Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 90-CR-75-C).
Susan W. Pennington, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty. and Neal B. Kirkpatrick, Asst. U.S. Atty., with her on the brief), Tulsa, OK, for plaintiff-appellee.
Clark O. Brewster of Brewster and Shallcross (Jennifer L. DeAngelis with him on the brief), Tulsa, OK, for defendant-appellant.
Before ANDERSON and EBEL, Circuit Judges, and ANDERSON,* District Judge.
STEPHEN H. ANDERSON, Circuit Judge.
Pursuant to the opinion of the United States Supreme Court in Staples v. United States, --- U.S. ----, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the court recalls its mandate and vacates its judgment. The judgment of conviction entered by the district court is also vacated.
The appellant has consistently challenged the sufficiency of the evidence in this case, including motions at trial for a judgment of acquittal at the close of the government's case and at the close of all the evidence, and argument of the point on appeal. We address those contentions anew in light of the opinion of the Supreme Court. See United States v. Cooley, 1 F.3d 985, 996-98 (10th Cir.1993); United States v. Haddock, 961 F.2d 933, 934 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 88, 121 L.Ed.2d 50 (1992) (and cases cited therein); United States v. Jelsma, 630 F.2d 778 (10th Cir.1980); and United States v. Morris, 612 F.2d 483, 491-92 (10th Cir.1979).
Upon reviewing the record we conclude that no rational juror could find Mr. Staples guilty beyond a reasonable doubt of the offense charged. Accordingly, the case is REMANDED to the district court with instructions to enter a judgment of acquittal. The mandate shall issue forthwith.
The Honorable Aldon J. Anderson, Senior Judge, United States District Court for the District of Utah, sitting by designation