Myers v. United States
| Decision Date | 14 October 1964 |
| Docket Number | No. 17613.,17613. |
| Citation | 337 F.2d 22 |
| Parties | Gary Jose MYERS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Hugh J. White, St. Louis, Mo., made argument for appellant and filed brief.
John A. Newton, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and filed brief with Richard D. Fitz-Gibbon, Jr., U. S. Atty., St. Louis, Mo.
Before MATTHES and RIDGE, Circuit Judges, and HANSON, District Judge.
A four-count information charged Gary Jose Myers (appellant) with the commission of four offenses. Counts 1 and 2 alleged that appellant had unlawfully transferred marihuana on June 1, 1963, and June 2, 1963, respectively, in violation of 26 U.S.C. § 4742(a); counts 3 and 4 alleged that appellant had unlawfully sold heroin on June 5, 1963, and June 15, 1963, in violation of 26 U.S.C. § 4705(a). A jury found appellant guilty of all four counts, and thereupon the court imposed concurrent five year sentences on counts 1 and 2 and concurrent five year sentences on counts 3 and 4 for a total of ten years. It is from this judgment of conviction that the appeal was taken.
Appellant's sole contention is that the evidence was insufficient to make a submissible case under any of the counts of the information, and that the court erred in failing to grant his motion for judgment of acquittal filed at the close of the "Government's case." After this motion was denied, appellant testified, and offered other evidence in support of his defense. However, appellant's employed counsel failed to renew his motion for judgment of acquittal at the close of the whole case, and as a general rule such failure constitutes a waiver of the motion for judgment of acquittal, and the question of the sufficiency of the evidence is not open for review on appeal. Edwards v. United States, 8 Cir., 333 F.2d 588 (1964); Gendron v. United States, 8 Cir., 295 F.2d 897, 900 (1961). Being mindful, however, that this rule is subject to the exception that plain error affecting substantial justice may be noticed on appeal, although not brought to the attention of the trial court, we have chosen to and have responsibly reviewed and considered the entire record.
From Government's evidence, the jury could find that on June 1 and again on June 2, 1963, the appellant, acting for himself, unlawfully transferred marihuana to Edwin Stamm, a Government Narcotic Agent, and on each occasion received the sum of $24.00 from Stamm;...
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