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July 16, 1987

United States of America
Laurence B. Broadus

The opinion of the court was delivered by: RICHEY


 On November 13, 1986, the Grand Jury delivered a three-count indictment against Laurence B. Broadus. Mr. Broadus, a seven-year employee of the United States Postal Service, was charged with stealing and knowingly converting a blank United States Postal Service Money Order for his own use, attempting to pass and utter a falsely altered Postal Service Money Order, and knowingly receiving and possessing a stolen money order with the intent to convert it to his own use. *fn1"

 After four status conferences and a combined pre-trial and motions hearing, defendant Broadus was brought to trial on February 19, 1987, fully three months after he and his counsel received the Indictment against him. In response to an inquiry by the Court before the trial began, defense counsel stated that he had no objection to the jury instructions submitted by the Government and in fact stated that the Assistant United States Attorney had done "an excellent job" in preparing those instructions. Trial Transcript ("Transcript") at 6; see id. at 4-6.

 At the conclusion of the prosecution's case, defendant, through counsel, moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(a). The Assistant United States Attorney opposed that motion and the Court denied the motion. Defense counsel also, for the first time in the three-month-old case, argued that the Indictment and the proposed jury instructions (which had been delivered to him in substantially the same form on January 27, 1987) were improper. Specifically, he argued that defendant could not be convicted both of stealing the money order and of receiving and possessing the stolen money order or its cashed proceeds. He cited no authority for his argument, and he could offer none when asked by the Court to do so. Id. at 81-84. The Assistant United States Attorney vigorously maintained that defendant's argument was meritless and, relying on the Government's representations, the Court rejected this motion as well. See id. at 82-84.

 On March 24, 1987, the Court held a hearing on defendant's motion, and it was at that time clear to the Court that it would require a transcript in order to consider that motion properly. The Court had learned that the Public Defender Service of the District of Columbia ("PDS") was willing to enter an appearance on behalf of the defendant and to order the transcript without cost to the government. Because of PDS's willingness to enter the case, and because the Court was concerned by defense counsel's failure to question the Indictment and the jury instructions until the trial was nearly over, the Court vacated its earlier appointment of counsel and appointed Ms. Kim Taylor of the Public Defender Service to represent defendant in the remaining proceedings in this case. The Court allowed Ms. Taylor time enough to order and review the trial transcript before taking any other action on defendant's behalf.

 On May 8, 1987, defendant, through new counsel, filed a "Motion for Judgment of Acquittal and, In the Alternative, Supplement to Motion for New Trial." On May 15, 1987, the government filed a forceful opposition to this motion. On June 5, 1987, the Court heard oral argument from both sides, and the most notable feature of that argument was the government's presentation. First, the government admitted that the Indictment charged alternate theories of the same crime and that the jury instructions, which were in the relevant points submitted by the government itself and which the government had vociferously defended, were erroneous. (The government did, however, stand by its earlier claim that the jury's verdict cured the error by convicting defendant of only one of the inconsistent counts.) Second, the government embarked on a blistering attack against both the new motion for a judgment of acquittal and the Court's actions in permitting defendant to obtain new, and presumably more prudent, counsel. *fn2"

 The Court has carefully considered every argument advanced by each party, and it has undertaken extensive research of its own. The Court is convinced that it has the power to enter a judgment of acquittal and that the government utterly failed to present evidence necessary for a reasonable juror to convict defendant of any of the crimes charged. Accordingly, the Court will enter a judgment of acquittal on defendant's behalf. As such, the Court need not -- indeed, cannot -- decide whether the motion for a new trial should be granted.


 Although the government maintains that the Court is jurisdictionally barred from entering a judgment of acquittal outside the period specified by Rule 29(c), there is no law on that issue in this circuit. *fn4" Nor has the Supreme Court spoken directly. But, in a somewhat different context, the Supreme Court has clearly implied that a trial court has the inherent power, if not the duty, to examine the sufficiency of the evidence against a criminal defendant sua sponte.

 In United States v. Gaddis, the Supreme Court stated that a trial court confronted with a motion for a new trial is not concerned with grounds for a new trial alone. Rather, it must weigh the sufficiency of the evidence against a defendant before deciding the defendant's motion for a new trial, and, if the evidence does not support the verdict of guilty, set aside that verdict. 424 U.S. 544, 549, 96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976). Only if the evidence supports the verdict, Gaddis holds, may a court go on to consider whether the trial was so flawed that a new trial would be required. Id.

 Thus, Gaddis recognizes a Court's responsibility to ensure that the evidence supports the jury's verdict, regardless of whether the defendant has asked the Court to undertake the inquiry. And it strongly supports the idea that a court with jurisdiction over a prosecution must consider whether the evidence presented at trial was sufficient to support a guilty verdict.

 Gaddis's implication is now the law of the Third and Ninth Circuits. Those courts have recently held that a trial court has inherent power to enter a judgment of acquittal and may do so at any time after trial as long as the Court has jurisdiction over the action. In the seminal case of Arizona v. Manypenny, 672 F.2d 761, cert. denied, 459 U.S. 850, 74 L. Ed. 2d 98, 103 S. Ct. 111 (1982), the Ninth Circuit found that "Rule 29(c) creates a deadline by which defendants must present motions for a judgment of ...

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