United States v. Berbere

• Court: Court of Appeals for the First Circuit
• Decided: August 16, 2000
• Docket: 98-2147
• Status: Published

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit ____________________

No. 98-2147

UNITED STATES,

Appellee,

v.

ZULEIDA BERBERE, A/K/A SEALED DEFENDANT 8,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

_____________________

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.

July 3, 2000 ____________________ 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

-2- 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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