902 F. 2d 41 - United States v. Lopez

MEMORANDUM**

Margarito Ortega Lopez appeals his conviction, following a jury trial, for one count of passing and uttering counterfeit Government obligations and one count of possession of counterfeit Government obligations, both in violation of 18 U.S.C. Sec. 472. Lopez contends that the evidence introduced at his trial was insufficient to support the verdict. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm in part and reverse and remand in part.

Lopez moved for acquittal at the close of the government's evidence, but failed to renew his motion at the close of his own evidence. This court reviews the denial of a non-renewed motion for acquittal only "to prevent a manifest miscarriage of justice" or for plain error. United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir.1988), cert. denied, 109 S.Ct. 812 (1989).

The district court did not plainly err by denying a motion to acquit if, reviewing the evidence in the light most favorable to the prevailing party, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Patton, 771 F.2d 1240, 1243 (9th Cir.1985) (citing Jackson v. Virginia, 443 U.S. 307, 318 (1979)). To sustain a conviction for possession and passing of counterfeit money, the government must show that the defendant knew the money was counterfeit and possessed or passed it with intent to commit fraud. United States v. Rodriguez, 761 F.2d 1339, 1340 (9th Cir.1985); United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.), cert. denied, 441 U.S. 936 (1979). A jury may infer knowledge and intent to defraud from evidence showing that the defendant segregated counterfeit bills from legitimate currency, or that he attempted to conceal counterfeit bills in his possession. See McCall, 592 F.2d at 1068.

Here, Lopez admitted that he paid at least five counterfeit twenty-dollar bills to Jesus Otanez as payment for a car. At the time he was arrested, Lopez had an additional nineteen counterfeit twenty-dollar bills in his jacket pocket, segregated from more than two hundred dollars in real currency in his pants pocket. Although Lopez testified that he had received the counterfeit bills from a friend and did not know that they were counterfeit, and that he had kept all his money together in one wallet, the jury was entitled to disbelieve his testimony. See United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, 110 S.Ct. 179 (1989).

Thus, the verdict was supported by sufficient evidence and the district court did not plainly err by denying appellant's motion for acquittal. See Patton, 771 F.2d at 1243-44.

Lopez received a special assessment of $100. Although he did not raise the issue on appeal, we have held that 18 U.S.C. Sec. 3013 violates the origination clause of Article I, section 7 of the United States Constitution. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir.1988), cert. granted, 110 S.Ct. 48 (1989). We raise this issue sua sponte, and reverse and remand to the district court to vacate the special assessment. See United States v. Hoyt, 888 F.2d 1257, 1258 (9th Cir.1989).

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.