                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 28 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                       No. 11-50296

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01005-VBF-26

 v.

 TRAMOND S. DAVIS,                               MEMORANDUM *

              Defendant - Appellant.

                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                       Argued and Submitted January 7, 2013
                               Pasadena, California

Before: CANBY, REINHARDT, and WARDLAW, Circuit Judges.

      Tramond Davis appeals from his district court conviction of conspiracy to

commit wire and bank fraud. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We reverse.

                                          I.

      Davis and the government agree that an international conspiracy existed to



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
commit bank and wire fraud by “phishing” for unsuspecting persons’ bank account

information and then using that information to transfer money from the victims’

accounts to “drop” accounts set up at the behest of the conspirators. After the

transfer, the victims’ funds were then quickly withdrawn from the “drop” accounts.

Although the government presented ample evidence to demonstrate that Davis set

up a “drop” account, the government did not prove beyond a reasonable doubt that

Davis “embraced the common purpose of the overall conspiracy.” United States v.

Bibbero, 749 F.2d 581, 587 (9th Cir. 1984). Consequently, there was insufficient

evidence to support a conviction. See id.

                                            II.

      On appeal, we construe all of the evidence presented at trial in the

prosecution’s favor, and only then decide whether any rational trier of fact could

have found Davis guilty beyond a reasonable doubt. United States v. Nevils, 598

F.3d 1158, 1163-64 (9th Cir. 2010)(citing Jackson v. Virginia, 443 U.S. 307, 318-

19, 326 (1979)). In deciding whether Davis’s “understanding with co-conspirators

‘was of sufficient scope to warrant the conclusion that he embraced the common

purpose of the conspiracy,’” United States v. Umagat, 998 F.2d 770, 772-73 (9th

Cir. 1993) (quoting Bibbero, 744 F.2d at 587), we consider as a crucial factor the

“degree of his knowledge, actual or constructive, of the scope of the overall


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conspiracy.” Umagat, 998 F.2d at 773 (emphasis in original).

      Even with all of the evidence presented by the government construed against

Davis, the fact remains that no evidence was presented that would allow a rational

trier of fact to conclude that Davis knew of the conspirators’ fraudulent scheme.

The government presented evidence that Davis benefitted from a single bank

withdrawal orchestrated by the conspiracy, but mere involvement “is not sufficient

to establish ‘knowing participation in a scheme to defraud.’” United States v.

Piepgrass, 425 F.2d 194, 199 (9th Cir. 1970) (quoting Windsor v. United States,

384 F.2d 535, 536 (9th Cir. 1967)). Even though the government presented

evidence that demonstrated that Davis’s actions were coordinated by and at the

behest of a member of the conspiracy, “‘constructive’ notice or knowledge of a

circumstance, based upon the actual knowledge of a co-conspirator . . . has no

tendency, circumstantially or otherwise, to prove criminal intent.” Phillips v.

United States, 356 F.2d 297, 303 (9th Cir. 1965). Finally, the government relies on

the jury’s apparent rejection of Davis’s innocent explanation as affirmative

evidence of guilt. “But such disbelief can provide only partial support,” United

States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975); here, further proof of

knowledge was insufficient to permit a finding of guilty beyond a reasonable doubt

on the totality of the evidence.


                                          3
       The government seeks to impute knowledge to Davis from the

circumstances that surrounded the deposit to Davis’s account and his withdrawal.

Those circumstances do not constitute sufficient evidence of Davis’s knowledge of

the scope of the conspiracy. Indeed, if the evidence presented at trial demonstrated

anything on that point, it was that the conspirators did their best to hide the

conspiracy’s existence and true nature from Davis, who opened the account using

his true name, address, date of birth and Social Security number. On this record,

no rational trier of fact could have found “beyond doubt, the requisite specific

intent to defraud because the logical relationship between what [Davis] could have

known and a specific intent has no rational basis.” Piepgrass, 425 F.2d at 199-

200.

       REVERSED.




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