United States v. Jose Muniz

184 F.3d 114, 1997 U.S. App. LEXIS 3305, 1997 WL 1067714

• Court: Court of Appeals for the Second Circuit
• Decided: February 11, 1997
• Docket: 1163, Docket 94-1470
• Status: Published

Opinions

Judge LUMBARD dissents in a separate opinion.

LEVAL, Circuit Judge:

Jose Muniz was convicted on his plea of guilty to Count I of the indictment, a gun possession charge, and upon a jury’s verdict after trial on Count II, a narcotics charge. He was sentenced to 192 months imprisonment and five years supervised release on each of the two counts concurrently, plus a special assessment of $50 for each count. His appeal was argued on March 23,1995. Muniz contended that the evidence was insufficient as a matter of law to support his conviction on the narcotics charge; he also appealed his sentence on the firearms charge.

Upon argument of the appeal, both sides represented to the court that Muniz had failed to move for judgment of acquittal of the narcotics charge based on the insufficiency of the evidence under Rule 29, Fed. R.Crim.P. The majority voted to affirm the conviction. We held that the plain error standard applied by reason of Muniz’s failure to move under Rule 29 and that the evidence, even if insufficient to meet the reasonable doubt standard, was not so insufficient as to constitute plain error. United States v. Muniz, 60 F.3d 65 (1995).

In dissent, Judge Kearse contended that, where the error is the failure to meet the reasonable doubt standard, any shortfall, great or small, requires reversal of the conviction, regardless whether objection was noted at trial.

The Court voted to rehear in banc to decide whether, where the issue of the sufficiency of the evidence is raised for the first time on appeal, and the evidence is insufficient to support a guilty verdict under the “beyond a reasonable doubt” standard but is close to sufficient, a conviction may be affirmed on the ground that the insufficiency was not “plain” within the meaning of Rule 52(b), Fed.R.Crim.P.

Two days before oral argument, the government moved to vacate the in banc rehearing and remand to the panel, based on the discovery of a previously untranscribed portion of the trial minutes. The newly found transcript revealed .that defense counsel had in fact moved during trial for a judgment of acquittal under Rule 29. Declaring that the issue on which rehearing had been granted was now moot, the in banc court dissolved and returned the appeal to the panel for further consideration.

Because Muniz moved for a judgment of acquittal, we are all in agreement that the standard of review on appeal is whether, viewed in the light most favorable to the government, the evidence was sufficient to permit a “rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.” United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 , 61 L.Ed.2d 660 (1979)). Because we find the evidence insufficient to meet that standard, we reverse the conviction on the narcotics charge and direct the entry of a verdict of acquittal. We need not decide whether the standard would be the same or different for an unpreserved error. Our prior affirmance of Muniz’s sentence on the firearms charge is not affected by this ruling. Because Muniz received identical and concurrent sentences on the two counts of conviction, except for the incremental assessment of $60 per count, our ruling will not affect Muniz’s sentence except by eliminating the $60 special assessment for the narcotics count.