     Case: 10-60766     Document: 00511535435         Page: 1     Date Filed: 07/11/2011




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

                                                                            FILED
                                                                            July 11, 2011
                                     No. 10-60766
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

EARLINE Y. RAWLS, also known as Earlene Rawls,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:09-CR-83-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Earline Y. Rawls challenges her jury-trial conviction for one count of
conspiracy to defraud the United States, and three counts of bank fraud. She
argues the district court erroneously failed to require the Government to elect
among multiplicitous counts. Rawls asserts that the indictment set forth two
bank fraud counts that effectively were redundant of other counts alleged in the
indictment and that she was prejudiced by the court’s refusal to force an election
among the identical counts. We review this claim de novo. See United States v.
Planck, 493 F.3d 501, 503 (5th Cir. 2007).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60766

      Rawls’s claim is without merit. The record supports that the district court,
with the eventual agreement of the parties, merged the disputed counts before
trial to prevent the jury from being presented with a multiplicitous indictment.
Accordingly, she has not shown that she was prejudiced by the district court’s
failure to require a pretrial election. The jury was neither charged with, nor
informed of, the multiplicitous counts, which the court dismissed, and Rawls was
sentenced on only the counts of conviction. The jury therefore was not presented
with an indictment that charged a single offense in multiple counts, and the two
dangers presented by a multiplicitous indictment – i.e., that Rawls would receive
more than one sentence for a single offense and that the jury would have the
details of a single course of conduct presented multiple times – were eliminated.
See United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir. 1985); United States
v. Smith, 591 F.2d 1105, 1108 (5th Cir. 1979).
      Rawls argues that the evidence adduced at trial is insufficient to prove
that she was guilty of conspiracy to defraud the United States. She argues that
the Government failed to establish that she agreed with others to obtain funds
or other property from a financial institution by fraudulent means.
      Because Rawls moved for a judgment of acquittal at the close of the
Government’s case, we review the sufficiency of the evidence de novo and decide
whether a rational juror could have found the elements of the offenses proved
beyond a reasonable doubt. United States v. Garza-Robles, 627 F.3d 161, 166
(5th Cir. 2010). This court reviews jury verdicts with great deference and gives
the Government the benefit of all reasonable inferences and credibility choices.
United States v. McCauley, 253 F.3d 815, 818 (5th Cir. 2001) (citation, internal
quotation marks, and brackets omitted).
      To return a verdict of guilty, the jury had to find that Rawls (1) knowingly
and voluntarily agreed with one or more persons, (2) to commit a crime against
the United States, and (3) one of the conspirators committed an overt act in
furtherance of that agreement. United States v. Krenning, 93 F.3d 1257, 1262

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                                  No. 10-60766

(5th Cir. 1996). The Government does not need to show that the conspiratorial
agreement was explicit or formal; proof of a tacit agreement or circumstantial
evidence of an agreement is sufficient. United States v. Freeman, 434 F.3d 369,
376 (5th Cir. 2005); United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir.
2002).
      The evidence on record provides a legally sufficient basis for the jury to
find Rawls guilty of the charged offense. To the extent that Rawls argues that
the evidence was insufficient because the Government did not establish an
agreement between her and specific persons, her claim is unavailing. See United
States v. Thomas, 348 F.3d 78, 83 (5th Cir. 2003). To the extent that Rawls
generally alleges that the evidence did not prove a conspiracy, her assertion
lacks merit. The Government offered circumstantial evidence that she willingly
and knowingly conspired to submit fraudulent loan application information and
supporting documents for loan approval. See Bieganowski, 313 F.3d at 277. The
record specifically contained evidence that Rawls and her boyfriend enlisted an
associate to draft fraudulent bank statements that she used to secure loans to
purchase real properties. The record also supports that Rawls’s fraudulent
purchases were intended to divert and divide the lender funds. In one instance,
Rawls bought a home secured through the false bank statements prepared by
her associate, and the proceeds from the sale were deposited into her personal
bank account after her boyfriend, who was granted access to an account opened
by the seller, obtained it for her. Thus, viewing the evidence in the light most
favorable to the verdict, a rational trier of fact could have found that Rawls was
guilty of conspiracy to defraud the United States. See Garza-Robles, 627 F.3d
at 166; Krenning, 93 F.3d at 1262.
      AFFIRMED.




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