# Petition for Writ of Certiorari — Miller v. United States (No. 09-467) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1136%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1136%3A1. Public record. Not legal advice.