Petition for Writ of Certiorari — Miller v. United States (No. 09-467)

Supremes Court, U.S.

FILED

09-467 0CT13$ 2009

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

TERRY MICHAEL MILLER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

RYAN P. BATES

YETTER, WARDEN & COLEMAN, L.1..P

221 West Sixth Street, Suite 750

Austin, Texas 78701

(512) 533-0150

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALI. COLLECT (402) 342-2831

QUESTION PRESENTED

Jackson v. Virginia held that evidence supporting

a criminal conviction is constitutionally sufficient

only if a rational factfinder could find every essential

element of the crime beyond a reasonable doubt.

When reviewing claims of insufficient evidence for

plain error, the en banc Tenth Circuit and five other

courts of appeals apply Federal Rule of Criminal

Procedure 52(b) in an analysis that is functionally

equivalent to de novo review under Jackson. In

contrast, the Fifth Circuit interprets Rule 52(b) to

require a more stringent “manifest miscarriage of

justice” standard that assesses unpreserved insuffi-

ciency claims only to determine if the record was

“devoid of evidence pointing to guilt”; four other

circuit courts have adopted that same standard. The

question presented is:

Whether the Fifth Circuit, in conflict with six

other courts of appeals, incorrectly defines the scope

of review under Rule 52(b) by employing a standard

under which an unpreserved challenge to the suffi-

ciency of the evidence supporting a criminal convic-

tion can succeed only if the record is entirely devoid of

evidence pointing to guilt.

il

PARTIES TO THE PROCEEDINGS

The petitioner is Terry Michael Miller, the

defendant and defendant-appellant in the courts

below. The respondent is the United States of

America.

Counsel of record for the petitioner is not a

member of the Bar of this Court but was appointed to

represent the petitioner on appeal pursuant to the

Criminal Justice Act of 1964, 18 U.S.C. §3006A(b).

App. 34; see Sup. Ct. Rule 9.1.

11]

TABLE OF CONTENTS

Page

WP OCIOT PUOUOTEOG oninsccssscsixedtinivexiacnnnes i

Partios to the ProcOedinigs . ..i...isisssiiscesierescesscesesss il

RAO CE PMR vikikckcedssvincnasdiccsiseseneas Vv

Opinion and Judgment Below .........................2005

Statement of Jurisdiction ...............ccceecsceceeneeeeeees 1

Constitutional and Statutory Provisions and Rule

ITI sis issicccdsinnaccicnrsenca inne vaenaa te eee ae

Reasons for Granting the Petition.......................

:.

THE COURT SHOULD GRANT THE WRIT TO

RESOLVE THE CIRCUITS’ DEEP SPLIT OVER

THE STANDARD FOR REVIEWING EVIDEN-

TIARY INSUFFICIENCY CLAIMS IN THE AB-

SENCE OF A RULE 29 MOTION’ FOR

Fe, gg | RP eR peat Sar eR are va eee

A. The Existence of Jackson Error Is Vir-

tually Determinative in a Proper Plain-

Error Analysis Under Rule 52(b)..........

B. The Circuits Are Starkly and Stead-

fastly Divided over the Proper Stan-

dard for Analyzing Plain-Error Suffi-

CU Gr iio se sae ov ceenscnsiemieiess

C. The Minority Devoid-of-Evidence Stan-

dard Concocts an Improper Exception

to Olano’s Consistent Rule, Unjustifi-

ably Imposes a Burden That Is Vir-

tually Impossible to Satisfy, and Has

Widespread Practical Consequences ....

ho

‘e>)

12

16

TABLE OF CONTENTS — CONTINUED

Page

D. The Fifth Circuit’s Application of the

Devoid-of-Evidence Standard Precluded

the Proper Assessment of Miller’s Plain-

Error Sufficiency Claim ....................se08 24

iS een. T2770 nt a ke , 26

APPENDIX TO THE PETITION

July 21, 2009 Judgment of the Court of

Appeals for the Fifth Circuit .................... ee App. l

July 21, 2009 Opinion of the Court of Appeals

TO CIN Fre I ois ossiss cine cosscecnencivesdscavosrcnes App. 3

April 8, 2008 Judgment of the United States

District Court for the Western District of

I ara cesetcarssdnceaaruadeets cearaxtserisarearal App. 11

2 ag CF ong | 5 4 SERRE URS BERNE eens oraNEnR NT or App. 24

May 1, 2007 Superseding Indictment............... App. 25

PORIOPY FF, DIOS VOTE oicisceccseiscccesensnvensdesssnns App. 29

April 17, 2008 Notice of Appeal......................... App. 30

Selected Docket Entries for United States v.

Miller, No. A-06-CR-125-LY, in the United

States District Court for the Western District

Or I recess areas eran nie App. 32

TABLE OF AUTHORITIES

Page

CASES

Bank of Nova Scotia v. United States, 487 U.S.

Eg) re Teague nara ten si duad ca eceseaeeeticiaetas 16

Corbin v. United States, 253 F.2d 646 (CA10

| A eae FASE AE a, RO OE Tee RE IER Oe TT ROPE 16

Cosby v. Jones, 682 F.2d 1373 (CA11 1982)......... 19, 21

Hormel v. Helvering, 312 U.S. 552 (1941).......000000.0... 19

In re Winship, 397 U.S. 358 (1970) ............cccscesceees 9,18

Jackson v. Virginia, 443 U.S. 307 (1979)........... passim

Jacobellis v. Ohio, 378 U.S. 184 (1964).....0..00 ee. 22

Johnson v. Zerbst, 304 U.S. 458 (1938) .....0.00 000. e eee. a 6

Johnson v. United States, 520 U.S. 461 (1997) ....5, 6, 9, 16

Ladner v. United States, 358 U.S. 169 (1958).............. 3

Penn R. Co. v. Chamberlain, 288 U.S. 333

i): RRO ee EE veo SEO NT Rr PIES VEER I oie: HOPE 19

Puckett v. United States, 129 S.Ct. 1423 (2009)........ 16

Thompson v. City of Louisville, 362 U.S. 199

| SAREE AE a ee eer Aen omen P RR NEE NE SAM tethet gr Mee reat o 17

United States v. Abdullah, 162 F.3d 897 (CA6

2 Rea RENESAS SOO AEC OS So ERD en Ne SPAN Sehr dee 15

United States v. Adams, 91 F.3d 114 (CAI1I1

I Se a kg eof Se, en ee ee 15

United States v. Allen, 127 F.3d 260 (CA2 1997)....... 12

United States v. Anderson, 89 F.3d 1306 (CA6

WF J COPE EEE EEE HEHEHE HSH HEHEHE HEHEHE EEE HEHEHE ESHER HEHEHE HEHEHE HHO EEO HEHE

vl

TABLE OF AUTHORITIES — CONTINUED

Page

United States v. Anderson, 570 F.3d 1025 (CA8

Re er rf tao a seuaupasdbeiasnuneani ecees eee

United States v. Atkinson, 297 U.S. 157 (1936)........... 8

United States v. Berrios-Centeno, 250 F.3d 294

a rel eg susan oneubcacenvunhs 24

United States v. Bichsel, 156 F.3d 1148 (CA11

TT OAD See Se Ae oe eee 15

United States v. Bowie, 892 F.2d 1494 (CA10

ade REE er Pen LEE oD SRE SESS 15, 16

United States v. Brown, 352 F.3d 654 (CA2

a ED RP ROR PN Ae PLO RR RE eA 7,8

United States v. Carranza, 289 F.3d 634 (CA9

cg ie a Ree Cc To en 14

United States v. Caseer, 399 F.3d 828 (CA6

| Re ee es Nee een ne Se 19, 21

United States v. Cedelle, 89 F.3d 181 (CA4

AOE ERR RRC a See NS TSE SOE Nee a en Oe 9,10

United States v. Cotton, 535 U.S. 625 (2002).............. 9

United States v. Cruz, 554 F.3d 840 (CA9

al NESE TPO, Rp a manta en A et EO 8,10

United States v. Delay, 440 F.2d 566 (CA7

ee are ee 19, 21

United States v. Delgado, 357 F.8d 1061 (CA9

reer rer eee) Game tb FeRAM Ve OLS il SG oe 14

United States v. Feola, 420 U.S. 671 (1975)............... 24

TABLE OF AUTHORITIES — CONTINUED

Page

United States v. Franklin-El, 555 F.3d 1115

(CA10 2009)........ re 10, 14

United States v. Gallant, 537 F.3d 1202 (CA10

Ra RNR eh patie ares tn open pia nea EPO Iabee SUNN SMH? 11,14

United States v. Gaydos, 108 F.3d 505 (CA3

RE to SD are Baa ee ee eo, 10

United States v. Glenn, 312 F.3d 58 (CA2 2002)........ 19

United States v. Goode, 483 F.3d 676 (CA10

SES ER Ree ae MEMES Spite PT NRA RE SAN Se ale FSR Oe 12

United States v. Green, 293 F.3d 886 (CA5

| ERAN en eer ae an OAT TR Re RIN AD 15, 21

United States v. Green, 296 Fed. Appx. 337

RO NY soo geese cat eee ae ec 13

United States v. Irby, 558 F.3d 651 (CA7 2009) ....15, 21

United States v. Ivory, 468 F.2d 613 (CA5 1972)....... 16

United States v. Jones, 418 F.2d 818 (CA8 1969)........ 19

United States v. Londondio, 420 F.3d 777 (CA8

ate ne erg a 14

United States v. Maxwell, 285 F.3d 336 (CA4

RE aren a EE SID Arey Pane erT ane ONTO 7, 21

United States v. Mornan, 413 F.3d 372 (CA3

- Rg eee aE ERE PED a TE ENDS OY, RAGE NE. Ree OeH ET 12

United States v. Neal, 101 F.3d 993 (CA4 1996).......... 7

United States v. Olano, 507 U.S. 725 (1993)...... passim

United States v. Ortega Reyna, 148 F.3d 540

(CAB 1998)... .cccccceececeeee AREA Ore td le 20, 21

Vlll

TABLE OF AUTHORITIES — CONTINUED

Page

United States v. Qunbar, Nos. 07-3516-cr, 08-

2802-cr, O07-3537-cr, O08-2506-cr, 2009 WL

1874330 (CAS Suly 1, BOOB) vvccccscscerccescccsecsccescctensoes 12

United States v. Reveles, 190 F.3d 678 (CA5

BIE vscacenackecsackavevcsinsicsasecnaie teense eee 19, 25

United States v. Rock, 370 F.3d 712 (CA7 2004)........ 21

United States v. Ruiz, 860 F.2d 615 (CA5 1988)....16, 22

United States v. Schaefer, 501 F.3d 1197 (CA10

ETD vacceuandsxeceastevecaseoiauacsasedeeaa eee 10, 14

United States v. Spinner, 152 F.3d 950 (CADC

OED onsvcsixcdceveconsccusecaducnvdecsiceceuu eee 15

United States v. Todosiyevic, 161 F.3d 479 (CA7

BEY ick cicesnccnsesacsaciesastninesnten eee eee 15

United States v. Vasquez, 560 F.3d 461 (CA6

ED bn ddvdccisnasnudsséodstsavecateabincsiianes cee L5

United States v. White, 1 F.3d 13 (CADC 1993)........... 8

United States v. Wolfe, 245 F.3d 257 (CA3 2001).......13

CONSTITUTIONAL PROVISION

C5 Be: Cone ED gis ccccncccnnscscsnieseade ae eee 2

STATUTES

BEE EF ads WE EO vice vcubadecccuacseavchsncecaeueeeaaeeen eee 2, 24

5B U7... WMD onsen eisdacsenne ee eee il

TABLE OF AUTHORITIES —- CONTINUED

Nee ns cs secs nceecevececencccceccseooe l

28 U.S.C. $1254(1).............. —_ : cues l

RULES

Fed. Rule App. Proc. 4(b)(1) ...................

Fed. Rule Crim. Proc. 52(b)...................s0ssc00e000- DQSSIMN

sup. Ct. Rule 9.1.......... Nr dcaenascscssenes Nexdeduteeans li

Petitioner Terry Michael Miller respectfully asks

the Court to issue a writ of certiorari to review the

final judgment of the United States Court of Appeals

for the Fifth Circuit. This case provides the Court the

opportunity to explain the proper standard for plain-

error review of sufficiency-of-the-evidence challenges

and to settle an issue over which the circuits are in

substantial, irreconcilable conflict.

OPINION AND JUDGMENT BELOW

The district court did not publish an opinion in

this case. Its final judgment is reprinted in the

Appendix at App. 11-24.' The court of appeals’s per

curtam opinion affirming the conviction is reported at

576 F.3d 528 and reprinted at App. 3-11.

STATEMENT OF JURISDICTION

The district court had jurisdiction under 18

U.S.C. §3231. Final judgment was entered on April 8,

2008, and a notice of appeal was timely filed on April

17, 2008. See App. 11-23; App. 30-31; Fed. Rule App.

Proc. 4(b)(1). On July 21, 2009, the court of appeals

issued a judgment affirming Miller’s conviction, va-

cating his sentence, and remanding for resentencing;

Miller did not file a motion for rehearing. This Court

has jurisdiction under 28 U.S.C. §1254(1).

' Citations in the form “App ” are to the petition appen-

dix. Citations in the form “ Supp. R. __” are to the multi-

volume suppicmental record on appeal in the Fifth Circuit

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS AND RULE INVOLVED

The Fifth Amendment to the United States Con

stitution provides in relevant part: “No person shall

... be deprived of life, liberty, or property, without

due process of law... .”

The text of 18 U.S.C. §111 is lengthy and is re-

printed at App. 24.

Rule 52(b) of the Federal Rules of Criminal

Procedure provides: “A plain error that affects sub-

stantial rights may be considered even though it was

not brought to the court’s attention.”

STATEMENT OF THE CASE

Terry Miller was convicted on two counts of

assaulting a federal officer with a dangerous weapon

in violation of 18 U.S.C. §111(a) and (b). His convictions

stemmed from a 2006 incident in which Miller

attempted to flee agents of a joint federal-state task

force when they sought to arrest him on a parole-

violation warrant while he sat in an idling truck in

the driveway of his grandson’s house. Two agents

were on the far side of cars they had parked partway

across the driveway entrance when Muller drove

between the cars. 9 Supp. R. 176-177, 226, 243-248.

Though neither agent was in Miller’s path when he

began driving away, both feared the truck would hit

them and jumped away from its path. 9 Supp. R. 184,

251-252. Neither agent was hit. Jbid. And before

Milier had even reached the driveway entrance where

the two agents had parked their cars, Miller was shot

in the face by other agents. 10 Supp. R. 442-443, 482.

He then lost control of the truck, crashed, and was

arrested. lbid.

At trial, Miller’s primary defense was that he

lacked the intent to assault the agents, an essential

element of the offense. 10 Supp. R. 533-535. Miller

testified that he intended only to escape, that he

never intended to hurt anyone, and that he never

even saw the agent he came closest to hitting. 10

Supp. R. 477-478, 484-485. The defense also at-

tempted to negate the voluntariness of Miller’s

actions by demonstrating Miller lacked the capacity

to control the vehicle after being shot in the face. 9

Supp. R. 305-306, 392; 10 Supp. R. 477. Miller’s

counsel moved for a judgment of acquittal at the close

of the government’s evidence but failed to renew the

motion at the close of all the evidence, thereby failing

to preserve the issue of evidentiary sufficiency for

appeal. The jury convicted on both counts.

On appeal, Miller challenged both his convictions

and his sentence. The Fifth Circuit, in a per curiam

opinion, recognized that the district court had plainly

erred in convicting Miller on the two multiplicitous

counts under §111, see Ladner v. United States, 358

U.S. 169 (1958), and vacated Miller’s sentence. App.

9-10. However, the court of appeals upheld Miller’s

convictions against his unpreserved sufficiency-of-

the-evidence challenge, holding the record was not

“devoid of evidence pointing to guilt” on the specific

issue of Miller’s intent to assault and so finding no

“manifest miscarriage of justice.” App. 6.

4

REASONS FOR GRANTING THE PETITION

The Fifth Circuit and four sister circuits have

contrived an incorrect standard of review for unpre-

served evidentiary insufficiency claims that improp-

erly narrows the plain-error standard of Federal Rule of

Criminal Procedure 52(b). Under the settled practice

of six other circuits, a court reviewing a forfeited

sufficiency challenge for plain error first determines

whether the alleged insufficiency would prevent a

rational factfinder from finding every essential ele-

ment of the crime beyond a reasonable doubt under

the test of Jackson v. Virginia, 443 U.S. 307 (1979). If

so, the court then assesses whether that error is

plain, affects the defendant’s substantial rights, and

seriously affects the fairness, integrity, or public

reputation of judicial proceedings—conditions that

are typically satisfied once Jackson’s demanding

standard is met. But that is not what the Fifth

Circuit did.

Instead, under the harsher “manifest miscarriage

of justice” interpretation of Rule 52(b) long-settled in

the Fifth Circuit and applied in this case, when

sufficiency is not properly preserved, a conviction will

not be reversed for insufficient evidence unless “the

record is devoid of evidence pointing to guilt.” App. 5-

6 (internal quotation marks omitted). This standard

ignores or, at best, seriously misunderstands the

framework for addressing errors under Rule 52(b)

regularized by this Court in United States v. Olano,

507 U.S. 725 (1993), and it distorts Jackson beyond

recognition. The Fifth Circuit is not alone in its error;

four other courts of appeals apply the “devoid of

5

evidence” standard to forfeited sufficiency claims.

This deep and entrenched split among the circuits

over the proper standard of review has created

confusion, disarray, and arbitrary differences in the

treatment of appeals that only this Court’s

intervention can correct.

This case illustrates how the improper heightened

standard effectively forecloses consideration of even

those claims that would otherwise likely merit relief

under a proper application of plain-error review.

Accordingly, the case provides an ideal opportunity to

explain the appropriate standard for plain-error

analysis of insufficiency claims and dispel the con-

fusion and inconsistency plaguing the courts of

appeals.

[.. THE COURT SHOULD GRANT THE WRIT TO

RESOLVE THE CIRCUITS’ DEEP SPLIT OVER THE

STANDARD FOR REVIEWING EVIDENTIARY INSUF-

FICIENCY CLAIMS IN THE ABSENCE OF A RULE 29

MOTION FOR ACQUITTAL.

Plain error warranting correction through an

appellate court’s discretionary exercise of its au-

thority under Rule 52(b) “must be (1) error, (2) that is

plain, and (3) that affects substantial rights.” John-

son v. United States, 520 U.S. 461, 467 (1997)

(quoting Olano, 507 U.S., at 732; internal quotation

marks, alteration omitted). “If all three conditions are

met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the

error ‘seriously affects the fairness, integrity, or

6

public reputation of judicial proceedings.’” Jbid.

(quoting Olano, 507 U.S., at 732; alteration omitted).

But the Fifth Circuit applied a very different—

and even more stringent—standard of review that

did not even purport to be for plain error and that

fundamentally misunderstands how this Court’s Rule

52(b) framework should be put into effect. That

standard, which is the subject of a deep circuit split,

cannot be squared with a proper evaluation of Olano’s

four-pronged plain-error analysis, and the application

of the improper standard in this case likely affected

the outcome on appeal.

A. The Existence of Jackson Error Is

Virtually Determinative in a Proper

Plain-Error Analysis Under Rule 52(b).

The Fifth Circuit’s misinterpretation of Rule

52(b) errs in its effort to put flesh on the bones of the

abstract analysis described in Olano. Conviction

based on constitutionally insufficient evidence satis-

fies, without more, all four prongs of the Rule 52(b)

framework in almost every instance. Accordingly, the

proper analysis of forfeited insufficiency claims on

plain-error review is functionally indistinguishable

from a de novo review of such claims under Jackson.

* “Waiver is different from forfeiture. Whereas forfeiture is

the failure to make the timely assertion of a right, waiver is the

‘intentional relinquishment or abandonment of a known right.’

... Mere forfeiture, as opposed to waiver, does not extinguish an

‘error under Rule 52(b).” Olano, 507 U.S., at 733 (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

7

The first step of Olano’s plain-error analysis is

satisfied by a defendant’s demonstration that the

evidence presented at trial was insufficient to permit

a reasonable factfinder to find every essential

element of the crime beyond a reasonable doubt, in

violation of Jackson. See 443 U.S., at 318-319. This

comports precisely with the familiar definition of

legal error: “If a legal rule was violated during the

district court proceedings, and if the defendant did

not waive the rule, then there has been an ‘error’

within the meaning of Rule 52(b) despite the absence

of a timely objection.” Olano, 507 U.S., at 733-734.

Simply put, a Jackson error is an “error” within the

meaning of Olano’s first prong.

Evidentiary insufficiency that violates Jackson’s

constitutional due process requirement also satisfies

the second prong of the plain-error analysis. That an

error is “plain” means that the error is “clear or,

equivalently, obvious” “under current law.” Olano,

507 U.S., at 734 (internal quotation marks omitted).

In turn, “an error is clear or equivalently obvious if

‘the settled law of the Supreme Court or thle] circuit

establishes that an error has occurred.” United

States v. Maxwell, 285 F.3d 336, 342 (CA4 2002)

(quoting United States v. Neal, 101 F.3d 9938, 998

(CA4 1996)). Moreover, “it is not always necessary for

the party alleging plain error to cite a circuit or

Supreme Court precedent precisely on point... . [T]he

‘plainness’ of the error can depend on well-settled

legal principles as much as well-settled legal pre-

cedents.” United States v. Brown, 352 F.3d 654, 664

8

(CA2 2003). A violation of the constitutional standard

set out by this Court in Jackson, assuming such an

error can be shown, is “clear” and “obvious” in this

sense and certainly meets the second plain-error

qualification.

Rule 52(b)’s third requirement, that the error

must “affec[t] substantial rights,” requires a demon-

stration that the error was prejudicial, that is, that it

“affected the outcome of the district court proceed-

ings.” Olano, 507 U.S., at 734 (alteration in original).

Conviction upon insufficient evidence in violation of

Jackson is necessarily prejudicial in this sense: by

definition, absent the error, conviction would not

have been possible. See United States v. Cruz, 554

F.3d 840, 845 (CA9 2009) (“When a conviction is

predicated on insufficient evidence, the last two

prongs of the Olano test will necessarily be satis-

fied[.]”); United States v. White, 1 F.3d 13, 17 (CADC

1993) (meeting the Jackson standard even on de novo

review “requires, by definition, that the error prej-

udice[s] substantial nghts”).

Finally, Olano instructs that the “Court[s] of

Appeals should correct a plain forfeited error af-

fecting substantial rights if the error ‘seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.’” 507 U.S., at 736 (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936);

second alteration in original). “Central to this inquiry

is a determination of whether, based on the record in

its entirety, the proceedings against the accused

resulted in a fair and reliable determination of guilt.”

9

United States v. Cedelle, 89 F.3d 181, 186 (CA4 1996);

cf. United States v. Cotton, 535 U.S. 625, 633 (2002)

(noting that “overwhelming and essentially uncontro-

verted” evidence supporting the challenged finding

provides “no basis for concluding that the error

seriously affected the fairness, integrity or public

réputation of judicial proceedings” (quoting Johnson,

520 U.S., at 470; alteration omitted)).

This Court’s many pronouncements about the

critical importance and fundamental nature of the

reasonable-doubt standard highlight just how seri-

ously a conviction based on constitutionally insuf-

ficient evidence damages the fairness, integrity, and

public reputation of the proceedings. Indeed, “[t]Jhe

question whether a defendant has been convicted

upon inadequate evidence is central to the basic

question of guilt or innocence.” Jackson, 443 U.S., at

323 (emphasis added). As the Court stated in Jn re

Winship,

‘(U]se of the reasonable-doubt standard is

indispensable to command the respect and

confidence of the community in applications

of the criminal law. It is critical that the

moral force of the criminal law not be diluted

by a standard of proof that leaves people in

doubt whether innocent men are _ being

condemned.” 397 U.S. 358, 364 (1970).

If the evidence fails to prove an essential element

beyond a reasonable doubt, there is virtually no

possibility that the error could be harmless or could

otherwise ha tannaron untharit seriously Aamamna tha

Vubavns, HHADG NY Spy tsV eR VA FU AAA EY NEALE Y SAKA LLG, wesw

10

fairness and integrity of the judicial system. Rather,

as has long been recognized, a conviction supported

by constitutionally insufficient evidence cannot be

said to have “resulted in a fair and reliable deter-

mination of guilt.” Cedelle, 89 F.3d, at 186; see

Jackson, 443 U.S., at 323.

Accordingly, the’ courts of appeals have repeat-

edly held that an uncorrected Jackson error “serious-

ly affects the fairness, integrity or public reputation

of judicial proceedings” and that a demonstration that

the evidence is constitutionally insufficient to support

a conviction will, barring exceptional circumstances,

satisfy the fourth prong of the Rule 52(b) analytic

framework. E.g., United States v. Franklin-El, 555

F.3d 1115, 1124 (CA10 2009) (“[FJailure to mandate

reversal of a conviction resting on insufficient evi-

dence in this case would seriously affect the fairness,

integrity or public reputation of judicial proceedings.”

(internal quotation marks omitted)); Cruz, 554 F.3d,

at 845 (“[T]he ‘fairness’ and ‘integrity’ of the courts ]

are seriously affected when someone is sent to jail for

a crime that, as a matter of law, he did not com-

mit....”); United States v. Schaefer, 501 F.3d 1197,

1207 (CA10 2007) (“{I]t will be the extraordinarily

rare case where error that is predicated upon the

insufficiency of the evidence will not adversely affect

a defendant’s substantial rights and seriously affect

the fairness, integrity, or public reputation of judicial

proceedings.”); United States v. Gaydos, 108 F.3d

505, 509 (CA3 1997) (“[A]ffirming a conviction where

the government has failed to prove each essential

1]

element of the crime beyond a reasonable doubt

‘affect[s] substantial rights,’ and seriously impugns

‘the fairness, integrity and public reputation of ju-

dicial proceedings.” (quoting Olano, 507 U.S., at

732)); cf. Maxwell, 285 F.3d, at 342-343 (opining that

“no court of justice would require a man to serve...

undeserved years in prisorr when it knows that the

sentence is improper” in the course of holding that it

would be “fundamentally unfair” not to correct on

plain-error review a sentencing error that imposed

one additional year of supervised release).

Thus, for unpreserved claims of evidentiary

insufficiency, the de novo and plain-error modes of

appellate review are essentially indistinguishable.

See United States v. Gallant, 537 F.3d 1202, 1223

(CA10 2008) (“[P]lain error analysis in this context

. is essentially the same as our usual sufficiency-of-

the-evidence analysis.” (internal quotation marks

omitted)). In this specific and narrow context, the

four-prong plain-error test laid out in Olano

functionally collapses into a de novo application of

Jackson under the first prong, because the other

three prongs will be satisfied once error of this type is

successfully shown—because the settled nature of the

law makes conviction upon insufficient evidence a

clear and obvious error, because such a conviction

necessarily prejudices the defendant’s substantial

rights, and because the flaw exposed by such error so

severely undermines the fundamental fairness of the

judicial process. Indeed, as the en banc Tenth Circuit

12

stated, it should be a “noncontroversial proposition

that a conviction in the absence of sufficient evidence

of guilt is plainly an error, clearly prejudiced the

defendant, and almost always creates manifest

injustice.” United States v. Goode, 483 F.3d 676, 681,

n.1 (CA10 2007) (en banc in relevant part).

B. The Circuits Are Starkly and Stead-

fastly Divided over the Proper Standard

for Analyzing Plain-Error Sufficiency

Claims.

Six of the courts of appeals—a majority of the

circuits to address the question—have adopted a

standard for plain-error review of insufficiency claims

that follows this analysis. These courts, which

directly apply Jackson to determine whether there is

a plain error meriting correction, are:

¢ the Second Circuit, e.g., United States v.

Allen, 127 F.3d 260, 264-266 (CA2 1997)

(applying the Jackson standard despite

the defendant’s failure to press his suf-

ficiency challenge on appeal); United

States v. Qunbar, Nos. 07-3516-cr, 08-

2802-cr, 0O7-3537-cr, 08-2506-cr, 2009

WL 1874339, at *1 (CA2 July 1, 2009)

(unpublished) (same);

¢ the Third Circuit, e.g., United States v.

Mornan, 413 F.3d 372, 381-382 (CA3

2005) (“In conducting plain error review,

we ... must sustain a jury’s verdict if a

13

reasonable jury believing the govern-

ment’s evidence could find beyond a

reasonable doubt that the government

proved all the elements of the offenses.”

(internal quotation marks omitted));

United States v. Wolfe, 245 F.3d 257, 261

(CA3 2001) (“(T]he prosecution’s failure

to prove an essential element of the

offense constitutes plain error under

Rule 52(b).... We review the record in

the light most favorable to the pro-

secution to determine whether any

rational trier of fact could have found

proof of guilt beyond a reasonable doubt

based on the available evidence.”);

the Fourth Circuit, e.g., United States v.

Green, 296 Fed. Appx. 337, 338 (CA4

2008) (unpublished; per curiam) (on plain-

error review, a “jury’s verdict must be

upheld on appeal if there is substantial

evidence in the record to support it. In

determining whether the evidence in the

record is substantial, we view the evi-

dence in the light most favorable to the

Government and inquire whether there

is evidence that a reasonable finder of

fact could accept as adequate and

sufficient to support a conclusion of a

defendant’s guilt beyond a _ reasonable

doubt”);

the Eighth Circuit, e.g., United States v.

Anderson, 570 F.3d 1025, 1029-1030

(CA8 2009) (evidentiary insufficiency is

correctable plain error “only if, when

AACAALSA

14

viewing the evidence in the light most

favorable to the verdict, no reasonable

fact-finder could have found Anderson

guilty beyond a reasonable doubt”);

United States v. Londondio, 420 F.3d

777, 786 (CA8 2005) (same);

¢ the Ninth Circuit, e.g., United States v.

Delgado, 357 F.3d 1061, 1068 (CAQ9

2004) (“A [plain-error] challenge to the

sufficiency of the evidence requires this

court to determine if ‘after viewing the

evidence in the light most favorable to

the prosecution, any rational trier of fact

could have found the essential elements

of the crime beyond a reasonable doubt.’”

(quoting United States v. Carranza, 289

F.3d 634, 641-642 (CA9 2002))); and

. the Tenth Circuit, e.g., Franklin-El, 555

F.3d, at 1123-1124 (reversing conviction

on forfeited sufficiency claim because

“the evidence is insufficient for a jury to

reasonably conclude beyond a reasonable

doubt that Defendant was trying to

obstruct justice”); Gallant, 537 F.3d, at

1223; Schaefer, 501 F.3d, at 1207.

In contrast to this majority consensus, four other

circuit courts agree with the Fifth Circuit’s erroneous

position that, to warrant relief on an unpreserved

insufficiency claim, a defendant must show not only

that no rational factfinder could have found the

essential elements of the crime beyond a reasonable

doubt, see Jackson, 443 U.S., at 318-319, but that the

record is entirely devoid of any evidence pointing

15

toward guilt. The courts of appeals employing this

minority standard are:

e the Fifth Circuit, e.g., United States v

Green, 293 F.3d 886, 895 (CA5 2002)

(quoted in the decision below, see App. 5,

n.2);

° the Sixth Circuit, e.g., United States v.

Vasquez, 560 F.3d 461, 469 (CA6 2009);

United States v. Abdullah, 162 F.3d 897,

903 (CA6 1998);

¢ the Seventh Circuit, e.g., United States

v. Irby, 558 F.3d 651, 653 (CA7 2009);

United States v. Todosijevic, 161 F.3d

479, 482 (CA7 1998);

¢ the Eleventh Circuit, e.g., United States

v. Bichsel, 156 F.3d 1148, 1150 (CA11

1998): United States v. Adams, 91 F.3d

114, 116 (CA11 1996); and

¢ the D.C. Circuit, e.g., United States v.

Spinner, 152 F.3d 950, 956 (CADC

1998).

These courts have erroneously adopted what is,

essentially, a super-plain-error standard that unjus-

tifiably goes well beyond the already significant

burdens Olano places on defendants.

This entrenched division between the courts

employing the majority interpretation of Rule 52(b)

and those adopting the erroneous minority view has

persisted for decades and needs no further develop-

ment in the courts of a

| 7

menanic ( omnpnare TInited States

_ . ‘ 4265 > *404 & * eee uA ay & het )

ryr

“Prres

L6

v. Bowie, 892 F.2d 1494, 1497 (CA10 1990) (the

appropriate Rule 52(b) standard is “essentially the

same as if there had been a timely motion for

acquittal” (citing Corbin v. United States, 253 F.2d

646, 648-649 (CA10 1958))), with Uniled Slates v.

Ruiz, 860 F.2d 615, 617 (CA5 1988) (“We are limited

to the determination of ‘whether there was a manifest

miscarriage of justice.’ Such a miscarriage would

exist only if the record is ‘devoid of evidence pointing

to guilt.’” (quoting United States v. Ivory, 468 F.2d

613, 614 (CA5 1972))).

C. The Minority Devoid-of-Evidence Stan-

dard Concocts an Improper Exception

to Olano’s Consistent Rule, Unjus-

tifiably Imposes a Burden That Is

Virtually Impossible to Satisfy, and

Has Widespread Practical Conse-

quences.

This Court has repeatedly admonished the courts

of appeals that “the creation of an unjustified ex

ception” to Rule 52(b) would be wholly inappropriate.

Puckett v. United States, 129 S.Ct. 14238, 1429 (2009);

accord Johnson, 520 U.S., at 466; see also Bank of

Nova Scotia v. United States, 487 U.S. 250, 255

(1988) (“[Flederal courts have no more discretion to

disregard the Rules mandate than they do to

disregard constitutional or statutory provisions.”)

The devoid-of-evidence standard represents just such

an “unjustified exception.” As employed by the Fifth

Circuit below, the standard is divorced from the

17

Olano framework for applying Rule 52(b) and

imposes a far heavier burden on defendants than the

one this Court has specified is allocated by that rule.

Rather than requiring defendants to demonstrate

a Jackson violation and analyzing the plain-error con-

sequences which properly flow from such a showing,

the devoid-of-evidence standard unjustifiably forces

defendants to make a far more stringent showing of

error. That standard is indistinguishable from the

one propounded in Jhompson v. City of Louisville,

362 U.S. 199, 206 (1960) (“[Wle find no evidence

whatever in the record to support these convictions. .. .

[I]t [is] a violation of due process to convict and

punish a man without evidence of his guilt.”). But

Thompson’s articulation of the devoid-of-evidence

standard was the very standard for evaluating

insufficiency claims that Jackson specifically and

emphatically rejected as “simply inadequate to

protect against misapplications of the constitutional

standard of reasonable doubt.” 443 U.S., at 320. The

courts of appeals applying the devoid-of-evidence

standard provide no rationale for reestablishing

Thompson's deprecated rule rather than simply

applying Jackson and Olano.

And though a complete absence of proof of an

essential element in violation of Thompson would

almost certainly merit correction on _ plain-error

review, juSt as most Jackson errors will, the first

prong of Olano only requires defendants demonstrate

“error,” in the sense of an unwaived “deviation from a

legal rule.” 507 U.S., at 732-733. A demonstration of

18

Jackson error clears this hurdle. Olano imposes no

requirement of super-error or a demonstration that

the particular error alleged occurred in its most

egregious form. Thus, although a T7'hompson error is

certainly sufficient to warrant plain-error correction,

nothing in this Court’s plain-error jurisprudence even

suggests that a complete failure of proof of guilt

violating Thompson is necessary before a_ plain

Jackson error should be noticed and corrected.

Equally pernicious is the Fifth Circuit’s use of

plain error as an excuse to turn away from Jackson’s

injunction that “[t]he constitutional necessity of proof

beyond a reasonable doubt is not confined to those

defendants who are morally blameless.” 443 U.S., at

323. Though Jackson insists that “even a thief is

entitled to complain that he has been unconsti-

tutionally convicted and imprisoned as a burglar,” id.,

at 323-324, the Fifth Circuit and others applying the

devoid-of-evidence standard have determined instead,

without any explanation or doctrinal basis in this

Court’s decisions interpreting Rule 52(b), that the

thief should be deprived of that night should he fail to

fully observe the procedural niceties of appellate

issue preservation. That they do so as the automatic

consequence of a technical and procedural forfeiture

that, as in this case, may well not be ascribable to the

defendant himself, rather than to the error of his trial

counsel, serves merely to further undermine “the

moral force of the criminal law” and “the respect and

confidence of the community in [its] applications.”

Winship, 397 U.S., at 364.

19

In practice, the devoid-of-evidence standard is

virtually impossible for defendants to satisfy, closely

approximating the “rigid and undeviating judicially

declared practice” of “invariably and under all cir-

cumstances declin[ing] to consider” unpreserved

issues that this Court has long condemned as “out of

harmony with the rules of fundamental justice.”

Olano, 507 U.S., at 732 (quoting Hormel v. Helvering,

312 U.S. 552, 557 (1941)). Conversely, the standard

makes it disturbingly easy for an appeals court to

find grounds to dismiss even meritorious claims of

plain Jackson error and so, just as with Thompson’s

identical standard, “could lead to absurdly unjust

results.” Jackson, 443 U.S., at 320, n.14.

Take, for instance, a case in which two possible

inferences stand in equipoise, one pointing to guilt,

the other to innocence. Under such circumstances,

the courts of appeals have long held, “a reasonable

jury must necessarily entertain a reasonable doubt”

as a matter of law and Jackson requires reversal.

United States v. Glenn, 312 F.3d 58, 70 (CA2 2002)

(emphasis added); accord United States v. Caseer, 399

F.3d 828, 840 (CA6 2004); United States v. Reveles,

190 F.3d 678, 686 (CA5 1999); Cosby v. Jones, 682

F.2d 1373, 1383 (CA11 1982); United States v. Delay,

440 F.2d 566, 568 (CA7 1971); United States v. Jones,

418 F.2d 818, 826 (CA8 1969); see also Penn R. Co. v.

Chamberlain, 288 U.S. 333, 339-340 (1933) (“[W]here

proven facts give equal support to each of two

inconsistent inferences ... , neither of them being

established, judgment, as a matter of law, must go

20

against the party upon whom rests the necessity of

sustaining one of these inferences....”). The very

fact that some circumstantial evidence permits the

inference pointing to guilt to be drawn, however,

means that the devoid-of-evidence standard cannot be

met.

Such circumstances arose in United States v.

Ortega Reyna, 148 F.3d 540 (CA5 1998), in which the

defendant, a possibly unwitting drug mule, chal-

lenged the sufficiency of the evidence supporting his

drug-possession conviction. The Fifth Circuit was

faced with a situation in which “for every inference of

guilt that [could have been] drawn” from circum-

stantial evidence of the defendant’s knowledge of the

drugs hidden in his vehicle, “there was an equal and

benign inference to be drawn.” /d., at 545-547

(considering the defendant’s verbal and nonverbal

responses at a Border Patrol stop, his lack of luggage

and possession of $700 in cash, and the condition of

his vehicle, and finding equally likely innocent

explanations for each). On de novo review, the Fifth

Circuit reversed the conviction, holding that the

evidence of guilty knowledge was in equipoise,

“mak[ing] it incapable, as a matter of law, of serving

as the basis of a jury finding that Ortega’s possession

of illicit drugs was ‘knowing’ beyond a reasonable

doubt.” /d., at 545.

But the result in Ortega Reyna would necessarily

have been different under the Fifth Circuit’s devoid-

of-evidence standard had the case been presented on

plain-error review. The defendant’s lack of nervousness,

his hesitation and his downcast eyes, his lack of

21

luggage, and his possession of cash would each have

been independently sufficient to defeat plain-error

review under the _ devoid-of-evidence standard,

regardless of the relative weight of the countervailing

inferences that could equally well have been drawn,

because each would constitute at least a scintilla of

evidence of guilt. See id., at 545-547. The other

circuits adopting the devoid-of-evidence standard

would, in a similar case, likewise be forced to deny

plain-error relief on facts that on de novo review

would demand reversal. See Caseer, 399 F.3d, at 840;

Cosby, 682 F.2d, at 1383; Delay, 440 F.2d, at 568.

Clearly, the burden imposed by Rule 52(b) could

not have been intended to preclude the courts of

appeals from even considering affording relief in a

case in which, as a matter of law, the conviction

would have been required to be set aside on a de novo

review. Yet that is precisely the effect of the devoid-

of-evidence standard adopted by the Fifth Circuit in

this case. See Part I.D infra.

The clear differences between the devoid-of-

evidence standard and the Jackson standard (as me-

diated by the Rule 52(b) analytic framework) translate

into real-world effects that can have outcome-deter-

minative impact: the unjustifiable burden allocated to

defendants under the harsher minority standard

“significantly limits [an appellate court’s] review of

the case.” United States v. Rock, 370 F.3d 712, 714

(CA7 2004); accord Irby, 558 F.3d, at 653 (the devoid-

of-evidence standard is “even more stringent” than

Jackson); Green, 293 F.3d, at 895 (similar); see also

22

Ruiz, 860 F.2d, at 617 (“[T]his Court’s review is not

under the usual standard of review for claims of

insufficiency of evidence but rather under a much

stricter standard.”).

Jackson recognized and condemned this outcome-

determinative difference between its constitutional

standard and the devoid-of-evidence standard the

Fifth Circuit employed below. “‘{A] mere modicum of

evidence may satisfy a “no evidence” standard[.]’ ...

But it could not seriously be argued that such a

‘modicum’ of evidence could by itself rationally support

a conviction beyond a reasonable doubt.” Jackson, 443

U.S., at 320 (quoting Jacobellis v. Ohio, 378 U.S. 184,

202 (1964) (Warren, C.J., dissenting)). The Court in

Jackson thus clearly acknowledged, as the Fifth

Circuit and other courts of appeals fail to, the

possibility of a nonzero quantum of proof of guilt that

is nonetheless insufficient to permit a rational

factfinder to determine guilt beyond a reasonable

doubt. And under the correct understanding of Rule

52(b), establishing that only that quantum of proof

was presented is sufficient to demonstrate plain error

warranting correction, even though a “modicum of

evidence” of guilt was present. See Part I.A. supra.

The importance of the issue of the proper

standard of review, and of the split among the

circuits in addressing it, is further highlighted by the

distressing frequency with which it arises. Even

though nothing more is required to preserve evi-

dentiary sufficiency for appellate review than a pro

forma Rule 29 motion for acquittal and its renewal at

23

the close of all evidence or after the verdict—a

function that has properly been labeled “the sine qua

non of an adequate and competent defense,” United

States v. Anderson, 89 F.3d 1306, 1310, n.2 (CA6

1996)—even a cursory review of the Federal Reporter

nevertheless unearths an (over)abundance of cases

applying plain-error review to sufficiency claims.

Indeed, there have been at least 270 reported

decisions in the last twenty years in which a federal

appellate court expressly noted a failure to preserve

sufficiency as an issue and reviewed for plain error, to

say nothing of the presumably far larger numbers of

unreported cases or those that omitted explicit

mention of the defendant’s failure to preserve.”

In short, Jackson holds it is error of significant

constitutional dimension to convict when no rea-

sonable factfinder could have found guilt beyond a

reasonable doubt. Nevertheless, the minority devoid-

of-evidence standard will unquestionably deny plain-

error relief to the set of cases where there actually is

a Jackson violation but in which the prosecution did

not completely fail to put on some evidence of guilt.

Indeed, this is such a case.

* Search performed on Westlaw.com on Oct. 9, 2009,

database CTA, criteria: (“does not” “did not” fail!) /s (move

renew) /s (‘rule 29” acquittal) /p “plain error” & da(aft 1989) &

ci(“f.3d” “f.2d”) & ca(“united states”).

24

D. The Fifth Circuit’s Application of the

Devoid-of-Evidence Standard Precluded

the Proper Assessment of Miller’s Plain-

Error Sufficiency Claim.

The forcible assault of a federal officer engaged in

official duties that is proscribed by 18 U.S.C. §lllisa

general-intent crime; that is, the defendant’s intent to

assault is an essential element that must be proved

by the government beyond a reasonable doubt. United

States v. Feola, 420 U.S. 671, 684 (1975). Conviction

thus requires proof that the defendant intended the

assault and acted knowingly and willfully. See United

States v. Berrios-Centeno, 250 F.3d 294, 299 (CA5

2001); App. 6 (acknowledging that acting “knowingly

or willfully” “is the required mens rea for this crime”).

Miller presented strong arguments below that as a

matter of law the evidence was insufficient to prove,

beyond a reasonable doubt, that he possessed the

requisite intent for conviction. But the devoid-of-

evidence standard of review applied by the Fifth

Circuit precluded a fair assessment of this claim.

In particular, Miller argued that the circum-

stantial evidence presented by the government at

most gave equal support to competing inferences that

Miller acted with intent to assault and that Miller

acted only recklessly. Under Fifth Circuit precedent

binding on the panel below, a reasonable factfinder

cannot, as a matter of law, find an ultimate fact like

intent beyond a reasonable doubt when two con-

flicting inferences are of equal or nearly equal weight,

which was one particular form of insufficiency argued

25

by Miller below. Reveles, 190 F.3d, at 686. There were

in Miller’s case, at most, conflicting inferences of

intent or recklessness of equal circumstantial weight.

The inference of recklessness with respect to the

officers’ proximity to Miller’s truck’s path that could

be drawn from the evidence—which showed Miller

was aware that officers were behind and well to

either side of his truck, that the gap between the

officers’ cars was three-and-a-half times as wide as

Miller’s truck, and that no officers were in or near the

gap when the truck began moving—was equally as

strong as the conflicting inference of knowing and

willful intent to assault. This evidence was in-

sufficient as a matter of law to demonstrate beyond a

reasonable doubt that Miller knew that the officers

would reasonably believe themselves endangered by

his actions, as opposed to demonstrating that Miller

merely acted recklessly with respect to that fact.

Regardless, however, the Fifth Circuit’s appli-

cation of the devoid-of-evidence standard improperly

foreclosed any consideration of Miller’s contention

that the inference of his recklessness was in equipoise

with an inference of intent. The court’s analysis was

limited to noting only that Miller “[drove] his large

vehicle very quickly in the[ ] direction” of the officers,

implicitly finding this sufficient to provide at least a

modicum of evidence from which the necessary

inference of intent could be drawn. App. 7. The

decision below thus neither ruled directly on the

relative weight of the conflicting inferences, Miller’s

Atéeaw line smaiiftriniaANn ary ar ment naw am nl acer d tha

Wevuvass basil des U4essv ican y rgum AAU, AAA cm pisye vale

26

correct plain-error standard by applying Olano and

Jackson, under which Miller’s argument would poten-

tially have necessitated a different outcome.

CONCLUSION

The Court should grant the writ to resolve the

split among the courts of appeals over the proper

standard of review for forfeited sufficiency-of-the-

evidence claims and clarify that under United States

v. Olano, a demonstration that the evidence was

constitutionally insufficient under Jackson v. Virginia

is typically enough to show plain error warranting

correction under Rule 52(b).

Respectfully submitted,

RYAN P. BATES

YETTER, WARDEN & COLEMAN, L.L.P.

221 West Sixth Street, Suite 750

Austin, Texas 78701

(512) 533-0150

Counsel of Record for Petitioner

OCTOBER 2009

App. 1

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50409

D.C. Docket No. 1:06-CR-125-ALL

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TERRY MICHAEL MILLER,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas, Austin

Before HIGGINBOTHAM, SMITH, and SOUTHWICK,

Circuit Judges.

JUDGMENT

(Filed Jul. 21, 2009)

This cause was considered on the record on

appeal and the briefs on file.

It is ordered and adjudged that the judgment of

the District Court is affirmed in part and vacated in

part, and the cause is remanded to the District Court

App. 2

for further proceedings in accordance with the

opinion of this Court.

ISSUED AS MANDATE: Aug. 12, 2009

App. 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50409

UNITED STATES OF AMERICA,

Plaintiff-Appellee

V.

TERRY MICHAEL MILLER,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

(Filed Jul. 21, 2009)

Before HIGGINBOTHAM, SMITH, and SOUTHWICK,

Circuit Judges.

PER CURIAM:

On February 8, 2006, eight members of the Lone

Star Fugitive Task Force — an interjurisdictional

coalition of law enforcement officers — waited near a

home in Elgin, Texas, where Terry Michael Miller was

visiting his grandchildren. Miller was a fugitive from

justice, wanted for parole violations relating to pre-

vious sentences — in his fifty year lifetime, Miller had

accumulated an extensive criminal history of 12 prior

App. 4

felonies, including one for attempted murder. As

Miller came out of the house, the officers flipped on

their lights and pulled their cars toward the driveway

where Miller had parked his green F-150 pickup.

Miller’s engine was running by the time the task

force moved in. The officers exited their cars, guns

drawn, wearing vests labeled POLICE or MARSHALS.

Among others, the force included Austin Police officer

Kevin Rybarski, deputized as special federal marshal,

and Special Deputy U.S. Marshall Keith Sartin, who

was leading the investigation; they were among the

officers approaching Miller’s car from the back.

At trial, Task Force members testified that Miller

looked over his shoulder at the officers around him,

including at Rybarski and Sartin. Then, with tires

squealing, he reversed toward them, attempting to

escape in the narrow gap between their cars. Rybarski

jumped out of the way, seriously injuring himself; he

says he escaped Miller’s pickup by a foot. Sartin also

jumped out of the way. As Miller backed up, two other

officers opened fire. One of them, Soto, hit Miller, whose

hands flew off the wheel. Miller’s truck crashed and

flipped. He was extracted from the vehicle and taken

to Brackenridge Hospital in Austin. Miller suffered

serious jaw, neck, and chest injuries. Testifying in his

own defense, Miller claimed that when he began

accelerating, he sought to avoid Sartin, and that he

never saw Rybarski. He said that he lost conscious-

ness as a result of the gunshot just after he began

accelerating and docs not remember anything else.

App. 5

On May 1, 2007, a grand jury in the Western

District of Texas returned a two-count superseding

indictment of Miller, for two counts of attempted

forcible assault against federal officers engaged in

their official duties by use of dangerous weapon.’

After a jury trial, Miller was convicted of the crimes,

on January 17, 2008. On April 14, Judge Yeakel

sentenced Miller to 240 months of imprisonment for

each of the two counts, with 60 months of one

conviction running consecutively to the other, for a

total sentence of 300 months of imprisonment. Miller

timely appealed, challenging the evidentiary sufficiency

for his assault conviction, the exclusion of photo-

graphic evidence of his gunshot wounds, and the

multiplicitous convictions emerging from a single act

of assault.

I

Miller failed at trial to move for a judgment of

acquittal at the close of all evidence, so our review is

for manifest miscarriage of justice.” This demanding

_— —

' 18 U.S.C. § 111.

* “Defendants’ sufficiency of the evidence claims are

reviewed under a stricter than usual standard, because none of

the defendants renewed their motions for judgment of acquittal

at the close of all evidence. Under the stricter standard, review

is for a ‘manifest miscarriage of justice,’ which is found if the

record is ‘devoid of evidence pointing to guilt.’” U.S. v. Green,

293 F.3d 886, 895 (Sth Cir. 2002) (quoting U.S. v. Ruiz, 860 F.2d

615, 617 (5th Cir. 1988)) (internal citation omitted): see also U.S

v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007). Miller cites no law

(Continued on following page)

App. 6

standard requires Miller to demonstrate that the

record is “devoid of evidence pointing to guilt.”

Miller argues that the government failed to

demonstrate the requisite level of intent for the

crime. He claims that the evidence fails to show that

Miller intended anything more than escape between

the police vehicles: at most, he acted reckjessly with

regards to the officers, not knowingly or willfully,

which is the required mens rea for this crime.

The government responds with Task Force

testimony that before he accelerated toward them,

officers saw Miller look at Sartin and Rybarski,

evincing clear awareness that his actions would

endanger them. Given that Miller intended the

acceleration and knew the acceleration was likely to

result in grave harm to the officers, Miller manifested

the requisite level of intent for conviction. Of course,

his ultimate motive was to escape and probably not to

injure officers, but this does not vitiate his ability to

intend, in a legal sense, the assault as an inter-

mediate matter, in that he knew that acts that he

intended would in fact bring such harm.

Miller counters that when he stepped on the

accelerator in his car, there is no competent evidence

either that the officers were in the space nto which

Miller was driving, or more to the point, that Mille:

to the contrary; in fact the cases he cites support the

government's position.

App. 7

knew they were approaching that space. Miller con-

tinues that if, alternatively, the jury thought intent

was formed after that point, that conclusion is

foreclosed by the fact that Miller was shot early in the

sequence of events and did not thereafter retain

control of the truck.

Contrary to Miller’s assertions, the government

did not, at trial, rely on a theory of negligence or

recklessness. Granting that the officers and Miller

were all moving quickly in the heat of the moment,

the government has produced sufficient evidence that

Miller intended to assault Rybarski and Sartin by

driving his large vehicle very quickly in their

direction. Intent can be formed quickly, and the jury

was not bound to accept Miller’s account of the events

surrounding his abortive escape over the accounts

provided by the Task Force members.

II

At trial, Miller sought, unsuccessfully, to

introduce a photograph of his wounds, apparently

taken at Brackenridge shortly after the incident. The

photograph, which we have reviewed in chambers,

shows a bloody wound on the bottom of Miller’s

chin/jaw, stretching about halfway across his chin,

and quite deep.

Miller claims that the extent of his wounds would

have decisively convinced the jury that Miller could

not possibly have formed the requisite intent or carried

App. 8

out the requisite acts supporting the attempted as-

sault. It would demonstrate, he argues, that he was

unconscious at the relevant time, having sustained

egregious injuries. He argues that the exclusion was

prejudicial because the government consistently

downplayed the extent of Miller’s injuries at tral,

insinuating that the shot merely “grazed” him, and in

any case failing to convey the egregious nature of the

injury.

This evidentiary ruling is reviewed for abuse of

discretion. Miller’s argument founders first on

relevance. As the government notes, Miller could

certainly have formed an intent to assault before he

was shot, and this seems to have been the dominant

theory at trial. Even if it were not, there was ample

testimony concerning the severity of Miller’s injuries,”

and when the allegedly misleading statements from

the prosecution are taken in context, there is simply

no support for the idea that they systematically

3 . . _ .

This is part of a cross-examination of one of the officers:

Q: You stated that after the vehicle was on its top,

you approached and you saw Mr. Miller’s wound?

A: Yes, sir.

Q: Pretty severe wound?

A: Yes, sir, it was....

Q: You just testified that you saw teeth, jaw. Pretty

strong impact from that bullet?

A: Yes, sir.

Q: Pretty extensive damage, would you say?

A: I’ve seen stuff like that before, so, yes.

App. 9

minimize Miller’s injuries. The jury was made amply

aware that as he accelerated toward the officers,

Miller was shot in the face and : of his

vehicle. The introduction of a gruesome photograph

would have added very little to the picture of Miller’s

wounds no doubt already formed in jurors’ imag-

inations, and in any case, it would not have aided at

all in their determination of Miller’s guilt or inno-

cence.

There was no reversible abuse of discretion here.

It]

Miller raises several sentencing errors, and the

first alleged error — concerning duplicative attempted

assault charges for a single act — is decisive.’ Based

on this error, as the government has _ conceded,

Miller’s sentences should be vacated, and the case

should be remanded for resentencing. This is because

under settled law, the single action of attempting to run

over the officers cannot support two separate convic-

tions.’ Here, since the erroneous second conviction

significantly lengthened Miller’s sentence, he was

clearly prejudiced by it. This unobjected-to error is

In light of our decision we pretermit consideration of the

other alleged sentencing error

See U.S. v. Shaw, 701 F.2d 367, 396 (5th Cir. 1983) (citing

to Ladner in interpreting this statute); Ladner v. United States,

358 US. 169 (1958) (overturning one of two convictions under

the predecessor of this statute, because both officers were hurt

,

by only one shotgun aiscnarge

App. 10

subject to plain error analysis, and we choose to

exercise our discretion to correct it.

We VACATE Miller’s sentence and REMAND to

the district court for further proceedings necessary to

correct this error, and we AFFIRM the judgment

below in every other respect.

App. 11

AO 245 B (Rev. 06/05)(W.D.TX.)

— Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Western District of Texas

AUSTIN DIVISION

UNITED STATES OF Case Number

AMERICA A-06-CR-125(1)-LY

Vv. USM Number

TERRY MICHAEL MILLER =?! E177

True Name: Terry Michael (Filed Apr. 8, 2008)

Miller

Aliases: Mike Miller, Danny

Miller, Larry Kevin Roberts,

Kevin Roberts Larry, John

Henderson, Rodney Marlett,

Danny Vermeil Miller

Defendant.

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After

Novem ter 1, 1987)

The defendant, TERRY MICHAEL MILLER, was

represented by Thomas C. Fagerberg and Larry

Sauer.

The defendant was found guilty by a jury verdict

on Count(s) S1 and S2 of the Superseding Indictment

on January 17, 2008. Accordingly, the defendant is

adjudged guilty of such Count(s), involving the fol-

lowing offense(s):

App. 12

Title & Nature of Offense

Section Offense Ended Count (s)

18:11l(a) & (b) ASSAULTING 02/08/2006 S1

CERTAIN

OFFICERS

18:lll(a) & (b) ASSAULTING 02/08/2006 S2

CERTAIN

OFFICERS

As pronounced on APRIL 4, 2008, the defendant

is sentenced as provided in pages 2 through 6 of this

Judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

It is further ordered that the defendant shall

notify the United States Attorney for this district

within 30 days of any change of name, residence, or

mailing address until all fines, restitution, costs, and

special assessments imposed by this Judgment are

fully paid. If ordered to pay restitution, the defendant

shall notify the Court and United States Attorney

of any material change in the defendant’s economic

circumstances.

Signed this the 8th day of April, 2008.

/s/ Lee Yeakel

LEE YEAKEL

United States District Judge

IMPRISONMENT

The defendant is hereby committed to the

custody of the United States Bureau of Prisons to be

App. 13

imprisoned for a term of TWO HUNDRED AND

FORTY (240) MONTHS on Count Sl and TWO

HUNDRED AND FORTY (240) MONTHS on Count

S2 to be served concurrently with Count S1, except 60

months of Count S2 to be served consecutively to

Count S1, to the extent necessary to produce a total

imprisonment term of 300 months.

The Court makes the following recommendation(s)

to the Bureau of Prisons: 1) designate defendant near

Austin, Texas close to family members. If, for any

reason, the Bureau of Prisons can not comply with

any recommendation of this Court made in this

Judgment and Sentence, the Bureau of Prisons shal]

notify the Court at once of its noncompliance and any

reason therefor.

The defendant shall remain in custody pending

service of sentence.

RETURN

I have executed this Judgment as follows:

Defendant delivered on | to oe

at | , with a certified copy of this Judgment.

~ United States Marshal —

By one on ae

Deputy Marshal

App. 14

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of THREE

(3) YEARS on each of Counts S1 and S2 run concur-

rently.

While on supervised release, the defendant shall

comply with the mandatory, standard and if applicable,

the special conditions that have been adopted by this

Court as set forth on pages 4 and 5 of this judgment.

X The defendant shall participate in a program

approved by the United States Probation Office

for treatment of narcotic addiction or drug or

alcohol dependency which may include testing

and examination to determine if the defendant

has reverted to the use of drugs or alcohol. The

defendant may be required to contribute to the

costs of services rendered (copayment) in an

amount to be determined by the probation officer,

based on the defendant’s ability to pay.

_X_ The defendant shall participate in a program of

mental health treatment, as directed by the pro-

bation officer, until such time as the defendant is

released from the program by the probation

officer.

The defendant shall comply with the following special

condition(s):

X The defendant shall refrain from the use of

alcohol and all other intoxicants during the term

of supervision.

App. 15

CONDITIONS OF SUPERVISION

Mandatory Conditions:

1)

2)

3)

4)

5)

7)

The defendant shall not commit another federal,

state, or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain

from any unlawful use of a controlled substance.

The defendant shall submit to one drug test

within 15 days of release from imprisonment and

at least two periodic drug tests thereafter, as

determined by the court.

In supervised release cases only, the defendant

must report to the probation office in the district

to which the defendant is released within 72

hours of release from custody of the Bureau of

Prisons.

If convicted of a felony, the defendant shall not

possess a firearm, ammunition, destructive device,

or any other dangerous weapon.

The defendant shall cooperate in the collection of

DNA as directed by the probation officer if the col-

lection of such a sample is authorized pursuant to

section 3 of the DNA Analysis Backlog Elimina-

tion Act of 2000 (42 U.S.C. § 1413a).

If convicted of a sexual offense as described in 18

U.S.C. § 4042(c)(4), the defendant shall register

with the state sex offender registration agency in

the state where the defendant resides, works, or

is a student, as directed by the probation officer.

If convicted of a domestic violence crime as de-

fined in 18 U.S.C. § 3561(b), the defendant shail

8)

App. 16

participate in an approved program for domestic

violence.

If the judgment imposes a fine or restitution, it is

a condition of supervision that the defendant pay

in accordance with the Schedule of Payments

sheet of the judgment.

Standard Conditions:

1)

2)

3)

6)

7)

The defendant shal! not leave the judicial district

without permission of the court or probation of-

ficer.

The defendant shall report to the Probation Offi-

cer and shall submit a truthful and complete

written report within the first five days of each

month.

The defendant shall answer truthfully all in-

quiries by the Probation Officer and follow the

instructions of the Probation Officer.

The defendant shall support his or her depen-

dents and meet other family responsibilities.

The defendant shall work regularly at a lawful

occupation unless excused by the Probation

Officer for schooling, training or other acceptable

reasons.

The defendant shall notify the Probation Officer

at least ten days prior to any change in residence

or employment.

The defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use, dis-

tribute, or administer any controlled substance or

8)

9)

10)

11)

12)

13)

14)

App. 17

any paraphernalia related to any controlled sub-

stance, except as prescribed by a physician.

The defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered.

The defendant shall not associate with any per-

sons engaged in criminal activity, and shall not

associate with any person convicted of a felony

unless granted permission to do so by the Proba-

tion Officer.

The defendant shall permit a Probation Officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view of the Probation Officer.

The defendant shall notify the Probation Officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer.

The defendant shall not enter into any agree-

ment to act as an informer or special agent of a

law enforcement agency without the permission

of the Court.

As directed by the probation officer, the defen-

dant shall notify third parties of risks that may

be occasioned by the defendant’s criminal record

or personal history or characteristics and shall

permit the probation officer to make such noti-

fications and to confirm the defendant’s compli-

ance with such notification requirement.

If convicted of a sexual offense as described in 18

U.S.C. § 4042(c)(4), or has a prior conviction of a

State or local offense that would have been an

App. 18

offense as described in 18 U.S.C. § 4042(c)(4) if a

circumstance giving rise to Federal jurisdiction

had existed, the defendant shall participate in a

sex offender treatment program approved by the

probation officer. The defendant shall abide by

all program rules, requirements and conditions of

the sex offender treatment program, including

submission to polygraph testing, to determine if

the defendant is in compliance with the con-

ditions of release. The defendant may be required

to contribute to the cost of the services rendered

(copayment) in an amount to be determined by

the probation officer, based on the defendant’s

ability to pay.

15) The defendant shall submit to an evaluation for

16)

substance abuse or dependency treatment as di-

rected by the probation officer, and if deemed

necessary by the probation officer, the defendant

shall participate in a program approved by the

probation officer for treatment of narcotic addiction

or drug or alcohol dependency which may include

testing and examination to determine if the defen-

dant has reverted to the use of drugs or alcohol.

The defendant may be required to contribute to

the cost of the services rendered (copayment) in

an amount to be determined by the probation

officer, based upon the defendant’s ability to pay.

The defendant shall submit to an evaluation for

mental health counseling as directed by the pro-

bation officer, and if deemed necessary by the

probation officer, the defendant shall participate

in a mental health program approved by the

probation officer. The defendant may be required

to contribute to the cost of the services rendered

18)

19)

20)

App. 19

(copayment) in an amount to be determined by

the probation officer, based upon the defendant’s

ability to pay.

If the defendant is excluded, deported, or removed

upon release from imprisonment, the term of

supervised release shall be a non-reporting term

of supervised release. The defendant shall not

illegally re-enter the United States. If the defen-

dant lawfully re-enters the United States during

the term of supervised release, the defendant

shall immediately report in person to the nearest

U.S. Probation Office.

If the judgment imposes other criminal monetary

penalties, it is a condition of supervision that the

defendant pay such penalties in accordance with

the Schedule of Payments sheet of the judgment.

If the judgment imposes a fine, special assess-

ment, restitution, or other criminal monetary

penalties, it is a condition of supervision that the

defendant shall provide the probation officer

access to any requested financial information.

If the judgment imposes a fine, special assess-

ment, restitution, or other criminal monetary

penalties, it is a condition of supervision that the

defendant shall not incur any new credit charges

or open additional lines of credit without the

approval of the probation officer unless the defen-

dant is in compliance with the payment schedule

The Court further adopts such of the following special

conditions applied to the supervised person by the

1dye at the time of sentencing

]

)

App. 20

COMMUNITY CONFINEMENT: The defendant

shall reside in a Community Corrections Center

for a period of __ months to commence on

Further, once employed, the defendant

shall pay 25% of his/her weekly gross income for

his/her subsistence as long as that amount does

not exceed the daily contract rate.

HOME DETENTION: The defendant shall par-

ticipate in the Home Confinement Program for a

period of __ days/months. During this time the

defendant shall remain at his/her place of resi-

dence except for employment and other activities

approved in advance by the probation officer. The

defendant shall maintain a telephone at his/her

place of residence without “call forwarding,” a

“modem,” “caller ID,” “call waiting,” or portable

cordless telephones for the above period. At the

direction of the probation officer, the defendant

shall wear an electronic monitoring device and

follow electronic monitoring procedures specified

by the probation officer. The court further orders

that the defendant shall pay for the costs of

Home Confinement, as directed by the probation

officer.

COMMUNITY SERVICE: The defendant shall

perform — hours of community service work

without pay, at a location approved by the proba

tion officer, at a minimum rate of four hours per

week, to be completed during the first

months of supervision

App. 21

CRIMINAL MONETARY PENALTIES/SCHEDULE

The defendant shall pay the following total

criminal monetary penalties in accordance with the

schedule of payments set forth. Unless the Court has

expressly ordered otherwise, if this judgment imposes

imprisonment, payment of criminal monetary penal

ties is due during imprisonment. Criminal Monetary

Penalties, except those payments made through Fed-

eral Bureau of Prisons’ Inmate Financial Responsi-

bility Program shall be paid through the Clerk,

United States District Court, 200 W. 8th Street,

Room 130 Austin, Texas 78701.

The defendant shall receive credit for all pay-

ments previously made toward any criminal mons

tary penalties imposed.

Assessment Fine Restitution

TOTAL: $200 SO $3 000

Special Assessment

It is ordered that the defendant shall pay to the

United States a special assessment of $200. Payment

of this sum shall begin immediately

Fine

Phe rie walved eCause ¢ lefen

Restitution

The defendant shal] restitution in the amount of

$3,000 through the Clerk, U.S. District Court, for

distribution to the payee(s). The Court directs the

U.S. Probation Office to provide personal identifier

information of victim(s) by submitting a “reference

list” under seal Pursuant to E-Government Act of

2002” to the District Clerk within ten (10) days after

the criminal Judgment has been entered.

Name of Payee(s) Amount of Restitution

K. Rybarski $3,000

If the defendant is not now able to pay this in-

debtedness, the defendant shall cooperate fully with

the office of the United Sates Attorney, the Bureau

of Prisons and/or the United States Probation Office

to make payment in full as soon as possible, including

during any period of incarceration. Any unpaid bal-

ance at the commencement of a term of probation or

supervised release shall be paid on a schedule of

monthly installments to he established by the U.S

Probation Office and approved by the Court.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column above. However,

pursuant to 18 U.S.C. § 3664(1), all non-federal vic

tims must be paid before the United States is paid

App. 23

If the fine is not paid, the court may sentence the

defendant to any sentence which might have been

originally imposed. See 18 U.S.C. §3614

The defendant shall pay interest on any fine or

restitution of more than $2,500.00, unless the fine or

restitution is paid in full before the fifteenth day after

the date of the judgment, pursuant to 18 U.S.C.

§3612(f). All payment options may be subject to pen-

alties for delinquency and default, pursuant to 18

U.S.C. §3612(g).

Payments shall be applied in the following order:

(1) assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) community restitution,

(6) fine interest, (7) penalties, and (8) costs, including

cost of prosecution and court costs

Findings for the total amount of losses are re-

quired under Chapters 109A, 110, 110A, and 113A of

Title 18 for offenses committed on or after September

13, 1994, but before April 23, 1996.

App. 24

Effective: January 7, 2008

18 U.S.C.A. § 111. Assaulting, resisting, or im-

peding certain officers or employees

(a) In general. — Whoever —

(1) forcibly assaults, resists, opposes, impedes,

intimidates, or interferes with any person desig-

nated in section 1114 of this title while engaged

in or on account of the performance of official

duties; or

(2) forcibly assaults or intimidates any person

who formerly served as a person designated in

section 1114 on account of the performance of

official duties during such person’s term of ser-

vice,

shall, where the acts in violation of this section con-

stitute only simple assault, be fined under this title or

imprisoned not more than one year, or both, and

where such acts involve physical contact with the

victim of that assault or the intent to commit another

felony, be fined under this title or imprisoned not

more than 8 years, or both.

(b) Enhanced penalty. — Whoever, in the commis

sion of any acts described in subsection (a), uses a

deadly or dangerous weapon (including a weapon

intended to cause death or danger but that fails to do

so by reason of a defective component) or inflicts bod-

ily injury, shall be fined under this title or imprisoned

not more than 20 years, or both.

App. 25

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTLN DIVISION

UNITED STATES § CRIMINAL No.

OF AMERICA, 8 A-06-CR-125 LY

Plaintiff, : SUPERSEDING

wv. ‘ INDICTMENT

TERRY MICHAEL & (Filed May I, 2007)

MILLER, : [ Violation: 18 U.S.C. § 111(a)

Defendant. ~ & (b) - Assaulting and Inter-

~ fering with Certain Officers. |

s USAO No. 2006R01145

THE GRAND JURY CHARGE:

COUNT ONE

18 U.S.C. § 1lll(a) & (b)

Assaulting Certain Officers

Bodily Injury/Deadly Weapon

On or about February 8, 2006, in the Western

Distmct of Texas and elsewhere, the Defendant

TERRY MICHAEL MILLER,

knowingly and by means and use of a deadly and

dangerous weapon, that is, a vehicle: a green 2000

Ford F-150 pickup, did forcibly assault, resist, oppose,

impede, intimidate, and interfere with Special Dep-

uty United States Marshal Kevin Rybarski, hereby

causing bodily injury, while he was engaged in his

official duties, in wiolation of Title 18, Linited States

Code, Section lll(a) & (b)

App. 26

COUNT TWO

18 U.S.C. § 1lll(a) & (b)

Assaulting & Interfering with

Certain Officers/Deadly Weapon

On or about February 8, 2006, in the Western

District of Texas and elsewhere, the Defendant.

TERRY MICHAEL MILLER,

knowingly and by means and use of a deadly and

dangerous weapon, that is, a vehicle: a green 2000

Ford F-150 pickup, did forcibly assault, resist, oppose,

impede, intimidate, and interfere with Deputy United

States Marshal Darren Sartin while he was engaged

in his official duties, 1n violation of Title 18, United

States Code, Section 11l(a) & (b)

A TRUE BILL:

SIGNATURE REDACTED

PURSUANT TO

E-GOVERNMENT ACT

OF 2002

FOREMAN.

JOHNNY SUTTON

United States Attorney

By: /s/ Michelle E. Fernald

MICHELLE F. FERNALD

Assistant United States Attorney

App. 2%

Sealed

Unsealed X USAO# 2006R01145

Personal Data Sheet

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

RELATED CASE YES X NO

RELATED CASE NO.

County AUSTIN Division Judge Yeakel

[5/1/07

Date: 03/06/07 Mag Ct.# SSN KBI#

Case No.: A-06-CR-125-LY

Assistant U.S. Attorney: Michelle Fernald

Defendant: Terry Michael Miller Date of Birth

Ty { ] 4 }

PPCITeCMaGAaANL AKa

Addres:

Citizenship United State: Mexican Other

Interpreter Needed: Yes No Language

Defense Attorney: Thomas Fagerberg Employed

Address of Attorney:

1004 West Avenue, Austin, TX 78701 Appointed X

Defendant is: In Jail X

Where: FCI Ft. Worth (medical treatment)

On Bond Amt. of Bond Where

Date of Arrest: 06/19/06 Bench Warrant Needed

Pro secution By

Information Superseding Indictment X

App. 28

Offense (Code & Description)

. Cts. 1-2: 18 U.S.C. § Lil(a) & (b)

- Assaulting Certain Officers/

Bodily Injury/Deadly Weapon

Offense Is Felony _X Misdemeanor

Maximum Sentence: Cts. 1-2: No more than 20 years,

$250K fine, 3 years SR, $100 SA

Penalty is Mandatory: Yes _X as to SA [& min

mum term of imprisonment! No

Remarks: Case Agent: Rocky Wardlow, DPS Ranger

App. 2yY

N THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES

OF AMERICA

Vy

TERRY MICHAEL MILLER

CRIMINAL NO

A-06-CR-125-LY

SI SH ST? SI? JIT

VERDICT

Filed Jan. 17, 2008)

We, the jury, with regard to the Defendant, Terry

Michael Miller unanimously find the following

Answer “guilty” or “not guilty.”

COUNT ONE: Guilty

COUNT TWO: Guilty

SIGNED on this _17_ day of January, 2008, at

5 o'clock OO m

ORIGINAL SIGNATURE

REDACTED PURSUANT TO

E-GOVERNMENT ACT

OF 2002

PRESIDING JUROR

App. 30

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES § NO. A-06-CR-125(01L)LY

OF AMERICA : (Filed Apr. 17, 2008)

VS. Z

TERRY MICHAEL R

MILLER :

NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID

COURT:

INTO COURT comes the Defendant, TERRY

MICHAEL MILLER, and files this his Notice of

Appeal to the Fifth Circuit Court of Appeals from the

judgment and sentence imposed in the above-styled

and numbered cause as entered by the Court on April

~

(, 2008

Respectfully submitted

Thomas C. Fagerberg

TIIOMAS C. FAGERBERG

Attorney at Law

YO7 Rio Grande St

Austin, Texas 78701

512/577-1962

State Bar No. 24034434

Larry Sauer

LARRY SAUER

Attorney at Law

1004 West Ave

Austin, Texas 7870

| arry Oaue@!

LARRY SAUE!

TT ¢ ‘ , ‘

. rney a Lav

U.S. District Court [LIVE]

Western District of Texas (Austin)

CRIMINAL DOCKET FOR CASE #:

1:06-cr-00125-LY-ALL

Case Title: USA \ Mille Date Filed: 6/6/2006

Filing Date # Docket Text

b/6/ZUU00 l INDICTMEN'T( Redacted Ve! mn

| lo filed. Unredacted document seale

ursuant to K-Government Act

2002 as to Terry Michael Miller (1

ryt ] me Kinters / ry / ARlSi a

1/20 } SUPERSEDING INDICTMENT (R

ie dacted Version) filed. Unredacted

locument ealed pursuant to E

Government Act of 2002 as to Terry

Michael Miller (1) count 2

Attachment #(1) PDS K En

ered: 5/3/2007

17/2008 68 JURY VERDICI Redacted Ver

p.216 ion) as to Terry Michael Miller

Guilty on Count I1s,2s. filed. Unre

dacted Version Sealed pursuant t

K-Government Act of 2002 im