USA v. Eugene Morris

Filing 920101220

Opinion

Case: 09-20601 Document: 00511325477 Page: 1 Date Filed: 12/17/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20601 S u m m a r y Calendar December 17, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E U G E N E MORRIS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:07-CR-442-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* E u g e n e Morris, a former prison guard was convicted by a jury of s u b m it t in g a false Use of Force Report (count 2), in violation of 18 U.S.C. § 1519. Morris was acquitted of violating an inmate's constitutional right to be free of c r u e l and unusual punishment (count 1) and of persuading another person to m a k e a false statement (count 3). In this appeal, Morris contends that the d is t r ic t court erred in denying his motion for a judgment of acquittal.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-20601 Document: 00511325477 Page: 2 Date Filed: 12/17/2010 No. 09-20601 M o r r is contends that he did not violate § 1519 because there was no o n g o in g federal investigation at the time he submitted the Use of Force Report. Because this issue was not asserted in the district court, our review is for plain e r r o r . To show plain error, Morris must show a forfeited error that is clear or o b v io u s and that affects his substantial rights. Puckett v. United States, 129 S . Ct. 1423, 1429 (2009). If Morris makes such a showing, this court has the d is c r e t io n to correct the error but only if it seriously affects the fairness, in t e g r it y , or public reputation of judicial proceedings. Id. M o r r is cites no authority for the proposition that conviction under § 1519 r e q u ir e s proof of an ongoing federal investigation. Instead, he contends that s u c h proof is required under the language of the statute. As the Government n o te s , every court to have considered the issue has rejected the argument a d v a n c e d by Morris. See United States v. Lanham, 617 F.3d 873, 887 (6th Cir. 2 0 1 0 ); United States v. Hunt, 526 F.3d 739, 743-44 (11th Cir. 2008); see also N o te , Anticipatory Obstruction of Justice: Pre-Emptive Document Destruction u n d er the Sarbanes-Oxley Anti-Shredding Statute, 18 U.S.C. § 1519, 89 CORNELL L . REV. 1519, 1560-61 (2004). Morris has not shown that the district court p la in ly erred in failing to acquit him on the ground that the Government had not s h o w n that his obstructive conduct occurred in relation to an ongoing federal in v e s t ig a t io n . See Puckett, 129 S. Ct. at 1429. M o r r i s contends also that the jury verdicts were inconsistent, as his c o d e fe n d a n t , Tracy Jewett, was charged with the same offense, but was a c q u it t e d . Because it was not asserted below, we review this contention for plain e r r o r . See Puckett, 129 S. Ct. at 1428-29. Even if we assume that the verdicts w e r e inconsistent, such inconsistency does not bar a conviction as long as there is sufficient evidence to support the jury's verdict. United States v. Geiger, 190 F .3 d 661, 664 (5th Cir. 1999); see also United States v. Zuniga-Salinas, 952 F.2d 8 7 6 , 877-78 (5th Cir. 1992) (en banc) (coconspirator's acquittal may have r e s u lt e d from leniency, mistake, or compromise by the jury). 2 Because the

Case: 09-20601 Document: 00511325477 Page: 3 Date Filed: 12/17/2010 No. 09-20601 e v id e n c e supporting his conviction was sufficient, Morris has not shown that the d is t r ic t court committed an error, plain or otherwise, by denying his motion for a judgment of acquittal on the ground that the jury returned inconsistent v e r d ic ts . See Puckett, 129 S. Ct. at 1429; see also United States v. Montes, 602 F .3 d 381, 388 (5th Cir.) (reciting sufficiency standard), cert. denied, 2010 WL 2 3 4 5 3 9 2 (2010) (No. 09-11318). The judgment is AFFIRMED.

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