673 F.2d 299 (10th Cir. 1982), 80-1760, United States v. White

Docket Nº:80-1760.
Citation:673 F.2d 299
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Ronald Floyd WHITE, Defendant-Appellee.
Case Date:March 02, 1982
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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673 F.2d 299 (10th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellant,

v.

Ronald Floyd WHITE, Defendant-Appellee.

No. 80-1760.

United States Court of Appeals, Tenth Circuit

March 2, 1982

        Argued and Submitted May 13, 1981.

        Rehearing Denied April 1, 1982.

Page 300

        Kenneth P. Snoke, Asst. U. S. Atty., Tulsa, Okl. (Hubert H. Bryant, U. S. Atty., Tulsa, Okl., with him on the brief), for plaintiff-appellant.

        Joel L. Wohlgemuth of Prichard, Norman & Wohlgemuth, Tulsa, Okl., for defendant-appellee.

        Before BARRETT and LOGAN, Circuit Judges, and KERR, District Judge. [*]

        LOGAN, Circuit Judge.

        The United States appeals from a district court order granting Ronald Floyd White's motion for a judgment of acquittal after a jury had found him guilty of mail fraud, in violation of 18 U.S.C. § 1341, and interstate transportation of more than $5,000 that had been taken by fraud, in violation of 18 U.S.C. § 2314. The issues on appeal are whether the Double Jeopardy Clause bars the government's appeal and whether the court erred in granting White's motion for acquittal.

Page 301

        Count one of the indictment alleges that White used the mails in implementing a scheme to obtain money fraudulently by inducing individuals to purchase partnership interests in Tanaha Gas and Oil Company (Tanaha), a partnership White organized, by falsely representing that he owned leasehold rights in three Oklahoma oil and gas leases (the Bruce, Harjoche, and Walker properties), that he had recently reworked an oil well on a nearby property, and that he would use his best efforts to rework existing oil wells and drill new wells on the tracts. Count two of the indictment alleges that on or about May 23, 1978, White transported $9,500 from Sapulpa, Oklahoma, to Texas, knowing that the money had been taken by fraud.

        Several times throughout the trial White's counsel moved for a judgment of acquittal. Each time the district court stated it would reserve decision until the jury returned its verdict. After the jury returned a verdict finding White guilty of both charges, the court reconsidered and granted the motion for acquittal. The government appeals.

        White contends that the Double Jeopardy Clause prohibits the government from appealing the district court's judgment of acquittal. But the Supreme Court has held that the Double Jeopardy Clause prohibits a government appeal only when there is danger of subjecting a defendant to a second trial for the same offense. United States v. Wilson, 420 U.S. 332, 342, 344-45, 95 S.Ct. 1013, 1021, 1022, 43 L.Ed.2d 232 (1975). When, as here, a trial judge rules in favor of a defendant after a jury has found the defendant guilty, no retrial is necessary, and double jeopardy does not attach. If the government wins on appeal, the jury verdict is simply reinstated.

        The government contends that the district court erred in granting White's motion for acquittal, arguing, first, that the court applied an incorrect standard too favorable to the defendant. The government argues that the case most relied on by the trial judge, Curley v. United States, 160 F.2d 229 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), states a different standard than Tenth Circuit cases. We do not agree. The trial judge cited a particular passage in Curley:

        "The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt."

        Id. at 232 (footnote omitted). Our Circuit has stated the rule as requiring the trial court, in considering a motion for acquittal, to view the evidence in the light most favorable to the government and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt. See, e.g., Maguire v. United States, 358 F.2d 442, 444 (10th Cir.), cert. denied, 385 U.S. 801, 87 S.Ct. 9, 17 L.Ed.2d 48 (1966); Cartwright v. United States, 335 F.2d 919, 921 (10th Cir. 1964). We agree with the trial judge that there is no essential difference between the Curley statement and the Tenth Circuit rule. Both recognize the right of the jury to determine credibility and to find the facts; both permit the court to enter a judgment of acquittal only if the evidence that defendant committed the crime is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt. We conclude that the district court stated the correct legal standard of review.

        Second, the government argues that when viewed in the light most favorable to the government, the evidence supports the jury's verdict. We agree. We are reluctant to reverse the conscientious trial judge's ruling, but we are convinced he applied the correct legal standard in an erroneous manner.

        Our standard of review of the district court's grant of the defendant's motion for acquittal is the same as the trial court applied when passing on the motion. We must view the evidence, both direct and

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circumstantial, in the light most favorable to the government, and without weighing conflicting evidence or considering the credibility of witnesses, determine whether that evidence, if believed, would establish each element of the crime. United States v. Downen, 496 F.2d 314, 318 (10th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); Goff v. United States, 446 F.2d 623, 624 (10th Cir. 1971). If the government has met that standard, we, as well as the trial court, must defer to the jury's verdict of guilty. This standard reflects a deep respect...

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