U.S. v. Robertson

• Decision Date: 10 April 1997
• Docket Number: No. 95-60259,95-60259
• Citation: 110 F.3d 1113
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gregory A. ROBERTSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1113

110 F.3d 1113

UNITED STATES of America, Plaintiff-Appellant, v. Gregory A. ROBERTSON, Defendant-Appellee.

No. 95-60259.

United States Court of Appeals,Fifth Circuit.

April 10, 1997.

Richard Terrell Starrett, Victoria May, Alfred B. Jernigan, Jr., Asst. U.S. Attys., Brad Pigott, U.S. Atty., Jackson, MS, for Plaintiff-Appellant.

Hugh Wilton Tedder, Jr., Office of the City Attorney for the City of Jackson, Jackson, MS, for Defendant-Appellee.

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

Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Greg Robertson ("Robertson") was granted a motion for new trial by the district court after a jury found him guilty of conspiracy to possess cocaine with intent to distribute. The Government appeals, asserting that the evidence was sufficient to sustain Robertson's conviction. Finding no abuse of discretion by the district court, we affirm the grant of a new trial.

BACKGROUND

The events giving rise to this appeal began to unfold when John Chancey ("Chancey"), a paid FBI informant from Eagle Pass, Texas, secured FBI approval to pose as an individual who could supply cocaine to Roy Bradfield ("Bradfield"), a truck driver from Yazoo City, Mississippi. Chancey and Bradfield agreed that Chancey would sell Bradfield four kilograms of cocaine for $50,000. On June 22, 1992, at a Shoney's restaurant next to the Shoney's Inn where Chancey was staying, the parties met. Robertson was present at a table with Bradfield when Chancey arrived. Later, Chancey, Bradfield and defendant Lee Andrew Williams ("Williams"), discussed the transaction--taped by Chancey--in the restroom of the restaurant. Bradfield referred to Robertson in a way that, at least as interpreted by the government, showed that Bradfield wanted Robertson to accompany him to pick up a part of the purchase money from another location. ¹ It is not clear where Robertson was or went after Bradfield returned from the restroom or whether Robertson actually accompanied Bradfield anywhere.

Later in the day, Robertson was observed twice by FBI agents at Exit 108 on I-55 Back at Exit 108, Robertson was detained with Williams and his nephew, Herbert Watts ("Watts"). Robertson was told of Bradfield's arrest, and was described by FBI testimony as "visibly shaken" and "very nervous." Significantly, no drugs, weapons or large amounts of cash were found in any of the vehicles or on the person of the three detainees, so all three were released without being arrested.

north of Jackson engaging in conversations, and in what the government construes as "counter-surveillance activity," ² with members of the conspiracy. Meanwhile, Chancey and Bradfield were back at the Shoney's Inn consummating the transaction. After Chancey was shown the purchase money by Bradfield, the authorities moved in and arrested Bradfield, along with Shawn Roberts ("Roberts"), and confiscated a 9mm machine pistol and $50,000.

Several months later, a grand jury charged Robertson, along with four other individuals, ³ with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. At trial, Robertson presented a defense of innocent presence. Accordingly, the court instructed the jury that the defendant could not be convicted for merely being present at the scene of other individuals' criminal activities. The jury nevertheless convicted Robertson on the conspiracy charge.

During trial, the district court denied Robertson's Motions for Acquittal at the close of the government's case-in-chief and again at the conclusion of the evidence. After trial, the district court denied Robertson's timely Motion for New Trial and a motion to reconsider that denial. Finally, at a sentencing hearing which had been continued because of Robertson's medical problems, the court once again brought up Robertson's Motion for New Trial and asked counsel for more information and arguments concerning the motion. ⁴ After receiving additional information and hearing lengthy arguments from both the defendant and the government, the court granted Robertson's Motion for New Trial. ⁵

Immediately upon the grant of the motion and before a new trial date could be set, the government moved to stay any further proceedings so that it could appeal the court's grant of the motion. The district court granted the stay and the government filed a timely notice of appeal.

STANDARD OF REVIEW

The standard of review we apply in this case is predicated on our de novo determination of what type of ruling was actually rendered by the district court. If we determine that the court's ruling was in fact the granting of a motion for new trial, we review for an abuse of discretion. United States v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir.1993). If we review the decision as the granting of a judgment of acquittal, we look to the sufficiency of the evidence to determine if a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. United States v. Raborn, 872 F.2d 589, 594 (5th Cir.1989) (quoting United States v. Trevino, 720 F.2d 395, 398 (5th Cir.1983)).

DISCUSSION

In this appeal, we are faced with two questions: (1) whether the trial court granted a motion for new trial or actually granted a judgment of acquittal, and (2) whether, under either circumstance, the trial court's ruling was supported by the record.

A. Motion for New Trial versus Judgment of Acquittal.

According to the Federal Rules of Criminal Procedure, a court on motion of a defendant may grant a new trial if required in the interest of justice. Fed.R.Crim.P. 33. The trial judge may weigh the evidence and may assess the credibility of the witnesses during its consideration of the motion for new trial. Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2215-16, 72 L.Ed.2d 652 (1982). No such discretion is allowed when the court decides a motion for a judgment of acquittal. ⁶ Indeed, the court must view the evidence in a light most favorable to the verdict. In effect, the court assumes the truth of the evidence offered by the prosecution. Consequently, a review of a motion for new trial is reviewed under a more lenient standard than a motion for judgment of acquittal. ⁷

Robertson contends that a new trial was granted based on insufficient evidence therefore double jeopardy attaches and this court should order a judgment of acquittal. The government, on the other hand, notes that while the trial court's oral ruling appears to be based on insufficiency of the evidence, the court set the matter for new trial and the written order granting new trial did not mention insufficiency of the evidence. The government agrees with Robertson that the granting of a new trial motion based on insufficiency of the evidence would trigger the Double Jeopardy Clause and bar retrial. Hudson v. Louisiana, 450 U.S. 40, 40-45, 101 S.Ct. 970, 970-73, 67 L.Ed.2d 30 (1981).

The transcript of the proceedings reflects that the district court knew exactly what type of motion was before it. The court made more than ten references to the pending motion as a "motion for new trial" and not once did it refer to the motion as a judgment of acquittal. The government even asked the court for confirmation of the motion it was considering. The court responded affirmatively that it was the motion for new trial which was being considered. ⁸

Nevertheless, our review is complicated by the fact that the district court, in its discussion of Robertson's Motion for New Trial, incorporated language indicative of a sufficiency of the evidence analysis, i.e., a judgment of acquittal. The court erroneously stated that the applicable law in ruling on a motion for new trial required it to view the evidence in the light most favorable to the verdict, affording all reasonable inferences to the verdict, to determine whether a rational juror could have found that the evidence established guilt beyond a reasonable doubt. As we have previously stated, viewing the evidence in the light most favorable to the verdict is tantamount to ruling on a judgment of acquittal.

A close review of the transcript shows that the district court did not view the evidence in the light most favorable to the

                verdict.  We are convinced that the court weighed the evidence and assessed the credibility of the witnesses in reaching its conclusion that the jury verdict was contrary to the weight of the evidence. 9  The court simply considered Robertson's guilty verdict in light of all of the evidence adduced at trial and concluded that the government did not satisfy the standard of proof beyond a reasonable doubt. 10  Thus, after carefully reviewing the record, we are convinced that the district court did what it said it would do--rule on a motion for new trial
                

B. The District Court's Exercise of Discretion.

We reiterate that the decision to grant or deny a motion for new trial based on the weight of the evidence is within the sound discretion of the trial court. An appellate court may reverse only if it finds the decision to be a "clear abuse of discretion." United States v. Dula, 989 F.2d 772, 778 (5th Cir.1993); United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir.1985).

While the district court's discretion is quite broad, there are limits to it. The court may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable. Id. at 1312-13. The evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand. Id. (citations omitted).

To establish a violation of 21 U.S.C. § 846, the government must prove beyond a reasonable doubt (1) the existence of an agreement between two or more persons The district court noted that its reason for reopening the previously denied motion for new trial was its realization that the evidence...