U.S. v. Hope

• Decision Date: 15 May 2007
• Docket Number: No. 06-60131.,06-60131.
• Citation: 487 F.3d 224
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Danny HOPE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.3d 224

UNITED STATES of America, Plaintiff-Appellant, v. Danny HOPE, Defendant-Appellee.

No. 06-60131.

United States Court of Appeals, Fifth Circuit.

May 15, 2007.

Richard Terrell Starrett, Asst. U.S. Atty., David Harrison Fulcher, Jackson, MS, William C. Brown (argued), U.S. Dept. of Justice, Crim. Div., Washington, DC, for U.S.

Julie Ann Epps (argued), Canton, MS, for Hope.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case presents the question of whether the district court erred in granting a judgment of acquittal under FED. R.CRIM. P. 29. Hope was charged and convicted by a jury of being a felon in possession of a firearm. To prove his status as a felon, the government introduced into evidence a certified Mississippi judgment stating that Hope had pled guilty to aggravated assault. Hope's trial counsel did not object. At a post-trial hearing, first seeking a new trial under FED. R.CRIM. P. 33 and subsequently relief under Rule 29, new counsel for Hope introduced a transcript of his Mississippi state court proceeding, which showed that, after dismissal of the charge of aggravated assault, Hope had actually pled guilty to the felony of strong-arm robbery instead of aggravated assault. The district court granted the motion, entered a final judgment of acquittal, and dismissed the Rule 33 motion as moot.¹ The district court reasoned that the evidence was insufficient to establish guilt because the government had proved the felony of aggravated assault, which was shown to be inaccurate by the transcript introduced in the post-trial hearing. Rule 29, however, tests only the sufficiency of the evidence introduced at trial to support the crime charged.² We therefore hold that, notwithstanding the transcript, the district court erred in entering a judgment of acquittal because the evidence introduced at trial clearly was sufficient to support guilt of the charges in the indictment and to support the jury's verdict. If Hope is entitled to relief, he must obtain it through some other procedural avenue. Therefore we reverse, reinstate the conviction and remand for sentencing.

I.

The sufficiency of the evidence in this federal conviction for being a felon in possession of a firearm requires us initially to examine the state court felony conviction. On February 17, 1999, Danny Hope was indicted in Hinds County, Mississippi circuit court on one count of aggravated assault and one count of armed robbery. During trial, the state court judge dismissed the aggravated assault charge and declared a mistrial on the armed robbery charge. According to a transcript of the proceedings, on August 24 Hope pled guilty, under the same case number, to "strong-arm robbery,"³ a lesser included offense which is also a felony in Mississippi. He was at that time advised that under federal law, his plea of guilty made it a crime for him to possess a firearm. For unknown reasons, however, the state court judge signed an official order, under the same style and case number, indicating that Hope had pled guilty to aggravated assault. The record shows no objection by Hope to this order. Hope was sentenced to five years of imprisonment, three and one-half years of which were suspended and he was released by the judge on the basis of time already served.

Sometime after his release from jail, Hope embarked upon a crime spree that involved the armed robbery of a convenience store near Jackson on December 15, 2003. The next day, Hope and his accomplice from that robbery were stopped by police for a traffic violation. When the policeman determined that Hope's license was suspended and attempted to detain him, Hope fled. Following a high-speed automobile chase, Hope crashed the car and was arrested. A Walther brand pistol was found underneath a seat in the car.

II.

On February 8, 2005, Hope was indicted by a federal grand jury on two counts of possessing a firearm after having been convicted of a felony, thus violating 18 U.S.C. § 922(g)(1).⁴ One count covered December 15, the day of the convenience store robbery, and the other December 16, the day Hope was apprehended. Each count alleged that Hope had been convicted "on or about August 24, 2000, in the Circuit Court of Hinds County, Mississippi, cause number 99-0-911, of the crime of aggravated assault." This allegation was based on the specific provisions of the certified copy of the Hinds County Circuit Court judgment order.

At trial, the government was required to prove (1) that Hope possessed a firearm in interstate commerce and (2) that he had a prior felony conviction. It introduced the certified Mississippi judgment to satisfy the second element and Hope's attorney did not object. Hope's trial counsel apparently said little or nothing about this element of the crime and instead focused his defense on the possession element. Although we do not find it in the trial transcript, Hope himself apparently commented sometime during the trial that he had not pled guilty to the crime of aggravated assault; still, he never asserted that he had not pled guilty to a felony in the particular proceeding reflected in the Hinds County certified judgment. There is nothing in the record that shows that his attorney objected or pursued the matter. The district court noted that it had been aware of Hope's comment but "[b]ecause the state court order said otherwise, his contention was not accepted by the Court." In late July 2005, the jury found Hope guilty on both counts. A post-verdict Rule 29/33 motion for acquittal or new trial was denied on August 29.

After trial, new counsel was appointed to represent Hope. Having reviewed the transcript of the Mississippi court proceeding, Hope's counsel determined that the certified judgment on which the indictment and conviction relied was contrary to a transcript of state court proceedings of the guilty plea. The transcript indicated that Hope had entered a guilty plea to strong-arm robbery but, as noted, the certified judgment arising out of the same proceedings stated that Hope had been convicted of aggravated assault. No one disputes that both the transcript and the certified judgment introduced at trial reflect the same plea in the same case and that both crimes are felonies. Thus, on October 28, 2005, Hope filed a second motion for a new trial under Rule 33, based on the alleged discovery of new evidence, i.e., the transcript.

A hearing was held before the district court on December 14, at which the state court transcript was introduced for the first time.⁵ The district court interpreted the arguments presented as both a written Rule 33 motion for new trial and a renewed, ore tenus Rule 29 motion for acquittal and, on December 16, granted the latter in a written order.⁶ The court reasoned that although it was not the government's fault that the underlying state court judgment introduced contained an error, Hope had been convicted on two counts "which, in 20-20 hindsight, necessarily could not have been proven at trial" because they included the words "aggravated assault." Therefore the court felt constrained to enter a judgment of acquittal. The government timely appealed.

III.

A.

"A motion for judgment of acquittal challenges the sufficiency of the evidence to convict." United States v. Lucio, 428 F.3d 519, 522 (5th Cir.2005). Indeed, as the text of the rule, all of our case law and the relevant practice guide make clear, "[t]he only proper basis for a motion for judgment of acquittal is a challenge to the sufficiency of the government's evidence." 9A Fed. Proc., L.Ed. § 22:1433 (2006); see FED. R.CRIM. P. 29(a); United States v. Therm-All, Inc., 373 F.3d 625, 630 (5th Cir.2004) ("A motion for acquittal challenges the sufficiency of the evidence.").

In reviewing a Rule 29 motion, we utilize the same standard as the district court. United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.1992). More specifically, when the district court grants such a motion under Rule 29, we "give no deference to the district court's ruling." United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001). Review is conducted de novo, which means that we "must assess whether a reasonable jury could have properly concluded, weighing the evidence in a light most deferential...