* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20838

UNITED STATES OF AMERICA

Plaintiff-Appellant

v.

JAMES ANTHUM COLLINS, also known as

Andy Collins; YANK BARRY, also known as

Gerald Falovitch, also known as Gerald Barry,

also known as Yank Gerald Barry

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:98-CR-18-ALL

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

James Collins, the former executive director of the Texas Department of

Criminal Justice and Yank Barry, the CEO and President of VitaPro Foods, were

indicted on January 15, 1998 for conspiracy, money laundering, and bribery, and
No. 05-20838

1 Count one charged Collins and Barry with conspiracy under 18 U.S.C. § 371 to

commit theft or bribery of funds in violation of 18 U.S.C. § 666(a)(1)(B) and § 666(a)(2), money

laundering in violation of 18 U.S.C. § 1956(A)(1)(B)(1) and misuse of a social security number

in violation of 18 U.S.C. § 408(a)(7)(B). Counts 2-5 charged Collins and Barry with the

substantive offenses of theft and bribery. Counts 2 and 3 charged Collins with accepting and

agreeing to accept payments from VitaPro Foods, Inc. in violation of 18 U.S.C. § 666(a)(1)(B).

Counts 4 and 5 charged Barry with giving, offering, and agreeing to give payments to Collins

in violation of § 666(a)(2). Counts 6 and 7 charged both defendants with aiding and abetting

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B) and § 2. Count 8 charged both

defendants with misuse of a social security number, in violation of 18 U.S.C. § 408(a)(7)(B).

On August 19, 2001, after the government rested its case, the district court dismissed Count

8 on defendants’ motion for acquittal.

2 On August 20, 2001, the jury found Collins guilty of Counts 1, 2-3, and 6-7. The jury

found Barry guilty of Counts 1, 4-5, and 6-7.

3 Pursuant to Rule 29(d)(1), in the event that the district court “enters a judgment of

acquittal after a guilty verdict, the court must also conditionally determine whether any

motion for a new trial should be granted if the judgment of acquittal is later vacated or

reversed.” Fed.R.Crim.P. 29(d)(1).

2

misuse of a social security number.1 They were tried by jury and convicted.2

The defendants filed a Rule 29(c) motion for a judgment of acquittal. On

September 8, 2005,the district court granted a motion acquitting the defendants

on all counts and, in the alternative, granting a new trial on the grounds that

(1)the government’s key witness offered contradictory and unfounded testimony;

(2) the jury was confused by the introduction of extraneous and irrelevant

testimony, and (3) no substantially verbatim transcript of the trial exists.3

After reviewing the record and considering the parties’ arguments as

presented in the briefs and at oral argument, we find that the district court

erred in granting the defendants’ motion for a judgment of acquittal. “A motion

for judgment of acquittal challenges the sufficiency of the evidence to convict.”

United States v. Lucio, 428 F.3d 519, 522 (5th Cir. 2005). When considering a

Rule 29 motion, we utilize the same standard as the district court, which means

we “assess whether a reasonable jury could have properly concluded, weighing

the evidence in a light most deferential to the verdict rendered by the jury, that

all of the elements of the crime charged had been proven beyond a reasonable
No. 05-20838

3

doubt.” Id. We do not “analyze the evidence with an eye toward negating every

possible inference of innocence, rather, if the fact finder was presented with

sufficient evidence to support the verdict reached, that verdict must be upheld.”

Id. Our review is conducted de novo, with “no deference [given] to the district

court’s ruling.” United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001), cert.

denied, Loe v. United States, 534 U.S. 1134 (2002). 

The evidence presented at trial, viewed in the light most favorable to the

verdict, was sufficient to permit a rational juror to find Collins and Barry guilty

beyond a reasonable doubt. The district court reached its contrary conclusion by

choosing to disregard entirely the testimony of the government’s key witness,

Patrick Graham. This independent assessment of Graham’s credibility was

impermissible under the Rule 29 analysis, which requires us to defer to the

jury’s “reasonable construction[] ofthe evidence.” Loe, 262 F.3d at 434. The jury

was presented with substantial evidence of Graham’s poor character and was

made aware of the contradictions in his testimony, but still the jury found that

the Government had proven Collins and Barry guilty beyond a reasonable doubt.

No one suggests that the evidence is insufficient, if Graham’s testimony is

permitted, and if the jury chose to credit it, which it apparently did. The district

court erred in substituting its own judgment for that of the jury to conclude that

Graham’s testimony should be disregarded. Cf. Loe, 262 F.3d at 432 (noting

that under the sufficiency standard,the jury “retains the sole authority to weigh

any conflicting evidence and to evaluate the credibility of the witnesses.”). We

therefore reverse the judgment of acquittal under Rule 29. 

However, our review of the district court’s determination on a motion for

new trial is more deferential than on a motion for a judgment of acquittal.

United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997). Rule 33 permits

the district court to grant a new trial if “necessitated by the interests of justice.”

United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005), and we review this
No. 05-20838

4

“This rule is sensible: The jury in the first instance, and the district court

on rule 33 review, were in superior positions to evaluate the credibility of the

witnesses, because they were able to observe their demeanors.” U.S. v. Arnold,

416 F.3d 349, 360 n. 19 (5th Cir. 2005).

4

determination for abuse of discretion. United States v. Dula, 989 F.2d 772, 778

(5th Cir. 1993). Unlike the Rule 29 analysis, when considering a Rule 33 motion,

the “trial judge may weigh the evidence and may assess the credibility of the

witnesses ...,” Robertson, 110 F.3d at 1117, but must not “set aside a jury’s

verdict because it runs counter to [the] result the district court believed was

more appropriate.” Tarango, 396 F.3d at 672. “In our capacity as an appellate

court, we must not revisit evidence, reevaluate witness credibility, or attempt to

reconcile seemingly contradictory evidence .... Instead, we must simply concern

ourselves with whether or not the district court’s ultimate decision in granting

or denying the motion for a new trial constituted a clear abuse of its discretion.”

Id. (internal citation omitted).4

In this particular case, we cannot conclude that the district court’s

ultimate decision to grant a new trial constituted an abuse of discretion. The

court found that the testimony of the government’s key witness, who provided

the only direct evidence of wrongdoing, was unfounded and perjured; that the

integrity of the verdict was called further into question by the introduction of

irrelevant evidence that had no relationship to the charged misconduct, and that

confused the jury; and that no substantially verbatim transcript of the trial

exists to support proper appellate review. Although each of these findings might

not, standing alone, be sufficient to support a new trial, given the totality of the

circumstances of this case, we cannot conclude that the district court’s ruling

was an abuse of discretion. We therefore affirm the district court’s alternative

ruling granting a new trial.
No. 05-20838

5

The judgment of the district court is

REVERSED IN PART, AFFIRMED IN PART, and REMANDED. 
No. 05-20838

6

EDITH BROWN CLEMENT, Circuit Judge, dissenting:

While I concur in the reversal of the judgments of acquittal, I respectfully

dissent from the majority’s holding that the district court did not abuse its

discretion when it granted the defendants a new trial. Setting aside the jury’s

verdict and granting a new trial in the interest of justice is appropriate “where

the evidence broughtforth at trial may tangentially support a guilty verdict, but

in actuality, preponderates sufficiently heavily against the verdict such that a

miscarriage of justice may have occurred.” United States v. Tarango, 396 F.3d

666, 672 (5th Cir. 2005) (internal quotation omitted). There is no question that

the evidence here, which included Collins’s own financial records, testimony

from Lori Lero, and testimony from multiple Texas Department of Criminal

Justice employees, fully supported a guilty verdict for both defendants. 

The majority relies on three factors to justify its holding. Even in

combination, these factors are insufficient to justify the district court’s decision

to grant a new trial. First, the majority states that the district “court found that

the testimony of the government’s key witness, who provided the only direct

evidence of wrongdoing, was unfounded and perjured.” Maj. Op. at 4. This factor

merely restates the district court’s disagreement with the jury’s verdict and

credibility determinations. The evidence before the jury was both substantial

and compelling, even apart from Patrick Graham’s disputed testimony. 

Barry claimed that he did not know that Collins was still employed by

TDCJ when he began to make payments to Collins in late 1995, but TDCJ

employees testified that Barry visited the TDCJ offices in December 1995, when

Collins helped him obtain an identification card by introducing him as an

entertainer. Graham’s daughter Lori Lero, an attorney, testified that she set up

the corporation Certified Technology Consultants (“CTC”) with Collins’s

knowledge and that she was told to do so in order to facilitate payments to
No. 05-20838

7

Collins from Barry’s company, VitaPro. CTC’s financial records revealed

thousands of dollars in wire transfers from VitaPro to CTC, and Collins’s

personal financial records showed deposits that matched the amounts VitaPro

transferred to CTC. In short, there was substantial evidence of wrongdoing by

Collins and Barry that did not depend directly on Graham’s testimony. 

Perhaps more importantly, Collins and Barry failed to present credible

evidence to counter the government’s case. For example, to explain thousands

of dollars in cash deposited into Collins’s bank account, Collins testified that he

was “a voracious change saver” and that the money came from change he had

collected over the years. 

Second,the evidence thatthe district court called irrelevant and confusing

was in fact both relevant and helpful and did not justify a new trial. Id. The

allegedly confusing cash transactions corroborated Graham’s testimony and

provided evidence of a corrupt agreement between Collins and Barry. The

detailed financial analysis of CTC’s and Collins’s bank accounts, another

allegedly confusing matter, was necessary to properly trace the funds

transferred to CTC from VitaPro. The allegedly confusing and irrelevant

evidence regarding misuse of a social security number indicated that Barry knew

that Collins was still employed by TDCJ during December 1995, contrary to

Barry’s testimony. This was evidence of Barry’s guilty knowledge that he was

paying Collins while Collins was still employed at TDCJ. The evidence of

Collins’s financialtransactions and Barry’s misuse ofthe social security number

was neither irrelevant nor unduly confusing and did not justify granting a new

trial.

Third, the district court found that “no substantially verbatim transcript

of the trial exists to support proper appellate review.” Id. This finding is at odds

with this court’s precedent regarding incomplete trial transcripts, which looks

more skeptically on missing transcripts than on otherwise complete transcripts
No. 05-20838

8

which contain errors. Compare United States v. Neal, 27 F.3d 1035, 1044 (5th

Cir. 1994) (holding that a more than 150-volume trialtranscript containing over

300 errors was not “unreasonably incomplete or substantially inaccurate” when

these errors “were primarily of a typographical nature”), with United States v.

Selva, 559 F.2d 1303, 1306 (5th Cir. 1977) (remanding for a new trial when all

of the closing arguments were missing from the transcript). 

The present case is much more like Neal than Selva. Collins and Barry’s

trial was transcribed in full, and the vast majority of the errors verified in the

corrected transcript were typographical in nature. In addition, 71.55% of the

transcript was compared to audiotape backup and corrected to make those

portions verbatim. I would hold that the transcript is sufficiently complete to

permit appellate review. 

As the majority noted,the district court must not“set aside a jury’s verdict

because it runs counter to [the] result the district court believed was more

appropriate.” Maj. Op. at 4 (quoting Tarango, 396 F.3d at 672). That is exactly

what happened here. None of the district court’s stated reasons are individually

sufficient to justify a new trial, and they do not gain additional merit via

aggregation. For these reasons I would reverse the district court and remand

with instructions to reinstate the jury’s verdict.