702 F.2d 1159 (D.C. Cir. 1983), 81-1810, United States v. Singleton

Docket Nº:81-1810, 81-1827.
Citation:702 F.2d 1159
Party Name:UNITED STATES of America, Appellant, v. Macio SINGLETON.
Case Date:March 15, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1159

702 F.2d 1159 (D.C. Cir. 1983)

UNITED STATES of America, Appellant,

v.

Macio SINGLETON.

Nos. 81-1810, 81-1827.

United States Court of Appeals, District of Columbia Circuit

March 15, 1983

Argued Jan. 8, 1982.

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Appeals from the United States District Court for the District of Columbia (D.C. Criminal Nos. 75-0721 & 81-0085).

J. Alvin Stout, III, Asst. U.S. Atty., Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., Washington, D.C., at the time the brief was filed, and John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellant.

Ed Wilhite, Washington, D.C. (appointed by this court), for appellee.

Before WRIGHT and TAMM, Circuit Judges, and HOWARD T. MARKEY, [*] Chief Judge, United States Court of Appeals for the Federal Circuit.

Opinion for the court filed by Circuit Judge TAMM.

Opinion dissenting in No. 81-1810 and concurring in No. 81-1827 filed by Circuit Judge J. SKELLY WRIGHT.

TAMM, Circuit Judge:

In these consolidated appeals we are called upon first to review the evidence presented in an armed robbery trial to determine whether the district court erred in granting a judgment of acquittal after a jury found appellee guilty. 1 Second, we must decide whether an indictment charging appellee with failure to appear for arraignment was properly dismissed by the

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district court. In the first case, No. 81-1810, because there was sufficient evidence upon which the jury could find appellee guilty beyond a reasonable doubt, we vacate the judgment of acquittal and remand with directions to reinstate the jury verdicts. In the second case, No. 81-1827, we hold that the indictment was properly dismissed as time-barred. The indictment was filed outside the five-year statutory period, and the Government failed to prove that the statute of limitations was tolled by appellee's fugitive status.

I. BACKGROUND

On the evening of September 8, 1975, a Gino's fast food restaurant on the corner of Florida Avenue and North Capitol Street in Northeast Washington, D.C., was robbed by two men, one of whom brandished a sawed-off shotgun taken from a zippered bag. Moments after the robbery, appellee Macio Singleton was stopped approximately twenty-five yards from the door of the restaurant. He was taken to Gino's for identification, and three of four counterwomen on duty positively identified him as the man who had wielded the gun during the robbery.

In October 1975, Singleton was indicted on four counts of armed robbery, 2 one count of possession of an unregistered firearm, 3 and one count of possession of a firearm not identified by a serial number. 4 Singleton did not appear for arraignment and was not rearrested until February 1981. In April 1981, a separate indictment was filed charging him with one count of failure to appear, a Bail Reform Act violation. 5

The trial judge declined to consolidate the Bail Reform Act and the armed robbery cases, and appellee was tried on the latter charges in late April. After the jury returned verdicts of guilty on all counts, the district court granted Singleton's motion for judgment of acquittal on the ground that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. 6 At the same time, the district court granted appellee's motion to dismiss the Bail Reform Act charge as barred by the statute of limitations. The Government noted appeals from both rulings, and the appeals were consolidated before this court.

On appeal, the Government argues that the district court misapplied the standard for determining whether to grant a judgment of acquittal and submits that the evidence adduced at trial was more than sufficient to support the jury's verdicts. The Government also contends that the district court erred in dismissing the Bail Reform Act charge as untimely. Singleton was a fugitive from justice, it is argued, and therefore not entitled to the benefit of the statute of limitations.

II. NO. 81-1810

A.

At the outset, we must consider whether we have jurisdiction to hear this appeal. Although the Supreme Court has never addressed the precise jurisdictional issue presented here, we believe that its decisions construing the Criminal Appeals Act of 1970, 18 U.S.C. Sec. 3731 (1976), 7 and the Double Jeopardy Clause of the Fifth Amendment make it clear that post-verdict judgments of acquittal based on insufficiency of the evidence may be appealed. At least eight other circuits have addressed this issue, and all have reached the same conclusion. 8

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The Supreme Court has held that in enacting section 3731, "Congress intended to remove all statutory barriers to Government appeals, and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court stated that "the Double Jeopardy Clause does not bar a Government appeal from a ruling in favor of the defendant after a guilty verdict has been entered by the trier of fact." Id. at 130, 101 S.Ct. at 434. 9 The Double Jeopardy Clause prohibits Government appeals only where there is a danger of subjecting the defendant to a second trial for the same offense. See United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1010, 43 L.Ed.2d 250 (1975); 10 Wilson, 420 U.S. at 352-53, 95 S.Ct. at 1026. Reversal of a post-verdict judgment of acquittal based on insufficiency of evidence would result in reinstatement of the jury verdict without placing defendant/appellee in jeopardy again. Thus, we hold that the Government may appeal, pursuant to section 3731, a post-verdict judgment of acquittal based on insufficiency of the evidence.

Having decided that the Government's appeal is properly before this court, we must determine the applicable standard of review. Until now, our review of district court rulings on sufficiency of evidence has been in the context of appeals from the denial of motions for judgments of acquittal. In such cases, the standard for appellate review is the same as that employed by the trial judge in passing on the motion. See Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 2149-2150, 57 L.Ed.2d

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1 (1978); United States v. Foster, 584 F.2d 997, 1000 (D.C.Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 620, 58 L.Ed.2d 682 (1978). Thus, the proper inquiry in reviewing denials of motions for judgments of acquittal is whether, viewing the evidence in the light most favorable to the Government, according the Government the benefit of all legitimate inferences, and recognizing that it is the jury's province to determine credibility and to weigh the evidence, a reasonable jury must necessarily entertain a reasonable doubt on the evidence presented. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Curley v. United States, 160 F.2d 229, 232 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). "If the evidence reasonably permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make." Curley, 160 F.2d at 237. 11 We hold that this standard of review is equally applicable on appeal from the grant of a motion for judgment of acquittal. 12 All other circuits that have had occasion to review the grant of a post-verdict judgment of acquittal have also applied the traditional standard for reviewing the sufficiency of evidence. 13

In United States v. Steed, 646 F.2d 136 (4th Cir.1981), a panel in the Fourth Circuit held that on the Government's appeal from a post-verdict judgment of acquittal, the court of appeals must defer to the district court's assessment of the evidence. Id. at 142. This decision was resoundingly rejected by the Fourth Circuit sitting en banc. United States v. Steed, 674 F.2d 284 (4th Cir.1982) (en banc). Judge Butzner, writing for the court, stated that "[w]hether the assessment of the evidence is at the behest of the government or the defendant, the function of the reviewing court is unchanged and consequently the same standard of review is appropriate." Id. at 286. We agree. We have a responsibility to ensure that the Government's right to appeal is not an empty one; we must conduct our review of Government appeals with the same care afforded appeals by defendants.

B.

We have reviewed with considerable care the fifteen-volume transcript in this case, and we are convinced that, viewing the evidence in the light most favorable to the Government, there is sufficient evidence in the record to support the jury's verdicts of guilty. The evidence that supports the jury's verdicts will be summarized briefly.

The trial testimony shows that on the evening of September 8, 1975, Officer John Betts 14 and his partner, Officer Joyce Willis Hardy, were in a marked cruiser stopped in traffic on Florida Avenue directly in front of Gino's. Betts saw two black men exiting the restaurant and heading toward the officers. When they spotted the squad car, however, the men began to run the other way. Betts, an experienced officer familiar with the high crime nature of the neighborhood, suspected that Gino's had been robbed and instructed Officer Hardy to give chase

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by foot. As Officer Hardy chased the two suspects through Gino's parking lot, one of the men turned left toward North Capitol Street, and the second continued straight ahead and entered an alley. Hardy pursued the second man but lost sight of him in the alley.

Betts drove around the corner onto North Capitol Street in an effort to cut the suspects off. No more than ten seconds after he initially observed the...

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