U.S. v. Rupert

• Decision Date: 21 February 1995
• Docket Number: 93-2380,93-2470 and 94-1105,Nos. 93-2373,s. 93-2373
• Citation: 48 F.3d 190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Delores RUPERT (93-2373); Michael Hall (93-2380); and Amelia Ramon (94-1105), Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Charles CARLISLE (93-2470), Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 190

48 F.3d 190

UNITED STATES of America, Plaintiff-Appellee, v. Delores RUPERT (93-2373); Michael Hall (93-2380); and Amelia Ramon (94-1105), Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellant, v. Charles CARLISLE (93-2470), Defendant-Appellee.

Nos. 93-2373, 93-2380,

93-2470 and 94-1105.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1994.

Decided Feb. 21, 1995.

James R. Redford (argued and briefed), Office of the U.S. Atty., Grand Rapids, MI, for plaintiff-appellee.

Victor L. Bland (argued and briefed), Kalamazoo, MI, for Delores Marie Rupert.

Lawrence J. Phelan (argued and briefed), Grand Rapids, MI, for Michael Hall.

Scott Graham, Gemrich, Moser, Bowser, Fette & Lohrmann, Kalamazoo, MI, Joel R. Myler (argued), James A. Christopherson, (briefed), Blakeslee, Chambers, Peterson, Dalrymple & Christopherson, Traverse City, MI, for Charles Carlisle.

Kenneth M. Mogill (argued and briefed), M. Jon Posner, Mogill, Posner & Cohen, Detroit, MI, for Amelia Ramon.

Before: BROWN, RYAN, and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

Rupert, Ramon, and Hall appeal their convictions for conspiracy to possess marijuana with the intent to distribute, in violation of 21 U.S.C. Secs. 841 and 846. The government appeals the court's granting of Carlisle's motion for acquittal. We affirm the convictions of Rupert, Ramon, and Hall, and reverse Carlisle's acquittal. Our discussion of the issues presented by Rupert, Ramon, and Hall is contained in an unpublished appendix to this decision.

I

The government argues on appeal that the district court lacked jurisdiction to acquit Carlisle.

On July 13, the jury convicted Carlisle, along with the other defendants before us, of one count of conspiracy to possess marijuana with intent to distribute. On July 23, Carlisle filed a motion for judgment of acquittal. The seven-day period in which Carlisle could move for acquittal under Fed.R.Crim.P. 29 does not include weekends, so it lapsed on July 22. The district court denied Carlisle's motion on August 24, 1994.

When Carlisle appeared for sentencing on October 14, however, the court on its own motion reversed its earlier decision and granted Carlisle's motion for acquittal. ¹ The court wrote: "I do not believe that a rational trier of fact could find beyond a reasonable doubt, as the jury was instructed in Instruction 10B it must, that Carlisle knowingly and voluntarily joined the conspiracy." The district court held that the evidence was insufficient to convict under Jackson v. Virginia. Following the Sixth Circuit's decision in United States v. Burgess, 931 F.2d 893 (6th Cir.1991) (Table), 1991 WL 66056, and United States v. Pearce, 912 F.2d 159 (6th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 978, 112 L.Ed.2d 1063 (1991), the district court found that the government failed to Under Rule 29, it is beyond the court's jurisdiction to grant an untimely motion for acquittal. Furthermore, it is beyond a court's jurisdiction to enter a judgment of acquittal sua sponte after the case has been submitted to the jury. Fed.R.Crim.P. 29; United States v. Davis, 992 F.2d 635, 640 (6th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 265, 126 L.Ed.2d 217 (1993); see also United States v. Dennard, 7 F.3d 235 (6th Cir.1993)(Table), 1993 WL 351742.

prove that Carlisle entered into an agreement.

In Davis, as here, the district court initially denied defendant's motion for acquittal. At sentencing, however, the court, as here, reversed its previous decision, asserting that it had the inherent authority to consider a judgment of acquittal after the discharge of the jury "if necessary to correct manifest injustice." Id. at 637. On appeal, we ruled that a district court does not have such inherent authority. Id. at 638. We noted that there is no provision in Rule 29 that allows a court to act on its own initiative after the case is submitted to the jury. Id. at 639. However, under Rule 29(c), if Carlisle had moved for acquittal within seven days of the discharge of the jury (or later, if the court so allowed during that seven-day period), it would have been within the court's jurisdiction to grant Carlisle's motion for acquittal.

The district court lacked the jurisdiction to acquit Carlisle. We therefore must reverse the judgment of acquittal.

II

In conclusion, we affirm the convictions of Ramon, Rupert, and Hall. However, we reverse Carlisle's judgment of acquittal and remand for the district court to reinstate the jury's verdict and for sentencing.

LOWS******

APPENDIX

NOT RECOMMENDED FOR PUBLICATION

Nos. 93-2373, 93-2470, 94-1105, 93-2380

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America, Plaintiff-Appellee.

v.

Dolores Rupert, Michael Hall, Amelia Ramon, Defendants-Appellants.

United States of America, Plaintiff-Appellant,

v.

Charles Carlisle, Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

Before: BROWN, RYAN and BOGGS, Circuit Judges.

I

This appendix to the published opinion in this case contains our discussion of the facts and the issues raised in the appeals of Rupert, Ramon, and Hall.

On April 8, 1993, authorities stopped Thomas Crawford and found 289 pounds of marijuana in his rented truck. Crawford agreed to cooperate with police, admitting he was delivering the drugs to Battle Creek, Michigan. Police flew Crawford and the drugs to Battle Creek on April 9 to complete the delivery in a different rental truck.

Once he arrived in Battle Creek on April 10, Crawford called Ramon at about 1:00 a.m. In the morning, Crawford met with Ramon and Rupert (Ramon's daughter) at his hotel. Ramon and Rupert came back to Crawford's hotel that evening and Crawford, in the rental truck, followed Rupert and Ramon, with Rupert driving, to Rupert and Carlisle's house. When Crawford attempted to park in the driveway, Rupert told him not to, because Carlisle (Rupert's common-law husband) had reported hearing police in the area on his scanner. Carlisle, Ramon, and Crawford moved the truck to another location about 15 minutes away, with Carlisle driving a car and Crawford following in the truck. Crawford and Ramon next went to a hotel to discuss with other conspirators how to unload the drugs from the truck. Crawford returned to his hotel in the early morning of April 11 by taxicab.

Later that morning, Ramon rented a storage locker at a nearby facility in Battle Creek, Michigan. Hall and Ramon were spotted by surveillance police later that same day conducting their own surveillance in a blue and white Monte Carlo ¹ as the truck was driven (by Timothy Smith) ² to the storage facility. Hall was driving the Monte Carlo, with Ramon as a passenger. Officers observed the Monte Carlo drive down Michigan Avenue past the storage facility, make a U-turn, stop at a red light, remain stopped at the light after it had turned green, drive toward the storage facility, brake as though to turn into the facility, and then swerve back onto the street. Police were arresting Smith in front of the storage facility, and the Monte Carlo appeared to swerve away on spotting this arrest.

Ramon and Hall were then arrested. Hall was convicted and sentenced to 60 months of imprisonment and four years of supervised release; Ramon was convicted and sentenced to 63 months of imprisonment and four years of supervised release; and Rupert was sentenced to 60 months of imprisonment and four years of supervised release.

II

Ramon, Rupert, and Hall (hereafter Appellants) raise a number of issues on appeal. However, we find that none of these issues justify reversal of their convictions.

First, Appellants argue that the court's instruction to the jury accompanying the admission of Israel Ambriz's plea agreement amounted to improper vouching. Ambriz was a co-conspirator who pled guilty and testified at trial. During trial, the government sought to admit as evidence Ambriz's plea agreement. Carlisle's counsel objected, arguing that the plea agreement stated that Ambriz would testify truthfully, and that this statement vouched for Ambriz. The court offered a curative instruction to the jury when reading the plea agreement.

After reading a passage that said "[t]he defendant agrees to participate and cooperate truthfully ... [h]e will testify truthfully if called upon to do so ...," the judge added:

Also, the word truthfully is used. It is going to be used several times in this agreement. That is something between the government and the defendant. It does not mean that the defendant is testifying truthfully or untruthfully. That is for you to decide.

As I said in the beginning of this trial, for this witness or any witness it is going to be your determination as to whether the person testified truthfully or untruthfully. So the fact that the word "truthfully" is in there, it has nothing to do with you. It only has to do with what the government believes, and that is irrelevant to you. We don't care what the government believes. We care what you believe.

After reading the next passage, which contained the condition that Ambriz testify truthfully or void his plea agreement, the judge added:

Once again that paragraph is a requirement or a contractual agreement between the defendant and the government which is not only not binding on you, but your determination of his truthfulness is yours alone. It is not supported in any way by an agreement, this witness, this exhibit, and other exhibit. So don't be mislead by the word "truthful" which does appear several times in that paragraph.

No counsel objected following the reading of the plea agreement and these additional instructions. Appellants argue on appeal that the judge's instruction vouched for the witness's credibility.

We reverse a jury verdict only if the imputed vouching "permeate[d] the entire atmosphere of the trial." United States v. Payne, 2 F.3d 706, 712 (6th Cir.1993)(quotations omitted)(per curiam)....