United States v. Moses Onciu ( 2015 )

FILED
NOT FOR PUBLICATION JAN 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50039
Plaintiff - Appellee, D.C. No. 8:08-cr-00180-DOC-1
v.
MEMORANDUM*
MOSES ONCIU,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted January 5, 2015**
Pasadena, California
Before: KOZINSKI, W. FLETCHER, and OWENS, Circuit Judges.
Moses Onciu appeals his convictions for conspiracy to commit wire fraud,
substantive wire fraud, and aiding and abetting in connection with fraudulent
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
high-yield investment schemes. Having jurisdiction under 28 U.S.C. § 1291, we
reject his arguments and affirm.
Onciu challenges the sufficiency of the evidence introduced at trial to
support his convictions. He contends the district court should have granted his
motion under Fed. R. Crim. P. 29. We review claims of insufficient evidence de
novo. United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004). We review
a denial of a motion for a judgment of acquittal under the same standard as a
challenge to the sufficiency of the evidence. United States v. Tucker, 133 F.3d
1208, 1214 (9th Cir. 1998). Thus, we consider whether, “viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. (citation
omitted). Reviewing the evidence presented at trial, we hold that the evidence is
sufficient to sustain Onciu’s convictions.
Onciu contends there was a prejudicial variance from the indictment because
the indictment alleged a single conspiracy and the evidence at trial suggested at
least two unrelated conspiracies. Onciu’s claim is without merit. While the
government introduced evidence of multiple investment schemes, all of the
investment schemes were part of the same conspiracy. See United States v.
2 14-50039
Bibbero, 749 F.2d 581, 586-87 (9th Cir. 1984) (“A single conspiracy may involve
several subagreements or subgroups of conspirators.”).
Onciu appeals the district court’s failure to give a multiple-conspiracies jury
instruction. Because Onciu was tried alone, he was not entitled to a multiple-
conspiracies instruction. United States v. Chen Chiang Liu, 631 F.3d 993, 1000
(9th Cir. 2011). In addition, because the evidence at trial did not show separate,
unrelated conspiracies, we affirm the district court’s refusal to give the multiple-
conspiracies instruction. See United States v. Mincoff, 574 F.3d 1186, 1196 (9th
Cir. 2009).
Onciu also requests that, if this court remands his case, it order the district
court to develop the record for a possible ineffective assistance of counsel claim.
We do not entertain Onciu’s request as this circuit does not remand ineffective
assistance of counsel claims on direct appeal. See United States v. Johnson, 820
F.2d 1065, 1074 (9th Cir. 1987).
AFFIRMED.
3 14-50039