[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 26, 2007
No. 07-10237 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00093-CR-001-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER W. MOORE,
DEBORAH S. MOORE,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
_________________________
(October 26, 2007)
Before CARNES, BARKETT and HILL, Circuit Judges.
CARNES, Circuit Judge:
This is a simple sufficiency of the evidence case governed by Federal Rule
of Criminal Procedure 29(b), and specifically by the last sentence of that
subsection. Fed. R. Crim. P. 29(b). It provides that if the district court reserves
ruling on a motion for judgment of acquittal, the court must decide the motion on
the basis of the evidence at the time the ruling was reserved. Id.
The provision is an important one. As the committee note to the amendment
that added this provision in 1994 explains, it was designed to resolve a difficulty
that defendants had faced when the court reserved a ruling on a motion for
judgment of acquittal at the end of the government’s case. Before the amendment
a defendant deprived of an immediate ruling on the sufficiency of the evidence had
to decide between freezing the evidence at that point in order to preserve the issue,
or presenting additional evidence in his own case and risk filling any holes in the
government’s case that had existed up until then. Fed. R. Crim. P. 29(b) advisory
committee’s note to 1994 amend.
The risk was not insubstantial, particularly where, as in our own circuit, the
jury’s rejection of the defendant’s own testimony can serve as affirmative evidence
of guilt. See United States v. Howard, 895 F.2d 722, 724–25 (11th Cir. 1990) (“In
addition to other evidence, each defendant testified at the trial and offered his
story, denying knowledge of marijuana and explaining his acts. The jury was
entitled to reject this testimony: defendants subjected themselves to a credibility
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determination and ran the risk of bolstering the government’s case.”); United States
v. Bennett, 848 F.2d 1134, 1139 (11th Cir. 1988) (“By choosing to present a
defense the Bennetts incurred the risk that they might bolster the government’s
case. Indeed, this court has held that a defendant’s implausible explanation may
constitute positive evidence in support of a jury verdict.”).
The amendment to Rule 29, by entitling the defendant to a snapshot of the
evidence at the point that the court reserves its ruling, frees the defendant to
present additional evidence without fear of doing himself harm on the sufficiency
issue. That freedom is made possible by the assurance that appellate review, as
well as the district court’s own consideration, is limited to the evidence in the
government’s case in chief. Fed. R. Crim. P. 29(b) advisory committee’s note to
1994 amend. (“And in reviewing a trial court’s ruling, the appellate court would be
similarly limited.”).
The husband and wife defendants in this case, Walter Wayne Moore and
Deborah Moore, were convicted of twenty-eight counts of theft of government
property, in violation of 18 U.S.C. § 641. The factual basis for the charges was
that they received and converted to their own use the monthly Veterans
Administration benefits that had been payable to Walter’s mother, Verlon Moore,
after the death of her husband (and Walter’s father), Moses Moore. At the time of
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Verlon’s death in June 1997 the benefits were being paid by direct deposit into a
joint account that she and Walter had in their local bank in Macon, Georgia. When
she died the deposits should have stopped, because they were a widow’s benefits
(technically “dependency indemnity compensation benefits”), not an annuity or
asset that would continue after the widow’s death, at least not to a child of Walter’s
age.1
But the payments did not stop after Verlon’s death. Instead, as before, every
month a direct deposit in the amount of Verlon’s VA benefit was made into the
same bank account, even though her name was removed from the account shortly
after her death and Deborah’s name was added to the account a year or so later.
And so it went for five years. The benefits, which should have stopped coming at
Verlon’s death, kept being deposited into Walter and Deborah’s account, and the
two of them kept spending those funds out of the account. The Veterans
Administration finally discovered in January 2003—no thanks to Walter and
Deborah—that Verlon had died and it stopped the flow of payments, but not before
$73,000 or so had been erroneously deposited and spent.
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The evidence at trial established that a child of a deceased veteran whose service
qualified would be entitled to the benefits if under age eighteen, or up to age twenty-three if
enrolled in school. Walter was well above age twenty-three.
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The Moores have never denied that they received and spent the VA benefit
money after Verlon’s death. Their defense has been that they did not know,
because no one ever told them, that Walter was not entitled to the benefits after his
mother died. In legal parlance, they put the government to its burden of proving
the knowledge element of the 18 U.S.C. § 641 offense—that they knew the funds
belonged to the government when they used them for their own purposes. See
United States v. Lanier, 920 F.2d 887, 895 n.62 (11th Cir. 1991) (an element of
the offense is that the defendant acted “knowingly and willfully with the intent
either temporarily or permanently to deprive the government of the property”).
At the close of the government’s case, each of the Moores moved for a
judgment of acquittal, pinpointing the willful, knowing, and intentional
requirements of the offense. The district court reserved a ruling on their motions.
Then Walter presented evidence, consisting of his own testimony. Walter testified
that he had believed that he was entitled to the funds after his mother’s death,
because she had told him the payments resulted from an annuity his father had
purchased which would go to Walter after her death. On cross-examination the
government attempted to poke holes in Walter’s story, and he attempted to patch
them up. At the end of Walter’s testimony both defendants rested (Deborah
presented no evidence), and moved again for a judgment of acquittal. Again, the
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court reserved a ruling until after the jury’s verdict. The jury convicted both
defendants of all twenty-eight counts. The defendants then reminded the court that
it had not ruled on their motions for judgment of acquittal. The court
acknowledged that and finally denied those motions without discussion.
In reviewing the sufficiency of the evidence, we cannot consider, as the
government’s brief urges us to, the testimony of Walter Moore and the adverse
credibility determination the jury obviously made regarding it. Having seen him
testify and having heard his explanation, the jury must have decided that Walter
was lying when he denied knowing that he was not entitled to continue receiving
the benefits after Verlon died. Otherwise, it would have acquitted him. That is
how the fact finding process ordinarily works, but we are not reviewing the jury’s
verdict or considering the sufficiency of the evidence on which it was based.
Instead, because the snapshot provision in the last sentence of Rule 29(b) applies,
we are reviewing the sufficiency of the evidence only as it stood at the end of the
government’s case.
Considering only that evidence, we conclude that the government failed to
present enough to prove beyond a reasonable doubt that either Walter or Deborah
knew they were not entitled to the continuing VA payments after Verlon’s death.
We reach this conclusion even though the standard of review is stacked in the
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government’s favor. See United States v. Robertson, 493 F.3d 1322, 1329 (11th
Cir. 2007) (“We view the evidence in the light most favorable to the government
and resolve all reasonable inferences and credibility evaluations in favor of the
jury’s verdict. The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt.”) (internal citations and marks omitted).
In its case in chief, the government presented testimony from four witnesses:
(1) the service center manager for the Veterans Administration’s Atlanta Regional
Office; (2) the investigator from the Veterans Administration who discovered that
Walter and Deborah were receiving Verlon’s benefits after she died; (3) the
business director from Hart’s Mortuary, the funeral home that handled Moses
Moore’s funeral and burial arrangements; and (4) the owner of Bridges Funeral
Home and Crematory, the funeral home that handled Verlon’s burial arrangements.
The testimony from these witnesses clearly established that no one, including
Walter and Deborah, was entitled to receive Verlon’s VA benefits after her death,
but that in spite of this, Walter and Deborah had continued receiving and spending
those benefits for more than five years after Verlon died. Those two facts were
clearly established by the evidence.
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What was not established by the evidence, however, was that either Walter
or Deborah had any knowledge that they were not entitled to keep receiving
Verlon’s VA benefits after her death. There is no evidence that the Veterans
Administration ever notified Walter and Deborah that they were not entitled to
continue receiving Verlon’s benefits after she died, or that they were required to
notify the agency of her death. Instead, the government’s evidence merely
established that the monthly direct deposits into the account that Walter and Verlon
had shared continued until the Veterans Administration discovered Verlon’s death
and terminated the benefits in January 2003.
The government stresses that Walter made all of the arrangements for
Verlon’s funeral, but he did not publish an obituary in the local newspaper as he
had for his father. From that, apparently, the government would have a fact finder
infer that Walter was trying to hide his mother’s death from the government. But
there is no evidence that Walter or anyone else would have thought that the
Veterans Administration was monitoring death notices in The Macon Telegraph, as
esteemed as that local newspaper may be.
The government did introduce evidence that the funeral home had offered to
assist Walter in applying to the VA for benefits as a result of Verlon’s own
relatively short service in the military. But it is undisputed that she had not served
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long enough to have earned any benefits in her own right, and there was no
evidence that Walter thought she had. The funeral home owner testified that based
on the information about Verlon that Walter gave him there was no reason for
Walter to file any application for benefits based on her service. Guilty knowledge
cannot be inferred from the failure to do a futile act.
The government also attempts to make something of the fact that the direct
deposit showed up on Walter and Deborah’s bank statement each month as “US
Treasury 220 VA Benefit.” That proves nothing beyond the fact that they knew
they were continuing to receive the benefit payments after Verlon died, something
they have never denied. It does not evidence any knowledge on their part that they
were not entitled to continue receiving those payments.
Considering only the evidence admitted during the government’s case, and
viewing that evidence in the light most favorable to the government, there was
insufficient evidence for a reasonable jury to have found beyond a reasonable
doubt that Walter or Deborah knew that they were not entitled to continue
receiving the VA benefits that Verlon had been receiving before she died. The
district court should have granted the motion for judgment of acquittal that each of
them filed.
REVERSED.
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