                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4685



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


BARBARA MURPHY AGNEW,

                                               Defendant - Appellant.



                             No. 04-4686



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


MICHAEL RAYMOND AGNEW,

                                               Defendant - Appellant.


Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-02-109)


Argued:   May 27, 2005                     Decided:   September 2, 2005


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


ARGUED: Aaron Michael Street, BAKER BOTTS, Houston, Texas, for
Barbara Murphy Agnew and Michael Raymond Agnew. Stephen Westley
Haynie, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for the United States.      ON
BRIEF: Paul F. Enzinna, BAKER BOTTS, Washington, D.C., for Barbara
Murphy Agnew and Michael Raymond Agnew. Paul J. McNulty, United
States Attorney, Michael J. Elston, Assistant United States
Attorney, Norfolk, Virginia, for the United States.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

     Michael    and   Barbara   Agnew      (the       “Agnews”)    appeal    their

convictions following a bench trial of eleven counts of bank fraud,

one count of embezzlement, one count of conspiracy to commit

embezzlement, three counts of money laundering and one count of

conspiracy to commit laundering.               They were each sentenced to

twenty-four    months’   imprisonment,         followed    by     five   years   of

supervised release.1      The Agnews challenge the district court’s

denial of their motion for a new trial based upon newly discovered

evidence of judicial bias and the denial of their motion for a

judgment of acquittal.     For the reasons that follow, we affirm.



                                      I.

     The    factual   underpinnings       of   this    appeal     appear   largely

undisputed. However, since this is an appeal from the denial of a

motion for a judgment of acquittal based on insufficiency of the

evidence, we recite the evidence in the light most favorable to the

government.     United States v. Gallimore, 247 F.3d 134, 136 (4th

Cir. 2001).

         After working for a construction contractor for a number of

years, Michael Agnew left to start his own company in 1986.                      He


     1
      In their brief, the Agnews argued that the sentences violated
their Sixth Amendment rights as set forth in Blakely v. Washington,
124 S. Ct. 2531 (2004). The Agnews subsequently filed an unopposed
motion to dismiss their appeal with respect to the sentencing
issues, which we granted by order entered April 15, 2005.

                                      3
created AGM Development Corporation (“AGM”), a Virginia entity

located in Virginia Beach. Michael Agnew was the sole stockholder,

director and president.             Barbara Agnew served as secretary and

treasurer.     AGM engaged in the business of installing concrete

foundations    and       building    concrete      structures,      usually   as   a

subcontractor under a construction contract awarded to a general

contractor.

      In the construction industry, subcontractors frequently have

to wait a long time for the general contractor to pay their

invoices.    To meet cash flow needs in the interim, companies like

AGM will often transfer their invoices for work performed on behalf

of a general contractor to a financial institution.                  The financial

institution will then provide the subcontractor with a loan or line

of credit against the accounts receivable, less a fee and a

percentage that it holds back as a reserve against the invoices

being disputed in whole or in part.

      The first financial institution with which the Agnews worked

was   Reservoir     Capital    (“Reservoir”),        a   so-called     “factoring”

service    based    in    Baltimore,       Maryland.      Under     the   factoring

agreement, Reservoir selected which invoices it would purchase,

against which it charged a fee of approximately 3% and retained a

reserve of 20%.

      In    1995,    Resource       Bank       (“Resource”),   an     FDIC-insured

institution also located in Virginia Beach, approached AGM about


                                           4
participating in its new Cash Flow Management (“CFM”) Program. The

Agnews acknowledge that, on paper, the CFM was similar to its

agreement with Reservoir.       Significantly, it provided that AGM

could only submit “valid” invoices that were actually due from a

general contractor, for which Resource would pay in full, less a

fee and reserve charge.

     There   were,   however,   advantages   to   Resource’s   proposal.

Resource charged lower fees and reserve amounts; it operated as an

invisible entity in AGM’s financing, whereas Reservoir had frequent

contact with AGM’s contractors;     and, finally, working with a bank

entailed greater flexibility in terms of financing.        As a result,

the Agnews paid a severance fee to terminate the agreement with

Reservoir and AGM became a client of Resource through its CFM

program in January of 1996.

     During the course of AGM’s relationship with Resource, Michael

Agnew signed several iterations of the CFM agreement.          They all,

however, contained numerous references to the requirement that the

invoices submitted must be “valid,” i.e., they must reflect “the

terms of a non-cash sale of goods or provisions of services

previously made by the Business to a Customer.” J.A. 979, 2910.2


     2
      CFM documentation was replete with provisions to the effect
that by submitting an invoice AGM was “making a legal
representation to the bank that all receivables assigned and sold.
. .are valid,” that a valid invoice had to be a “bona fide and
existing obligation” of AGM customers, and that submitting
fraudulent invoices could lead to criminal sanctions. J.A. 981,
1914, 2922.

                                   5
Despite the unambiguousness of the CFM agreement, however, by

September of 1996 AGM had begun to submit invoices for work that

had not been performed.        In fact, according to Barbara Agnew, AGM

submitted several series of invoices for the entirety of large

subcontracting      jobs over a period of days or weeks, up to the full

amount   of   the   contract   for   which    they   received   payment   from

Resource, despite the fact that the general contractor did not make

good on those invoices until much later. The Agnews explained this

course of conduct by claiming it to be their understanding that

Resource was willing to advance the full amount of a contract, even

though the work remained outstanding and the governing documents

specifically proscribed such payment.

     Eventually, however, this practice caught up with AGM, as its

expenses outpaced the growth of its business and it began to

experience    financial    difficulties.        After   several   shortfalls

prompted Resource to charge $3 million to AGM’s reserve account,

Resource sent an audit letter to one of AGM’s general contractors,

Ritchie Curbow Construction Company (“RCCC”) in June of 1999.              The

letter requested information regarding invoices reflecting $243,000

in services AGM rendered to RCCC.            RCCC replied that it owed AGM

nothing, explaining that while it had bid on a project and promised

AGM the concrete subcontract, its bid had been rejected.              Rather

than defaulting AGM on the CFM program, Resource charged this

amount to AGM’s reserve account.


                                      6
     As AGM’s financial condition deteriorated, it appears that the

Agnews withheld payments from their employees’ 401(k) plans.            It

was these actions that would form the basis of the embezzlement

charges.   The evidence reflects that Debbie Lundberg, AGM’s office

manager, regularly sent employees’ 401(k) witholding checks to

Putnam Investments (“Putnam”) until the summer of 1998.            At that

point, Barbara Agnew instructed her to cease sending them due to

AGM’s cash shortage.     When Ms. Lundberg subsequently asked about

sending a check off, Mrs. Agnew responded, “Just hold on to it

until further notice.”     J.A. 568.     In March of 1999, a Putnam

representative contacted Ms. Lundberg to inquire about the missing

contributions.    When   she   brought   the   issue   to   Mrs.   Agnew’s

attention, she responded, “I guess I’ll have to deal with it now.”

J.A. 570-71.

     Lundberg’s testimony is bolstered by that of a long time

friend and work colleague of the Agnews, Dan Des Roches, who

realized that he had not been receiving any commissions for the AGM

plan.   He contacted Mrs. Agnew, who responded that Ms. Lundberg,

who had resigned, had perhaps not taken care of it.         Mr. Des Roches

then suggested that Mrs. Agnew participate in a conference call

with Putnam, which she did.    Mrs. Agnew reached an agreement with

Putnam whereby she agreed to pay for the missed contributions since

May 1998, approximately $27,000, and to resume making monthly




                                  7
contributions.     However, she never did resume payments, and failed

to return Putnam’s calls following up on the agreement.

     Also during the period before AGM’s closing, one of AGM’s

project managers, Jack Ellenor, specifically asked Michael Agnew to

look into why his 401(k) plan was not being funded.                 Mr. Agnew

responded that he “would take care of it,” although no further

contributions were made.       J.A. 550.

            AGM’s financial condition continued to worsen.            By July

of 1999, it became clear that AGM had $3.3 million outstanding on

invoices   submitted      through   Resource’s     CFM   program.    Resource

attempted to rectify this by extending a line of credit for the

roughly    two-thirds of that which represented work to be performed

in the future, whereas the remainder was handled through the CFM

program.     It later became clear, however, that AGM had also

incurred    in   excess   of   $1   million   in   federal   and    state   tax

liabilities.     On August 6, 1999, AGM closed its doors when it was

unable to meet its payroll.

     An FBI agent contacted Resource Bank upon reading about AGM’s

collapse in the media, and the criminal prosecutions ensued.                The

Agnews requested a bench trial, and on July 11, 2003, the district

court annnounced its verdicts orally from the bench.                The court

found both defendants guilty of eleven counts of bank fraud, one

count each of conspiracy to embezzle and of embezzlement, three




                                       8
counts of money laundering and one count of money laundering

conspiracy.

     The Agnews’ Presentence Report (“PSR”) provided a guideline

loss figure of $3,088,683.95, with a total offense level of 31,

which carried a range of 108 to 135 months imprisonment.                      In

sentencing the Agnews, the district court noted, among other

things,    that   the   Agnews   are   “exceptionally       devoted   to   their

children” and “play an extremely important role in their children’s

lives.”    J.A. 2493.   He also noted that their case was “perhaps one

of the most benign cases of fraud the Court has ever seen.”                J.A.

2490.   On those and other grounds, on August 13, 2004, the district

court concluded that the Agnews were entitled to a significant

downward departure, to an offense level of 17, with a sentencing

range of 24 to 30 months.        He then entered judgment at the lower

end of that range, sentencing the Agnews to 24 months imprisonment,

and provided that they could serve staggered sentences (overlapping

by one year) to minimize the amount of time their children would be

without a parent.

     The   Agnews   filed   a    motion    for   judgment    of   acquittal   in

December of 2003, which the district court denied by order dated

February 3, 2004.

     In mid-July of 2004, the Agnews learned that the district

judge had been involved in a business partnership with A. Russell

Kirk and Daniel Hoffler, two individuals adversely affected by


                                       9
their actions.     Kirk was a member of the Board of Directors of

Resource Bank and its third largest shareholder.              Daniel Hoffler

was President of Armada Hoffler, one of the general contractors for

whom AGM regularly performed work.          From 1983 to late 1991 or early

1992,   Kirk,   Hoffler   and   the   judge    (who   was   then   in   private

practice) were partners in an enterprise established to own and

operate an office building.

     On September 1, 2004, the Agnews filed a pro se motion for a

new trial based on newly discovered evidence pursuant to Federal

Rule of Criminal Procedure 33.          The Agnews argued that had they

known of the judge’s prior relationship with Kirk and Hoffler, they

would not have waived their right to a jury trial and submitted to

a bench trial.     They therefore sought a new trial on the ground

that their waiver was not knowing and voluntary.

     The district court entered an order denying the motion on

September 3, 2004. The court concluded that the defendant’s motion

for a new trial was not based on “newly discovered evidence” within

the meaning of Rule 33(b).      The significance of this conclusion is

that a motion for a new trial under Rule 33(b) based on newly

discovered evidence must be filed within three years after the

verdict.   Fed. R. Crim. P. 33(b).          A motion for a new trial based

on any other reason “must be filed within seven (7) days after the

verdict or finding of guilty.”        Id.   Concluding that the motion was

not based on newly discovered evidence, the court held that the


                                      10
Agnew’s motion for a new trial, which was filed more than a year

after they were found guilty, was untimely.

     The district judge nevertheless attached an affidavit to the

September 3 order, responding to the allegations of bias and

affirming that the facts referred to had no bearing on his verdict.

He stated that prior to the trial, he had no knowledge of Resource

Bank,     who owned stock in it or the composition of its Board of

Directors. With respect to the business relationship with Kirk and

Hoffler,      the judge stated that the partners in the law firm with

which    he   was    affiliated   in   the   1980's   became   involved   in   a

partnership     to    construct   an    office   building.      The   original

partnership consisted of sixteen members, twelve of whom were

partners in the firm, and four of whom were outside “developing

partners.”     Kirk and Hoffler were two of the developing partners.

The judge stated that to the best of his knowledge, he had never

met Kirk, did not recognize the name,            and had no recollection of

the partnership or involvement with it after January of 1992.

     The Agnews timely appealed the denials of their motions for

judgment of acquittal and for a new trial.



                                       II.

                                        A.

        The Agnews moved for a new trial under Rule 33 based on the

fact that their jury trial waiver was made without knowledge of the


                                        11
trial    judge’s   potential   conflict   of   interest.   This   motion

collapses into a determination of whether the apparent conflict

mandated the judge’s recusal.      “[I]f [the facts suggesting bias]

are not sufficiently grave to require disqualification of the judge

under 28 U.S.C. § 455 they could not qualify as circumstances

requiring the judge's Sua sponte reconfirmation of an earlier

waiver.”     Wyatt v. United States, 591 F.2d 260, 265 (4th Cir.

1979).     Accordingly, we review the Rule 33 motion to determine

whether the alleged partiality or bias rises to the level requiring

recusal.     If it does not, then the district judge did not err in

denying the Rule 33 motion.         We review the district court’s

decision to deny the Agnew’s Rule 33 motion for a new trial based

on partiality or bias for an abuse of discretion.      United States v.

Wilson, 118 F.3d 228, 237 (4th Cir. 1997).

     As a threshold matter, the Agnews dispute the district court’s

conclusion that their motion was not based on newly discovered

evidence.3    Having reviewed the record of this case carefully, we

conclude that the information about the district judge’s prior

relationship with Kirk and Hoffler was “newly discovered” for

purposes of Rule 33.4     The district judge, however, did not abuse


     3
      As noted above, under the plain language of Rule 33, the
motion would be timely if it were based on newly discovered
evidence, but untimely if it were not. Fed. R. Crim. Pro. 33.
     4
      We base our conclusion that the judge’s prior relationships
should be considered “newly discovered evidence” on a careful
review of the facts of this case in light of existing analogous

                                   12
his     discretion     in   denying      the     motion,    because   the    alleged

partiality or bias does not rise to the level requiring recusal.

        “Any . . . judge . . . of the United States shall disqualify

himself     in   any    proceeding       in     which    his   impartiality    might

reasonably be questioned.”               28 U.S.C. § 455.          In determining

whether a judge’s impartiality might reasonably questioned, we

apply an objective test.           United States v. Cherry, 330 F.3d 658,

665 (4th Cir. 2003).        “‘The inquiry is whether a reasonable person

would    have    a   reasonable        basis     for    questioning   the    judge's

impartiality, not whether the judge is in fact impartial.’” Id.

(quoting In re Beard, 811 F.2d 818, 827 (4th Cir. 1987)).                         Of

course, “[a] presiding judge is not . . . required to recuse

himself    simply      because    of    ‘unsupported,      irrational   or    highly

tenuous speculation.’” Id. (quoting United States v. DeTemple, 162

F.3d 279, 287 (4th Cir. 1998)).               Nor must a presiding judge “recuse

himself simply because he possesses some tangential relationship to

the   proceedings.”         Id.        Such    overly-cautious     recusals    would

improperly allow litigants to exercise a “negative veto” over the

assignment of judges merely by asserting the attenuated hint of



circuit precedent. See Holmes v. United States, 284 F.2d 716 (4th
Cir. 1960), in which we addressed a request for a new trial based
on evidence of an improper communication by a court official to
members of a jury, and held that the generally applicable standard
governing whether new evidence bears upon a substantive issue of
guilt should not apply when the new evidence “bears instead upon
the integrity of the jury’s verdict in the completed trial.” Id.
at 720.

                                          13
impropriety.       See DeTemple, 162 F.3d at 287.       Instead, the judge

must simply ask “whether another with knowledge of all of the

circumstances might reasonably question the judge's impartiality."

Cherry, 330 F.3d at 665 (internal quotation omitted).

       Comparing the facts of this case with relevant precedent

demonstrates that the district judge did not abuse his discretion

by refusing to recuse himself in this case.            In In re Beard, 811

F.2d at 828, the judge was the neighbor of a party in a bankruptcy

proceeding and had called that party “a fine man” on the record.

We held that those facts did not provide a “reasonable basis for

questioning the judge’s impartiality.” Id. In DeTemple, the judge

in a bankruptcy fraud proceeding had previously represented one of

the defendant’s creditors.         162 F.3d at 287.      We held that this

fact   did   not    mandate    recusal,   in   part   because   the   judge’s

representation of the creditor ended two years before the defendant

filed for personal bankruptcy and five years prior to defendant’s

indictment.    Id.    In United States v. Cole, 293 F.3d 153, 164 (4th

Cir. 2002), we held that a trial judge did not abuse his discretion

in refusing to recuse himself from a case in which one of the

witnesses was the judge’s godparents’ son whom the judge had not

seen in ten years.       Id.     Finally, in Cherry, the judge did not

abuse his discretion by refusing to recuse himself from a bank

fraud trial in which the deceased victim had provided support for

the judge’s appointment to the federal bench ten years before the


                                     14
trial, and the judge had responded with a letter of appreciation.

Cherry, 330 F.3d at 666.

         As in the cases cited above, a reasonable person reviewing

the facts of this case would not question the judge’s impartiality.

First, the judge had no relationship with Resource Bank or Armada

Hoffler, the two corporate entities actually injured by the Agnews’

fraud.     The judge’s relationship was instead more attenuated,

consisting of a prior partnership with Daniel Hoffler and A.

Russell Kirk, individuals who had ties to Armada Hoffler and

Resource Bank, respectively.

     The partnership at issue consisted of sixteen individuals:

twelve partners in the judge’s prior law firm and four real estate

developers, including Mr. Hoffler and Mr. Kirk.    The judge did not

have an active role in the partnership, which was created to

develop an office building to house the judge’s law firm and other

tenants.     In fact, the judge held less than a three percent

interest.    The partnership itself had no relation to the Agnews or

the fraud committed in this case.       After the judge left private

practice, he sold his interest in the partnership, completely

divesting himself of ownership by January 1992--over ten years

before the Agnews were indicted.    It appears that the judge has had

no personal or professional contact with the partnership, Resource

Bank, Armada Hoffler, Mr. Kirk, or Mr. Hoffler in more than a

decade.


                                   15
     In short, over ten years ago, the judge had a less than three

percent interest in a partnership with two individuals who were

later affiliated with corporate entities injured by the Agnews.

A reasonable person, with knowledge of these relevant facts, would

not reasonably question the judge’s impartiality in this case.                   On

these       facts,   we   conclude   that    the   judge   did    not   abuse   his

discretion in denying the Agnews’ Rule 33 motion for a new trial.5



                                        B.

        We now turn to the Agnews’ claim that the judgement was not

based on sufficient evidence.               When a motion for judgment of

acquittal is based on insufficiency of the evidence, the verdict

must be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it.                   See Glasser v.

United States, 315 U.S. 60, 80 (1942).               Substantial evidence is

defined as “that evidence which ‘a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.’”                   United States v.

Newsome, 322 F.3d 328, 333 (4th Cir. 2003) (quoting United States



        5
      Furthermore, while not dispositive, any allegations of
judicial bias against the Agnews are belied by the fact that the
judge was, by any objective measure, quite lenient toward the
Agnews during the trial and the sentencing proceedings. He imposed
their sentence at the low end of the sentencing range, reduced
their sentence by an estimated 75 percent, allowed them to stagger
their sentences so that one parent would remain free to take care
of their children, and acquitted them on 4 counts.

                                        16
v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)).   This Court

“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.”    United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).    The Court does not

review the credibility of witnesses, and it must assume that the

finder of fact resolved all evidentiary contradictions in the

Government’s favor.   United States v. Wilson, 115 F.3d 1185, 1190

(4th Cir. 1997).   A defendant challenging the sufficiency of the

evidence faces a heavy burden.     See United States v. Beidler, 110

F.3d 1064, 1067 (4th cir. 1997).    “[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) (quoting

Burks v. United States, 437 U.S. 1, 17 (1978)).



                                   1.

     The Agnews challenge the bank fraud convictions on the basis

that Resource implicitly acquiesced in their conduct by accepting

invoices it knew did not reflect work performed. They contend they

did not deceive Resource because the submission of such invoices

was an accepted course of dealing under the CFM program.

     However, this argument provides little aid to the Agnews.    In

order to prove a violation of 18 U.S.C. § 1344(1), the government


                                   17
must demonstrate that the accused executed a scheme to defraud a

federally insured or chartered bank and that the accused did so

knowingly.      United States v. Brandon, 298 F.3d 307, 311 (4th Cir.

2002).     The CFM documents make clear that payment is authorized

only upon the submission of a valid invoice.                    Generally, it is

sufficient for fraud to demonstrate a defendant’s knowledge that

the invoice does not qualify for payment.               Cf. Cofacredit, S.A. v.

Windsor Plumbing Supply Co., 187 F.3d 229, 238-41 (2d Cir. 1999)

(finding     that       contractor’s     representation     of     a       conditional

consignment as invoice for firm sales in an effort to obtain

payment    from     a    factor     sufficient    to   demonstrate          fraudulent

misrepresentation).          That condition is met here.               Further, the

Agnews have shown no authorization, either oral or written, to seek

payment on invoices for work not performed; rather, they rely on

the      fact     that      their       increasingly      brazen           series    of

misrepresentations passed without notice.

      Generally, for a course of performance to demonstrate mutual

assent to a modification, it must be “unequivocally referable” to

the   modification,        and    for   conduct   to   amount    to    a    waiver   or

estoppel, it “must not otherwise be compatible with the agreement

as written;” rather, “the conduct of the parties [must] evidence []

an indisputable mutual departure from the written agreement.”

Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 783 (2d Cir.

2003) (discussing New York law) (internal quotations omitted).


                                          18
Here, however, the conduct on which the Agnews relies does not rise

to this level, as Resource did begin to question their invoices

when an audit revealed their fraud.          Ultimately, the fact that the

Agnews were able to get away with submitting facially fraudulent

invoices    (including   some   that    were   certified   for   work   that,

according to the invoice, would not be completed for fifteen to

thirty days in the future) does not absolve them from engaging in

that practice in the first place.            Indeed, had they not, it is

unlikely that the loss attributable to their fraud would have been

so large.    Thus, the bank convictions are amply supported by the

evidence.



                                       2.

     The Agnews further challenge their convictions for embezzling

401(k) funds.   They assert that there is no evidence that Mr. Agnew

had any involvement in failing to remit or improperly withholding

payments from the 401(k) plan.              Further, they argue that the

evidence    supporting    Barbara      Agnew’s    conviction     is   legally

insufficient, as her testimony contradicts that of Lundberg, who

might be motivated to lie.      The record belies both assertions.

     The evidence clearly and unambiguously demonstrates that AGM

was in dire financial straits in 1997, when it owed $2 million to

vendors. The evidence is also compelling that the Agnews ran their

business jointly.    Two witnesses specifically testified that the


                                       19
Agnews jointly decided who got paid and who did not, and that both

spouses participated in that process. There is also testimony from

one of AGM’s project managers to the effect that Michael Agnew knew

that AGM was not funding the 401(k) plan, promised to take care of

it, and did not.

       The evidence against Barbara Agnew is stronger.                  Although she

attempts to blame the failure to make payments on Lundberg’s

“disorganization,” there is ample reason to discredit Mrs. Agnew’s

testimony.        A witness other than Lundberg testified as to the

conference call between Mrs. Agnew and Putnam, in which the Agnew’s

failure to fund the 401(k) plan was discussed, and during which she

promised to make full payment on the underfunded portion of the

plan and to start making regular payments again.                   After that, Mrs.

Agnew failed to respond to contacts regarding the repeated failure

to remit payment.

       While the Agnews insist that there was no intent to defraud,

the ambit of 18 U.S.C. § 664 “includes a taking or appropriation

that   is   unauthorized,      if   accomplished        with   specific     criminal

intent.”    United States v. Wiseman, 274 F.3d 1235, 1240 (9th Cir.

2001) (internal quotations omitted).                  Significantly, while “the

defendant must knowingly act wrongfully to deprive another of

property, there is no requirement that the defendant also know his

conduct     was    illegal.”        Id.    (internal        quotations     omitted).

Moreover,    once     the   trier    of        fact   has   made    a    credibility


                                          20
determination, that decision cannot be revisited on appeal, even

after a bench trial.   United States v. Romer, 148 F.3d 359, 364

(4th Cir. 1998); United States v. Bales, 813 F.2d 1289, 1293 (4th

Cir. 1987).   Reviewing the evidence, there is no merit to the the

Agnews’ challenge to the adequacy of evidence as to withholding

AGM’s mandatory contributions from its employees’ 401(k) plan.



                               III.

     In conclusion, the district court did not err in denying the

Agnews’ motion for a new trial based upon newly discovered evidence

of judicial bias, and their motion for a judgment of acquittal.

Accordingly, the convictions are

                                                         AFFIRMED.




                                21
