United States v. Lenard

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 24, 1998
• Docket: 97-41092
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41092 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JODY LENARD,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:97-CR-26-1 - - - - - - - - - - April 15, 1998

Before DUHE’, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Jody Lenard has appealed his convictions for obstructing and

affecting commerce by committing robbery and for using and

carrying a firearm during and in relation to a crime of violence.

Lenard contends that the evidence of guilt was insufficient.

Because Lenard failed to renew his motion for judgment of

acquittal after resting his case, we have reviewed the evidence

to determine whether Lenard’s convictions have resulted in a

manifest miscarriage of justice. United States v. Johnson, 87

F.3d 133, 136 (5th Cir. 1996), cert. denied, 117 S. Ct. 1482

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-41092 -2-

(1997). A “miscarriage of justice would exist only if the record

is devoid of evidence pointing to guilt.” United States v.

Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989) (internal

quotations omitted).

Lenard contends that his convictions for obstructing and

affecting commerce by committing robbery, in violation of 18

U.S.C. § 1951 (the Hobbs Act), were based upon insufficient

evidence because they relied upon the testimony of two

cooperating codefendants only. “The uncorroborated testimony of

an accomplice or coconspirator will support a conviction . . .

[as long as the] testimony is not incredible or otherwise

insubstantial on its face.” United States v. Singer, 970 F.2d

1414, 1419 (5th Cir. 1992).

“There are . . . two elements in a Hobbs Act prosecution:

(1) a robbery, act of extortion, or an attempt or conspiracy to

rob or extort; and (2) an interference with interstate commerce.”

United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997),

cert. denied, ___ S. Ct.___ (Feb. 23, 1998) (No. 97-7566), 1998

WL 70452. Lenard’s argument challenges the Government’s proof as

to the first element. The record is not “devoid of evidence”

showing that Lenard committed the robberies. See Robles-Pantoja,

887 F.2d at 1254. The testimony of Lenard’s accomplices was not

incredible or insubstantial. See Singer, 970 F.2d at 1419.

Lenard argues that his firearms convictions, under 18 U.S.C.

§ 924(c), should be reversed because he never personally

possessed a firearm in connection with the robberies. The

elements of a § 924(c) offense which the Government must prove No. 97-41092 -3-

are that “(1) th[e] defendant knowingly used or carried a

firearm, and (2) the use or carrying of the firearm occurred

during and in relation to a ‘crime of violence.’” United States

v. Harris, 25 F.3d 1275, 1279 (5th Cir. 1994). “The ‘carrying’

requirement of Section 924(c) is met where a defendant operates a

vehicle knowing the firearm is in the car.” United States v.

Speer, 30 F.3d 605, 612 (5th Cir. 1994) (citing United States v.

Ruiz, 986 F.2d 905, 910 (5th Cir. 1993)). In Ruiz, the court

affirmed the appellant’s § 924(c) convictions on similar facts.

See 986 F.2d at 907-11. The district court’s judgment is

AFFIRMED.