United States v. Starkweather ( 1994 )

USCA1 Opinion

          February 17, 1994     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 93-1999

            


                                    UNITED STATES,

                                      Appellee,

                                          v.

                             HERMON RAYMOND STARKWEATHER,

                                Defendant,  Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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               Perry O'Brian, on brief for appellant.
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               Jay  P.  McCloskey,  United  States Attorney,  Elizabeth  C.
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          Woodcock,  Assistant United  States  Attorney,  and  Margaret  D.
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          McGaughey, on brief for appellee.
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                 Per Curiam.  Appellant Hermon Starkweather was convicted
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            after a  one day  jury trial of  nine counts  of fraudulently

            converting United States  treasury funds for  his own use  in

            violation of  18 U.S.C.   641.  He  now argues that there was

            insufficient evidence to support a conviction.

                 Since  the  record  indicates that  appellant  failed to

            renew his  motion for acquittal at the close of the case, his

            conviction can only be disturbed "to prevent 'clear and gross

            injustice.'"  United  States v.  Rodriguez-Estrada, 877  F.2d
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            153, 156-57 (1st Cir. 1989) (quoting United States v. Jiminez
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            Perez, 869 F.2d 9, 11 (1st Cir. 1989)).  Appellant has failed
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            to show that justice miscarried in this case.

                 The  sole basis  for  appellant's  contention  that  the

            evidence was insufficient to establish that he acted with the

            criminal  intent required for a  conviction under 18 U.S.C.  

            1641 is that appellant testified at trial that he lacked such

            intent.     However,  the   government  presented  more  than

            sufficient  evidence from which  a rational juror  could have

            concluded  beyond a reasonable doubt that criminal intent was

            present.  Since  the jury was entitled  to assess credibility

            and to accept or reject  any or all of appellant's testimony,

            United States v. Dockray, 943  F.2d 152, 157 (1st Cir. 1991),
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            there  was no error  in the fact  that the jury  credited the

            government's version of events rather than appellant's.

                 Affirmed.
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