In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court’s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.
A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son. After she died, the direct deposit continued to be made to the account, now shared by the son with his wife. The son and his wife did not notify the Veterans Administration of the mother’s death. Years later, the Veterans Administration discovered the continued payments, and the son and his wife were prosecuted for theft of the benefits that continued to be deposited to their account.
The Court noted that when a defendant makes a Rule 29 motion that the trial court reserves judgment on until the conclusion of the trial, the evidence to be considered is frozen at the time the government rests. Thus, the defendants’ testimony, which the jury evidently did not believe, and which would be counted against them on a standard sufficiency of the evidence review, would not be part of the Rule 29 analysis.
The defendants still faced the challenge of overcoming the drawing of inferences in the government’s favor – but in this case, met the challenge. The Court found that the government presented no evidence on the question whether the defendants knew that they were not entitled to continue to receive the mother’s monthly benefit. The district court erred therefore in denying the Rule 29 motion.http://www.ca11.uscourts.gov/opinions/ops/200710237.pdf
