Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided Nov. 27, 1990.
Appeal from the United States District Court Central District of California; Honorable A. Andrew Hauk, District Judge, Presiding.
C.D.Cal.
AFFIRMED AND REMANDED.
Before MERRILL, KILKENNY and DAVID R. THOMPSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3.
Carl Otis Wilson, Sr. was tried by a jury and convicted of unlawfully opening mail, 18 U.S.C. § 1703(a), and embezzling mail, 18 U.S.C. § 1709. He argues on appeal that there was insufficient evidence presented to sustain his conviction on the second count and that the district court should therefore have granted his motion for a judgment of acquittal under FRCrimP 29. We disagree and affirm, but remand for correction of sentence.
The government presented evidence showing that Wilson removed the jewelry store package to his work station, where he slit it open and removed the velvet box found inside; after opening the box and seeing the gold pendant, he noticed the alarm wiring and only then returned the pendant to its box and the package to the "throw-back case". Viewing this evidence in a light most favorable to the government, we conclude that a reasonable jury could have found the necessary elements of the crime charged. See United States v. Orozco-Santillan, 903 F.2d 1262, 1264 (CA9 1990); cf. United States v. Faulkner, 638 F.2d 129, 130-31 (CA9 1981) (defendant who removed truck from assigned route, broke cargo seals, and opened boxes for exhibit and sale guilty of embezzlement).
Because Wilson was convicted of and sentenced on two crimes involving the same conduct, however, we remand this case to the district court so that it may correct the sentence imposed. On remand, the district court must stay judgment on one of the two counts pending completion of Wilson's sentence on the remaining count, at which time the judgment of conviction and sentence on the other count will be vacated. See United States v. Anderson, 850 F.2d 563, 569 (CA9 1988).
Accordingly, the judgment of conviction is AFFIRMED and this case is REMANDED for further proceedings consistent herewith.