United States v. Radhames Antonio Oropeza , 479 F. App'x 270 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 27, 2012
No. 11-11420
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 8:10-cr-00353-JDW-TBM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
RADHAMES ANTONIO OROPEZA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 27, 2012)
Before DUBINA, Chief Judge, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Appellant Radhames Antonio Oropeza appeals his conviction for conspiracy
to commit wire fraud, in violation of 18 U.S.C. § 371. He argues that the
government did not present sufficient evidence to prove that he intended to
defraud his adopted son, Markus Min Ho Kim (“Kim”), regarding several bank
transactions. Rather, he contends that most of the evidence presented concerned
his wife, Asia’s, alleged misconduct.
If a defendant moves for a judgment of acquittal at the close of the
government’s case in chief, but fails to renew his motion at the close of all the
evidence, we review the evidence for a manifest miscarriage of justice. United
States v. Edwards, 526 F.3d 747, 755-56 (11th Cir. 2008); United States v.
Williams, 144 F.3d 1397, 1402 (11th Cir. 1998). We will only reverse if we
conclude that “the evidence on a key element of the offense is so tenuous that a
conviction would be shocking.” United States v. Tagg, 572 F.3d 1320, 1323 (11th
Cir. 2009) (internal quotation marks omitted). To make that decision, we view the
evidence in the light most favorable to the government, and accept every
reasonable inference and credibility determination supporting the jury’s verdict.
United States v. Hamblin, 911 F.2d 551, 556-57 (11th Cir. 1990).
Credibility questions are for the jury, and we will assume that the jury
answered them in a manner that supports the jury’s verdict. United States v.
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Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009); United States v. Thompson, 473
F.3d 1137, 1142 (11th Cir. 2006). A defendant’s own testimony, if disbelieved by
the jury, may be considered substantive evidence of his guilt. Jimenez, 564 F.3d at
1285. Moreover, inconsistent jury verdicts do not necessarily justify reversal.
United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 477, 83 L. Ed. 2d 461(1984) (noting that inconsistent verdicts often reflect exercise of lenity). We have
held that the offenses of conspiracy and substantive fraud are not “coterminous”
and that, because the elements of the offenses are different, a jury could
reasonably have acquitted on one charge and convicted on the other. See United
States v. Funt, 896 F.2d 1288, 1293 (11th Cir. 1990).
To sustain Oropeza’s conviction for conspiracy to commit wire fraud, we
must conclude that the government offered enough evidence to prove beyond a
reasonable doubt: (1) the existence of an agreement between Oropeza and Asia to
defraud Kim; (2) Oropeza’s knowing and voluntary participation in the
conspiracy; and (3) an overt act by a conspirator in furtherance of the agreement.
See United States v. White, 663 F.3d 1207, 1214 (11th Cir. 2011). The words “to
defraud” mean “the deprivation of something of value by trick, deceit, chicane, or
overreaching.” United States v. Barrington, 648 F.3d 1178, 1191 (11th Cir. 2011)
(internal quotation marks omitted), cert. denied, 132 S. Ct. 1066 (2012). “A
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scheme to defraud requires proof of material misrepresentations, or the omission
or concealment of material facts . . . reasonably calculated to deceive persons of
ordinary prudence.” United States v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir.
2003) (citations omitted). A fraudulent scheme may include “delaying detection
of the fraud by lulling the victim” after obtaining the benefit. See United States v.
Hill, 643 F.3d 807, 859 (11th Cir. 2011) (internal quotation marks omitted),
petition for cert. filed, ___ U. S.L.W. ___ (U.S. Mar. 19, 2012) (No. 11-9553).
“The very nature of conspiracy frequently requires that the existence of an
agreement be proved by inferences from the conduct of the alleged participants or
from circumstantial evidence of a scheme.” United States v. Molina, 443 F.3d
824, 828 (11th Cir. 2006) (internal quotation marks omitted).
We conclude from the record that there was sufficient evidence such that a
reasonable jury could find that Oropeza was guilty beyond a reasonable doubt.
Therefore, he is not entitled to reversal of his conviction in order to prevent a
manifest miscarriage of justice.
Accordingly, we affirm Oropeza’s conviction.
AFFIRMED.
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