`
`IN THE UNITED STATES COURT OF APPEALS
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 11-11420
`Non-Argument Calendar
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`JUNE 27, 2012
`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
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`to commit wire fraud, in violation of 18 U.S.C. § 371. He argues that the
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`government did not present sufficient evidence to prove that he intended to
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`defraud his adopted son, Markus Min Ho Kim (“Kim”), regarding several bank
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`transactions. Rather, he contends that most of the evidence presented concerned
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`his wife, Asia’s, alleged misconduct.
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`If a defendant moves for a judgment of acquittal at the close of the
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`government’s case in chief, but fails to renew his motion at the close of all the
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`evidence, we review the evidence for a manifest miscarriage of justice. United
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`States v. Edwards, 526 F.3d 747, 755-56 (11th Cir. 2008); United States v.
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`Williams, 144 F.3d 1397, 1402 (11th Cir. 1998). We will only reverse if we
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`conclude that “the evidence on a key element of the offense is so tenuous that a
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`conviction would be shocking.” United States v. Tagg, 572 F.3d 1320, 1323 (11th
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`Cir. 2009) (internal quotation marks omitted). To make that decision, we view the
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`evidence in the light most favorable to the government, and accept every
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`reasonable inference and credibility determination supporting the jury’s verdict.
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`United States v. Hamblin, 911 F.2d 551, 556-57 (11th Cir. 1990).
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`Credibility questions are for the jury, and we will assume that the jury
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`answered them in a manner that supports the jury’s verdict. United States v.
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`2
`
`
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`Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009); United States v. Thompson, 473
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`F.3d 1137, 1142 (11th Cir. 2006). A defendant’s own testimony, if disbelieved by
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`the jury, may be considered substantive evidence of his guilt. Jimenez, 564 F.3d at
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`1285. Moreover, inconsistent jury verdicts do not necessarily justify reversal.
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`United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 477, 83 L. Ed. 2d 461
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`(1984) (noting that inconsistent verdicts often reflect exercise of lenity). We have
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`held that the offenses of conspiracy and substantive fraud are not “coterminous”
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`and that, because the elements of the offenses are different, a jury could
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`reasonably have acquitted on one charge and convicted on the other. See United
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`States v. Funt, 896 F.2d 1288, 1293 (11th Cir. 1990).
`
`To sustain Oropeza’s conviction for conspiracy to commit wire fraud, we
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`must conclude that the government offered enough evidence to prove beyond a
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`reasonable doubt: (1) the existence of an agreement between Oropeza and Asia to
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`defraud Kim; (2) Oropeza’s knowing and voluntary participation in the
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`conspiracy; and (3) an overt act by a conspirator in furtherance of the agreement.
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`See United States v. White, 663 F.3d 1207, 1214 (11th Cir. 2011). The words “to
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`defraud” mean “the deprivation of something of value by trick, deceit, chicane, or
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`overreaching.” United States v. Barrington, 648 F.3d 1178, 1191 (11th Cir. 2011)
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`(internal quotation marks omitted), cert. denied, 132 S. Ct. 1066 (2012). “A
`
`3
`
`
`
`scheme to defraud requires proof of material misrepresentations, or the omission
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`or concealment of material facts . . . reasonably calculated to deceive persons of
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`ordinary prudence.” United States v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir.
`
`2003) (citations omitted). A fraudulent scheme may include “delaying detection
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`of the fraud by lulling the victim” after obtaining the benefit. See United States v.
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`Hill, 643 F.3d 807, 859 (11th Cir. 2011) (internal quotation marks omitted),
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`petition for cert. filed, ___ U. S.L.W. ___ (U.S. Mar. 19, 2012) (No. 11-9553).
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`“The very nature of conspiracy frequently requires that the existence of an
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`agreement be proved by inferences from the conduct of the alleged participants or
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`from circumstantial evidence of a scheme.” United States v. Molina, 443 F.3d
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`824, 828 (11th Cir. 2006) (internal quotation marks omitted).
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`We conclude from the record that there was sufficient evidence such that a
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`reasonable jury could find that Oropeza was guilty beyond a reasonable doubt.
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`Therefore, he is not entitled to reversal of his conviction in order to prevent a
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`manifest miscarriage of justice.
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`Accordingly, we affirm Oropeza’s conviction.
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`AFFIRMED.
`
`
`
`4
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