Opinion
No. 79-5704.
September 2, 1981.
Charles L. Roberts, El Paso, Tex., for defendant-appellant.
Le Roy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.
ON PETITION FOR REHEARING [2] (Opinion March 13, 1981, 5 Cir., 1981, 638 F.2d 1375).
In the panel opinion, we held there was insufficient evidence, as a matter of law, to support the conviction on Count I. We reversed the conviction and remanded the case to the district court. Citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), Cross now argues that this Court should direct a judgment of acquittal. We agree. Therefore, we order that a judgment of acquittal be entered on Count I of the indictment.
Cross also claims that the panel incorrectly concluded that the erroneous references to other charges, in light of the evidence supporting the conviction and the curative instruction given the jury, were harmless. We noted in the opinion that the government's claim of harmless error must travel uphill. We have carefully reconsidered the evidence adduced in support of Count II of the indictment. While the F.B.I. agent's testimony was plainly sufficient to support the conviction, it was far from "overwhelming." We hold, therefore, that the district court's error in admitting the repeated references to "other federal charges" necessitates reversal of the conviction on Count II and remand for a new trial.
The petition for rehearing is GRANTED. The panel opinion is MODIFIED. The conviction on both counts is REVERSED and the case is REMANDED to the district court for entry of a judgment of acquittal on Count I and a new trial on Count II.