Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

MEMORANDUM^* 

Evidence of Rothberg's acceptance of money in exchange for recantation of his story was sufficient to support his conspiracy conviction. There was sufficient evidence for the jury to believe beyond a reasonable doubt that he was not an innocent whistleblower, but instead was a culpable co-conspirator. Rothberg's reliance on Miller v. United States, 382 F.2d 583 (9th Cir. 1967), cert. denied, 390 U.S. 984 (1968), is misplaced. Although the Miller court did state, " [w]here [two inferences] are equally valid, the defendant is entitled to the one which favors her," the court implicitly concluded that the inference of guilt was invalid, leaving only the inference of innocence. Id. at 587. The supposed inference of guilt was that the defendant knowingly participated in a plan to import heroin by driving with a co-conspirator into Mexico. Id. The court found, however, that it was the defendant's first trip to Mexico and there was no evidence that she was aware of the drug activity. Id. Thus, the court held that the evidence was insufficient to establish the defendant's participation in the conspiracy. Id. In contrast, the evidence here was more than sufficient.

As for Rothberg's severance motion, he did not renew it at the close of the evidence and therefore he waived his right to appeal it. United States v. Smith, 893 F.2d 1573, 1581 (9th Cir. 1990).

AFFIRMED.