Petition for Writ of Certiorari — Johnathon Nico Wise, Petitioner v. United States

No.

____________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

____________________________________________

JOHNATHON NICO WISE,

Petitioner,

-vUNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________________________________

PETITION FOR WRIT OF CERTIORARI

____________________________________________

Quentin Tate Williams

Counsel of Record

HILDER & ASSOCIATES, P.C.

819 Lovett Blvd.

Houston, TEXAS 77006

tate@hilderlaw.com

(713) 655-9111 (Office)

(713) 655-9112 (fax)

QUESTION PRESENTED

Whether specific grounds must be identified in a Rule 29 motion for judgment of acquittal

to preserve error?

i

PARTIES

Johnathon Nico Wise is the petitioner; he was the defendant-appellant below. The United

States of America is the respondent; it was the plaintiff-appellee below.

Pursuant to Rule 12(6) Petitioner provides notice that Walter Freeman Jordan was a party

to the proceedings below, but Petitioner believes he has no interest in the outcome of this petition.

He previously petitioned this Court for a writ of certiorari, which was denied in Docket No. 198020 on April 20, 2020.

Pursuant to Rule 14(b(iii), Petitioner provides notice of a directly related proceeding,

United States v. Deandre Bendard Santee, No. 18-20618 in the United States Court of Appeals for

the Fifth Circuit, affirmed on October 16, 2019 (United States v. Santee, 780 Fed.Appx. 176 (5th

Cir. 2019)).

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................................... i

TABLE OF CONTENTS ................................................................................................................ iii

TABLE OF AUTHORITIES ............................................................................................................ v

PETITION FOR A WRIT OF CERTIORIARI ................................................................................. 1

OPINIONS BELOW ........................................................................................................................ 1

JURISDICTIONAL STATEMENT ................................................................................................. 1

FEDERAL RULE OF CRIMINAL PROCEDURE INVOLVED ..................................................... 1

STATEMENT OF THE CASE ....................................................................................................... 3

A. Proceedings in the District Court ......................................................................................... 3

B. Facts ..................................................................................................................................... 3

C. Wise’s Motions for Acquittal............................................................................................... 7

D. Sentencing ............................................................................................................................ 7

E. Proceedings in the Fifth Circuit ........................................................................................... 8

BASIS OF FEDERAL JURISDICTION....................................................................................... 11

REASONS FOR GRANTING THE WRIT .................................................................................. 122

A.

The decision below conflicts with the plain text of Rule 29. ......................................... 12

B.

The decision below conflicts with the decisions of other courts of appeals. ............... 133

C.

This Court should resolve this question through this case ........................................... 144

CONCLUSION............................................................................................................................ 166

APPENDIX

Judgment and Sentence of the United States District Court

for the Southern District of Texas.................................................................................................A1

iii

Judgment and Opinion of Fifth Circuit .........................................................................................A8

Order of Fifth Circuit on Motion for Panel Rehearing ...............................................................A34

Appellant’s Rule 29 Motion for Judgment of Acquittal .............................................................A37

Excerpts from Appellant’s Brief in the Fifth Circuit ..................................................................A55

iv

TABLE OF AUTHORITIES

Cases

Davis v. United States 589 U.S. ___ (2020)(per curiam) ............................................................. 13

Holguin-Hernandez v. United States, (2020)............................................................................... 13

United States v. Walker, 529 Fed.Appx. 256, 260 (3rd Cir. 2013) ................................................ 12

Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240, 1248, 188 L.Ed.2d 248 (2014) .......... 15

United Sates v. Gibson, 709 Fed.Appx. 271, 273 (5th Cir. 2017) ................................................. 15

United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013).......................................................... 13

United States v. Cox, 593 F.2d 46, 48 (6th Cir. 1979) .................................................................. 12

United States v. Daniels, 930 F.3d 393, 402 (5th Cir. 2019) ........................................................ 13

United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.1983) ...................................................... 12

United States v. Hammoude, 51 F.3d 288, 291 (D.C.Cir. 1995), cert. denied, 515 U.S. 1128,

115 S.Ct. 2290, 132 L.Ed.2d 291 (1995)) ......................................................................... 12

United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc) (per curiam) .................... 8

United States v. Jordan, 945 F.3d 245 (5th Cir. 2019) ....................................................... 1, 8- 9, 12

United States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012) ....................................................... 12

United States v. McDowell, 498 F.3d 308, 312-313 (5th Cir. 2007) ............................................... 9

United States v. Perez, 943 F.3d 1329, 1330 (11th Cir. 2019) ........................................................ 9

United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007) .......................................................... 9

United States v. South, 28 F.3d 619, 627 (7th Cir. 1994) ............................................................. 12

United States v. Viayra, 365 F.3d 790, 793 (9th Cir.2004) .......................................................... 12

Statutes

18 U.S.C. § 2113 ................................................................................................................. 3, 10, 15

v

18 U.S.C. § 3231 ........................................................................................................................... 10

18 U.S.C. 924(c) ........................................................................................................................... 15

28 U.S.C. § 1254 ............................................................................................................................. 1

Other Authorities

U.S.S.G. § 2B3.1....................................................................................................................... 9, 16

U.S.S.G. § 1B1.3 ....................................................................................................................... 9, 16

Rules

Fed. R. Crim. Pro. 29. ......................................................................................... 1-2, 7-9, 11, 12-16

Treatises

2A Charles A. Wright, et al., Federal Practice and Procedure § 466 (4th ed. 2016) ..................... 13

vi

PETITION FOR A WRIT OF CERTIORIARI

Petitioner Johnathon Nico Wise respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The original judgment in in the district court was entered judgment on August 17, 2018,

which judgment is attached as an appendix. The published opinion of the United States Court

of Appeals for the Fifth Circuit is captioned as United States v. Jordan, 945 F.3d 245 (5th Cir.

2019), and is provided as an appendix. The unpublished order denying panel rehearing of the

United States Court of Appeals for the Fifth Circuit in that case is also provided as an appendix

to the this petition.

JURISDICTIONAL STATEMENT

On April 15, 2020, rehearing was denied and the judgment affirmed. On March 19, 2020

this Court entered an order extending the deadline to file any petition for a writ of certiorari due

on or after that date to 150 days from the date of the lower court judgement, order denying

discretionary review, or orders denying a timely petition for rehearing. The instant Petition is filed

within 150 days of entry of the denial of rehearing. See Sup. Ct. Rule 13.1 and 13.3. This Court’s

jurisdiction to grant certiorari is invoked under 28 U.S.C. § 1254(1).

FEDERAL RULES INVOLVED

Federal Rule of Criminal Procedure 29(a)-(c) provides:

(a) Before Submission to the Jury. After the government closes its evidence or after

the close of all the evidence, the court on the defendant's motion must enter a

judgment of acquittal of any offense for which the evidence is insufficient to sustain

a conviction. The court may on its own consider whether the evidence is insufficient

to sustain a conviction. If the court denies a motion for a judgment of acquittal at

the close of the government's evidence, the defendant may offer evidence without

having reserved the right to do so.

1

(b) Reserving Decision. The court may reserve decision on the motion, proceed

with the trial (where the motion is made before the close of all the evidence), submit

the case to the jury, and decide the motion either before the jury returns a verdict

or after it returns a verdict of guilty or is discharged without having returned a

verdict. If the court reserves decision, it must decide the motion on the basis of the

evidence at the time the ruling was reserved.

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew

such a motion, within 14 days after a guilty verdict or after the court discharges the

jury, whichever is later.

(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set

aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the

court may enter a judgment of acquittal.

(3) No Prior Motion Required. A defendant is not required to move for a judgment

of acquittal before the court submits the case to the jury as a prerequisite for making

such a motion after jury discharge.

2

STATEMENT OF THE CASE

A.

Proceedings in the District Court

Petitioner Johnathon Nico Wise, (“Wise”), was charged by complaint on August 1, 2017,

and then by indictment on August 24, 2017, with the offense of Aiding & Abetting Aggravated

Credit Union Robbery (Count One) in violation of Title 18 U.S.C. § 2113(a), (d) and 18 U.S.C. §

2. ROA.11933-11942, ROA.11954-11955. After a four day Jury trial, Wise was convicted on

January 25, 2018. ROA.12090.

B.

Facts

On July 24, 2017, Houston Police Department (“HPD”) Officers investigating Walter

Jordan (“Jordan”) observed a cellular phone associated with him moving west from the Third Ward

area of Houston, Texas. ROA.705-708. Live surveillance followed a maroon Volkswagen Jetta

from Third Ward to Katy, Texas, and back, with Walter Jordan as the sole occupant. ROA.748750, 797. Cellular phones linked to co-defendants, other than Wise, were later identified as in

contact with Jordan or having travelled in the same direction that day. ROA.1314-1315,

ROA.1319-1328, ROA.1351-1352.

Officers continued surveillance the following day, July 25, 2017, including surveillance

from a pole camera on Greenmont Street in Third Ward. ROA.708-709, 750-751. A stolen black

Toyota Tundra pick-up truck and a silver Chevrolet Malibu owned by Jaylen Loring were observed

on Greenmont. ROA.712-713, 716. Later, a silver Nissan Rogue arrived. ROA.753. The Rogue

belonged to Deandre Santee, a good friend of Daryl Anderson. ROA.956-957. There, Jordan told

Anderson he “had a play… a robbery of some sort.” ROA.962. Anderson had known Walter Jordan

most of his life, but had never met Wise or talked to him. ROA.954-955, 996.

3

Anderson initially refused Jordan and left with Santee. ROA.962-963. But, Jordan called

and persuaded him to return, saying “I just need some extra eyes… I ain’t got nobody else…I just

need you to watch out.” ROA.963-964. Anderson and Santee returned in the Rogue a few minutes

later. ROA.964. Jordan explained the robbery to Anderson one-on-one. ROA.997. Wise was not

there when this occurred; he was elsewhere in a Volkswagen Jetta. ROA.965-966, 968-969.

Jordan told Anderson to keep an eye out for cops while they robbed the bank. ROA.967-968.

During these instructions, Jordan changed clothes next to the Tundra. ROA.969-970. Jordan then

got in the truck and Anderson went to the Rogue to relay instructions to Santee. ROA.970-972.

Santee knew Walter Jordan though not as well as Anderson. ROA.975-976. Meanwhile, Wise

was still in the Volkswagen. ROA.971.

At the Nissan Rogue, Anderson told Santee, “Just follow me.” ROA.971-972. A few

minutes later, Wise got into the passenger seat of the Rogue. ROA.972-74. Four vehicles then

left Greenmont in a caravan. ROA.792. Anderson drove the Volkswagen, which left last.

ROA.791. As the cars pulled away, the Rogue, driven by Santee, pulled up next to the Tundra.

ROA.975. The fourth vehicle was driven by Jaylen Loring.

Ms. Loring only interacted with Jordan “during the course of planning and executing this

robbery.” ROA.879. She knew him as “Wacko.” ROA.878. She did not know any of her other

co-defendants. ROA.879. Wacko promised her money to be a lookout. ROA.883-884. He called

her that morning and told her to meet him on Greemont, where she and him had discussed the

robbery the night before. ROA.886-887. After they all drove away from Greenmont, Loring lost

the others, but looked for the black Tundra and caught up because she did not know the destination.

ROA. 903-905. Jordan called her and told her, “follow us.” ROA.906. She heard other voices on

the phone call “but it’s, like, nobody is directly saying anything. It’s just voices.” ROA.906. It

4

was “like the phone was on speaker.” ROA.907. But nothing else was being “directly said” about

the robbery, just a lot of voices. ROA.907. The only voice she recognized was Jordan’s. ROA.907.

A police expert analyzed records including call and cellular telephone tower data from the

service provider associated with the cell phones obtained in the investigation. ROA.1303-1306,

1310-1312, 1319. According to his testimony, the phone with the number ending 2498 in the

Nissan Rogue was used to text and call during the drive west on I-10, including a call to Anderson

for about an hour. ROA.1330-1333. This was consistent with Daryl Anderson’s testimony. In the

area of the credit union, Anderson said he was “on the phone with Mr. Santee” and had been “[t]he

whole ride.” ROA.978.

There, Anderson went a different direction than the others to look for law enforcement.

ROA.978. As he did so, Anderson was on a three-way call with Jordan and Santee. ROA.978-979.

Santee, driving the Rogue, followed Anderson as instructed. ROA.979. The Rogue was seen

following a police car, also as Anderson directed. ROA.981. Around that time, Walter Jordan told

Jaylen Loring it was going to be the second bank. ROA.908-909.

Ms. Loring went inside, came out, and told Jordan over the phone that there was no

security. ROA.909. Loring then drove around and looked for security for about forty-five minutes

to an hour. ROA.911. The Nissan Rogue parked in a lot across the street from the credit union

and facing it. ROA.762. The black Tundra parked park in the space in front of the bank and three

males exited and ran into the front doors of the credit union. ROA.762. Shortly thereafter, officers

observed a fourth do likewise. ROA.762. Jaylen Loring watched the robbery nearby from the

grocery store parking lot. ROA.912-913.

In the credit union, around 1:00 P.M., someone in athletic clothing with face and hands

covered jumped over the counter of Ms. Williams, a teller. ROA.835-836, 839. A second robber

5

came over the counter, while a third robber was noticed to have a cell phone in his hand. ROA.837838. The second, who had a backpack, told Williams to get on the ground and asked her where

the money was. ROA.840. She got up and unlocked a drawer for him. ROA.840. He told her to

stay with another man while he went through the drawers. ROA.841. They the robbers went in

the vault room with Mr. Osborne, the Vice President, but had Williams stand with her hands raised

next to the drive- through lanes. ROA.842. When the robbers could not get into the vaults, they

asked Williams, but she did not have access. ROA.843-844. The third robber then came over the

counter. ROA.844. He looked down at his shirt, showed Williams a pistol in his waistband, and

told her to get on the floor. ROA.844.

Mr. Osborne tried to explain that he only had half the combination and could not open the

safe. ROA.857. The robbers accused Osborne of lying or stalling and one hit him on the head.

ROA.858. Osborne then saw the third robber and the gun in his waistband. ROA.859. At some

point Ms. Williams heard a fourth person come into the credit union and yell that the cops were

“’down the street.’” The robbers ran, jumped over the counter, and left. ROA.847. A little more

than $8,000 was taken from the teller drawers. ROA.865.

After the robbers left in the Tundra, the other three vehicles departed, but were almost

immediately detained. ROA 762. The Nissan Rogue was pulled over with Santee driving and Wise

in the front passenger seat. ROA.763, 1013. A total of three cellular phones were recovered from

that vehicle. ROA.1016-1017, 12058. A white iPhone was found on Wise. ROA.1038, 1040-1041.

A black iPhone was in the driver’s seat and a black Samsung cell phone in the center console on

the passenger side. ROA.1015. According to records introduced into evidence, they belonged to

different people.

6

The white iPhone found on Wise had the number ending 9812, and was activated the day

before the robbery in an account in his name. ROA.1239, 1314. The expert witness testified he

did not “get much information on that particular number.” ROA.1314-1315. The Samsung Galaxy

in the console had the phone number ending 2498 and was in the name of a girlfriend of Jordan,

Anna Rogers. ROA. 10241233-1234, 1280-1281.

During the search of the Rogue, the Tundra led police on a high-speed chase, but the

occupants were ultimately apprehended. ROA. 1048, 1056, 1092.

C.

Wise’s Motions for Acquittal

Wise moved for acquittal at the close of evidence, and it was denied. ROA.1355-1359. He

further made a general written motion for judgment of acquittal alleging insufficient evidence on

all elements of the count of conviction. Appendix at A37; ROA.12092-12109. Wise alleged that

“[t]here was insufficient evidence to prove Wise aided or abetted the elements of the substantive

offense of bank robbery or the enhancement in this case.” ROA.12096. A41, ¶11. After a

reviewing the evidence, Wise further argued that:

“The evidence against Johnathon Nico Wise is insufficient to support his

conviction. No rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt even viewing the evidence in the light most

favorable to the verdict. As a result, Defendant requests a judgment of acquittal on

all counts pursuant to Federal Rule of Criminal Procedure 29(c).

-

ROA.12104; Appendix at A49, ¶40.

The Government filed a written response and after an oral hearing on March 23, 2018, the

motion was denied without written order. ROA. 12113-12130,12132, 12184-12202.

D.

Sentencing

Wise filed written objections to the pre-sentence investigation report. ROA.20686-20696.

An objection to the firearm special offence characteristic enhancement was overruled.

7

ROA.12204-12213, 20743. Wise was sentenced to: a term of confinement of one hundred twentyone months confinement; three years supervised release to run concurrently; a $100 special

assessment; no fine; and restitution in the amount of $401, jointly and severally with his CoDefendants. ROA.12138-12144, 12220. On July 29, 2015, timely written notice of appeal was

given. ROA.12145.

E.

Proceedings in the Fifth Circuit

In his first point of error to the Fifth Circuit, Wise argued that “Evidence that Wise Aided

& Abetted Aggravated Credit Union Robbery was Constitutionally Insufficient.” Appendix at

A57. Wise argued in support of that point of error that, pursuant to post-trial Fifth Circuit

Precedent, the jury was required to find that Wise “was required to have advance knowledge and

intent to aid and abet those aggravating facts [assault or threat to the life of another person by use

of a dangerous weapon or device].” Id. at A66.

The Fifth Circuit’s opinion, sua sponte broke Wise’s single sufficiency point of error in

two points of error and used two different standards of review, stating,

Wise argues that the evidence was insufficient to support his conviction in two

respects: first, that there was no evidence Wise “aided and abetted”; second, that

there was no evidence Wise had advance knowledge that a weapon would be used.

We review the first argument de novo, but we review the second argument for a

manifest miscarriage of justice.

-

Jordan, 945 F.3d at 259.

These were not separate arguments in Wise’s brief. See Appendix at A57-67. Nevertheless, the

Fifth Circuit’s opinion then held that “Wise did not raise this issue in making his motion for a

judgment of acquittal, so it was not properly preserved for de novo review on appeal.” The opinion

fails to explain how Wise’s general Rule 29 motion sufficiently preserved the general “aided and

abetted” sufficiency issue and not the other. The opinion did not hold that Wise had raised a

8

specific grounds for a specific element of a specific count and thereby waived all others. Id.at

260; see also United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc) (per curiam).

Indeed it could not, it was a general motion. See § C.

Both cases cited by the Fifth Circuit are inapposite to Wise because in each, the motion

focused on one element. Jordan 945 F.3d at 260, fn. 39 (citing United States v. McDowell, 498

F.3d 308, 312-313 (5th Cir. 2007) and United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007)).

In McDowell, “that motion challenged only the obscenity vel non of the video, not whether the

Government had proved McDowell possessed the requisite mens rea.” McDowell, 498 F.3d at 312.

In Phillips, the “motion raised only the narrow issue whether the loss or damage caused by his

online exploits exceeded $5,000.00.” Phillips, 477 F.3d at 219. Wise’s Rule 29 motion contested

all evidence for all elements on all counts, not any specific element to the exclusion of others. In

the order denying rehearing, the Fifth Circuit merely referred to the original opinion. Appendix at

A34, fn. 1 (“In the alternative, Wise argues that his Rule 29 motion sufficiently preserved the issue

for de novo review. We reject this argument for the same reasons provided in United States v.

Jordan, 945 F.3d 245, 260 (5th Cir. 2019).”). This had a cascading effect on Wise’s appeal.

Wise’s fourth point of error was that the six-level Guideline enhancement for otherwise

use of a firearm was clearly erroneous under U.S.S.G. § 1B1.3(a) and § 2B1.3(b)(2)(B) because

the use of a firearm was not foreseeable to Wise. The Fifth Circuit held, “[F]or the same reasons

that the evidence was sufficient to support a finding that Wise aided and abetted aggravated

robbery, the district court had sufficient evidence to conclude that the use of a firearm was

reasonably foreseeable to Wise.” Jordan, 945 F.3d at 263. As the Eleventh Circuit recently

recognized, “Of course there’s no such thing as a good bank robbery. But from the perspective of

the Sentencing Guidelines, there are certainly less bad ones.” United States v. Perez, 943 F.3d

9

1329, 1330 (11th Cir. 2019). Had Wise not been convicted of aiding and abetting aggravated bank

robbery because of the lack of advance knowledge and intent, the trial court could not have found

the use of a weapon foreseeable to him and he would his guideline range would have been

substantially less.

10

BASIS OF FEDERAL JURISDICTION

IN THE UNITED STATES DISTRICT COURT

This case was brought as a federal criminal prosecution involving Aiding and Abetting

Aggravated Credit Union Robbery in violation of 18 U.S.C. § 2113 (a), (d), and 18 U.S.C. § 2

(ROA.41-42). The district court therefore had jurisdiction pursuant to 18 U.S.C. § 3231.

11

REASONS FOR GRANTING THE WRIT

The decision below conflicts with decisions of most other circuits and the plain

text of Federal Rule of Criminal Procedure 29 on the important, recurring,

question of what, if any, specificity is necessary to preserve error.

The Fifth Circuit has decided an important question of federal law that has not been, but

should be, settled by this Court as it conflicts with the plain text of Rule 29. It is important because

correct preservation of sufficiency challenges for appellate review is necessary for all federal

criminal Defendants who are convicted at trial.1 Absent guidance from this Court, Defendants

nationwide may unintentionally fail to preserve error. Moreover, the Fifth Circuit ruling in this

case conflicts with at least half of the other circuits. Four circuits have been silent in this regard.

A.

The decision below conflicts with the plain text of Rule 29.

On its face, Federal Rule of Criminal Procedure 29 permits a defendant to "move for a

judgment of acquittal" after a jury verdict or discharge without articulating specific grounds for

that motion. Fed. R. Crim. Pro. 29. Before submission to the jury, “on the defendant’s motion the

court must enter a judgment of acquittal of any offense for which the evidence is insufficient to

sustain a conviction.” Id. Indeed, “[t]he court may on its own consider whether the evidence is

insufficient to sustain a conviction,” Id. Under no section of Rule 29 is either the Defendant or the

Court required to state a specific grounds. Regardless, the Fifth Circuit imposed a requirement

not contained within the rule, i.e. that Defendants are required to specifically raise an issue in a

motion for judgment of acquittal to obtain de novo review. Jordan 945 F.3d 245, 260. This

position of the Fifth Circuit conflicts with the decisions of other courts of appeals.

1

For the twelve month period ending March 31, 2020, there were 1,480 federal criminal defendants convicted

by a jury. U.S. Courts Table D-4—U.S. District Courts–Criminal Federal Judicial Caseload Statistics (March 31,

2020) “U.S. District Courts—Criminal Defendants Terminated, by Type of Disposition and Offense—During the 12Month Period Ending March 31, 2020” Available at https://www.uscourts.gov/statistics/table/d-4/federal-judicialcaseload-statistics/2020/03/31 (last viewed August 28, 2020).

12

B.

The decision below conflicts with the decisions of other courts of appeals.

“In most circuits, the rule is that a general challenge to the adequacy of the evidence

preserves for de novo review ‘the full range of challenges, whether stated or unstated.’ United

States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012)(quoting United States v. Hammoude, 51 F.3d

288, 291 (D.C.Cir. 1995), cert. denied, 515 U.S. 1128, 115 S.Ct. 2290, 132 L.Ed.2d 291 (1995)).

At least seven circuits (1st, 2nd, 3rd 6th, 7th, 9th, D.C.) have held that motions for acquittal under Rule

29 are not required to state the specific grounds on which they are based.2 As one court stated,

“the very nature of such motions is to question the sufficiency of the evidence to support a

conviction… the defendant need not specify the ground of the motion in order to preserve a

sufficiency claim for appeal." United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.1983); see

also United States v. Walker, 529 Fed.Appx. 256, 260 (3rd Cir. 2013)(“We recognize that while

the law requires counsel to make specific objections to evidence or instructions, the practice of

allowing general Rule 29 objections is now well accepted... [w]e will therefore apply a de novo

review to the denial of his Rule 29 motion.”); United States v. Viayra, 365 F.3d 790, 793 (9th

Cir.2004)( (agreeing with “[s]everal of our sister circuits [that] have held that Rule 29 motions for

acquittal do not need to state the grounds upon which they are based); United States v. South, 28

F.3d 619, 627 (7th Cir. 1994) (noting that Rule 29 does not require anything more than notice that

defendant was " contesting the sufficiency of the evidence" ); United States v. Cox, 593 F.2d 46,

48 (6th Cir. 1979) (stating that a Rule 29 motion need not specify the grounds for acquittal in order

for the issue of the sufficiency of the evidence to be properly before the appellate court); See also

2A Charles A. Wright, et al., Federal Practice and Procedure § 466 (4th ed. 2016) ("Specificity is

2

The Fourth, Eighth, Tenth, and Eleventh Circuits do not appear to have expressly addressed the issue.

13

not required by Rule 29 or by Rule 47."). Indeed, several months before Jordan, the Fifth Circuit,

stated that "[w]hen a defendant makes a general sufficiency-of-the-evidence challenge, we review

the sufficiency of the evidence supporting a conviction de novo." United States v. Daniels, 930

F.3d 393, 402 (5th Cir. 2019)(citing United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013)).

Nevertheless, it imposed on Wise a requirement to specify the grounds, despite his general motion

challenging the sufficiency. No circuit clearly defines a general challenge.

C.

This Court should resolve this question through this case

This issue merits the Court’s attention through this case for a variety of reasons. As stated

above, the holding conflicts with a plain reading of the rule and clarity is necessary for the hundreds

of defendants who are convicted at trial every year to preserve the issue for appeal. More acutely,

however, the Fifth Circuit is in conflict with the circuits that have addressed the issue and the

publication of its decision in this case may provide incorrect guidance to the circuits that have not

addressed the issue. Lastly, given its history in this and other cases, it is unlikely that the Fifth

Circuit will reverse itself to remove the extra-textual requirement it has imposed.

This Court has recently reversed the Fifth Circuit twice in error preservation cases where

it imposed restrictions or requirements not grounded in law. See Davis v. United States 589 U.S.

___ (2020)(per curiam) (“[T]there is no legal basis for the Fifth Circuit’s practice of declining to

review certain unpreserved factual arguments for plain error.”); Holguin-Hernandez v. United

States, (2020) (“We do not agree with the Court of Appeals' suggestion that defendants are

required to refer to the ‘reasonableness’ of a sentence to preserve such claims for appeal…The

rulemakers, in promulgating Rule 51, intended to dispense with the need for formal ‘exceptions’

to a trial court's rulings… they chose not to require an objecting party to use any particular

language or even to wait until the court issues its ruling.. The question is simply whether the

14

claimed error was “brought to the court’s attention.” Rule 52(b). Here it was.”). This is another

such instance. Rule 29 does not mandate any required level of specificity to accomplish its purpose

or preserve error.

The Fifth Circuit will not resolve the matter, itself. The ruling in this case and Daniels a

few months earlier reveal that the Fifth Circuit takes an inconsistent and improperly narrow view

of error preservation, as this Court’s two recent ruling recognize. Moreover, this issue confronts

all federal criminal Defendants who are convicted after trial. Absent guidance, Defendants and

Courts will be left to their own different interpretations of what constitutes sufficient preservation

of error for sufficiency review. This would not resolve the circuit split. This case is an ideal

vehicle to provide clarity as the court below expressly held, without explanation, that a specific

ground for a Rule 29 motion must be identified to preserve error for de novo review. This Court

may resolve the standard of review and remand for further proceedings.

If, however, the Court wishes to look deeper, Petitioner would be entitled to relief under de

novo review. Aggravated Credit Union robbery is a combination offense or is equivalent to such

an offense, including 18 U.S.C. 924(c) because it requires that (1) a credit union robbery occur;

and (2) that an assault or threat to the life of another person occurs by use of a dangerous weapon

or device. See United Sates v. Gibson, 709 Fed.Appx. 271, 273 (5th Cir. 2017); 18 U.S.C. § 2113.

It requires a second crime to occur during or in relation to the first. Petitioner was therefore

required to have advance knowledge and intent to aid and abet those aggravating facts, not just the

robbery. Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240, 1248, 188 L.Ed.2d 248 (2014)).

There was no evidence from any source, including surveilling police or cooperating witnesses that

dangerous weapons were seen anywhere or were mentioned prior to the robbery. No rational juror

could have found Petitioner aided or abetted this aggravating element of the offense. For similar

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reasons, the sentencing guidelines enhancement of the use of the firearm pursuant to U.S.S.G. §

1B1.3(a) and § 2B1.3(b)(2)(B) could not be upheld.

Proper review of the denial of Petitioner’s Rule 29 motion would result in favorable

outcomes for him. Only the extra-textual requirement imposed by the Fifth Circuit to limit the

availability of de novo review precludes relief. Because this requirement is in disagreement with

other courts and the plain text of Rule 29, this Court should grant relief to provide guidance on

preservation to the hundreds of defendants convicted each year and courts on this important

question of federal law. This Court should grant certiorari.

CONCLUSION

For the foregoing reasons, Petitioner asks that this Honorable Court grant a writ of

certiorari to the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 4th day of September, 2020.

/s/ Q. Tate Williams

Quentin Tate Williams

Counsel of Record

HILDER & ASSOCIATES, P.C.

819 Lovett Blvd.

Houston, TEXAS 77006

tate@hilderlaw.com

(713) 655-9111 (Office)

(713) 655-9112 (fax)

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