U.S. v. Davis, 92-5519

• Decision Date: 06 May 1993
• Docket Number: No. 92-5519,92-5519
• Citation: 992 F.2d 635
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Darryl Lee DAVIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 635

992 F.2d 635

UNITED STATES of America, Plaintiff-Appellant, v. Darryl Lee DAVIS, Defendant-Appellee.

No. 92-5519.

United States Court of Appeals Sixth Circuit.

Argued Jan. 26, 1993.

Decided May 6, 1993.

Daniel A. Clancy, U.S. Atty., Office of the U.S. Atty., Memphis, TN, R. Leigh Grinalds, Asst. U.S. Atty. (argued and briefed), Jackson, TN, for U.S.

Clayton F. Mayo (argued and briefed), Ford, Mosier & Mayo, Jackson, TN, for Davis.

Before: BOGGS and SILER, Circuit Judges; and JOINER, Senior District Judge. ^*

JOINER, Senior District Judge.

Defendant Darryl Lee Davis was found guilty following jury trial on all counts of a three-count indictment charging possession of a firearm after having previously been convicted of a felony, 18 U.S.C. § 922(g) (count 1); retaliation against a government witness, 18 U.S.C. § 1513(a)(1) (count 2); and use of a firearm during a crime of violence, 18 U.S.C. § 924(c) (count 3). The offense charged in count 2 was the predicate for the offense charged in count 3. More than two months after the jury was discharged, the district court sua sponte entered a judgment of acquittal on counts 2 and 3. The government appeals, contending that the court lacked the power to enter the judgment of acquittal, and that even if the court had the power, it was erroneously exercised in this case.

For the reasons that follow, we conclude that the district court lacked the power under Fed.R.Crim.P. 29 to enter a judgment of acquittal on its own motion more than seven days after the jury had been discharged. We therefore reverse the judgment of acquittal on counts 2 and 3, direct that the jury verdict of guilty on these counts be reinstated, and direct that judgment be entered on that verdict.

I.

Darryl Davis's convictions stemmed from an attack on his estranged wife, Mona Davis. The Davises' relationship dated back to 1985. They had a daughter in August 1987, and married in 1989. Mona Davis filed for divorce in November 1990, but a judgment of divorce had not been entered as of the date of the offense in this case. In the fall of 1988, Darryl Davis's brother Kenneth Davis was prosecuted for a crime in district court, and Mona Davis testified against him.

On September 18, 1991, Darryl Davis armed himself with a shotgun, broke into Mona Davis's home and physically and sexually assaulted her. The Davises' four-year old daughter was present throughout the attack, and observed all that occurred. Darryl Davis forced Mona Davis to perform sexual acts on both him and Mona Davis's boyfriend. Mona Davis ultimately escaped from the house and phoned the police.

After being apprehended, Darryl Davis gave a lengthy statement to the police, admitting the assault and stating, "[Mona] was the main witness on my brother being in the pen right now." Darryl Davis testified at trial that the arresting officer knew about Kenneth Davis's conviction and had asked Darryl Davis in the car on the way to the station how Kenneth was doing. "And that's why it entered my mind. Plus, I mean, you know, it's--it's a small part of what's happened." ¹ ]

Davis moved for a judgment of acquittal at the close of the government's case and again at the close of the evidence. The district court denied both motions without reserving its ruling until after the jury returned its verdict. At the time of sentencing, the court stated that when it denied the motion, it "assumed that the defendant would renew his motion for judgment of acquittal after the trial was over; and, to my surprise, there was no motion filed." Defense counsel explained his failure to renew the motion, stating that his decision was premised in part on the pendency of state charges based on the assault. "And what Mr. Davis wants, and has informed me on numerous occasions, is that he wants to do his time in a federal pen, if at all possible." Nonetheless, defense counsel argued that a judgment of acquittal should be entered on counts 2 and 3, and that the court had the authority to enter such a judgment. Sentencing was adjourned to allow the court to consider a judgment of acquittal.

On March 19, 1992, the district court entered a judgment of acquittal on counts 2 and 3. The court first explained that it had intended to reserve its ruling on Davis's motion for judgment of acquittal. The court concluded that it had the inherent authority to consider a judgment of acquittal after the discharge of the jury in the absence of a motion by the defendant if necessary to correct manifest injustice. The court stated that it had no question about the validity of Davis's conviction on count 1 because of the overwhelming evidence that Davis possessed a firearm after he had been convicted of a felony. Counts 2 and 3, however, posed a more difficult issue.

The court concluded that while Davis's acts were serious crimes, they were state crimes, not federal offenses. The court emphasized that it was very interested in protecting witnesses who had given testimony before it. "[A]nd if I thought for a moment that Mr. Davis had retaliated against Ms. Davis because she had testified in this court, I would have no reluctance in punishing him accordingly." However, even viewing the evidence in a light most favorable to the government, the court concluded that Davis's attack was not motivated by Mona Davis's testimony against Kenneth Davis:

There are two reasons why I think he did not do it in retaliation for her testimony. One reason is that after the testimony at the trial of Mr. Davis' brother, Mr. and Ms. Davis got married. They lived together, for a long time. And it seems strange to me that if he is going to retaliate against her for testifying against his brother that he wouldn't have married her. The second thing is that these horrendous acts were also committed upon [Mona Davis's boyfriend], and [the boyfriend] had never testified against Mr. Davis' brother. And it seems to me that if this was a retaliation that he would have had no ax to grind with [the boyfriend], and the fact that he and [the boyfriend] got into it is an indication to me that this clearly was a domestic disturbance and it was not a retaliation for a federal crime.

II.

Motions for judgment of acquittal are governed by Federal Rule of Criminal Procedure 29. ² By its express terms, Rule 29 contemplates that the trial court may enter a judgment of acquittal on its own motion only prior to the submission of the case to the jury. Fed.R.Crim.P. 29(a). The court may reserve its ruling on a motion made at the close of the evidence, and decide the motion after the jury returns a verdict or is discharged without having returned a verdict. Fed.R.Crim.P. 29(b). Subdivision (c) provides that a defendant may make a motion for judgment of acquittal after the jury returns a guilty verdict or is discharged without having returned a verdict, but requires that such a motion be filed within seven days after the jury is discharged, or within such further time as the court may fix within that seven-day period. Federal Rule of Criminal Procedure 45(b) states that the "court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the extent and under the conditions stated in them."

In this case, Davis made motions under Rule 29(a) for judgment of acquittal prior to the submission of the case to the jury. The court did not reserve its ruling on the motion made at the close of the evidence as permitted by Rule 29(b). Davis did not make a post-verdict motion for judgment of acquittal at any time. Rather, the court, on its own motion, entered a judgment of acquittal more than two months after the jury was discharged. The question presented by this case is whether the court had the authority to so act. We conclude that it did not.

In reaching this conclusion, we rely on United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947); and United States v. Robinson, 361 U.S.220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); cases which required the Supreme Court to resolve whether district courts had the power to grant certain relief beyond that provided for in the Federal Rules of Criminal Procedure. In both cases, the Court strictly applied the provisions of the applicable rules and concluded that the district court did not have the inherent authority to act as it had.

The issue in Smith was whether the district court had the inherent power to order a new trial after the defendant's conviction had been affirmed and the mandate had been issued by the court of appeals. The defendant had filed a timely motion for new trial prior to appeal, and the district court had denied that motion prior to appeal. However, after the appeal, the district court reconsidered its earlier denial of the motion, vacated the judgment, and ordered that a new trial be held. The Supreme Court held that the government was entitled to a writ of mandamus vacating that order.

The Court reviewed the provisions of Fed.R.Crim.P. 33 governing the grant of a new trial, noting that the rule's terms did not permit the court to order a new trial on its own motion. The only time limitation in the rule related to the time within which a defendant could make a motion for a new trial.

It is now said that because the literal language of the Rule places the five-day limit only on the making of the motion, it does not limit the power of the court later to grant the motion, and the power survives affirmance of the judgment by appellate courts. [It is further argued] that the rule prevents a defendant from asking the court to grant a new trial after the times specified, but that it permits the judge to order retrial without request and at any time.

Smith, 331 U.S. at 473, 67 S.Ct. at 1332. The Court identified several reasons why this construction of the rule, which would indefinitely extend the power of the court to grant a new trial, was unacceptable.

First, permitting the trial court to grant a new trial after appeal would raise...