United States v. Moore

[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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