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                                                                  [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-13352
                              ________________________

                     D.C. Docket No. 1:11-cr-00027-WLS-TQL-3

UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

versus

TREVAYNE D. JONES,
DONTREAL M. JENKINS,

                                                         Defendants - Appellants.

                              ________________________

                     Appeals from the United States District Court
                         for the Middle District of Georgia
                            ________________________

                                      (April 15, 2015)

Before MARCUS, JILL PRYOR and EBEL,∗ Circuit Judges.

PER CURIAM:



∗
 Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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      Trevayne Jones and Dontreal Jenkins appeal their convictions for various

offenses related to their involvement in a scheme to cash stolen federal income tax

refund checks. A jury found Jones and Jenkins guilty of three offenses: conspiracy

to embezzle public monies; embezzlement of government property; and aggravated

identity theft. The jury also convicted Jones of making misleading statements; and

it convicted Jenkins of mail and wire fraud conspiracy, for his participation in an

unrelated scheme to fraudulently obtain student loans. Jones and Jenkins appeal

each conviction, arguing that there was insufficient evidence presented at trial to

support the jury’s verdicts and that the district court improperly denied their

motions for judgment of acquittal. After thorough review, we are satisfied that a

reasonable jury could, as it did, find the defendants Jones and Jenkins guilty

beyond a reasonable doubt and, therefore, we affirm.

                                          I.

                                          A.

      The essential facts are straightforward. Jones and Jenkins were arrested in

May 2011 after it came to the attention of state and federal authorities that they had

been cashing stolen federal income tax refund checks at a convenience store in

Albany, Georgia since January. Over this five month period, Jones and Jenkins

cashed 342 stolen checks with a cumulative value of $713,000. On May 11, 2012,

a grand jury returned a ten-count superseding indictment charging Jones, Jenkins,


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Jamal Williams, and another defendant, Kevinall Wheeler, with multiple offenses.

Jones was charged with (1) conspiracy to embezzle public monies, in violation of

18 U.S.C. §§ 641 and 371 (Count One); (2) embezzlement of government property,

in violation of 18 U.S.C. § 641 (Count Two); (3) aggravated identity theft, in

violation of 18 U.S.C. § 1028A (Count Three); (4) making misleading statements,

in violation of 18 U.S.C. § 1512(b)(3) (Count Nine); and (5) mail and wire fraud

conspiracy, in violation of 18 U.S.C. §§ 1341, 1343, and 1349 (Count Ten).

Jenkins was charged with (1) conspiracy to embezzle public monies, in violation of

18 U.S.C. §§ 641 and 371 (Count One); (2) embezzlement of government

property, in violation of 18 U.S.C. § 641 (Count Four); (3) aggravated identity

theft, in violation of 18 U.S.C. § 1028A (Count Five); and (4) mail and wire fraud

conspiracy, in violation of 18 U.S.C. §§ 1341, 1343, and 1349 (Count Ten).

Although Jones and Jenkins cashed over 300 checks, the indictment charged each

of them with a single act of identity theft. Specifically, Jones was charged with

possession and conversion of a check belonging to Anthony Pourhassan, as well as

with possessing and using Pourhassan’s name and signature; and Jenkins was

charged with possession and conversion of a check belonging to Arnulfo Vasquez

Castillo, as well as with possessing and using Castillo’s name and signature.

Count Ten, which charged the defendants with mail and wire fraud conspiracy,

alleged that they had entered into a single agreement -- unrelated to the check


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cashing scheme -- with an individual named Princess Eatmon to fraudulently

obtain student loans from the Department of Education.

      Jones and Jenkins’s codefendants, Williams and Wheeler, both pled guilty.

Jones and Jenkins were tried before a jury in January 2013. Because the

defendants challenge the sufficiency of the evidence, we recount the proofs

adduced at trial in some detail. Among others, the United States elicited testimony

from several witnesses, who explained how Jones and Jenkins procured and cashed

over 300 stolen income tax refund checks. The most detailed information came

from Nainesh Patel, the owner of the convenience store where the defendants

cashed the checks, and from Jamal Williams, a cooperating codefendant. Patel

testified that he and his wife have owned and operated a BP gas station and

convenience store in Albany since 2004. He has known defendants Jenkins

(“Tre”) and Jones (“Dre”) for five or six years, because they often spent several

hours per day in his store playing various Georgia Lottery games.

      The convenience store also provides check cashing services. Jones first

approached Patel with a United States Department of the Treasury check in early

2011. Jones claimed that his sister had a tax business, and that he would be

bringing in income tax refund checks belonging to her customers for Patel to cash.

Although Patel never took steps to contact Jones’s sister or to confirm the tax

business’s existence, he did verify the authenticity and amount of each check using


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the Treasury Department’s website. 1 Patel also filed a copy of Jones’s driver’s

license with a copy of each Treasury check for his records, and he marked each

check “Dre” to indicate that it had been brought in by Jones. After a short time,

Jones told Patel that Jenkins also would be bringing in checks to be cashed as part

of the same business. When filing copies of checks that Jenkins brought into the

store, Patel marked these checks “Tre.”

       Patel estimated that Jones and Jenkins brought approximately 300 Treasury

checks into his store. Copies of the checks were admitted into evidence, and the

jury had the opportunity to see that Patel had marked the checks “Dre” and “Tre”

respectively. Four victims whose checks were cashed by the defendants at the

Patels’ BP gas station also testified that they had not given anyone else the

authority to cash their refund checks and that the signatures appearing on their

checks were forged.

       Surveillance tapes from the store corroborated Patel’s testimony. The

footage showed Patel handing checks to Jenkins -- allegedly while trying to verify

them on the internet -- and then later handing him between $20,000 and $30,000 in

cash. Additional footage showed Patel holding a Treasury check and then handing

cash to Jones.
1
  Patel testified that he used a website operated by the United States Department of the Treasury
to verify that each check brought in by the defendants had actually been issued by the Treasury
Department. Patel explained that, by entering the check number and routing number of each
check onto the webpage, he could confirm that the checks were authentic income tax refund
checks and verify their amounts. Photographs of the website were admitted into evidence.
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      The defendants’ co-conspirator, Jamal Williams, provided additional

information about the operation. Williams agreed to plead guilty to two counts --

embezzlement of government property and aggravated identity theft -- and the

government dismissed all remaining charges in exchange for testimony against

Jones and Jenkins. On four different occasions, Williams transported stolen

Treasury checks from Atlanta to Albany so that they could be cashed at the Patels’

store, after learning from a mutual acquaintance that Jenkins was able to cash

stolen checks there. Williams procured several checks from Deborah Echols, an

employee at the United States Postal Service in Atlanta, and arranged a meeting

with Jenkins. At their initial meeting, Williams gave Jenkins two or three checks

to ascertain whether the process was reliable. Jenkins cashed the checks at the BP

and, after taking a cut of the total, delivered about $5,000 to Williams.

      Williams made three more trips to Albany over the course of the next several

weeks. After the first visit was successful, Williams requested more checks from

Echols. By the third visit, he was transporting checks with a cumulative value of

$80,000 to Albany for Jenkins to cash. During the third visit, Williams met Jones

for the first time. Jones met with Williams and Jenkins to pick up half of the

checks, because Patel set a limit on the amount that a single individual could obtain

using his service. When the checks were cashed Jenkins would take forty percent

of the money, and Williams would convey the remainder back to Echols in Atlanta.


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Williams also explained that, to his knowledge, Echols and Jenkins would sign the

checks.

      On May 12, 2011 Williams was en route to his fifth meeting with Jenkins

when he was stopped for speeding in Cordele, Georgia. Because Williams had

been smoking marijuana when he was stopped, the police searched his vehicle.

The search revealed twelve stolen Treasury checks. Ten of the twelve checks were

unsigned. When law enforcement later searched Williams’s cell phone, they

discovered that he had sent identifying information from two of the checks to

Jenkins by text message. Other text messages between Williams and Jenkins set

the meeting place and time for Williams’s fifth trip to Albany and confirmed that

Jenkins wanted Williams to “do . . . big numbers” -- or bring checks worth a large

amount.

      The government also presented evidence at trial that Jones made false

statements to law enforcement agents when interviewed about his involvement in

the check cashing operation. Anita Allen, a lieutenant in the Dougherty County

Sheriff’s Office, testified that she interviewed Jones in May 2011. A videotape of

the interview was played for the jury. Lieutenant Allen asked Jones if he had

cashed checks at the Patels’ BP. Jones replied that he had only cashed his “own

checks” at the store -- meaning checks for his various lottery winnings. Notably,

he denied cashing Treasury checks or vouching for any individuals seeking to cash


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Treasury checks. He also denied that any surveillance video from the store would

contain footage of him cashing checks.

      Finally, the United States presented evidence that Jenkins participated in a

separate fraudulent scheme orchestrated by Princess Eatmon, who testified at the

trial. For her role organizing the operation, Eatmon pled guilty to wire and mail

fraud, aggravated identity theft, and embezzlement of government property.

Eatmon explained that she devised and operated a fraudulent student loan scheme,

which she maintained from 2009 until her incarceration. She collected individuals’

personal information, filled out Free Application for Federal Student Aid

(“FAFSA”) forms for them, and enrolled them in online classes at two different

schools: Rio Salado College and American Public University.

      Once an individual was registered for classes, Eatmon would turn in the

required assignments while the federal government processed the FAFSA. The

enrolled student did not complete any coursework. It usually took about six weeks

for the government to approve the loan applications and for the schools to subtract

their fees and distribute the funds to Eatmon. Eatmon would then withdraw the

money, deduct her fee, and send the rest to the person whose information was used

to secure the loan. After Eatmon withdrew the loan money, she stopped submitting

assignments, and, as a result, the student would receive failing grades for all of the

classes.


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       Eatmon enrolled Jenkins in classes at both Rio Salado College and American

Public University at his request.2 Jenkins gave his identifying information to

Eatmon so that she could fraudulently obtain student loans for him, and Eatmon

transferred approximately $2,200 to Jenkins after the loan was disbursed to her

account. Officials from Rio Salado College and American Public University

corroborated Eatmon’s testimony. Ryan Chase testified that Jenkins enrolled in

classes at Rio Salado College for one semester. He testified that the College

distributed a $3,000 loan to Jenkins on the basis of this enrollment. He also

confirmed that Jenkins received failing grades in the classes. Similarly, Keith

Wellings testified that Jenkins enrolled in four classes at American Public

University, each of which he failed. He further stated that the University sent two

checks to Jenkins, one for $1,724 and one for $1,350.

                                             B.

       On January 11, 2013, the jury found Jones guilty of conspiracy to embezzle

public monies, embezzlement of government property, aggravated identity theft,

and making misleading statements. It found him not guilty of mail and wire fraud

conspiracy. The jury convicted Jenkins on all indicted counts. Both defendants

renewed their Rule 29 motions.



2
 Eatmon also testified about Jones’s involvement in the scheme. However, the jury found Jones
not guilty on this count.
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      On June 26, 2013, the district court denied the defendants’ motions for a

judgment of acquittal in a written order. The district court then sentenced Jones to

60 months imprisonment on Count One, 109 months on Count Two, and 109

months on Count Nine to be served concurrently, 24 months on Count Three to be

served consecutively, for a total term of 133 months, and three years of supervised

release. The court sentenced Jenkins to 60 months imprisonment on Count One,

109 months on Count Four, and 109 months on Count Ten to be served

concurrently, 24 months on Count Five to be served consecutively, for a total term

of 133 months, and three years of supervised release. The court also ordered both

defendants to pay restitution to Patel in the amount of $713,000. The defendants

timely appealed.

                                          II.

                                          A.

      We review the “sufficiency of [the] evidence to support a conviction de

novo, viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences . . . in favor of the jury’s verdict.” United States

v. Taylor, 

, 1026 (11th Cir. 2007). “It is not necessary for the

government to disprove every reasonable hypothesis of innocence, as the jury is

free to choose among reasonable constructions of the evidence.” United States v.

Mieres-Borges, 

, 656 (11th Cir. 1990) (internal quotation marks


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omitted). Moreover, “[t]o the extent that [the defendants’] argument depends upon

challenges to the credibility of witnesses, the jury has exclusive province over that

determination and the court of appeals may not revisit this question.” United

States v. Chastain, 

, 1351 (11th Cir. 1999); see 

(explaining that the Court must accept the reasonable credibility

determinations that support the jury’s verdict).

      When a defendant raises a claim challenging the sufficiency of the evidence

for the first time on appeal, this Court reviews for plain error. United States v.

Hunerlach, 

, 1068 (11th Cir. 1999). Under the plain error standard,

this Court will “reverse [a] conviction only to prevent a manifest miscarriage of

justice.” United States v. Tagg, 

, 1323 (11th Cir. 2009) (internal

quotation marks omitted). A conviction constitutes a manifest miscarriage of

justice if “evidence on a key element of the offense is so tenuous that a conviction

would be shocking.” 

Jones and Jenkins argue that there is insufficient evidence from which

a reasonable jury could find them guilty of conspiracy to embezzle public monies,

because Williams’s testimony only established their connection to around forty

stolen checks. Thus, they claim that the government did not present sufficient

evidence that they cashed each of the 342 checks charged in the indictment. The


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defendants also argue that the government failed to prove that they agreed to enter

into an overarching agreement with persons in Atlanta to steal and cash stolen

checks. They assert that the proof offered at trial showed, if anything, that multiple

conspiracies existed to steal checks from an Atlanta Post Office, and that these

conspiracies formed a “rimless wheel” or “hub-and-spoke” conspiracy -- with each

separate conspiracy having a connection only to the central operator and not to the

other conspiracies. These arguments are unconvincing.

      Section 641 of Title 18 of the United States Code criminalizes

“embezzl[ing], steal[ing], purloin[ing], or knowingly convert[ing] to his use or the

use of another . . . any record, voucher, money, or thing of value of the United

States or of any department or agency thereof.” To sustain a conviction for

conspiracy to embezzle public monies, the government must prove beyond a

reasonable doubt: (1) “the existence of an agreement to achieve an unlawful

objective”; (2) “the defendant’s knowing and voluntary participation in the

conspiracy”; and (3) “an overt act in furtherance of the conspiracy.” United States

v. US Infrastructure, Inc., 

, 1203 (11th Cir. 2009). “‘Participation in

a criminal conspiracy need not be proved by direct evidence; a common purpose or

plan may be inferred from a development and collocation of circumstances.’”

United States v. Reeves, 

, 497 (11th Cir. 2014) (quoting Glasser v.




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United States, 

, 80 (1942), superseded on other grounds by Fed. R.

Evid. 104(a) (alteration omitted).

      First, Jones and Jenkins argue that the government did not prove that they

cashed 342 checks; we disagree. The trial record contained sufficient evidence for

a reasonable jury to find the defendants guilty beyond a reasonable doubt of

conspiracy to embezzle public monies. Patel testified that Jones and Jenkins

cashed over 300 Treasury checks at his store, and that he kept detailed records of

which checks were brought in by each of them. Patel also explained the contents

of surveillance footage that the jury could reasonably believe corroborated his

account. The jury was entitled to credit Patel’s account of the number of checks he

received from Jones and Jenkins and to infer from this testimony that the

defendants had a supplemental source for stolen checks. It need not have

concluded from Williams’s testimony that he was their exclusive supplier.

      Moreover, Jones and Jenkins’s arguments about their limited knowledge of a

“rimless wheel” conspiracy to steal checks from the post office in Atlanta are

misplaced. We have overturned conspiracy convictions on the basis of “hub-and-

spoke” or “rimless wheel” arguments only under a narrow set of circumstances. In

these cases, a scheme is directed by a “key man” who “construct[s] a vast network

of co-conspirators” -- each of whom interact only with that central operator.

United States v. Chandler, 

, 806 (11th Cir. 2004). “In such a


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conspiracy, the core conspirators are the hub and each group of co-conspirators

form[s] a spoke leading out from the center in different directions.” 

This type of situation is also referred to “as a ‘rimless wheel’ because there is no

rim to connect the spokes into a single scheme.” 

v. United

States, 

, 755 (1946)). Under these circumstances, we require the

government to distinguish between the common plan of the central hub and “the

several, though similar, purposes of . . . like character” that are attributable to each

spoke. See id.; see also United States v. Perez, 

, 59 n.11 (5th Cir.

1973) (emphasizing “[t]he importance in a wheel type conspiracy

of . . . knowledge by individual spokes of the existence of other spokes”). 3 In other

words, a defendant who agreed only to a plan confined to a single spoke cannot be

convicted of agreeing to the hub’s scheme for the entire network.

       Here, the defendants were charged with conspiring with each other to

appropriate and cash 342 stolen United States Treasury checks, and Patel’s

testimony established that Jones and Jenkins agreed to jointly bring these checks

into his store to be cashed. In other words, the charged conspiracy included only

conduct that Jones and Jenkins personally engaged in --not actions perpetrated by

conspiracies connected only to Jones and Jenkins by a mutual director. It is

irrelevant that they may not have known who else received stolen checks from

3
 In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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Deborah Echols, Williams, or others connected to the Atlanta Post Office, because

Jones and Jenkins were not charged with agreeing to any other plan that Echols

and others may have had. Their unlawful agreement to fraudulently cash refund

checks and the overt actions they took to further it are sufficient to meet each of

the elements of a conspiracy. Cf. United States v. Edouard, 

, 1347

(11th Cir. 2007) (“It is irrelevant that particular conspirators may not have known

other conspirators or may not have participated in every stage of the conspiracy; all

that the government must prove is an agreement or common purpose to violate the

law and intentional joining in this goal by coconspirators.” (alterations and internal

quotation marks omitted)).

                                                C.

      Second, Jones and Jenkins contest the sufficiency of the evidence to support

their convictions for embezzlement of government property, arguing that the

evidence at trial could support the inference that Patel was the operator of the

check cashing scheme. Because the defendants challenge their convictions on this

basis for the first time on appeal, this Court reviews the jury’s verdict for plain

error, 

, and may only reverse if necessary to avoid a

“manifest miscarriage of justice,” 

. Under plain error

review, the defendants bear the burden of showing that there is “(1) error, (2) that

is plain and (3) that affects substantial rights. If all three conditions are met, an


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appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Turner, 

, 1276 (11th Cir.

2007) (internal quotation marks omitted).

      To sustain a conviction for embezzlement of government property the

United States must establish three elements:

      (1) that the money or property belonged to the government; (2) that
      the defendant fraudulently appropriated the money or property to his
      own use or the use of others; (3) and that the defendant did so
      knowingly and willfully with the intent either temporarily or
      permanently to deprive the owner of the use of the money or property.

United States v. McRee, 

, 980 (11th Cir. 1993).

      Here, the record contains more than enough evidence to support Jones and

Jenkins’s convictions, and we can discern no error, plain or otherwise, in the jury’s

verdict. It is undisputed that all of the checks were United States Treasury checks

issued to persons other than the defendants. The jury could reasonably conclude

based on Patel and Williams’s testimony that the defendants knowingly and

willfully converted the checks listed in the indictment to their own use by cashing

them without the victims’ knowledge or consent, and this Court will not disturb its

findings of credibility. See 

.




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                                          D.

      Next, Jones and Jenkins challenge their convictions for aggravated identity

theft. Section 1028A(a)(1) of Title 18 prohibits “knowingly transfer[ring],

possess[ing], or us[ing], without lawful authority, a means of identification of

another person” during the commission of an enumerated felony -- including

embezzlement of government property. See § 1028A(c)(1). “[T]he term ‘means

of identification’ means any name or number that may be used, alone or in

conjunction with any other information, to identify a specific individual,”

including a person’s “name, social security number, date of birth, official State or

government issued . . . identification number . . . or taxpayer identification

number.” 18 U.S.C. § 1028(d)(7).

      Here, Jones and Jenkins do not argue that they had “lawful authority” to sign

any of the affected taxpayers’ names or to cash their checks. See § 1028A.

Rather, they make two different claims. First, they say that there was insufficient

evidence to establish beyond a reasonable doubt that they knew the checks

belonged to real people. Second, they argue that signing a person’s signature is not

“us[ing]” their “name” within the meaning of the statute. See §§ 1028A(a)(1),

1028(d)(7). In other words, Jones and Jenkins contend that, absent proof that they

attempted to assume their victims’ identities -- for example, by passing off stolen

or counterfeit documents bearing the victims’ information as their own -- they


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cannot be convicted of aggravated identity theft. Both arguments are without

merit.

         It is true that the government must prove beyond a reasonable doubt that the

defendant knew he was using a means of identification that “in fact, belonged to

another person.” Flores-Figueroa v. United States, 

, 647 (2009)

(internal quotation marks omitted). In other words, the government must show that

the defendant knew he was unlawfully using “a real ID belonging to another

person rather than, say, a fake ID.” 

However, the government may rely

on circumstantial evidence to prove that a defendant knew he was appropriating

the identity of a real person. See, e.g. United States v. Doe, 

, 561

(11th Cir. 2011); United States v. Holmes, 

, 1258 (11th Cir. 2010)

(per curiam).

         In particular, we have held that a jury can “reasonably [infer]” that when

federal and state governments “routinely obtain an applicant’s identity,” they use

processes to “verify the authenticity of that identity.” United States v. Gomez-

Castro, 

, 1249 (11th Cir. 2010); cf. United States v. Philidor, 

, 885 (11th Cir. 2013) (per curiam) (finding that it was reasonable to infer,

“[b]ased on the fact that the Internal Revenue Service issued refunds for tax returns

listing [particular Social Security] numbers,” that those “numbers corresponded to

actual persons”). “The government [i]s not required to present any special proof”


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that particular defendants knew about government verification procedures, because

“‘[t]hat knowledge can be inferred reasonably based on ordinary human

experience’” and “‘a trier of fact can rely on common sense.’” 

(quoting 

(second alteration in original)).

      The jury could reasonably find based on “ordinary human experience” that

the defendants knew that the stolen Treasury checks had been issued to real people.

See 

testified that the defendants had repeated and consistent

success cashing the checks over a period of weeks and that he verified the

authenticity and amount of each check using the Treasury Department’s website.

Based on this information, the jury could reasonably find that Jones and Jenkins

knew the checks were authentic and had been issued to real taxpayers.

      The defendants’ second argument is also unpersuasive. Two circuits have

held that because “a signature is a form of a ‘name’ . . . it is a ‘means of

identification’ under § 1028(d)(7).” United States v. Porter, 

, 1043

(10th Cir. 2014); accord. United States v. Blixt, 

, 887 (9th Cir. 2008).

This Court has reached the same conclusion in several unpublished cases. See,

e.g., United States v. Little, 552 F. App’x 937, 939 (11th Cir. 2014) (per curiam);

United States v. Shanks, 452 F. App’x 922, 926 (11th Cir. 2012) (per curiam);

United States v. Lewis, 443 F. App’x 493, 496 (11th Cir. 2011) (per curiam).




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      Here, there was sufficient evidence in the record from which the jury could

find beyond a reasonable doubt that Jones and Jenkins signed the checks, and thus

used the names of the victims without lawful authority. Williams testified that, to

the best of his knowledge, Jenkins and Echols usually signed the checks.

Additionally, ten of the twelve checks in his possession at the time of his arrest had

not yet been signed, supporting the inference that they were to be signed by Jones

and Jenkins upon Williams’s arrival in Albany.

      Moreover, despite the defendants’ arguments to the contrary, there is no

requirement that the government prove that Jones and Jenkins stole identification

documents or falsely represented themselves to be their victims. It need only show

that Jones and Jenkins unlawfully used a means of identification belonging to

someone else. United States v. Hurtado, 

, 607-08 (11th Cir. 2007)

(holding that “lawful authority” refers to legal authority rather than the victim’s

permission), abrogated on other grounds by Flores-Figueroa v. United States, 

(2009). Indeed, many convictions for aggravated identity theft involve

defendants who wrote checks to themselves from other people’s accounts or

misused account information to which they had access. See, e.g., 

(affirming conviction where defendant charged personal expenses on

union credit card); United States v. Reynolds, 

, 435-36 (D.C. Cir.

2013) (affirming defendant’s conviction for using “digital versions of [four


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officers’] signatures” to secure a credit line extension “in excess of the authority

granted” to him as CFO). Thus, the government was not required to show that

Jones and Jenkins misrepresented themselves to be the people listed on each check;

there was sufficient evidence presented at trial from which a reasonable jury could

find Jones and Jenkins signed the checks without the lawful authority to do so.

                                          E.

      Additionally, Jones argues that there was insufficient evidence in the record

to support his conviction for making misleading statements. Because Jones

challenges his conviction for making misleading statements for the first time on

appeal, we review it only for plain error. 

.

      Section 1512(b)(3) of Title 18 criminalizes knowingly “engag[ing] in

misleading conduct toward another person, with intent to . . . hinder, delay, or

prevent the communication [of information relating to the commission or possible

commission of a Federal offense] to a law enforcement officer.” The government

bears the burden of proving beyond a reasonable doubt that the defendant

“knowingly and willfully (1) engage[d] in misleading conduct toward another

person, (2) with the intent to hinder, delay or prevent the communication of

information to a federal official, (3) about the commission or the possible

commission of a federal crime.” United States v. Ronda, 

, 1284

(11th Cir. 2006).


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      Here, the record contained sufficient evidence to support Jones’s conviction

for making misleading statements. The government presented a videotaped

interview in which Jones repeatedly told Lieutenant Allen that he had never cashed

Treasury checks at the Patels’ BP and that no video footage would depict him

doing so. The United States also produced surveillance tapes from the store and

asked Patel to explain what was happening on screen. Patel explained to the jury

that, in the video, he could be seen first holding a Treasury check and then handing

cash to Jones. Jones argues that alternatively the video could easily just portray

him receiving lottery winnings from Patel. However, we will not vacate a

conviction simply because the government did not “disprove every reasonable

hypothesis of innocence”; rather, we defer to the jury’s rational selection between

“reasonable constructions of the evidence.” 

(internal quotation marks omitted). Here, the jury could reasonably have believed

Patel’s explanation of the surveillance footage, and thus concluded that Jones’s

statements to Lieutenant Allen were false statements intended to impede her

investigation of his illegal check cashing activities.

                                           F.

      Finally, Jenkins challenges the sufficiency of the evidence to support his

conviction for mail and wire fraud conspiracy, which was based on his

participation in a single conspiracy with Eatmon and others to fraudulently obtain


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student loans. The relevant statutes define fraud as “obtaining money or property

by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C.

§§ 1341, 1343. Section 1341 prohibits mail fraud, and Section 1343 prohibits

committing fraud using “wire, radio, or television communication in interstate or

foreign commerce.” The government must also prove each element of the three-

part test for conspiracy: (1) “the existence of an agreement to achieve an unlawful

objective”; (2) “the defendant’s knowing and voluntary participation in the

conspiracy”; and (3) “an overt act in furtherance of the conspiracy.” US

Infrastructure, 

. “‘[T]he government need not demonstrate

an agreement specifically to use the interstate wires to further the scheme to

defraud.’” United States v. Broughton, 

, 1277 (11th Cir. 2012)

(quoting United States v. Hasson, 

, 1270 (11th Cir. 2003)). “‘[I]t is

enough to prove that the defendant knowingly and voluntarily agreed to participate

in a scheme to defraud and that the use of the interstate wires in furtherance of the

scheme was reasonably foreseeable.’” 

333 F.3d at 1270).

      Based on the evidence presented at trial, a reasonable jury could find, as it

plainly did, Jenkins guilty of mail and wire fraud conspiracy for his involvement in

Eatmon’s student loan fraud scheme. From Eatmon’s testimony that she used the

Internet to fill out and file the fraudulent FAFSAs, as well as to obtain the loan

funds from the colleges, the jury could reasonably conclude that the use of


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interstate wires was foreseeable. The jury could credit Eatmon’s testimony that

Jenkins gave her his information and asked her to apply for a student loan on his

behalf -- particularly when her testimony was corroborated by officials from the

two colleges -- and that Jenkins knew she was unlawfully obtaining the loans.

Lastly, a rational factfinder could find that Jenkins committed overt acts in

furtherance of the conspiracy when he gave his information to Eatmon even though

he had no intention of taking classes at either university. Thus, there was ample

evidence from which the jury could reasonably find that Jenkins knowingly

participated in Eatmon’s conspiracy.

      Jenkins also argues that there was a variance between his indictment and the

proof presented at trial. In particular, he claims that the indictment charged him

with fraudulently soliciting $335,693 in student loans in Count Ten, but that

Eatmon’s testimony only linked him to the loans she sought using his personal

information. However, we need not address this argument because Jenkins is not

entitled to relief even if there was a variance. A defendant who challenges his

conviction on the grounds that he was prejudiced by a variance can achieve a

reversal only if he shows:

      1) that the proof at trial differed so greatly from the charges that [he]
      was unfairly surprised and was unable to prepare an adequate defense;
      or 2) that there are so many defendants and separate conspiracies
      before the jury that there is a substantial likelihood that the jury
      transferred proof of one conspiracy to a defendant involved in
      another.
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United States v. Barsoum, 

, 1330 (11th Cir. 2014). Here, Jenkins

has not attempted to make the requisite showing. Thus, he has failed to meet his

burden on this claim.

      Accordingly, we affirm each of Jones and Jenkins’s convictions.

      AFFIRMED




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