Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 334 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Jack FINEBERG, Defendant-Appellant.

No. 87-5322.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1989.Decided Sept. 19, 1989.

Manuel Real, District Judge, Presiding.

Before GOODWIN, Chief Judge, and POOLE and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Jack Fineberg appeals from his conviction for one count of conspiring to use the wires to obtain money by false or fraudulent pretenses in violation of 18 U.S.C. § 371. Fineberg contends that there is insufficient evidence to support his conviction because the government failed to prove the intent element required for a conspiracy conviction. We affirm.

BACKGROUND

Jack Fineberg was indicted on three counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of conspiracy to use the wires to obtain money by false or fraudulent pretenses in violation of 18 U.S.C. § 371. The following facts were adduced at Fineberg's jury trial.

In November 1982, Fineberg arranged a meeting with codefendants Aron and Zemer. Aron told Fineberg and Zemer that he was interested in exchanging one million dollars worth of bearer bonds for gold or diamonds. Subsequently, Zemer contacted Stein who agreed to negotiate the bonds into cash. The four men, Fineberg, Aron, Zemer, and Stein, agreed to the transaction and agreed to split the ten percent commission.

One million dollars worth of stolen bonds were delivered to a hotel in New York. Aron, Fineberg, and Kessler, a covert informant for the Federal Bureau of Investigation, then met to discuss disposing of the bonds.

Zemer and Aron travelled to New York to deliver the bonds to Stein. Stein sold a portion of the bonds, and Zemer, Aron, and Stein divided the proceeds. Fineberg did not receive his share because Zemer held it as payment for a debt Fineberg owed him.

Upon learning that Zemer held his portion of the proceeds, Fineberg contacted Kessler. Fineberg asked Kessler to assist him in retrieving his money. Kessler referred Fineberg to Fiato. As Fineberg's calls were being intercepted, authorities recorded Fineberg asking Fiato to help him get his share of the bond sale proceeds.

Fiato contacted Zemer and the two sought to retrieve the remaining bonds in New York. Fiato and Zemer created false ownership documents but were unable to procure the return of the bonds.

Fineberg was subsequently arrested and indicted. A jury convicted Fineberg of the conspiracy charge but acquitted him of the three counts of wire fraud. In this timely appeal, Fineberg claims there was insufficient evidence of Fineberg's knowledge that the bearer bonds were stolen.

DISCUSSION

In reviewing the sufficiency of evidence, this court must view the evidence in the light most favorable to the government. We will not set aside the verdict if we determine that " 'any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.' " United States v. Portac, Inc., 869 F.2d 1288, 1293 (9th Cir. 1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).

Fineberg admits that he introduced Aron to Zemer, that he knew of the bond transaction, and that he agreed to share the proceeds. Fineberg, however, argues that there was insufficient evidence to establish that he knew that the bonds were stolen. In short, Fineberg argues that the government failed to prove one of the three elements required for a conspiracy conviction. We find no merit in this argument and affirm.

To obtain a conviction for conspiracy the government must prove each element of conspiracy. The government must prove "(1) an agreement to engage in criminal activity, (2) one or more overt act taken to implement the agreement, and (3) the requisite intent to commit the substantive crime." United States v. Marsh, Nos. 88-1300, 88-1306, slip. op. 10595 (9th Cir. Aug. 31, 1989); United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). To satisfy the intent requirement, the government must show that the defendant had the mental state required to commit the underlying substantive crime. See United States v. Feola, 420 U.S. 671, 686 (1975); see also United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir. 1980) ("The mental state required for the crime of conspiracy, generally speaking, is not less than that required for the substantive crime."). As this case concerns a conspiracy to commit the crime of wire fraud the government must have shown that Fineberg knew of the scheme's fraudulent nature. United States v. Price, 623 F.2d 587, 591 (9th Cir.), cert. denied, 449 U.S. 1016 (1980), overruled on other grounds, 730 F.2d 1255 (9th Cir. 1984).

We find that the jury appropriately found that Fineberg knew of his scheme's fraudulent nature. Reading the evidence in a light most favorable to the government, we find that, based on the degree of Fineberg's involvement and his intercepted telephone conversations, a rational jury could find beyond a reasonable doubt that Fineberg knew that the bonds were stolen.

In his testimony, Fineberg protested his innocence, such questions of credibility are in the province of the jury. United States v. Gordon, 844 F.2d 1397, 1405 (9th Cir. 1988). The result is not changed by the fact that the jury acquitted Fineberg of the three wire fraud counts. A jury may reach inconsistent verdicts without compelling the conclusion that the jurors " 'were not convinced of the defendant's guilt.' " United States v. Powell, 469 U.S. 57, 64-65 (1984) (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)). We need not address the sufficiency of evidence with regard to the other elements of conspiracy because they have not been challenged.

Fineberg has presented no evidence upon which this court may overturn the verdict. The evidence was sufficient to support the conclusion that a rational trier of fact could find beyond a reasonable doubt that Fineberg knew the bonds were stolen.

AFFIRMED

 *

The panel unanimously finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Federal Rule of Appellate Procedure 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3