Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^** 

The government appeals an acquittal by the district judge notwithstanding a verdict of guilty by the jury. We review de novo. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987).

The question on appeal is whether the evidence submitted at trial regarding the government's contention that "defendant or some unknown person posed as defendant's non-existent twin sister" is sufficient to uphold a jury verdict of guilty. We find that it is and reverse and remand.

Jackson v. Virginia, which considered sufficiency of evidence in a habeas corpus appeal, is instructive.

[A review of sufficiency of the evidence] does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... The criterion thus impinges upon 'jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

443 U.S. 307, 318-19 (1979). The Court went on to stress that the evidence had to be more than that which makes the crime probable: " [I]t could not seriously be argued that such a 'modicum' of evidence could by itself rationally support a conviction beyond a reasonable doubt." Id. at 320.

The evidence in support of government's contention is the testimony of Stanley Kruggel, the man who sold the insurance policy. Kruggel testified that he was fairly, but not one hundred percent, certain that the woman who identified herself as Rose Trubman was Vishnevetsky. He also identified two photographs of Vishnevetsky as the woman who had purchased the insurance policy.

Aside from evidence that tended to show Trubman was a real person (but not Vishnevetsky's sister), the evidence that showed Vishnevetsky was not the purchaser of the policy was the testimony of two handwriting experts who agreed the handwriting on the insurance application was not that of Vishnevetsky.

Thus, Vishnevetsky's conviction came down to who was to be believed and how much weight their testimony would be given. Testimony by expert witnesses is not binding on a trier of fact "if other probative evidence points to a different result." United States v. Glover, 596 F.2d 857, 865 (9th Cir.), cert. denied, 444 U.S. 860 (1979).

The district court judge said " [t]he testimony of Stanley Kruggel ... was destroyed by the strength of the handwriting experts." Weighing the strengths of conflicting evidence is the function of the jury. Jackson, 443 U.S. at 319; see United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977) ("In ruling on a Rule 29(c) motion, a district court must bear in mind that 'it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts.' ").

As a firsthand observer of the trial, the district court judge deserves considerable respect. Rojas, 554 F.2d at 943. The province of the jury, however, has been squarely laid out. Id. We have previously held that when the district judge crosses into that province, the jury verdict should be reinstated. Id. at 944.

In this case, Kruggel's testimony that Vishnevetsky was the woman who purchased the insurance policy--viewed "in the light most favorable to the prosecution"--could have been relied on by a rational juror to find Vishnevetsky guilty beyond a reasonable doubt. The order granting a judgment notwithstanding the jury verdict is reversed.

Our reading of the record indicates that Vishnevetsky's motion for a new trial was not acted upon. The authority to rule on a motion for new trial generally is vested in the trial court. Accordingly, we remand for further proceedings. State of Arizona v. Manypenny, 672 F.2d 761, 766 (9th Cir.), cert. denied, 459 U.S. 850 (1982).

REVERSED and REMANDED.