Case: 09-20601 Document: 00511325477 Page: 1 Date Filed: 12/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2010
No. 09-20601
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EUGENE MORRIS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-442-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Eugene Morris, a former prison guard was convicted by a jury of
submitting a false Use of Force Report (count 2), in violation of 18 U.S.C. § 1519.
Morris was acquitted of violating an inmate’s constitutional right to be free of
cruel and unusual punishment (count 1) and of persuading another person to
make a false statement (count 3). In this appeal, Morris contends that the
district court erred in denying his motion for a judgment of acquittal.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-20601
Morris contends that he did not violate § 1519 because there was no
ongoing federal investigation at the time he submitted the Use of Force Report.
Because this issue was not asserted in the district court, our review is for plain
error. To show plain error, Morris must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If Morris makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
Morris cites no authority for the proposition that conviction under § 1519
requires proof of an ongoing federal investigation. Instead, he contends that
such proof is required under the language of the statute. As the Government
notes, every court to have considered the issue has rejected the argument
advanced by Morris. See United States v. Lanham, 617 F.3d 873, 887 (6th Cir.
2010); United States v. Hunt, 526 F.3d 739, 743-44 (11th Cir. 2008); see also
Note, Anticipatory Obstruction of Justice: Pre-Emptive Document Destruction
under the Sarbanes-Oxley Anti-Shredding Statute, 18 U.S.C. § 1519, 89 C ORNELL
L. R EV. 1519, 1560-61 (2004). Morris has not shown that the district court
plainly erred in failing to acquit him on the ground that the Government had not
shown that his obstructive conduct occurred in relation to an ongoing federal
investigation. See Puckett, 129 S. Ct. at 1429.
Morris contends also that the jury verdicts were inconsistent, as his
codefendant, Tracy Jewett, was charged with the same offense, but was
acquitted. Because it was not asserted below, we review this contention for plain
error. See Puckett, 129 S. Ct. at 1428-29. Even if we assume that the verdicts
were inconsistent, such inconsistency does not bar a conviction as long as there
is sufficient evidence to support the jury’s verdict. United States v. Geiger, 190
F.3d 661, 664 (5th Cir. 1999); see also United States v. Zuniga-Salinas, 952 F.2d
876, 877-78 (5th Cir. 1992) (en banc) (coconspirator’s acquittal may have
resulted from leniency, mistake, or compromise by the jury). Because the
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No. 09-20601
evidence supporting his conviction was sufficient, Morris has not shown that the
district court committed an error, plain or otherwise, by denying his motion for
a judgment of acquittal on the ground that the jury returned inconsistent
verdicts. See Puckett, 129 S. Ct. at 1429; see also United States v. Montes, 602
F.3d 381, 388 (5th Cir.) (reciting sufficiency standard), cert. denied, 2010 WL
2345392 (2010) (No. 09-11318). The judgment is AFFIRMED.
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