87 in benefits and owned insurance policies with
a cash value of $233,099.91.4

   Around February 1991, Donald applied for Social Security disabil-
ity benefits with the Social Security Administration (SSA), claiming
that he was permanently and totally disabled and unable to perform
work as a result of injuries he received in his ATV accident on
December 9, 1990. By the time of trial, Donald had received $87,027
in Social Security disability benefits.

  At trial, the government produced evidence demonstrating that on
applications submitted to the West Virginia Board of Medicine in July
1991, Donald stated that in the two-year period ending June 30, 1991,
he had suffered no physical or mental injury or disease that might rea-
sonably be expected to affect his ability to practice podiatry safely
and with competence.

    4
   Some of these benefits were payments under a business overhead
expense policy issued by the New England Life Insurance Company.
These benefits were based upon Donald’s claim that, although disabled,
he had two offices open. However, an investigator came to West Virginia
on August 17, 1992, to see if these offices were in fact open and found
that both offices were vacant.
                         UNITED STATES v. PRITT                         7
   In October 1992, Donald sued Suzuki and others in West Virginia
state court for the psychiatric and physical damages resulting from his
purported ATV accident. In preparation for trial, Donald submitted
sworn interrogatories denying that he had ever had psychiatric coun-
seling, care, or attention. In his deposition, Donald described his inju-
ries at great length and stated that he could neither bend, squat, nor
stoop.

   Suzuki’s lawyers hired a private detective to conduct surveillance
to videotape Donald engaged in activities that would contradict his
testimony in regard to the severity of his injuries. This strategy was
successful, and Donald was filmed riding in high-speed motorboats,
climbing in and out of boats, helping two others carry a boat up a hill-
side, throwing objects, walking upstairs and across his steep back-
yard, repeatedly trying to start gasoline powered pumps by pulling the
starter cord, carrying those pumps with his cane tucked under his
other arm, using a fire hose connected to the pump to clean his dock,
bending, squatting, stooping, and even lying down and holding the
hose under the dock.5

   In further preparation for trial, Suzuki’s lawyer asked Dr. Colin
Craythorne, who had done an independent medical examination of
Donald and found him disabled, to reexamine Donald, asking him
certain questions. Donald was asked those questions by Dr. Cray-
thorne’s nurse, and, despite videotaped evidence to the contrary,
denied being able to walk uphill or downhill, across the contour of a
hill, or any distance without the use of a cane or a walker. Donald
denied being able to climb steps without the use of a cane, carry an
object without the use of a cane, grip and lift an object with his right
hand, bend to pick up an object, or start a gasoline motor equipped
with a pull cord.

   Shortly before the trial of Donald’s lawsuit against Suzuki, Suzuki
learned that Donald had been under the psychiatric care of Dr. Robert
  5
   At the trial in the case now before the court, a West Virginia Division
of Natural Resources law enforcement officer testified that in June 1992
Donald had helped him recover a sunken boat from the Little Kanawha
River by diving with full scuba gear into black water, locating the boat,
and diving again to attach a steel chain to the boat.
8                       UNITED STATES v. PRITT
Ovington, a psychiatrist, from approximately April 1986 until June
1994.6 Based upon that, Suzuki moved to exclude evidence of Don-
ald’s psychiatric and psychological condition and related damages,
and the state court granted that motion.

   On the eve of the trial of Donald’s lawsuit against Suzuki, Donald
filed a motion to continue and, when that motion was denied, he com-
mitted himself to a hospital’s psychiatric unit. Thomas petitioned for
appointment as guardian ad litem for Donald in the prosecution of the
lawsuit against Suzuki, and the case went to trial on July 21, 1994.

   Thomas was the first and only witness in the case. On cross-
examination, Thomas was asked about his knowledge of Donald’s
disabilities, questions obviously patterned on the videotaped activities
of Donald. Suzuki’s counsel then prepared to cross-examine Thomas
by playing the videotape. The state court viewed the videotape before
it was shown to Thomas.

   On the following day, based upon its review of the videotape, the
state court declared a mistrial, reserving ruling on final dismissal of
the lawsuit pending the filing of motions for attorneys’ fees and costs.
The state court entered an order confirming its ruling in September
1994 and subsequently entered an order on July 21, 1995, awarding
Suzuki and the associated defendants attorneys’ fees totaling
$396,255 and awarding Donald’s counsel attorneys’ fees of $211,234.7

   After the Suzuki lawsuit debacle, facing claims for attorneys’ fees,
Donald began cashing in certain personal investments and transferring
the proceeds to his children. Donald used these funds to purchase
    6
    Donald met with Dr. Ovington forty-four times between April 1986
and June 1994. Most of the sessions concerned Donald’s marital prob-
lems. However, during a session on October 9, 1990, Donald expressed
concern that he owed the IRS in excess of $380,000 and stated that, the
previous week, he closed a restaurant he owned because the restaurant
lost $80,000 in 1990.
  7
    The award of attorneys’ fees was affirmed in toto by the West Vir-
ginia Supreme Court of Appeals. See Pritt v. Suzuki Motor Company,
513 S.E.2d 161 (W. Va. 1998).
                        UNITED STATES v. PRITT                        9
multiple cashiers checks in his children’s names and then used those
checks to pay debts he owed to certain creditors.

   For example, in January 1995, Donald prematurely cashed out an
annuity with Aetna Life Insurance (Aetna), incurring a significant
penalty for the early withdrawal. On January 11, 1995, Aetna mailed
to Donald through the United States Postal Service a check for
$34,360.34. Donald deposited $30,000 from the Aetna check into a
joint account he maintained with his minor son, Donald Pritt, Jr.
(Donald Jr.). Following a transfer on April 18, 1995 into Thomas’
brokerage account, the money was transferred into Donald Jr.’s bro-
kerage account, and on May 19, 1995, Donald wrote a check on that
account for $29,997.65 payable to Donald Jr. Donald used that check
to purchase five cashiers checks payable to his minor son.

   On July 31, 1995, ten days after the attorneys’ fees order was
entered by the state court and before Donald’s creditors could execute
on that order, Donald filed a petition for bankruptcy protection in the
United States Bankruptcy Court for the Southern District of West Vir-
ginia. On August 14, 1995, Donald filed in the bankruptcy court a
statement of financial affairs, wherein he was required to list gifts or
transfers of more than $100 in the previous year. Donald omitted from
the statement of financial affairs the payment of $83,663.44 to
Thomas on February 13, 1995, the payment of $30,000 to Thomas on
April 18, 1995, and the payment of $53,326.94 to Thomas on May 11,
1995.

   On August 14, 1995, Donald filed a schedule of personal property
in the bankruptcy court. On that schedule, Donald stated that he had
no interest in insurance policies. However, Donald failed to disclose
that he owned a life insurance policy with a cash surrender value of
approximately $27,000.

                                   II

   The government argues that the district court erred in granting
Donald a new trial on Counts One through Eleven and Fifteen. Under
Rule 33 of the Federal Rules of Criminal Procedure, the district court
can grant a new trial on a motion of the defendant "if the interests of
justice so require." Fed. R. Crim. P. 33. During its consideration of
10                      UNITED STATES v. PRITT
a motion under Rule 33, the district court may weigh the evidence and
may assess the credibility of witnesses. See Tibbs v. Florida, 457 U.S.
31, 37-38 (1982). Our review of the district court’s grant or denial of
a motion for new trial is for an abuse of discretion. See United States
v. Wilson, 118 F.3d 228, 237 (4th Cir. 1997). A district court should
exercise its discretion to grant a new trial "sparingly," United States
v. Arrington, 757 F.2d 1484, 1486 (4th Cir. 1985), and the district
court’s rejection of all or part of the testimony of a witness does not
automatically entitle a defendant to a new trial. See United States v.
Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). The district court
should grant a new trial based on the weight of the evidence "only
when the evidence weighs heavily against the verdict." Arrington, 757
F.2d at 1486. In other words, the "evidence must preponderate heavily
against the verdict, such that it would be a miscarriage of justice to
let the verdict stand." United States v. Robertson, 110 F.3d 1113,
1118 (5th Cir. 1997). Our discussion will begin with Counts One
through Eleven and then turn to Count Fifteen.

                                   A

   To establish a violation of 18 U.S.C. § 1341, the government must
prove beyond a reasonable doubt "(1) the existence of a scheme to
defraud, and (2) the mailing of a letter, etc., for the purposes of exe-
cuting the scheme." United States v. Loayza, 107 F.3d 257, 260 (4th
Cir. 1997) (citations and internal quotation marks omitted). In order
to establish the scheme to defraud element, the government must
prove beyond a reasonable doubt that the defendant acted with spe-
cific intent to defraud. See United States v. Ham, 998 F.2d 1247, 1254
(4th Cir. 1993).

  In this case, the indictment describes the first mail fraud scheme to
defraud (Counts One through Eleven) as follows:

     Scheme to Defraud

     3. Beginning in or about 1987 and continuing through at
     least September 30, 1998, defendant DONALD S. PRITT,
     aided and abetted by defendant THOMAS S. PRITT, did
     devise and intend to devise a scheme and artifice to defraud
     numerous insurance companies, as well as Suzuki Motor
                         UNITED STATES v. PRITT                          11
      Corporation and others, of substantial monies to which
      defendant DONALD S. PRITT was not entitled by falsely
      claiming that defendant DONALD S. PRITT had suffered
      serious and permanent bodily injury in a purported Decem-
      ber 1990 accident involving a Suzuki All-Terrain-Vehicle
      (hereafter "ATV").

In its instructions to the jury, the district court instructed the jury that
the first mail fraud scheme devised by Donald involved a scheme to
defraud "insurance companies and Suzuki Motor Corporation by
falsely claiming to have suffered serious and permanent bodily injury
in a purported December 1990 accident involving an ATV."

   The district court held that the jury’s verdict on Counts One
through Eleven was against the weight of the evidence because the
testimony of one of the government’s witnesses, Richard Pence
(Pence), "was wholly incredible as a matter of law." According to the
district court, without his testimony, there was no evidence to support
the jury’s finding that the ATV accident was "faked" or "staged."
Without evidence to support this jury finding, the district court opined
that the government could not meet its burden of proof on the scheme
to defraud element, and, therefore, the jury’s verdict on Counts One
through Eleven was against the weight of the evidence.

   At trial, the district court allowed the government to use the par-
tially redacted videotaped deposition of Pence as evidence in its case-
in-chief.8 Through his videotaped deposition, Pence, a disbarred law-
yer, and a former friend and business associate of Donald’s, testified
that, prior to December 9, 1990, Donald had told him on several occa-
sions that he was suffering from an arthritic back. Pence also testified
that Donald told him that he was going to fake an accident by falling
off a ladder in order to claim various insurance benefits, that Donald
later told him that he was planning to have an accident on a boat
instead, and that Donald finally told him that he had decided to have
an accident on an ATV in the woods. Pence testified that, after
  8
   This deposition was given in a case brought by Donald against Mutual
of Omaha Insurance Company, a company in which Donald applied for
long-term disability insurance approximately nine days before the ATV
accident.
12                       UNITED STATES v. PRITT
December 9, 1990, he had observed Donald engage in a variety of
physical activities inconsistent with his claim of total disability.

   Pence was cross-examined regarding ethically questionable actions
he had taken as a lawyer, and as a disbarred lawyer, which led to his
loss of his law license and the denial of his reapplication for a law
license. Pence was also questioned about his involvement on behalf
of Charlene in Charlene and Donald’s divorce proceeding, about his
financial relationships with Donald, and about his involvement in
Donald’s bankruptcy. During this questioning, Pence made several
inconsistent statements. Pence was also asked whether he had
destroyed security cameras while trespassing on Donald’s property.
Pence testified he did not recall destroying any such property. In the
deposition, Pence was confronted with photographs of him and his
son carrying a ladder, of Pence on the ladder wearing what appeared
to be surgical gloves, and of a broken security camera.

   We believe it was an abuse of discretion for the district court to
order a new trial on Counts One through Eleven. First, the district
court’s decision rests on the erroneous legal conclusion that the gov-
ernment was required to prove that Donald faked the ATV accident.
The indictment alleges that Donald’s scheme to defraud stemmed
from a "purported" ATV accident. Purported means "reputed or
claimed; alleged." Random House Webster’s College Dictionary 1075
(2000). The indictment only states that the ATV accident was alleged
by Donald to have occurred. That allegation merely required the gov-
ernment to prove that Donald used the accident, faked or not, to claim
injuries that he did not in fact sustain.9

   To be sure, to convict Donald of mail fraud, the government had
to prove beyond a reasonable doubt that Donald engaged in a scheme
to defraud. As alleged in the indictment, this scheme was based on
Donald’s false claims of injury from the "purported" ATV accident,
  9
   It is also worthy to note that the indictment does not state that the
accident was faked, and the district court did not instruct the jury that it
had to find that the accident was faked. Furthermore, Donald did not
request a jury instruction instructing the jury that the government was
required to prove beyond a reasonable doubt that the accident was faked,
nor did he object to the instructions given to the jury on this point.
                        UNITED STATES v. PRITT                       13
which enabled him to fraudulently obtain money from his insurance
companies and Suzuki. Obviously, if the government proved that the
ATV accident was faked, it made its assertion that Donald’s claims
of injury were fraudulent more persuasive. But, by no means did the
government’s case rise or fall on proof that the ATV accident was
faked.

   With the government’s burden of proof viewed in its proper per-
spective, it is evident that the jury’s finding that Donald engaged in
a scheme to defraud his insurance companies and Suzuki out of sub-
stantial monies by making false claims of injury was not against the
weight of the evidence. Following the ATV accident, Donald repeat-
edly demonstrated (on videotape and in the presence of witnesses) his
ability to perform tasks no totally disabled person could perform, and
he repeatedly and consistently lied about his indisputable ability to
perform these tasks. Comparing this evidence and the evidence
recited below, which demonstrates beyond a reasonable doubt that
Donald faked the ATV accident, to Pence’s testimony and the mini-
mal role it played in the trial leads to the inescapable conclusion that
the district court erred when it determined that the jury’s verdict on
Counts One through Eleven was against the weight of the evidence.

   Second, even if we assumed (1) the government was required to
prove that the ATV accident was "faked" or "staged," and (2) the jury
made such a finding, we would still conclude that it was an abuse of
discretion for the district court to order a new trial on Counts One
through Eleven. Contrary to the district court’s intimation, the gov-
ernment’s case demonstrating that the ATV accident was faked was
not built around the testimony of Pence; rather it was built around a
series of events occurring both before and after the accident that dem-
onstrated beyond a reasonable doubt that Donald faked the ATV acci-
dent in order to obtain disability benefits. First, the government
demonstrated that Donald had financial and personal motives for fak-
ing an ATV accident; at the time of the accident, Donald was under
financial duress and his retirement prospects were poor in view of the
fact that he had to liquidate a retirement account and an annuity in
order to meet his IRS tax liability. Second, the government demon-
strated that Donald, through a series of misrepresentations, applied for
an enormous amount of insurance, thereby putting himself in the posi-
tion to benefit financially from a disabling accident. Donald obtained
14                       UNITED STATES v. PRITT
insurance coverage that would have cost him more than $100,000 per
year in premiums, but would have paid him more than $60,000 per
month in case of disability due to an accident. Third, the timing of
Donald’s applications for insurance is suspect. Donald was applying
for an enormous amount of insurance at the same time his personal
debts, e.g., tax liability and alimony/child support obligations, were
growing. Fourth, after securing all of this insurance coverage through-
out 1989 and 1990, Donald promptly had an accident under suspi-
cious circumstances.10 Fifth, despite avoiding any objective injury,
Donald claimed that he was totally disabled on account of the acci-
dent, yet he repeatedly demonstrated (on videotape and in the pres-
ence of witnesses) his ability to perform tasks no totally disabled
person could perform. Finally, Donald repeatedly and consistently
lied about his indisputable ability to perform these tasks. All of this
evidence, which the district court completely ignored, was the heart
of the government’s case against Donald and overwhelmingly sup-
ports the jury’s finding that Donald faked the ATV accident.

   This case is not about Pence. Even if one assumes all of his testi-
mony was unbelievable as a matter of law, when one examines the
evidence described above against Pence’s testimony (which was
largely discredited) and the government’s minimal reliance on
Pence’s testimony, it is evident that the district court abused its dis-
  10
    Undoubtedly, the jury was entitled to draw the inference that the cir-
cumstances surrounding the ATV accident suggested that the ATV acci-
dent was faked and that Donald used Anderson as a pawn in his scheme
to defraud. Donald, an inexperienced ATV operator, agreed to ride his
ATV on a steep hill in the dark in the middle of the winter. While the
location Donald chose to ride his ATV is only nominally suspicious, the
conditions (dark winter evening), which made it extremely difficult for
Donald to get caught faking an accident, get the foul play ball rolling.
When Donald, Tommy, and Anderson arrived at the hill, Donald rode off
alone on a trail up the hill leaving Tommy and Anderson behind. This
unusual act, an inexperienced ATV operator riding off alone on a trail up
a steep hill in the dark, gave Donald the opportunity he needed to fake
the accident. Finally, the jury was entitled to draw the inference that
Anderson was coaxed into going on this trip because Donald needed a
non-family member to be there to find him "injured" after he faked the
accident.
                         UNITED STATES v. PRITT                          15
cretion when it concluded that the jury’s finding that the ATV acci-
dent was faked was against the weight of the evidence.

                                     B

   The district court also granted a new trial on Count Fifteen, which
alleged that Donald filed a false claim with the SSA in February
1991. The indictment alleged that, in February 1991, Donald

     applied for Social Security Disability benefits from the
     Social Security Administration based on his false and fraud-
     ulent written claim that he was permanently and totally dis-
     abled and unable to perform work as a result of injuries he
     received in an ATV accident on December 9, 1990.

In its instructions to the jury, the district court correctly instructed the
jury that to convict Donald on Count Fifteen it was required to find
beyond a reasonable doubt that Donald: (1) made a false or fraudulent
claim with the SSA; (2) knew the claim was false or fraudulent when
it was made to the SSA; and (3) the false or fraudulent claim was
material.

   In granting Donald a new trial on this count, the district court held
that the jury’s verdict was against the weight of the evidence. In
reaching this conclusion, the district court noted that the weight of the
evidence produced at trial demonstrated that the ATV accident was
not faked and that Donald is disabled and was disabled at the time he
made his application for Social Security disability benefits. According
to the district court, "the weight of the medical evidence is over-
whelming that [Donald] is and was disabled."

   Initially, we note that the question before the jury was not whether
Donald was disabled, but whether in February 1991 Donald was per-
manently and totally disabled and unable to perform work as a result
of injuries he purportedly received in the ATV accident. And a review
of the evidence in this case leads to the inescapable conclusion that
the district court abused its discretion when it concluded that the
jury’s finding that Donald made a false claim for Social Security dis-
ability benefits in February 1991 was against the weight of the evi-
dence.
16                      UNITED STATES v. PRITT
   The government introduced overwhelming evidence that Donald
was not disabled from the ATV accident. As noted above, the govern-
ment introduced evidence which demonstrated (on videotape and in
the presence of witnesses) Donald’s ability to perform tasks no totally
disabled person could perform, and Donald repeatedly and consis-
tently lied about his indisputable ability to perform these tasks.
Against this evidence was the testimony of the physicians called by
Donald, who testified that Donald was, in fact, disabled. However,
some of these physicians did not have the benefit of the videotaped
evidence prior to making their opinions. Furthermore, at least two
mental health professionals opined that Donald appeared to be delib-
erately performing poorly on psychological tests administered to him.
Thus, while some of Donald’s physicians testified that he was dis-
abled, it cannot be said, under any standard of review, that the jury’s
verdict on Count Fifteen is against the weight of the evidence.

                                  III

   Donald argues that there is insufficient evidence in the record to
support his convictions on Counts Thirteen and Seventeen. In review-
ing a sufficiency of the evidence claim on direct review, we must sus-
tain the conviction if the record contains "substantial evidence, taking
the view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942). In applying this standard, we
give due regard to the jury’s prerogative to resolve questions of credi-
bility. See United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.
1996) (en banc). We must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be established. See
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). "[A]n
appellate court’s reversal of a conviction on grounds of insufficient
evidence should be confined to cases where the prosecution’s failure
is clear." United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984)
(citation and internal quotation marks omitted). We shall first address
the sufficiency of the evidence on Count Thirteen and then proceed
to Count Seventeen.

                                   A

   For his participation in the second mail fraud scheme, which
involved the scheme to defraud various individuals and corporations
                          UNITED STATES v. PRITT                        17
out of the attorneys’ fees ordered at the Suzuki trial, Donald was con-
victed of one count (Count Thirteen) of mail fraud. Count Thirteen
involved an annuity Donald had with Aetna.

   In support of Count Thirteen, the government introduced evidence
demonstrating that, in the Suzuki trial on September 24, 1994, the
West Virginia state court entered an order declaring a mistrial and
reserving ruling on final dismissal of the lawsuit pending the filing of
motions for attorneys’ fees. In October 1994, Donald purchased an
annuity with Aetna, and, in January 1995, he prematurely cashed out
the annuity, incurring a significant penalty for the early withdrawal.
On January 11, 1995, Aetna mailed to Donald through the United
States Postal Service a check for $34,360.34. The government also
introduced evidence demonstrating that Donald deposited $30,000
from the Aetna check into a joint account he maintained with his
minor son, Donald Jr. Following a transfer on April 18, 1995 into
Thomas’ brokerage account, the money was transferred into Donald
Jr.’s brokerage account, and on May 19, 1995, Donald wrote a check
on that account for $29,997.65 payable to Donald Jr. Donald used that
check to purchase five cashiers checks payable to his minor son. The
order awarding attorneys’ fees was entered by the West Virginia state
court on July 21, 1995.

   Donald argues that, because Aetna mailed the check cashing out
his annuity before the judgment for attorneys’ fees was entered, he
could not possibly have had the intent to defraud at the time of the
mailing. This argument lacks merit for the simple reason that a ratio-
nal juror could believe that after it became apparent that he faced a
judgment for attorneys’ fees, but before the order was actually
entered, Donald began transferring his assets, including his Aetna
annuity, as part of his scheme to hide those assets from his creditors.
Accordingly, we conclude there is substantial evidence in the record
to support Donald’s conviction on Count Thirteen.

                                     B

   Donald was convicted of two counts (Counts Sixteen and Seven-
teen) of bankruptcy fraud in violation of 18 U.S.C. § 152(3).11 Specif-
  11
    A person is guilty of a § 152(3) violation if he
       knowingly and fraudulently makes a false declaration, certifi-
18                        UNITED STATES v. PRITT
ically, Donald was convicted of "knowingly and fraudulently" making
two false declarations in his bankruptcy case; Count Sixteen related
to certain undisclosed money transfers, and Count Seventeen related
to his failure to disclose that he had an interest in, among other things,
a whole life insurance policy with a cash surrender value of approxi-
mately $27,000. At trial, the district court correctly instructed the jury
on the elements of bankruptcy fraud.12

   Donald argues that there is insufficient evidence in the record to
support his conviction on Count Seventeen, which alleged that he
omitted in his statement of personal property, among other things, his
interest in a whole life insurance policy with a cash surrender value
of approximately $27,000. The gist of Donald’s argument is that the
evidence of the value of the whole life insurance policy was inconclu-
sive, that the government failed to prove that he was actually aware
of that value, and that he did not have an interest in the policy when
he filed for bankruptcy.

   There is sufficient evidence in the record to support Donald’s con-
viction on Count Seventeen. Donald filed for bankruptcy in July
1995. On August 14, 1995, in the bankruptcy case, Donald filed a
schedule of personal property, which stated that he had no interest in
any insurance policies. At trial, the government produced evidence
concerning two life insurance policies owned by Donald, namely, a
universal life insurance policy, and a renewable term life insurance

     cate, verification, or statement under penalty of perjury . . . in or
     in relation to any case under title 11.
18 U.S.C. § 152(3).
   12
      The district court set forth the following elements of a § 152(3) viola-
tion:
     One, that there existed a proceeding in bankruptcy on or about
     the date alleged in the indictment; two, that the defendant know-
     ingly made or caused to be made a false declaration or statement
     in that bankruptcy proceeding or in relation to it; three, that the
     defendant knew that the statement or declaration was false; four,
     that the declaration or statement related to a material matter; and
     five, the declaration or statement was made under penalty of per-
     jury.
                        UNITED STATES v. PRITT                        19
policy, which was later converted to a whole life insurance policy.
The government also produced evidence that, on July 31, 1995, the
whole life insurance policy had a cash surrender value of $27,323.54,
and that one of Donald’s insurance agents had discussed with Donald
the cash value of his policies. Finally, the government produced evi-
dence demonstrating that Donald transferred ownership of this policy
in September 1995, after the filing of the schedule of personal prop-
erty, by convincing the insurance company to back date the change
of ownership by three years. Based on this evidence, we conclude
there is substantial evidence in the record to support Donald’s convic-
tion on Count Seventeen.

                                   IV

   Donald contends that the district court erred in refusing to give his
proposed diminished capacity instruction. Donald’s proposed instruc-
tion states:

    There has been testimony that the Defendant Donald S. Pritt
    suffers from severe depression which can cause poor mem-
    ory and the inability to concentrate. In connection with this
    evidence, you are instructed that this alone is not a defense;
    however the fact that a person may have been in a state of
    severe depression at the time of an act may negate the exis-
    tence of a specific criminal intent. If the evidence in this
    case leaves the jury with a reasonable doubt whether,
    because of the severe depression, the mind of the Defendant
    Donald S. Pritt, the mind of the defendant [sic] was capable
    of forming or did form the specific intent the jury should
    acquit Donald S. Pritt.

   A district court’s refusal to provide an instruction requested by a
defendant constitutes reversible error only if the instruction: "(1) was
correct; (2) was not substantially covered by the court’s charge to the
jury; and (3) dealt with some point in the trial so important, that fail-
ure to give the requested instruction seriously impaired the defen-
dant’s ability to conduct his defense." United States v. Lewis, 53 F.3d
29, 32 (4th Cir. 1995) (citation and internal quotation marks omitted).
Before applying this test, we must consider a threshold question:
20                       UNITED STATES v. PRITT
whether the defendant presented an adequate evidentiary foundation
to support the proposed instruction. See id. at 33 n.8.

   The district court refused to give Donald’s proposed instruction on
the basis that there was insufficient evidence in the record to support
the instruction. We have reviewed the entire record in this case and
agree with the district court’s conclusion that there was insufficient
evidence presented at trial to warrant a diminished capacity instruction.13

                                    V

   For the reasons stated herein, the judgment of the district court is
affirmed in part, vacated in part, and the case is remanded for resen-
tencing.

                          AFFIRMED IN PART, VACATED IN PART,
                           AND REMANDED FOR RESENTENCING
  13
    With respect to Donald’s argument, we assume, without deciding,
that the law requires a diminished capacity instruction when a defendant
presents sufficient evidence to support the instruction.
