Defense counsel’s failure to move for judgment of acquittal at the close of the government’s case, at the close of all evidence, or after the jury’s verdict, despite “razor-thin” evidence of guilt, resulted in a defendant forfeiting that argument, and resorting to the steep standard of “plain error” review on appeal, in United States v. Calhoun, issued on July 24, 2013. Finding no “manifest miscarriage of justice” – the prerequisite to an error being “plain” in the context of sufficiency of evidence – the Eighth Circuit affirmed what it described as a “slim case indeed.”
Monique Calhoun had purchased black market airline tickets from individuals who utilized stolen credit cards. She was indicted for conspiracy to commit access device fraud and aggravated identity theft. On the question of whether Calhoun knew the essential object of the conspiracy (credit card fraud as opposed to some kind of fraud on the airlines), the Court of Appeals found the evidence “razor thin,” but ultimately, could not conclude there had been a miscarriage of justice, where “the evidence at a minimum proved Calhoun guilty of a scheme to defraud the airlines, even if she did not know that access device fraud and aggravated identity theft were the ‘essential objects’ of her co-conspirators’ far-flung criminal operations.” Moreover, the Court of Appeals added, Calhoun was treated at sentencing as the “least culpable” of the participants, and sentenced to two years probation.