U.S. v. Sherod, No. 91-3083

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSENTELLE
Citation295 U.S.App. D.C. 148,960 F.2d 1075
PartiesUNITED STATES of America v. Christopher J. SHEROD, Appellant.
Decision Date08 July 1992
Docket NumberNo. 91-3083

Page 1075

960 F.2d 1075
295 U.S.App.D.C. 148
UNITED STATES of America
v.
Christopher J. SHEROD, Appellant.
No. 91-3083.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 5, 1992.
Decided April 17, 1992.
Rehearing and Rehearing En Banc
Denied July 8, 1992.

Appeal from the United States District Court for the District of Columbia, CR-90-00381-01.

John A. Briley, Jr., Washington, D.C. (appointed by the Court), for appellant.

Kenneth F. Whitted, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before: WALD, SENTELLE, and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Christopher Sherod appeals from a judgment of conviction for possession with intent to distribute crack cocaine. He asserts that there was insufficient evidence to support the conviction and that the trial court erred by not granting a downward departure from the Sentencing Guidelines. We find that neither of those contentions is properly before us. As to the first, the defendant failed to renew his motion for

Page 1076

[295 U.S.App.D.C. 149] judgment of acquittal at the close of all evidence. As to the second, the trial court's decision is not appealable.

I. BACKGROUND

On September 11, 1990, a federal grand jury returned an indictment charging Sherod with one count of distribution of cocaine base and one count of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At trial, the government called Officer Victor Graves of the Metropolitan Police Department, who testified that Sherod possessed drugs which he passed, through another person, to the codefendant, who in turn sold them to Officer Graves. After defendant's identification by Officer Graves, a search incident to arrest revealed 23.8 grams of pure cocaine and $189.00 in currency, $40.00 of it in prerecorded bills used by Officer Graves in the transaction. The government also introduced the expert testimony of Officer Stroud of the Metropolitan Police Department, who testified that the quantity of cocaine recovered was consistent with distribution, and had a $3160.00 retail street value. He also testified that it is common to have a "holder" of drugs who passes them, through a second person, to the person who consummates the drug transaction. Sherod moved the trial court for judgment of acquittal at the close of the government's case. The court denied the motion. Sherod put on evidence of his own, then rested without renewing his motion at the close of all the evidence. On November 6, 1990, the jury returned a verdict of guilty of possession with intent to distribute and not guilty of distribution.

At sentencing, Sherod offered a motion for a downward departure from the sentence calculated under the Federal Sentencing Guidelines, supported by an accompanying psychological evaluation purporting to demonstrate that he had "enormous potential for human development" and that his uncommon susceptibility for rehabilitation could be destroyed by a sentence within the applicable Guideline range of 78 to 97 months. The trial court rejected Sherod's contention that it should depart from the Guidelines and entered a sentence of 78 months of incarceration, four years of supervised release, and the payment of a statutory fifty dollar special assessment. Appellant filed a timely notice of appeal.

II. ANALYSIS

A. The Insufficiency of the Evidence

Rule 29(a) of the Federal Rules of Criminal Procedure provides that a defendant may move at the close of the government's evidence for a judgment of acquittal based on the insufficiency of the evidence to support a conviction. Under the rule, if the motion is denied, the defendant may proceed to offer evidence of his own. That, of course, is what occurred in the present case. At the end of his own evidence, however, contrary to the usual practice, the defendant did not renew his motion for judgment of acquittal.

It is the universal rule in the federal circuits that "a criminal defendant who, after denial of a motion for judgment of acquittal at the close of the government's case-in-chief, proceeds to the presentation of his own case, waives his objection to the denial." United States v. Foster, 783 F.2d 1082, 1085 (D.C.Cir.1986) (en banc). Prior to Foster, we stood alone among the circuits in holding that "objection to denial of a motion for judgment of acquittal made at the close of the government's case-in-chief is not waived by the defendant's proceeding with the presentation of his evidence...." Foster, 783 F.2d at 1083 (citing Cephus v. United States, 324 F.2d 893, 895-97 (D.C.Cir.1963)). This non-waiver rule was announced as dicta in Cephus but adopted as a holding in Austin v. United States, 382 F.2d 129, 138 & n. 20 (D.C.Cir.1967).

In Foster we noted that all eleven numbered circuits were "on record, in decisions subsequent to Cephus, as adhering to the waiver rule." 783 F.2d at 1085 & n. 1. In Foster we joined the other circuits. We did not, however, answer all related questions. Pertinent to this case, we expressly did "not address the question whether, after proceeding with his defense following denial of his mid-trial motion for acquittal, the

Page 1077

[295 U.S.App.D.C. 150] defendant must renew that motion at the close of all the evidence in order to preserve for appeal ... his objection to the sufficiency of all the evidence." Id. at 1086.

In Foster we expressly advised...

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19 practice notes
  • U.S. v. Kimler, No. 02-3097.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 7, 2003
    ...resulting in manifest injustice."10 United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir.1995); see also United States v. Sherod, 960 F.2d 1075, 1077 (D.C.Cir.1992); Wright, § 469 at 321. Under this standard, Kimler "must show: (1) an error, (2) that is plain, which means clear or ob......
  • State v. Dunn, No. 17571
    • United States
    • Supreme Court of Utah
    • March 18, 1993
    ...appeal. See, e.g., Austin v. United States, 382 F.2d 129, 140-43 (D.C.Cir.1967), overruled on other grounds by United States v. Sherod, 960 F.2d 1075, 1076 (D.C.Cir.1992); People v. Alexander, 140 Cal.App.3d 647, 189 Cal.Rptr. 906, 918 (1983); Ritchie v. State, 243 Ind. 614, 189 N.E.2d 575,......
  • USA. v. Wilson, No. 99-3077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 23, 2001
    ...case fully preserved his claim. See United States v. Foster, 783 F.2d 1082, 1085 (D.C. Cir. 1986); see also United States v. Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992). We review de novo the denial of the motion to determine whether the evidence, considered in the light most favorable to ......
  • U.S. v. Booker, No. 04-3152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 3, 2006
    ...a `manifest miscarriage of justice.'" United States v. Thompson, 279 F.3d 1043, 1051 (D.C.Cir.2002) (quoting United States v. Sherod, 960 F.2d 1075, 1077 (D.C.Cir.), cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992)). We note that Booker—like the defendants in Thompson and S......
  • Request a trial to view additional results
19 cases
  • U.S. v. Kimler, No. 02-3097.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 7, 2003
    ...resulting in manifest injustice."10 United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir.1995); see also United States v. Sherod, 960 F.2d 1075, 1077 (D.C.Cir.1992); Wright, § 469 at 321. Under this standard, Kimler "must show: (1) an error, (2) that is plain, which means clear or ob......
  • State v. Dunn, No. 17571
    • United States
    • Supreme Court of Utah
    • March 18, 1993
    ...appeal. See, e.g., Austin v. United States, 382 F.2d 129, 140-43 (D.C.Cir.1967), overruled on other grounds by United States v. Sherod, 960 F.2d 1075, 1076 (D.C.Cir.1992); People v. Alexander, 140 Cal.App.3d 647, 189 Cal.Rptr. 906, 918 (1983); Ritchie v. State, 243 Ind. 614, 189 N.E.2d 575,......
  • USA. v. Wilson, No. 99-3077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 23, 2001
    ...case fully preserved his claim. See United States v. Foster, 783 F.2d 1082, 1085 (D.C. Cir. 1986); see also United States v. Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992). We review de novo the denial of the motion to determine whether the evidence, considered in the light most favorable to ......
  • U.S. v. Booker, No. 04-3152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 3, 2006
    ...a `manifest miscarriage of justice.'" United States v. Thompson, 279 F.3d 1043, 1051 (D.C.Cir.2002) (quoting United States v. Sherod, 960 F.2d 1075, 1077 (D.C.Cir.), cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992)). We note that Booker—like the defendants in Thompson and S......
  • Request a trial to view additional results

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