Appeal - Sufficiency of Evidence

This topic contains cases that explore the standards that appellate courts use in reviewing the sufficiency of the evidence. Cases which evaluate the sufficiency of the evidence that a particular offense was committed can be found under the heading for that crime.

United States v. Fries, 725 F.3d 1286 (11th Cir. 2013)

The defendant was charged with violating 18 U.S.C. §922(a)(5), which makes it a crime to sell a firearm to a person in another state unless either the seller or purchaser is a licensed firearms dealer. The purchaser in this case was an undercover ATF agent. There was no evidence at trial that the agent was not a licensed firearms dealer. Because this is an essential element of the offense, the conviction was set aside, even though the defendant did not move for a directed verdict.

United States v. Head, 707 F.3d 1026 (8th Cir. 2013)

In order to prosecute a person for accessory after the fact, the government must prove that some other person actually committed the underlying offense. Proving only that the other person was convicted of the underlying offense is not sufficient. Introducing the principal’s conviction in this case was reversible error and the failure to prove that the principal actually committed the offense resulted in an appellate determination that the government offered insufficient evidence to support the accessory’s conviction, thus barring a retrial. The defendant in the accessory prosecution must also be permitted to offer evidence that she was not aware that the principal committed the offense, or that the principal was acting in self-defense.

O’Laughlin v. O’Brien, 568 F.3d 287 (1st Cir. 2009)

The First Circuit holds that the state court conviction of the defendant for assault and attempted murder was not supported by the evidence. The case contains a discussion of the lack of probativeness of the “consciousness of guilt” evidence upon which the state relied in seeking to support the verdict.

United States v. Miller, 527 F.3d 54 (3rd Cir. 2008)

A timely motion for acquittal under Rule 29(c) (a post-trial motion for judgment of acquittal) will preserve a sufficiency-of-the-evidence claim for review, irrespective of whether the defendant raised the claim at rial.

United States v. Urciuoli, 513 F.3d 290 (1st Cir. 2008)

In this honest services fraud prosecution, the defendants were two hospital administrators who hired a legislator to provide “consulting” services. The evidence relating to what the legislator did in connection with the hospitals was to urge local municipalities to comply with the law regarding where ambulances should take patients; and urging health insurance companies to settle disputed claims with the hospitals. Because urging the municipalities to comply with the law was not improper and did not involve work on pending legislation, this could not be the basis of an honest services fraud prosecution. Pressuring insurance companies was an activity thatcould be prosecuted as honest services fraud. However, because the jury’s verdict could have relied on the improper theory, the conviction was reversed.

United States v. Moore, 504 F.3d 1345 (11th Cir. 2007)

Pursuant to the 1994 Amendment to Rule 29, if a defendant moves for a judgment of acquittal at the close of the government’s case and the trial court reserves decision on the issue, the ultimate decision must be made based on the record as it stands at that point. Not only the trial court, but the appellate court is restricted in its consideration of the evidence to the record as it existed at that point during the trial. Thus, the defendant’s testimony (which, if not believed by the jury can actually increase the quantum of evidence supporting a conviction) may not be considered in evaluating the sufficiency of the evidence.

United States v. Kenyon, 481 F.3d 1054 (8th Cir. 2007)

The defendant was charged with several counts of child sex abuse. Two counts focused on allegations that he placed his penis in the victim’s mouth. When the victim was asked about whether it happened on two occasions, she responded, “Twice, maybe.” When asked again whether she knew whether he did it once or twice, she responded that she did not know. This was not sufficient evidence to support convictions on the two counts. “Maybe” does not constitute proof beyond a reasonable doubt.

United States v. Penaloza-Duarte, 473 F.3d 575 (5th Cir. 2006)

The defendant was a passenger in a car loaded with methamphetamine. When a trooper in Louisiana stopped the car and discovered the drugs, the defendant claimed to be a confidential informant for a California detective, which was, in fact, verified by the California police. Though there was sufficient evidence of the defendant’s knowing possession of the drugs (he acknowledged knowing the drugs were in the car), the evidence was not sufficient to prove that he associated himself with, and engaged in, some affirmative conduct designed to aid the criminal venture, which is an indispensable component of an aiding and abetting conviction. There was no evidence that he loaded, or assisted in loading the car, or that he did any of the driving, or that he even know the location to which the load was heading. A conviction must be reversed if the evidence construed in favor of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged. A subsequent Fifth Circuit decision abrogated the standard of review in this case. United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014).

Patterson v. Haskins, 470 F.3d 645 (6th Cir. 2006)

An appellate court must decide the question of sufficiency of the evidence, even if another error requires that a case be retried.

United States v. Lawrence, 471 F.3d 135 (D.C. Cir. 2006)

When evaluating the sufficiency of evidence on appeal, the appellate court is permitted to consider testimony offered by the defendant in his case. However, the court may not consider against a defendant the testimony offered by a co-defendant in deciding whether the government sustained its burden of proof in cases where the defendant does not introduce evidence.

United States v. Richardson, 421 F.3d 17 (1st Cir. 2005)

When there are alternate grounds on which a jury can convict a defendant on one count, an issue often arises on appeal whether a deficiency with regard to one alternative requires that the appellate court set aside the verdict. This may occur where there is a conspiracy to commit more than one offense (for example, the defendant is charged with conspiring to sell drugs and launder the proceeds), or a perjury prosecution with numerous false statements alleged in the same count. This case explains how an appellate court considers these types of challenges: if the appellant contends that the evidence was insufficient with regard to one alternative, then the conviction will not be reversed, because the court will assume that the jury relied on the alternative that was supported by sufficient evidence. But if the appellant contends that the deficiency with regard to one of the alternatives was in the jury instruction, then the appellate court will reverse, because the jury will not be presumed to have known that the jury instruction was erroneous and may have relied on the improper definition to convict the defendant of that alternative means of committing the offense. See generally Griffin v. United States, 502 U.S. 46 (1991); Yates v. United States, 354 U.S. 298 (1957).

United States v. Brown, 459 F.3d 509 (5th Cir. 2006)

When a jury is not asked to indicate the basis for its verdict where there are several objects of a conspiracy, the government “must prove all three theories in order for the court to affirm the convictions.” In this case, the government’s theory on the mail fraud (honest services) theory was flawed and, therefore, the conspiracy count was reversed.

United States v. Lopez, 443 F.3d 1026 (8th Cir. 2006)

In gauging the sufficiency of evidence of a defendant’s participation in a conspiracy, courts have sometimes said that if there is proof beyond a reasonable doubt of the existence of a conspiracy, only “slight evidence” is needed to show the defendant’s participation in the conspiracy. The Eighth Circuit – like many other Circuits – held in this case that the slight evidence rule did not relax the requirement of proof beyond a reasonable doubt. Rather, the slight evidence rule simply means that the defendant’s role in the conspiracy may be slight, or minor. The evidence, however, must still establish the defendant’s participation beyond a reasonable doubt.

Brown v. Palmer, 441 F.3d 347 (6th Cir. 2006)

The defendant was the driver of a car from which two occupants suddenly jumped out and carjacked another car. He jumped out of his car and ran away. The evidence did not establish that the driver was a participant in the crime.

United States v. Irving, 452 F.3d 110 (2d Cir. 2006)

The defendant was charged with a variety of crimes, including sex tourism. The government relied, on certain counts, on journals that were seized from the defendant and which purported to chronicle his illegal acts with minors in a foreign country. The Second Circuit held that the journals did suffice to prove his guilt on those counts when coupled with other evidence developed in the case. In the initial panel decision, 432 F.3d 401 (2005), the Second Circuit held that the journal was not sufficient, based on the principle that a defendant’s confession is sufficient, even without corroboration to prove his guilt of the crime if the corpus delecti isestablished in the confession and is reliable. See Opper v. United States, 348 U.S. 84 (1954). The Second Circuit has applied Opper to permit a conviction based on a confession if there is substantial independent evidence which would tend to establish the trustworthiness of the statement. In the rehearing decision, however, the Second Circuit held that there was sufficient corroboration of the journals.

Chein v. Shumsky, 373 F.3d 978 (9th Cir. 2004)

The defendant was a doctor who testified as an expert witness in a personal injury case. He was charged with perjury because of his inflated testimony about his credentials. The Ninth Circuit held that the evidence was insufficient as a matter of law to establish that this testimony was “material” as defined by California law (the substantive law of the state in which the defendant was convicted). The Jackson v. Virginia standard of sufficiency must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.

United States v. Allen, 127 F.3d 260 (2nd Cir. 1997)

Even if Congress declares that certain facts may create a permissive inference or presumption that a particular crime has been committed, this does not necessarily mean that proof of those facts automatically constitutes sufficient evidence to support a conviction. 18 U.S.C. § 892 outlaws, in part, an extortionate extension of credit which is defined as any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. In this case, the defendant made a loan to an undercover agent. The defendant accepted collateral and the agent repaid the loan. The agent then borrowed money again, and discussed with the defendant the difficulties the defendant must have in collecting sometimes. The two laughed about this and the defendant explained that that was why he required collateral and further explained that sometimes he took a loss, but his gains exceeded his losses. Then, when prompted by the agent, and not in connection with the pending transaction, the defendant stated that he once beat up someone. This evidence was not sufficient to support a conviction. The agent could not reasonably have had an understanding that if he did not repay the loan, he was subject to being beaten up based on this contrived conversation that he instigated. Regardless of the usurious interest rate and the unenforceability of the loan in court (factors that triggered a permissive presumption of extortion, pursuant to 18 U.S.C. § 892(b)), this evidence was not sufficient.

United States v. McIntosh, 124 F.3d 1330 (10th Cir. 1997)

The defendant was charged with bankruptcy fraud and money laundering on the basis of his failure to disclose during his bankruptcy proceeding that he had received certain money and deposited some of those funds in a bank account he controlled through an unincorporated business he managed. The indictment also alleged that he failed to disclose his interest in real estate that was actually owned by his father, but at which he lived and paid the mortgage payments. Count One of the indictment charged him with failure to disclose his interest in the unincorporated business and in his house. Because he did not own his house, however, the evidence was insufficient to sustain a conviction and though the evidence was sufficient regarding the business, because the jury may have convicted the defendant on the basis of the failure to report the house (the judge instructed the jury that they could convict the defendant if they believed he concealed his interest in either asset), the conviction on this count had to be reversed.

United States v. Winfield, 997 F.2d 1076 (4th Cir. 1993)

Convictions based on theories not submitted to the jury cannot stand.

United States v. Willoughby, 27 F.3d 263 (7th Cir. 1994)

The defendant entered a guilty plea to various drug charges, but requested a bench trial on related firearms charges. In finding the defendant guilty of the firearms offense, the trial judge observed that the proximity of the weapon to the drugs was sufficient evidence to support a §924(c) conviction. The judge went on to complain that but for those appellate decisions, he might find otherwise. The trial judge misconceived his role. While an appellate court might affirm a conviction based on certain facts, that does not mean that the fact-finder (including a judge at a bench trial) must find the defendant guilty given the same facts.

Martineau v. Angelone, 25 F.3d 734 (9th Cir. 1994)

In order to convict a person of child abuse on a theory that the person delayed in seeking medical attention when the child was injured, the state in this case used the following evidence: (1) the two parents (lesbians) gave somewhat different stories to a doctor about the injuries; (2) an expert testified that if there are different stories which are told, the parents are probably abusers; (3) the expert further testified that abusers will often delay in seeking medical attention. This was the only evidence – i.e., theory – that suggested that the parents delayed. This was insufficient as a matter of law to find that the couple did, in fact, delay in reporting the injury to the child.

United States v. Mills, 29 F.3d 545 (10th Cir. 1994)

The defendant, who lived in a house with another woman, was charged with being a felon in possession of weapons which were found in the house. In cases of joint occupancy, where the government seeks to prove constructive possession by circumstantial evidence, it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband. Here, the defendant’s housemate testified that the guns belonged to her and she had put them in the house and in the bag in which they were found. Even if the jury disbelieved everything she said, that disbelief cannot constitute evidence of the crimes charged and somehow substitute for knowing constructive possession in this joint occupancy situation.

Stallings v. Tansy, 28 F.3d 1018 (10th Cir. 1994)

The state argued that the jury could have inferred petitioner’s guilty knowledge from its disbelief of his testimony. In fact, several circuits have held that the jury’s disbelief of a defendant’s testimony can, in some limited instances, give rise to a positive inference of guilt. These circuits do not agree, however, on the circumstances that will support such an inference. The Fifth and Eleventh Circuits, for example, hold that if a defendant’s testimony is sufficiently intrinsically incredible or implausible, then the jury can draw an inference of guilt from its disbelief of that testimony. The Second and Ninth Circuits, on the other hand, do not consider the quality of the defendant’s testimony; rather, they require other corroborating evidence of guilt. These circuits would never allow a finding of guilt to be predicated on the jury’s disbelief of the defendant’s testimony, but they would allow the jury’s disbelief of the defendant’s testimony tobolster other, affirmative evidence of guilt. The D.C. Circuit, on the other hand, distinguishes between inferences to be drawn from the witness’s demeanor, and those to be drawn from a defendant’s facially inconsistent or implausible testimony. In this case, the defendant’s testimony was not inherently implausible and in light of the absence of other incriminating evidence, the conviction had to be set aside.

United States v. Thomas, 987 F.2d 697 (11th Cir. 1993)

When a defendant presents evidence following a denial of his Rule 29 motion at the close of the government’s case, the Rule 29 motion is thereby waived. The appellate court may then consider the evidence in both the government’s case and the defense case (and any government rebuttal) in assessing the sufficiency of the evidence. In this case, however, after the Rule 29 motion was denied, the defendant presented evidence on one count, but not another. In situation, the Rule 29 motion is not waived with regard to the count for which the defendant offered no evidence. Therefore, the appellate court may only consider the evidence presented in the government’s case in chief in gauging the sufficiency of the evidence – and not the testimony of co-defendants. There was insufficient evidence presented in the government’s case relating to the count for which the defendant offered no evidence.

United States v. Zeigler, 994 F.2d 845 (D.C.Cir. 1993)

The appellate court concluded that the evidence offered by the government, in addition to the defendant’s testimony and evidence, was insufficient to sustain the conviction. The government argued that the defendant’s demeanor on the stand was the critical factor which led the jury to convict. The appellate court, however, held that this was not “evidence” which could be considered by the appellate court in considering the sufficiency of the evidence.

United States v. Salamanca, 990 F.2d 629 (D.C.Cir. 1993)

Though the appellate court must affirm a conviction where “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” this does not mean that appellate review is “toothless.” Here, the defendant was charged with aiding and abetting his brother’s ruthless attack of a police officer. “The sufficiency of the evidence warrants particular scrutiny when the evidence strongly indicates that a defendant is guilty of a crime other than that for which he was convicted, but for which he was not charged. Under such circumstances, a trier of fact, particularly a jury, may convict a defendant of a crime for which there is insufficient evidence to vindicate its judgment that the defendant is blameworthy. Compelling evidence that a defendant is guilty of some crime is not, however, a cognizable reason for finding a defendant guilty of another crime.” Here, the evidence was insufficient to support a conviction of aiding and abetting the assault. At most, the defendant was an accessory after the fact, or committed misprision.