Unpublished Disposition, 927 F.2d 612 (9th Cir. 1983)

MEMORANDUM^* 

The United States appeals from the district court order granting defendant's Fed. R. Crim. P. 29(c) motion to acquit following a jury verdict of guilty of conspiring to make false statements to a federally insured savings and loan, 18 U.S.C. § 371, and aiding and abetting participation in the proceeds of a savings and loan by an employee. 18 U.S.C. §§ 2, 657. Pappas cross-appeals the district court's denial of his motion for a new trial. We reverse the judgment of acquittal, affirm the denial of the motion for a new trial, and remand the case for sentencing.

In reviewing the grant of a motion for judgment of acquittal we "view the evidence in the light most favorable to the government and determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). "The government is entitled to all reasonable inferences that might be drawn from the evidence." United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir. 1987).

The United States argues that the district court impermissibly based its ruling on an assessment of the credibility of government witness James Hough. In rejecting the argument, we recognize that a judgment of acquittal premised on the credibility of a witness improperly invades the province of the jury. See United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977). Although the credibility of Hough was explicitly questioned by the district court in granting the judgment of acquittal, the court indicated that its opinion was not based on that. We have made an independent review of the record and, under the appropriate standard, we are compelled to conclude that sufficient evidence supports the jury verdict. We, therefore, reverse the judgment of acquittal.

The existence of a conspiracy to prepare and submit a false credit report on Pappas is not in dispute. The government was obligated to introduce evidence sufficient to establish only a "slight connection" between Pappas and the established conspiracy. See U.S. v. Barron, 860 F.2d 911, 919 (9th Cir. 1988). The slight connection rule "creates a presumption that one who acts in furtherance of a conspiracy knows of the conspiracy's existence." U.S. v. Penagos, 823 F.2d 346, 348 n. 1 (9th Cir. 1987).

Hough's direct testimony, the supporting circumstantial evidence, and Pappas's own testimony all combine to support the jury's finding that Pappas was aware that his credit report was to be purged of unfavorable information.

Pappas emphasizes Hough's inconsistent statements in a prior civil action, and the general lack of credibility in Hough's testimony. However, it is the exclusive function of the jury to "determine the credibility of the witnesses, resolve evidentiary conflicts, and draw reasonable inferences." United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969).

Circumstantial evidence presented by the government at trial bolsters the inference that Pappas was connected with the conspiracy. Pappas had a significant stake in the Heron Pond project and in securing the Washington Federal loan. He was aware of potential problems in the credit report: a pending lawsuit with Bellingham National Bank and missed payments on an unrelated loan. Moreover, Pappas paid to Hough directly a rate well above the market rate for the credit report. It was not mandatory that the jury accept his explanation for the enhanced payment.

Further, Pappas's own testimony buttresses the jury verdict. "When the defendant elects to testify, he runs the risk that if disbelieved, the trier of fact may conclude that the opposite of his testimony is the truth." United States v. Kenny, 645 F.2d 1323, 1346 (9th Cir. 1981). While disbelief of the defendant's testimony, standing alone, is not sufficient to support a verdict, it is sufficient when coupled with the other evidence presented in this case. See United States v. Price, 623 F.2d 587, 591 (9th Cir. 1980); United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975).

The trier of fact could reasonably find that Pappas was a knowing participant in the conspiracy.

Moreover, the circumstantial evidence presented at trial was sufficient to permit a trier of fact to find that Pappas aided and abetted Wallace L. Drayton in participating in the proceeds of the savings and loan while an employee. There was ample evidence that Drayton received illegal kickbacks, that the payment of such kickbacks was in furtherance of the conspiracy, and that such payment was reasonably foreseeable. The jury received a Pinkerton instruction and was entitled to rely on a Pinkerton theory to convict Pappas of the substantive counts. Since there was sufficient evidence to support all the requisite elements of Pinkerton, the judgment of acquittal was erroneous. Pinkerton v. United States, 328 U.S. 640 (1946).

Even without relying on a Pinkerton theory there was sufficient evidence to support the aiding and abetting convictions. The jury was entitled to infer that Pappas was aware Drayton would receive kickbacks from loan fees on the Heron Pond and Benner loans for his pivotal role in the scheme, and that Pappas knowingly aided and abetted Drayton's quid pro quo. The verdict must stand.

Pappas contends that jury instructions 13, 24, and 25 were defective. We disagree.

Whether a jury instruction correctly defines the elements of the offense is reviewed de novo. United States v. Pemberton, 853 F.2d 730, 734 (9th Cir. 1988). A conviction will not be reversed so long as the instructions, viewed as a whole in the context of the entire trial, fairly and adequately cover the issues in the case. Id.

Pappas argues that instruction 13 permitted the jury to convict in a manner not specified in the indictment, thereby violating his Fifth Amendment rights. In examining the sufficiency of an indictment this court has noted that "convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused." United States v. Pheaster, 544 F.2d 353, 360 (9th Cir. 1976) (quoting Russell v. United States, 369 U.S. 749, 763 (1962)).

The personal balance sheet and the residential loan application were "inextricably intertwined" with the conduct alleged in the indictment. The fraudulent balance sheet, although prepared before May 15, 1983, was integral to the Washington Federal loan applications. Similarly, the residential loan application, specifically listed as an overt act in the indictment, was critical to the Esther Benner loan. Such evidence does not direct the jury to consider substantive offenses distinct and separable from the charged offense, see Stirone v. United States, 361 U.S. 212 (1960) (finding error where trial court permitted jury to consider two distinct substantive violations of the Hobbs Act when the defendant had only been indicted for one specific offense), but rather supports the indictment allegations as to Pappas's involvement in specified aspects of the conspiracy.

The indictment presented the essential elements of the conspiracy and was sufficiently defined for jeopardy concerns. The criteria set forth in Russell, 369 U.S. at 763, have been satisfied.

Instruction 24, "read and viewed as a whole," United States v. Mann, 811 F.2d 495, 498 (9th Cir. 1987), with the sequence of preceding instructions, appropriately set forth the elements required for the offense of aiding and abetting Wallace L. Drayton. The two instructions immediately preceding instruction 24 defined the elements necessary to a finding that Drayton, acting as a principal, committed the underlying crimes. Instruction 24 then correctly required that the evidence "show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping Wallace L. Drayton violate the law."

Instruction 25 properly set forth the complicity theory of liability established in Pinkerton v. United States, 328 U.S. 640 (1946). The instruction specified that Pappas may be held accountable for those offenses that could be "reasonably foreseen as a necessary or natural consequence of the conspiracy" for which the defendant was "a member of the conspiracy at the time the substantive offense was committed." Any potential ambiguities regarding the "in furtherance" element or the requirement that the substantive offense have been committed by a co-conspirator were clarified by the explanatory comment that: "The reason for this is that a co-conspirator committing a substantive offense pursuant to a conspiracy is held to be the agent of the other conspirators." (emphasis added). Although the instruction adopts "pursuant to" rather than "in furtherance of" language, we have recently found a similar Pinkerton instruction to be valid. See United States v. Vasquez, 858 F.2d 1387, 1393 & n. 3 (9th Cir. 1988).

Pappas also argues that the district court erred in refusing to give his proposed jury instructions. Pappas does not contend that the district court failed to instruct as to a particular defense theory, see United States v. Hayes, 794 F.2d 1348, 1350-51 (9th Cir. 1986), but merely that his proposed jury instructions would not have suffered the defects previously alleged. We understand but reject the argument. Refusal to give defendant's proposed jury instructions, under this record, is not an independent basis for a finding of error.

We review the denial of a motion for new trial under an abuse of discretion standard. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir. 1985). There is an absence of exceptional circumstances requiring reversal.

REVERSED IN PART; AFFIRMED IN PART; REMANDED FOR SENTENCING.

Each party shall bear its own costs.