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03/15/83 United States of America, v. Larry A. Campbell

March 15, 1983

UNITED STATES OF AMERICA, APPELLANT

v.

LARRY A. CAMPBELL 1983.CDC.68 DATE DECIDED: MARCH 15, 1983



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia.

APPELLATE PANEL:

Tamm, Mikva and Ginsburg, Circuit Judges. Opinion for the Court filed by Circuit Judge Mikva.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

This case involves review of a district court's post-verdict judgment of acquittal. In March 1981, a jury found Larry Campbell guilty of giving an illegal gratuity in violation of 18 U.S.C. § 201(f) (1976). Three months later, however, the trial judge granted Campbell's post-verdict motion for acquittal; in the court's view, there was insufficient evidence upon which a reasonable juror could conclude beyond a reasonable doubt that Campbell was guilty of giving the illegal gratuity for which he was convicted. In light of our review of the record in this case, and in accordance with the principles of appellate review of such motions articulated by this court today in United States v. Singleton, 702 F.2d 1182 (D.C. Cir. 1983) (en banc) (per curiam), we affirm the district court. I. BACKGROUND

Excavation Construction, Inc. and its co-founder, Larry Campbell, were indicted in 1980 in connection with the alleged bribery of Judge Robert H. Campbell (no relation to the appellant) of the District of Columbia Superior Court. These indictments were based on allegations of a scheme in which Judge Campbell would leniently review ECI's traffic tickets in exchange for cash and in-kind payments. The scheme purportedly stemmed from ECI's operation of approximately eighty dumptrucks, used by the company in its construction of Metro subway stations, and subject to the vehicle weight restrictions of the District of Columbia. Although ECI was ticketed repeatedly for violation of the District's weight restrictions, in over ninety percent of the 1,138 tickets involving ECI that were considered by Judge Campbell, sentence was suspended.

ECI, Judge Campbell, and Larry Campbell were charged in a four-count indictment alleging conspiracies in violation of 18 U.S.C. § 1962(d) (1976) and 18 U.S.C. § 371 (1976), and the giving and receiving of bribes in violation of 18 U.S.C. §§ 201(b)-201(c) (1976). The indictment alleged sixteen separate instances of bribery: twelve cash payments and four non-cash gifts. The gifts included a garden cultivator, several cases of liquor, three loads of topsoil, and a move of Judge Campbell's household belongings. By the time the case went to the jury, however, the bribery scheme alleged in the indictment had been confined to five cash payments and the move of household goods.

The trial judge instructed the jury on the lesser-included bribery offense of giving and receiving an illegal gratuity, but denied Larry Campbell's request that the jury be instructed that the guilt or innocence of each defendant be considered separately. After four days of deliberation, the jury acquitted all defendants on both conspiracy counts. By way of a special verdict form, the jury also acquitted the defendants of bribery, and found that there was no illegal gratuity given or received in connection with any of the five cash payments alleged. But the jury did find each defendant guilty in connection with the move of Judge Campbell's household belongings -- ECI and Larry Campbell for giving that illegal gratuity, and Judge Campbell for receiving it.

The trial court sentenced ECI and Judge Campbell for the giving and receiving of the household move, and we affirmed their convictions and sentences in United States v. Campbell, 221 U.S. App. D.C. 367, 684 F.2d 141 (D.C. Cir. 1982). The trial court, however, granted Larry Campbell's post-verdict motion for judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure. Rule 29(c) allows a criminal defendant to move the trial court to set aside the jury's verdict of guilty when the verdict is unsupported by legally sufficient evidence. See Fed. R. Crim. P.29(a)-(c). In the present case, the trial judge granted Larry Campbell's Rule 29(c) motion and the Government appeals from the district court's order. II. ANALYSIS

Government appeals from judgments granting acquittal after the verdict under Rule 29(c) are a relatively new phenomenon, stemming from a 1970 amendment to the Criminal Appeals Act, 18 U.S.C. § 3731 (1976). Although the Supreme Court has heretofore approved this practice only when the acquittals after verdict were based on other legal grounds, see, e.g., United States v. Wilson, 420 U.S. 332, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975), the courts of appeals have extended this appellate review to findings of evidentiary insufficiency as well. See, e.g., United States v. Steed, 674 F.2d 284, 285-286 (4th Cir. 1982) (en banc); United States v. Blasco, 581 F.2d 681, 683 (7th Cir.), cert. denied, 439 U.S. 966, 58 L. Ed. 2d 425, 99 S. Ct. 456 (1978).

The standard to be applied by an appellate court in reviewing a post-verdict judgment of acquittal is the same as that applied by the trial court. Both courts must view the evidence in the light most favorable to the verdict, and must presume that the jury has properly carried out its functions of evaluating the credibility of witnesses, finding the facts, and drawing justifiable inferences. A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. See United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 882 (D.C. Cir. 1978); Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229 (D.C. Cir.), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947). Applying this standard to the facts of this case, the Government argues that the record contains sufficient evidence to convict Larry Campbell as an aider and abettor in the giving of an illegal gratuity (the move of household goods) to Judge Campbell. We disagree -- the record contains no such evidence.

In order to aid and abet the commission of an offense, a defendant must "associate himself" with it, must "participate in it as in something that he wishes to bring about," and must "seek by his action to make it succeed." Nye & Nissen v. United States, 336 U.S. 613, 619, 93 L. Ed. 919, 69 S. Ct. 766 (1949). Although an aider and abettor "need not perform the substantive offense, . . . need not know its details, . . . and need not even be present . . . ." United States v. Sampol, 204 U.S. App. D.C. 349, 636 F.2d 621, 676 (D.C. Cir. 1980) (citations omitted), it must be proven "that the defendant consciously assisted the commission of the specific crime in some active way." United States v. Dickerson, 508 F.2d 1216, 1218 (2d Cir. 1975). Although constrained by the strict standard under which a trial judge can test the legal sufficiency of the evidence, the district court applied the standard for aiding and abetting to the facts in this case and granted Larry Campbell's post-verdict motion for acquittal:

Based on the record in this case there was no evidence to convict the defendant Larry A. Campbell as an aider and abettor in the giving of an illegal gratuity to Judge Campbell. . . .

A review of the evidence against Larry A. Campbell convinces this court that there was insufficient evidence upon which a reasonable mind could fairly conclude guilt beyond a reasonable doubt on the ...


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