
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2067                                    UNITED STATES,                                      Appellee,                                          v.                                     PAUL LODER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Walter Jay Skinner, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                         and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            Charles  W. Rankin  with whom  Rankin &  Sultan was  on brief  for            __________________             ________________        appellant.            James F. Lang, Assistant United States Attorney, with whom  Donald            _____________                                               ______        K. Stern, United States Attorney, was on brief for appellee.        ________                                 ____________________                                     May 11, 1994                                 ____________________        _____________________        *Of the District of Rhode Island, sitting by designation.                       PETTINE, Senior District Judge.                                _____________________                       Defendant  Paul Loder  appeals his  conviction for             aiding  and abetting mail fraud in violation of 18 U.S.C.                2  and  1341.   He  asserts that  the trial  court  erred in             denying his Motion for  a Judgment of Acquittal in  that the             government presented insufficient evidence at trial to prove             that  he  aided and  abetted  mail fraud.    Furthermore, he             asserts  that  the  trial  judge  erred  in  admitting  into             evidence  under  Rule  801(d)(1)(B)   certain  conversations             between a government witness and another  party.  We REVERSE             the   conviction,   finding   the   evidence   insufficient.             Therefore, we do not reach the Rule 801(d)(1)(B) issue.             I.                __                       In September  of 1987, David Morrison,  who at the             time resided  in a halfway house  in Roxbury, Massachusetts,             contacted  his brother,  James  Morrison, a  captain in  the             Boston Fire Department.  David wished to purchase a new car,             but  was unable  to  obtain credit,  so  he asked  James  to             purchase and register the  car in his own name,  using money             supplied  by David  both for  the down  payment and  for all             subsequent car  payments.   James agreed, and  purchased the             car, a 1987 Chevrolet Caprice ["the Caprice" or "the  car"],             in  the   manner  outlined.     General  Motors   Acceptance                                         -2-                                          2             Corporation ("GMAC") financed the  purchase, and the car was             insured, in James Morrison's  name, through Aetna  Insurance             Company ("Aetna").   David  Morrison took possession  of the             car.                       One night in  the following  month, October  1987,             James Morrison was at  work at a firehouse on  Oliver Street             in Boston.   His  brother, David  Morrison, appeared at  the             firehouse in an intoxicated condition, and informed him that             something had happened to the car, that it was in the middle             of  an  intersection close  to  the firehouse,  and  that it             "won't go."   [Tr. 2: 129]   James went to look  at the car,             realized  that the frame appeared  to be broken,  and had it             towed  to a  lot beside the  firehouse.   A few  days later,             David again visited James at the firehouse, and later on the             same day  the brothers communicated  by telephone.   On  the             following day, a tow  truck showed up at the  firehouse, the             driver asking for James Morrison.   James provided him  with             the  keys to the Caprice,  after which the  driver towed the             car away.                         A day later, James Morrison reported to the Boston             Police  that  the  car  had been  stolen  from  outside  the             firehouse on  Oliver Street.    He also  filed an  insurance             claim  with Aetna,  again  claiming that  the  car had  been                                         -3-                                          3             stolen.  Aetna allowed the claim and issued two checks dated             December 12, 1987.   Both checks  were sent by  mail to  the             designated payees, the first in  the amount of $14,545.05 to             GMAC (the basis of Count 3 of the indictment) and the second             in the amount of  $1,750.95 to James Morrison (the  basis of             Count 4 of the indictment).                       The story now shifts to a United States government             facility  in Watertown,  Massachusetts, where  the Chevrolet             Caprice next appeared.  This facility was run by the General             Services  Administration ("GSA")  and consisted  of a  large             field and a  number of  warehouses.  GSA  operated a  firing             range at the Watertown  facility which was used by  a number             of federal law enforcement agencies and which was staffed by             Justin  Gleason,  a  Federal  Protective   Services  ("FPS")             Sergeant.    The warehouses  were  used  by several  federal             agencies (IRS,  DEA, Customs,  GSA), primarily for  storage.             Some space at the Watertown  facility was leased to  private             companies, among them Warner  Brothers, which used the space             to  store  vehicles used  in the  filming of  the television             series  Spenser  for  Hire   ("SFH").    Pursuant  to  lease             agreements  with GSA,  Warner  Brothers rented  Building 236             from October 1985 through June 1987; upon the expiration  of             the lease GSA informally extended the tenancy until November                                         -4-                                          4             1987.  Building 236 was used  by the SFH special effects and             transportation  crews.    The  transportation   crew,  which             transported cars, trucks, and  trailers between Building 236             and filming locations around  the Boston area, was comprised             of  members of  Local  25 of  the  Teamsters Union.    These             members  included  defendant Paul  Loder,  who  worked as  a             driver, and his co-defendant,  Richard Murray, who worked as             a  "co-captain" of  the  transportation crew.   Murray  also             owned  Star  Auto  Parts  in  Somerville,  Massachusetts,  a             company that was licensed to buy and sell auto  parts and to             operate a junkyard, and,  prior to the events of  this case,             Loder had worked there for Murray.                          Another   of  the   buildings  at   the  Watertown             facility, Building 234, contained a fenced off space where a             number of new FPS police vehicles were being stored.  Justin             Gleason,1  the FPS  Sergeant who  staffed the  firing range,                                              ____________________             1Justin  Gleason was  indicted for  two counts  of receiving             unlawful  gratuities  in  return  for  overlooking  unlawful             activities at the  Watertown facility.  He  was charged with             receiving the use of two Ford cars, a 1987 Thunderbird and a             1988 Country Squire Wagon, that had been furnished to SFH by             Ford Motor  Company for  filming purposes.   These cars  had             been  subject to water damage  so, although they appeared to             be in excellent  condition, Ford would not  sell or warranty             them  and instead  furnished  them to  SFH  to be  used  for             special effects  purposes.   In  September of  1990, a  jury             returned  a  guilty verdict  against  Gleason  on these  two             counts of receiving gratuities.   At his sentencing hearing,             Gleason agreed  to cooperate  with the government  in return                                         -5-                                          5             testified that  in the fall of  1987 he became aware  that a             1987 Chevrolet  Caprice was  parked among the  FPS vehicles.             Running a  Vehicle Identification  Number ("VIN")  check, he             learned that the Caprice was registered to Morrison.  Asking             Murray about the car, Gleason  was informed that Murray "had             been roped into something  that he can't get  out of and  he             was  going to  get  rid  of  it."   [Tr.  2:193]    In  this             conversation  and  subsequent  conversations, Gleason  asked             Murray repeatedly to remove  the car from Building 234.   In             one of these conversations, Murray told Gleason that the car             was  registered to "a high  official, the captain  of a fire             department," and  that the  car was  in a  damaged condition             because "somebody got drunk and ran over a Jersey  barrier."             [Tr. 2:194]  Gleason also testified to having a conversation             with Loder about the Chevrolet Caprice, in which  Loder said             that he  was helping Murray get  rid of the car  and that he                                              ____________________             for a recommendation by the government that he be  sentenced             to  probation only.   He did in  fact receive  a sentence of             probation.  Gleason  testified before the grand  jury and at             trial as an immunized witness.  At trial, the information as             to  Gleason's guilty  verdict, sentencing,  and immunization             was  presented to the jury on direct examination.  This gave             rise  to defendant's second claim  on appeal, that the lower             court erred in permitting the government to introduce  prior             consistent statements of Gleason to Adams because it was the             government, not the defendant, who first raised the issue of             Gleason's credibility in its opening statement and in direct             examination of Gleason.  Because we grant defendant's motion             for acquittal, we do not reach this second issue.                                              -6-                                          6             had  "taken  the  plate off  for  insurance."   [Tr.  2:195]             Finally,  Gleason  testified  that,  when  he  went  to  the             Watertown facility one weekend, he discovered the front gate             open.  He went to Building 234 and there he saw Murray and a             second individual whose face was obscured by a welder's mask             cutting the top off  the Caprice.  He  again told Murray  to             get the car out of the building, and  when he returned later             the Caprice was gone.                            On  November  5, 1987,  during  the  course of  an             investigation into the activities at the Watertown facility,             FPS Criminal Investigator William Adams noticed two vehicles             in  that area  that  did  not belong  to  FPS  -- a  vehicle             belonging  to  Justin  Gleason,  and  the Chevrolet  Caprice             registered to James Morrison.   Adams and Gleason were long-             standing  acquaintances,   having  met   in  1978.     In  a             conversation  on November 5, Gleason  told Adams that he had             made arrangements to keep  the vehicle in storage for  a few             weeks until it could be cut  up.  By running the VIN through             the  National  Crime Information  Center  ("NCIC") computer,             Adams learned that  the Caprice had been reported  stolen on             October 28, 1987.  Adams arranged for a special agent of the             Internal Revenue  Service ("IRS")  to  come to  the site  on             November  25, 1987 to take  pictures of the  Caprice.  Adams                                         -7-                                          7             conducted surveillance, and at  some point after November 25             he  noticed that the car  had been removed;  however, he did             not  know  precisely  when  the car  was  removed  from  the             Watertown GSA facility.                         Between December of 1987 and early summer of 1988,             Adams,  without Gleason's knowledge,  tape recorded a number             of  conversations between  Adams and  Gleason.   In  a taped             conversation on  February 8,  1988, Gleason told  Adams that             Murray hid the car "until they could get rid of it" and that             Murray  said he wanted to get the  parts from the car.  [Tr.             3:112-114]     The  tapes,  however,  did   not  corroborate             Gleason's  testimony that  he had  seen Murray  and another,             unidentified  person cutting up  the Caprice.   Furthermore,             Gleason did not  say to Adams on tape that Loder admitted to             Gleason  that  he  helped Murray  to  get  rid  of the  car,             although Gleason later testified that Loder did indeed admit             to this.2                                                         ____________________             2Defendant   argues  that   several  facts   call  Gleason's             credibility, which is  central to  Loder's conviction,  into             question.     Gleason   testified  to   consulting   with  a             psychiatrist  shortly after  his conviction  due to  fear of             being  accused of  something  he did  not  do.   He  further             testified to taking a number of medications, due both to his             psychiatric condition  and to a back  injury, which affected             his  memory, particularly  with  regard to  dates.   Gleason             denied ever using a counterfeit Massachusetts Police license             plate on  his car,  but Adams  and Belmont  Police Detective             John Trischetta testified to  seeing a fake police  plate on                                         -8-                                          8             II.             ___                       When   a   defendant   challenges   his   criminal             conviction, claiming  that the government failed  to present             sufficient  evidence to  prove the  defendant guilty  of the             charged crime, the court is faced with a formidable standard             of  review.  In examining  such a challenge,  the court must             "view the evidence, together with all reasonable  inferences             that  may be drawn therefrom, in the light most favorable to             the  government,"   United States  v. Campa, 679  F.2d 1006,                                 _____________     _____             1010 (1st Cir. 1982),  and while so doing, must  ask whether             "a rational trier of  facts could have found guilt  beyond a             reasonable doubt."  United States v. Ingraham, 832 F.2d 229,                                 _____________    ________             239  (1st Cir.  1987), cert. denied,  486 U.S.  1009 (1988).                                    ____  ______             See  also United States v.  Torres Lopez, 851  F.2d 520, 527             _________ _____________     ____________             (1st Cir. 1988),  cert. denied  489 U.S. 1021  (1989).   The                               ____  ______             court  must  apply this  standard  both  to  direct  and  to             circumstantial   evidence;  "[c]ircumstantial   evidence  is             intrinsically no different from testimonial evidence, and is             entitled to similar weight."   United States v.  Van Helden,                                            _____________     __________             920 F.2d 99, 101 (1st Cir. 1990) (citations omitted).  Thus,                                              ____________________             Gleason's car.   Finally,  Gleason testified to  obeying all             terms  and conditions  of his federal  parole, but  on cross             examination  he  conceded  that  he had  been  convicted  of             shoplifting while on federal  parole, although no action had             been taken against him by his probation officer.                                           -9-                                          9             the government may use  circumstantial evidence to prove its             case.   However,  the  total evidence,  with all  reasonable             inferences  made   in  the  light  most   favorable  to  the             government, must be such that a rational trier of fact could             have found guilt  beyond a reasonable doubt.   United States                                                            _____________             v. Mena, 933 F.2d 19, 23  (1st Cir. 1991);  United States v.                ____                                     _____________             Campa,  679 F.2d at 1006.   Furthermore, the government need             _____             not   present  evidence  that   precludes  every  reasonable             hypothesis  inconsistent with  guilt in  order to  sustain a             conviction.   United States  v. Guerrero-Guerrero,  776 F.2d                           _____________     _________________             1071,  1075 (1st  Cir. 1985),  cert.  denied, 475  U.S. 1029                                            ____   ______             (1986).  Rather,  the jury  is at liberty  to select  freely             among  a variety of  reasonable alternative constructions of             the evidence.   United States  v. Smith, 680  F.2d 255,  259                             _____________     _____             (1st  Cir.  1982),  cert.  denied,  459  U.S.  1110  (1983).                                 ____   ______             Finally,  this court reviews a  district court's denial of a             defendant's motion for a judgment of acquittal                        using the identical standard employed to                       measure  the   sufficiency  of  evidence                       supporting     a     guilty     verdict.                       Accordingly, we  must determine whether,                       viewing  all the  evidence in  the light                       most   favorable   to  the   government,                       including  all reasonable  inferences to                       be drawn from such evidence,  a rational                       trier  of  fact could  have  found guilt                       beyond a reasonable doubt.                                           -10-                                          10             United  States v. Sanchez, 943 F.2d 110, 114 (1st Cir. 1991)             ______________    _______             (citations omitted).                         The mail fraud statute makes it a crime to use the             United States Postal Service or mails to execute a scheme or             artifice devised to defraud by  means of false or fraudulent             pretenses, representations or promises.3   There is no doubt                                              ____________________             3The  specific language  of  the mail  fraud  statute is  as             follows:                       Whoever, having devised or  intending to                       devise   any   scheme  or   artifice  to                       defraud,  or  for  obtaining   money  or                       property by means of false or fraudulent                       pretenses, representations, or promises,                       or  to sell, dispose of, loan, exchange,                       alter, give away, distribute, supply, or                       furnish or procure for unlawful  use any                       counterfeit     or     spurious    coin,                       obligation, security,  or other article,                       or   anything   represented  to   be  or                       intimated  or  held   out  to  be   such                       counterfeit or spurious article, for the                       purpose  of  executing  such  scheme  or                       artifice  or attempting so to do, places                       in   any   post  office   or  authorized                       depository for mail  matter, any  matter                       or   thing  whatever   to  be   sent  or                       delivered  by  the  Postal  Service,  or                       takes  or  receives therefrom,  any such                       matter  or thing, or knowingly causes to                       be  delivered by  mail according  to the                       direction  thereon, or  at the  place at                       which it is directed  to be delivered by                       the person to whom it is addressed,  any                       such matter or thing, shall be fined not                       more  than $1,000 or imprisoned not more                       than  five  years,  or  both.    If  the                       violation     affects    a     financial                       institution, such person shall  be fined                                         -11-                                          11             that the evidence  supports a finding  that James and  David             Morrison  were guilty  of mail  fraud; they  submitted false             insurance  claims to  Aetna  and Aetna  issued, through  the             United States mails, settlement checks to James Morrison and             GMAC.  The Morrisons  were the principals in this  scheme of             mail  fraud.    At  issue  is  whether  the  government  has             succeeded  in presenting  evidence  sufficient to  show that             Paul Loder is guilty of aiding and abetting the Morrisons in             committing mail fraud.                        The aiding and abetting  statute defines the crime             of aiding and abetting as follows:                        (a)  Whoever  commits an offense against                       the  United  States   or  aids,   abets,                       counsels, commands,  induces or procures                       its  commission,  is  punishable   as  a                       principal.                         (b)  Whoever willfully  causes an act to                       be done  which if directly  performed by                       him  or  another  would  be  an  offense                       against the United States, is punishable                       as a principal.             18  U.S.C.A.   2 (West 1969).   In order to find a defendant             guilty of aiding and abetting, the government must show both             that  the  principal  committed the  underlying  substantive             crime,  United States v. McNatt, 813 F.2d 499, 502 (1st Cir.                     _____________    ______                                              ____________________                       not more than  $1,000,000 or  imprisoned                       not more than 30 years, or both.             18 U.S.C.A.   1341 (West Supp. 1994).                                         -12-                                          12             1987);  United  States v.  Perez,  922 F.2d  782,  785 (11th                     ______________     _____             Cir.),  cert. denied, 111 S.  Ct. 2840 (1991),  and that the                     ____  ______             defendant "associated himself with the venture, participated             in it as something  he wished to bring about, and  sought by             his actions to make  it succeed."  United States  v. Garcia-                                                _____________     _______             Rosa, 876 F.2d 209,  217 (1st Cir. 1989).   See also  United             ____                                        ________  ______             States  v. Lema, 909 F.2d  561, 569 (1st  Cir. 1990); United             ______     ____                                       ______             States v.  Delgado  Figueroa, 832  F.2d 691,  696 (1st  Cir.             ______     _________________             1987).                          Several cases  offer guidance as to  the degree of             knowledge  that a defendant must possess in order to satisfy             the second prong  of the definition of  aiding and abetting.             "In order to convict a defendant of aiding and abetting, the             government  must  prove  that  the  defendant  in  some  way             associated himself  with the  fraudulent scheme and  that he                                                                       __             shared the criminal intent of the principal."  United States             ____________________________________________   _____________             v. Serrano, 870 F.2d  1, 6 (1st Cir. 1989)  (emphasis added)                _______             (citation omitted).  See also United States v. Valencia, 907                                  ________ _____________    ________             F.2d 671, 680 (7th  Cir. 1990) ("The state of  mind required             for conviction as an aider and  abettor is the same state of             mind as required for the principal offense."); United States                                                            _____________             v. Barclay,  560 F.2d  812  (7th Cir.  1977) (appeals  court                _______             reversed a conviction for bank fraud and abetting bank fraud                                         -13-                                          13             because  the  trial   judge's  instructions  permitted   the             defendant  to be convicted without finding that he knew that             the  principal  was going  to make  a  false entry  with the             specific intent to   defraud the  bank, and without  finding             that the defendant shared the principal's specific intent to             defraud the bank); United States v. Gallishaw, 428  F.2d 760                                _____________    _________             (2d Cir.  1970) (when  defendant supplied  a machine gun  to             principal which principal later used in a  bank robbery, the             appeals court reversed defendant's conviction for conspiracy             to  commit a  bank robbery  and aiding  and abetting  a bank             robbery because  trial judge's instructions allowed  jury to             convict defendant without  a finding  that defendant  shared             principal's specific intent  to rob a  bank).  The  specific             intent  requirement  of the  crime  of  aiding and  abetting             requires   that   the   defendant  consciously   share   the             principal's knowledge of the  underlying criminal act;  "[a]             general suspicion  that  an unlawful  act may  occur is  not             enough."  United States v.  Labat, 905 F.2d 18, 23 (2d  Cir.                       _____________     _____             1990).  However, the  government may prove its  case through             circumstantial   evidence,  and  need   not  preclude  every             reasonable hypothesis in order to sustain a conviction.  See                                                                      ___             supra pp.  6-7.  Also, "[i]t is well settled that a culpable             _____             aider and abetter need  not perform the substantive offense,                                         -14-                                          14             be present when it is performed,  or be aware of the details                                               __________________________             of its execution."   United States v. Garcia-Rosa,  876 F.2d             _________________    _____________    ___________             at 217 (emphasis added) (citation omitted).                         In order  to sustain  a conviction in  the instant             case,  the government  must  show that  the defendant,  Paul             Loder, consciously shared in the specific criminal intent of             the principals,  the Morrisons,  to commit  mail fraud.   In             other words, the government must present evidence that would             allow  a rational trier of  fact to conclude  that Loder had             knowledge that he  was furthering mail  fraud.  Although  he             need not  be aware of all  the details of the  mail fraud, a             general suspicion on Loder's  part that his participation in             dismantling  the Caprice was  "for some  nefarious purpose"4             is not enough to make him guilty of aiding and abetting mail             fraud.                           In  this case,  the  government  claims  that  the             record supports the conclusion that Paul Loder  was aware of                                              ____________________             4Near  the  close  of  the  evidence,  the  judge  made  the             following comment at a side bar conference:                       I  don't understand  the evidence.   You                       say these  two guys  get a car  and they                       cut it up.   Certainly they have to know                       when they  cut up a  brand-new car  that                       there is some nefarious purpose.             (Tr. 4:7).  Accepting  the trial judge's characterization of             what  the defendant  would "have  to know,"  the requirement             that the defendant share the specific criminal intent of the             principal would still not be met.                                            -15-                                          15             the fraudulent scheme planned by the  Morrisons, and that he             was a willing  participant in  that scheme.   In support  of             this assertion,  the government points to  several pieces of             evidence:  Loder  had, in  the  past, worked  for  Murray at             Murray's  auto  parts  store  and   was  currently  Murray's             subordinate  on  the  transportation  crew  of SFH;  Gleason             testified  that, in  separate  conversations with  him, both             Murray  and  Loder  had  talked  about  getting rid  of  the             Caprice, and  Loder mentioned keeping the  license plate for             insurance;  Gleason also  testified that  he saw  Murray and             another person  whose face  was obscured by  a welding  mask             cutting  the  roof  off  of  the  Caprice  in  a  government             warehouse on  a weekend; and the  Caprice, although damaged,             was a brand  new car.  The government argues that a rational             trier of fact could reasonably infer from this evidence that             Loder  and  Murray were  responsible  for  the Caprice,  had             dismantled and disposed of it, and did so for some nefarious             purpose.   The  government further  maintains that  the jury             could as easily have inferred or concluded from the evidence             that  the  nefarious  purpose   was  that  of  a  fraudulent             insurance scheme as  that the nefarious purpose  was that of             disposal of a stolen  car.  The defendants counter  with the             argument that even  if the  evidence would allow  a jury  to                                         -16-                                          16             conclude that Loder participated  in dismantling the car and             knew there was something wrong with doing so, the government             has  nevertheless failed  to  show the  specific intent  and             knowledge necessary  to sustain  a conviction of  aiding and             abetting in mail fraud.                         The government contends that the evidence supports             a  finding that  Loder did  have specific  knowledge  of the                                    ___             Morrisons'  insurance  scam and  that  he  acted in  willful             furtherance of  the scam.   They  first  maintain, and  this             court agrees,  that based  on Gleason's testimony,  the jury             could appropriately  conclude that  Murray had  knowledge of             the  Morrisons'  identity,  of  the   circumstances  of  the             accident  in  which  the  Caprice  was  damaged,  and,  most             importantly,  of the Morrisons'  fraudulent insurance claim.             The prosecution then  asserts that "[b]ecause  the defendant             and Murray dismantled  and disposed of the car together, the             jury could  reasonably conclude  as well that  Murray passed             such information on to  the defendant in explanation of  the             purpose  of their efforts."   (Appellee's Br. at  20)   This             assertion  is at  the core  of the  government's case;  if a             rational  jury  could  reasonably  infer  from  the evidence             presented first  that Loder  did help Murray  to disassemble             the Caprice and second that  Murray explained the mail fraud                                         -17-                                          17             scheme  to  Loder,  then  this  court  must  uphold  Loder's             conviction.                       The question then, is whether these two inferences             are indeed  reasonable.   This  court finds  that the  first             inference, that  the person helping Murray  to dismantle the             Caprice was Paul Loder, is reasonable.  Although the face of             the person that Gleason saw helping Murray was obscured by a             welding mask, Gleason nevertheless testified that Loder told             him that he helped Murray to get rid of the Caprice.  Should             the jurors chose  to believe Gleason,  it is reasonable  for             them to conclude that Loder  did as he said he would  do and             helped  Murray  to  dismantle  the  car.    Indeed,  such  a             conclusion would  be supported  by Loder's own  admission of             actual  participation.   It  is true  that  Gleason did  not             mention  Loder's admission  of helping Murray  while Gleason             was  on tape.  However,  a reasonable jury could nonetheless             have  believed that Loder did tell Gleason that he helped to             dismantle the car.  Likewise, the defendant's concerns as to             Gleason's  reliability as  a witness  are not  sufficient to             endanger the  jury's factual  finding with regard  to Loder.             Drawing, as we must, all  reasonable inferences in the light             most favorable to the government, we find that nothing would             inhibit  a   rational  jury   from  believing  Gleason   and                                         -18-                                          18             concluding that Loder  assisted Murray in  disassembling the             Caprice.                          However, we reject the notion that a rational jury             could have  reasonably made  the second inference  at issue.             To assume that just because  Murray and Loder dismantled the             car  together therefore  Murray  told Loder  that they  were             doing  so in  furtherance  of a  scheme  of mail  fraud,  is             unreasonable   and implausible.   This  court finds  that no             evidence at  trial was presented that would allow a rational             trier  of  fact  to   conclude  that  Murray  conveyed  this             information to  Loder.   No one testified  to telling  Loder             about the mail fraud, no  one testified that Loder mentioned             knowing about the mail fraud, no one even testified to being             told that Loder had been told  about the mail fraud.   While             it is  true that circumstantial  evidence must be  given the             same   weight   as  testimonial   evidence   in  determining             sufficiency of the evidence, in  this case, even giving  the             government  the benefit  of  the  doubt, the  circumstantial             evidence is too  weak to support  a reasonable inference  of             guilt.                       We have also considered whether a reasonable  jury             could  conclude --  even  without any  direct disclosure  to             Loder by Murray -- that Loder must have known that insurance                                         -19-                                          19             fraud  was  the objective  in destroying  the  car.   If the             surreptitious  destruction of  cars occurred  only  for this             purpose, or at  least rarely  for any other,  that might  be             enough for a jury  to infer knowledge on Loder's part.   But             in fact there are other plausible reasons for such an action             (e.g., "chopping" a stolen  car to recover parts; destroying              ____             the evidence  of  another  crime such  as  bank  robbery  or             kidnapping).   Thus, absent  additional evidence, we  do not             think that a jury  could conclude beyond a reasonable  doubt             that Loder must have known that the purpose in this instance             was  insurance fraud.   This court declines  to sustain Paul             Loder's conviction.                                                                -20-                                          20
