### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 30134 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JAMES LAMAR KELLY , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:11

- CR

- 268

- 1

Before JONES, BARKSDALE, and HAYNES, Circuit Judges. PER CURIAM: * James Lamar Kelly challenges the sufficiency of the evidence for his jury

- trial conviction for interference , or attempted interference , with an aircraft, in violation of 18 U.S.C. § 32(a)(5) and 32(a)(8), performing , or attempted performance , of an act of violence against an individual on an aircraft, in violation of 18 U.S.C. § 32(a)(6) and 32(a)(8), and assault of a federal

* Pursuant to 5 TH C IR

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 6, 2014

Lyle W. Cayce Clerk Case: 13-30134 Document: 00512490137 Page: 1 Date Filed: 01/06/2014No. 13

- 30134

officer , in violation of 18 U. S.C. § 111

. ( H e does not challenge his guilty

- plea theft

- of

- mail conviction under the same indictment. ) Kelly mov ed for judgment of acquittal at the close of the Government’s case, after the defense rested, and at the close of all of the evidence ;

accor dingly , his claims are reviewed de novo

. E.g. , Uni ted States v. Jime nez , 509 F.3d 682, 690 (5th Cir. 2007) (citation omitted)

. For determining whether the evidence was sufficient, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”

. Jackson v. Virginia , 443 U.S. 307, 319 (1979) (emphasis in original) (citation omitted)

. First, Kelly , who testified, challenges the suffici ency of the evidence supporting the three offenses by asserting he has consistently maintained he only fired “warning shots” away from the helicopter , which was involved in a marijuana

- eradication search

. The verdict shows the jury believed testimony of a state trooper riding in the helicopter and that of the United States Army pilot flying it that K elly pointed a firearm at the aircraft , shook the firearm , and fired shots in the direction of the aircraft , as well as the te stimony of two law enforcement officers to whom Kelly admitt ed shooting at the helicopter. This credibility finding “was within the sole province of the jury as the fact finder ” , which “[ w ]e will not second guess”

. United States v. Zuniga , 18 F.3d 1254, 1260 (5th Cir. 1994) (citations omitted)

. Second , w ith respect to Kelly’s assault

- of

- a - federal

- officer conviction , he asserts the evidence was insufficient to establish an assault occurred because any threat was not witnessed by the pilot, but conveyed to the pilot by the trooper. The pilot claims he saw Kelly shaking the firearm at him but was unable to concentrate on Kelly because he was fly ing the helicopter

. He heard

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- 30134
the trooper state that Kelly was shooting at them , and he trusted the trooper’s

asse ssment

. He then looked back and saw Kelly pointing the firearm at the helicopter. The pilot felt fearful, threatened, and intimidated. He took evasive action with the helicopter and flew away. In the light of this evidence, a rational juror could find Kelly committed the assault beyond a reasonable doubt. See Jackson , 443 U.S. at 319

. Third, Kelly claims he lacked the requisite criminal intent to commit an assault against a federal officer beca use he did not know the pilot was a federal officer flying a military helicopter . Rather, Kelly maintains he believed his actions were necessary for the lawful defense of himself or his property because he could not discern any markings on the helicopter ; he gestured for it to identify itself or leave; and , he became fearful “it could have been drug smugglers” or “gun runners ”

. I n United States v. Feola , the Supreme Court noted a defendant who does not know the victim is a federal o fficer , and who reasonably believe s his act ions

are necessary to defend himself or his property , might lack the requisite criminal intent under 18 U.S.C. § 111. 420 U.S. 671, 686 (1975)

. The C ourt was concerned with the possibility of a situation in which a federal officer fails to identify himself when his actions “might reasonably be interpreted as the unlawful use of force directed either a t the defendant or his property ”

. Id

. In such a case, “one might be justified in ex erting an element of resistance ” , precluding a finding of criminal intent. Id

. The facts at hand d o not reflect such a situation because the actions by the pilot or the helicopter could not reasonably be interpreted as the unlawful use of force against Kelly or his property , j ustif ying the use of a deadly weapon

. Al though Kelly testified the helicopter flew “extremely low” and hover ed over his property, t his description of the helicopter’s behavior was rebutted by the

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pilot and trooper , who testified the helicopter flew at an altitude of approximately 500 feet and did not hover over Kelly’s property. Kelly also admitted he did not see any firearms on the helicopter. And, the jury was instructed that Kelly would not be guilty i f there was a reasonable doubt he

was unaware the pil ot was a federal officer and if he acted only b ased on a reasonable good

- faith belief that he needed to defend himself against an assault by a private citizen. See Z uniga , 18 F.3d at 1260

. AFFIRMED.

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