United States v. Berbere ( 2000 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
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No. 98-2147
UNITED STATES,
Appellee,
v.
ZULEIDA BERBERE, A/K/A SEALED DEFENDANT 8,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
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Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
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José R. Franco-Rivera for appellant.
W. Stephen Muldrow, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Camille Vélez-Rivé,
Assistant United States Attorney, were on brief, for appellee.
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July 3, 2000
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Per Curiam. Appellant Zuleida Berbere was indicted on three
counts of violations of the narcotics laws (Counts One, Five, and
Seven) and one count of money laundering (Count Nine). Count Nine
stemmed from the same factual predicate, i.e., the same drug
transaction, as Count Seven. Following a jury trial, appellant was
acquitted of Counts One, Five, and Seven but was convicted on the money
laundering count. Appellant appeals the verdict and the district
court's denial of her Rule 29 motion for acquittal on the grounds that
(1) the verdicts were inconsistent and (2) there was insufficient
evidence to support her conviction. Having thoroughly reviewed the
briefs and the record, we affirm for substantially the reasons
expressed in the district court's opinion, see United States v. Zuleida
Berbere, No. 97-173 (D.P.R. April 27, 1998), which we briefly summarize
below.
First, as the district court indicated, the verdicts are not
inconsistent. The elements of the charges in Counts Seven (importation
of cocaine) and Nine (money laundering) are different: one is a drug
trafficking charge and the other is a money laundering charge. It is
well settled that verdicts are not inconsistent if the elements of the
two charged counts are not identical. See, e.g., United States v.
Crochiere, 129 F.3d 233, 239 (1st Cir. 1997). Further, even if we were
to hold that the two verdicts are inconsistent, "the Supreme Court has
made it clear that verdict inconsistency in itself is not a sufficient
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basis for vacating a conviction," United States v. López, 944 F.2d 33,
41 (1st Cir. 1991) (citing United States v. Powell, 469 U.S. 57
(1984)), "as long as the appellate court is satisfied that there was
sufficient evidence to sustain the counts of conviction," United States
v. Sullivan, 85 F.3d 743, 747 (1st Cir. 1996).
In this case, the record contains ample evidence to support
appellant's conviction. Specifically, the prosecution presented three
witnesses who testified as to appellant's money laundering activities.
It scarcely needs repeating that:
An appellate court plays a very circumscribed
role in gauging the sufficiency of the
evidentiary foundation upon which a criminal
conviction rests. The court of appeals neither
weighs the credibility of the witnesses nor
attempts to assess whether the prosecution
succeeded in eliminating every possible theory
consistent with the defendant's innocence.
United States v. Noah, 130 F.3d 490, 494 (1st Cir. 1997). Here, the
jury chose to believe the testimony of the witnesses for the
prosecution, which is clearly sufficient on its face to uphold
appellant's conviction.
Appellant's arguments require no further discussion.
Accordingly, for the reasons given, we affirm.
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