United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 15, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-60131
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
DANNY HOPE,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
_________________________________________________________________
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
1
The dismissal of the Rule 33 motion has not been appealed.
2
Rule 29 reads in relevant part: “ ... [T]he court on the
defendant’s motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” FED. R. CRIM. P. 29(a).
2
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.
3
“Strong-arm robbery” is another name for simple robbery.
Cameron v. State, 919 So.2d 1042, 1045 (Miss. Ct. App. 2005).
3
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
4
The section provides in relevant part that: “It shall be
unlawful for any person ... who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding one year
... to ... possess in or affecting commerce, any firearm ....” 18
U.S.C. § 922(g)(1).
4
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
5
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.,
5
Apparently the state court records have never been corrected
and continue to reflect that Hope was convicted for aggravated
assault. At the post-trial hearing, Hope introduced no certified
Mississippi judgment that would affirm the transcript.
6
The government argues now that this renewed Rule 29 motion
was untimely because it was presented more than seven days after
the verdict. See FED. R. CRIM. P. 29(c)(1). While the procedural
posture of Hope’s motion in the trial court was anything but clear,
the government failed to preserve a timeliness objection;
accordingly, we consider this argument forfeited. See Eberhart v.
United States, 546 U.S. 12, 19 (2005).
6
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 to the verdict
rendered by the jury, that all of the elements of the crime charged
had been proven beyond a reasonable doubt.” Lucio, 428 F.3d at
522.
B.
Hope’s argument for acquittal was that, based on the
transcript of the Mississippi proceeding, the evidence was
insufficient to convict him of being a felon in possession.7 Hope
argues that “no evidence of a valid conviction was ever presented
7
Hope also argued to the district court that he was entitled
to a new trial under Rule 33. That motion was denied as moot.
Hope did not cross-appeal this decision and thus it is not before
us today. We do note in passing that the transcript appears to be
the kind of evidence that was already known and, in any event,
should have been discovered earlier through diligence. See United
States v. Wall, 389 F.3d 457, 467 (5th Cir. 2004) (discussing the
five factors that must be satisfied under the Berry standard for
motions for a new trial based on newly-discovered evidence).
7
at trial,” because the indictment charged Hope with having been
convicted of aggravated assault, which the transcript proved was
not true. Thus, Hope says, neither the grand nor petit jury has
ever been presented with evidence that he had a valid prior felony
conviction, and consequently because the evidence introduced at
trial does not support a verdict of guilty, the district court did
not err in granting a judgment of acquittal under Rule 29.
We cannot agree. First, the indictment alleged that Hope had
been convicted of a qualifying felony and it listed the particular
cause number and date of his conviction, none of which is disputed.
There is no variance between the evidence introduced and the crime
charged in the indictment. The only variance exists between the
official record of the state trial and the state transcript
introduced in federal post-trial proceedings. Hope makes no
argument that he was uncertain to which felony conviction the
indictment referred; although at some point in the trial he
apparently said that he did not plead guilty to aggravated assault,
he never denied that he had pled guilty to a felony in the same
case and case number alleged in the indictment. Second, the
evidence that the government introduced at trial, namely the
official Mississippi judgment order, supported the indictment in
every particular. Hope’s trial counsel did not object to the
introduction of this evidence nor did he otherwise contest the fact
that Hope had been convicted of a qualifying felony. Finally, it
is clear that, irrespective of whether the crime was denominated as
8
aggravated assault or strong-arm robbery, Hope was in fact
convicted of a qualifying felony -- specifically in the same case
and case number that was reflected in both the certified judgment
and the indictment. As noted, the record further shows that Hope
was aware that this conviction made it a federal crime for him to
possess a firearm in interstate commerce. He signed a form to this
effect on August 28, 2000, four days after his guilty plea in state
court.
IV.
We thus conclude: The only question in reviewing the district
court’s grant of the Rule 29 motion is whether the evidence
introduced at trial and upon which the jury based its verdict is
sufficient to support the crime charged in the indictment. A
federal crime was correctly charged in the indictment; the
government proved the crime charged with competent evidence, that
is, an unobjected-to, certified state court judgment. Such
evidence is sufficient to support the crime charged in the
indictment and the guilty verdict the jury returned based on that
evidence. Thus we hold that the district court erred in entering
a judgment of acquittal in response to Hope’s oral Rule 29 motion.
If Hope is entitled to relief, he must pursue a different
procedural course in order to achieve it. For the foregoing
reasons, the district court’s judgment is REVERSED, Hope’s
conviction is hereby REINSTATED and the case is REMANDED for
sentencing.
9