U.S. v. Garcia, s. 88-5056

• Decision Date: 21 February 1989
• Docket Number: Nos. 88-5056,88-5070,s. 88-5056
• Citation: 868 F.2d 114
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Frank GARCIA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Frank GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 114

868 F.2d 114

UNITED STATES of America, Plaintiff-Appellant, v. Frank GARCIA, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Frank GARCIA, Defendant-Appellant.

Nos. 88-5056, 88-5070.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 4, 1988.

Decided Feb. 21, 1989.

William G. Otis, Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., on brief), for plaintiff-appellant.

David Thomas Williams (William B. Cummings, on brief), for defendant-appellee.

Before WINTER, Chief Judge, and WIDENER and SPROUSE, Circuit Judges.

WIDENER, Circuit Judge:

Frank Garcia was convicted, following a jury trial, of using a deadly or dangerous weapon in resisting a federal officer, in violation of 18 U.S.C. Secs. 111 and 1114; transporting a stolen vehicle in interstate commerce, in violation of 18 U.S.C. Secs. 2312 and 2; and taking or using a vehicle without the consent of its owner, in violation of 18 U.S.C. Sec. 13 (assimilating 1950 Code of Virginia 18.2-102). ¹

After the verdict, Garcia moved for a judgment of acquittal or for a new trial. He argued that there was insufficient evidence to support the jury's determination that he used or intended to use a deadly or dangerous weapon. The court agreed and set aside the verdict, but then ordered Garcia's conviction on the lesser charge of resisting a federal officer without the use of a deadly or dangerous weapon. ² Garcia was sentenced to 10 months' imprisonment on each of the three charges, with the sentences to run consecutively.

The government appeals, contending that the district court erred in setting aside the jury's verdict on the use of a dangerous weapon in resisting an officer. Garcia cross-appeals, contending that the court erred in sentencing and in denying his motion for acquittal or for a new trial on the charge of unauthorized taking or use of a motor vehicle.

We agree with the government that the district court erred in setting aside the jury's verdict on the charge of resisting a federal officer with a deadly or dangerous weapon. The same standard applies in reviewing the government's appeal of a judgment of acquittal entered after a jury verdict of guilty as would apply in a defendant's appeal of a jury conviction. United States v. Steed, 674 F.2d 284, 286 (4th Cir.1982) (en banc). A jury's verdict must be left undisturbed "if there is substantial evidence, taking the view most favorable to the Government, to support it." Steed, 674 F.2d at 286, quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). We believe there was ample evidence to sustain the jury's verdict in this case.

The evidence at trial showed that on December 31, 1987 Garcia took someone else's pizza delivery vehicle from the Tyson's Corner Marriott in Fairfax County, Virginia. Sergeant Gregory Higgins of the U.S. Park Police testified that at about 10:30 that night he and another officer riding with him noticed Garcia driving the car southbound on the George Washington Memorial Parkway ³ near Rosslyn, Virginia. Higgins said that he decided to pull Garcia over because he suspected that he was intoxicated after he saw the car slide on the grass that borders the parkway and also interfere with other cars which were changing lanes. When Higgins activated the police cruiser's overhead lights, flashing highbeams and siren, Garcia increased his speed from 25 miles per hour to roughly 40 or 45. Garcia then made a sharp turn onto the exit for the Key Bridge without signaling the turn.

On the exit ramp, Higgins pulled the police cruiser alongside the car. As he did so, Garcia made a sudden movement toward the side of Higgins' cruiser. Higgins had to hit his brakes and swerve to avoid being struck. Again, Higgins pulled the cruiser alongside the car. And again, Garcia jerked the car hard toward the cruiser.

Higgins testified that Garcia then looked directly at Higgins, making eye contact. Garcia then jerked the car in the direction of the cruiser for a third time. To avoid being hit, the officers had to swerve one and one-half lanes to the left, into the lanes carrying oncoming traffic. After which, Garcia accelerated across the Key Bridge at about 60 miles per hour. Garcia later was arrested after abandoning the car in the District of Columbia.

Garcia contends that the movements of the car amounted to little more than weaving and were not sufficient evidence to sustain the jury verdict of resisting a federal officer with a deadly or dangerous weapon. We disagree. Even if the evidence "can support varying reasonable interpretations, the jury is entitled to choose among them," United States v. Arruda, 715 F.2d 671, 681 (1st Cir.1983). While the theory...