* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 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, 1998for conspiracy, money laundering, and bribery, andNo. 05-20838

1 Count one charged Collins and Barry with conspiracy under 18 U.S.C. § 371 to commit theft or bribery offunds 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 ofa 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 oftheft 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, thedistrict court granted a motion acquitting thedefendants on all counts and, in the alternative, granting a new trial on the grounds that (1) thegovernment’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 ajudgment ofacquittal. “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 reasonablejury could have properly concluded, weighing the evidence in a light most deferential to the verdict rendered by thejury, that all of the elements of the crime charged had been proven beyond a reasonableNo. 05-20838

3 doubt.” I d. 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 tosupport 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 thejury found that theGovernment had proven Collinsand Barry guilty beyond a reasonable doubt. No one suggests that the evidence is insufficient, if Graham’s testimony is permitted, and ifthejury chose tocredit it, which it apparently did. The district court erred in substituting its own judgment for that ofthejury toconclude that Graham’s testimony should be disregarded. Cf. Loe , 262 F.3d at 432 (noting that under the sufficiency standard, thejury “retains the sole authority toweigh 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 Statesv. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997). Rule 33 permits the district court to grant a newtrial if“necessitated by the interests ofjustice.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005), and we review thisNo. 05-20838

4 “This rule is sensible: Thejury 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 ofdiscretion. U nited 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 ...,” Robe

rtson, 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.” T arango, 396 F.3d at 672. “In our capacity as an appellate court, we must not revisit evidence, reevaluatewitness 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 newtrial constituted a clear abuse of its discretion.” Id. (internal citation omitted). 4 In this particular case, we cannot conclude that the district c ourt’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 verdic t was called further into question by the introduction of irrelevant evidence that had norelationship tothecharged misconduct, and that confused the jury; and that no substantially verbatim transcri pt of the trial exists tosupport proper appellate review. Although each of these findings might not, standing alone, be sufficient to support a new trial, given the totality ofthe 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 thejudgments ofacquittal, 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 ofjustice is appropriate “where the evidence brought forth at trial may tangentially support a guilty verdict, but in actuality, preponderates sufficiently heavily against the verdict such that a miscarriage ofjustice 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 tojustify the district court’s decision to grant a newtrial. First, the majority states that the district “court found that the testimony of the government’s key witness, who provided the only direct evidence ofwrongdoing, was unfounded and perjured.” Maj. Op. at 4. Thisfactor 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 Coll ins in late 1995, but TDCJ employees testified that Barry visited theTDCJ 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 Col lins’s knowledge and that she was told to do so in order to facilitate payments toNo. 05-20838

7 Collins from Barry’s company, VitaPro. CTC’s financial records re vealed 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 c redible evidence to counter the government’s case. For example, to explain thousands ofdollars 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, theevidence that thedistrict 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 misuseofa social security number indicated that Barry knew that Collins was still emplo yed 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 sti ll employed at TDCJ. The evidence of Collins’sfinancial transactionsand Barry’s misuse ofthe social security number
was neither irrelevant nor unduly confusing and did notjustify granting a new trial. Third, the district court found that “no substantially verbatim transcript ofthe 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 transcriptsNo. 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 trial transcript containing over 300errorswas 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, thedistrict court must not “set aside ajury’sverdict because it runs counter to [the] result the district court believed w as more appropriate.” Maj. Op. at 4 (quoting Tarango, 396 F.3d at 672). That is exactly what happened here. None ofthe 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.