United States v. Lenard ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41092
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JODY LENARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:97-CR-26-1
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April 15, 1998
Before DUHE’, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Jody Lenard has appealed his convictions for obstructing and
affecting commerce by committing robbery and for using and
carrying a firearm during and in relation to a crime of violence.
Lenard contends that the evidence of guilt was insufficient.
Because Lenard failed to renew his motion for judgment of
acquittal after resting his case, we have reviewed the evidence
to determine whether Lenard’s convictions have resulted in a
manifest miscarriage of justice. United States v. Johnson, 87
F.3d 133, 136 (5th Cir. 1996), cert. denied, 117 S. Ct. 1482
*
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this opinion should not be published and is not precedent except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.
No. 97-41092
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(1997). A “miscarriage of justice would exist only if the record
is devoid of evidence pointing to guilt.” United States v.
Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989) (internal
quotations omitted).
Lenard contends that his convictions for obstructing and
affecting commerce by committing robbery, in violation of 18
U.S.C. § 1951 (the Hobbs Act), were based upon insufficient
evidence because they relied upon the testimony of two
cooperating codefendants only. “The uncorroborated testimony of
an accomplice or coconspirator will support a conviction . . .
[as long as the] testimony is not incredible or otherwise
insubstantial on its face.” United States v. Singer, 970 F.2d
1414, 1419 (5th Cir. 1992).
“There are . . . two elements in a Hobbs Act prosecution:
(1) a robbery, act of extortion, or an attempt or conspiracy to
rob or extort; and (2) an interference with interstate commerce.”
United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997),
cert. denied, ___ S. Ct.___ (Feb. 23, 1998) (No. 97-7566), 1998
WL 70452. Lenard’s argument challenges the Government’s proof as
to the first element. The record is not “devoid of evidence”
showing that Lenard committed the robberies. See Robles-Pantoja,
887 F.2d at 1254. The testimony of Lenard’s accomplices was not
incredible or insubstantial. See Singer, 970 F.2d at 1419.
Lenard argues that his firearms convictions, under 18 U.S.C.
§ 924(c), should be reversed because he never personally
possessed a firearm in connection with the robberies. The
elements of a § 924(c) offense which the Government must prove
No. 97-41092
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are that “(1) th[e] defendant knowingly used or carried a
firearm, and (2) the use or carrying of the firearm occurred
during and in relation to a ‘crime of violence.’” United States
v. Harris, 25 F.3d 1275, 1279 (5th Cir. 1994). “The ‘carrying’
requirement of Section 924(c) is met where a defendant operates a
vehicle knowing the firearm is in the car.” United States v.
Speer, 30 F.3d 605, 612 (5th Cir. 1994) (citing United States v.
Ruiz, 986 F.2d 905, 910 (5th Cir. 1993)). In Ruiz, the court
affirmed the appellant’s § 924(c) convictions on similar facts.
See 986 F.2d at 907-11. The district court’s judgment is
AFFIRMED.