United States v. Bichsel, 156 F.3d 1148 (11th Cir. 1998). · Go Syfert
United States v. Bichsel, 156 F.3d 1148 (11th Cir. 1998). Cases Citing This Book View Copy Cite
50 citation events (48 in the last 25 years) across 3 distinct courts.
Strongest positive: United States v. Edward Walker (ca11, 2023-07-13)
Treatment trajectory · 2000 → 2026 · click a year to view as-of
2000 2013 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Edward Walker
11th Cir. · 2023 · signal: cf. · confidence medium
Cf. United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998).
discussed Cited as authority (rule) United States v. Valeriy Tsoy
11th Cir. · 2019 · confidence medium
Here, however, because Tsoy moved for a judgment of acquittal after the government’s case-in-chief but failed to renew his motion at the close of all of the evidence, he has “waived any objection to the sufficiency of the evidence.” United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998).
cited Cited as authority (rule) United States v. Maurice Williams
11th Cir. · 2017 · signal: cf. · confidence medium
United States v. Williams, 144 F.3d 1397, 1401 (11th Cir. 1998); Cf. United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998). 2 .
discussed Cited as authority (rule) United States v. Tyrone A. McDonald
11th Cir. · 2016 · confidence medium
But where a defendant moves *644 for a judgment of acquittal at the close of the government’s case and does not renew the motion at the close of the evidence, we will uphold a conviction “unless there is a manifest miscarriage of justice—if the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998) (internal quotation marks and citation omitted).
discussed Cited as authority (rule) United States v. Theodore Stewart Fries (2×)
11th Cir. · 2013 · confidence medium
But where a defendant does not move for acquittal or otherwise preserve an argument regarding the sufficiency of the evidence in the court below, the defendant “must shoulder a somewhat heavier burden: we will reverse the conviction only where doing so is necessary to prevent a manifest miscarriage of justice.” United States v. Greer, 440 F.3d 1267 , 1271 (11th Cir. 2006). 5 This standard requires us to find either that the record is devoid of evidence of an essential element of the crime or “that the evidence on a key 5 The parties both suggest that we should review the sufficiency of t…
discussed Cited as authority (rule) United States v. Dwight Herschel Green
11th Cir. · 2011 · confidence medium
This standard is met when “the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998) (per curiam) (quotation omitted).
cited Cited as authority (rule) United States v. Mack S. Smith
11th Cir. · 2011 · confidence medium
We must affirm the conviction unless a “manifest miscarriage of justice” has been shown. *845 United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
cited Cited as authority (rule) United States v. Beau Christopher Mallory
11th Cir. · 2010 · confidence medium
United States v. Bichsel, 156 F.3d 1148, 1150-51 (11th Cir.1998).
discussed Cited as authority (rule) United States v. Ryan Cedeno
11th Cir. · 2009 · confidence medium
Where, as here, the defendant fails at trial to move for a judgment of acquittal, “we will affirm [the] conviction, against [a] challenge to the sufficiency of the evidence, ‘unless there is a manifest miscarriage of justice.’ ” United States v. Schier, 438 F.3d 1104, 1107 (11th Cir.2006) (quoting United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998)).
discussed Cited as authority (rule) United States v. Nancy Montgomery Ware
11th Cir. · 2008 · confidence medium
When a defendant fails to move for a judgment of acquittal, we will affirm her conviction “unless there is a manifest miscarriage of justice — if the evidence ‘on a key element of the offense is so tenuous that a conviction would be shocking.’ ” United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998) (quoting United States v. Williams, 144 F.3d 1397, 1402 (11th Cir.1998)).
discussed Cited as authority (rule) United States v. Carlos Andres Gonzalez
11th Cir. · 2008 · confidence medium
When a defendant fails to move for a judgment of acquittal, we will affirm his conviction unless “the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
cited Cited as authority (rule) United States v. Edwards
11th Cir. · 2008 · confidence medium
United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998) (quotation omitted).
cited Cited as authority (rule) United States v. Ortayvius Lesure
11th Cir. · 2008 · confidence medium
See United States v. Hasson, 333 F.3d 1264, 1277 (11th Cir.2003) (jury instruction); United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998) (sufficiency of the evidence).
cited Cited as authority (rule) United States v. Ronald Perry Moon
11th Cir. · 2006 · confidence medium
United States v. Rahim, 431 F.3d 753, 756 (11th Cir.2005); United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
cited Cited as authority (rule) United States v. Bladymir Santiago
11th Cir. · 2006 · confidence medium
United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
discussed Cited as authority (rule) In Re: Grand Jury
3rd Cir. · 2006 · confidence medium
These courts reviewed Class B and C misdemeanor sentences under § 3742(e)(4)’s “plainly unreasonable” standard, which applies to offenses “for which there is no applicable sentencing guideline.” See United States v. De Jesus, 277 F.3d 609, 612 (1st Cir. 2002); United States v. Sharpton, 252 F.3d 536, 540 (1st Cir. 2001); United States v. Bichsel, 156 F.3d 1148, 1151 (11th Cir. 1998).
discussed Cited as authority (rule) In Re Grand Jury and in the Matter of the Search of Jelanie Solomon
3rd Cir. · 2006 · confidence medium
These courts reviewed Class B and C misdemeanor sentences under § 3742(e)(4)’s “plainly unreasonable” standard, which applies to offenses “for which there is no applicable sentencing guideline.” See United States v. De Jesus, 277 F.3d 609, 612 (1st Cir.2002); United States v. Sharpton, 252 F.3d 536, 540 (1st Cir.2001); United States v. Bichsel, 156 F.3d 1148, 1151 (11th Cir.1998).
discussed Cited as authority (rule) United States v. Rebecca D. Mostellar (2×) also: Cited "see"
11th Cir. · 2006 · confidence medium
We review de novo the denial of a motion for judgment of acquittal based on insufficiency of the evidence, United States v. Abbell, 271 F.3d 1286, 1299 (11th Cir.2001), but where the defendant fails to renew his objection after presenting evidence, we reverse for manifest injustice, United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
discussed Cited as authority (rule) United States v. Rosemary Schier (2×)
11th Cir. · 2006 · confidence medium
However, because Schier moved for a judgment of acquittal at the close of the government’s case but failed to renew her motion at the close of all of the evidence, we will affirm her conviction, against her challenge to the sufficiency of the evidence, “unless there is a manifest miscarriage of justice — [in other words,] if the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998)(quotations omitted).
discussed Cited as authority (rule) United States v. Ras Rahim (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
We review de novo the denial of a motion for judgment of acquittal based on insufficiency of the evidence, United States v. Abbell, 271 F.3d 1286, 1299 (11th Cir.2001), but where the defendant fails to renew his objection after presenting his own case, we reverse for manifest injustice, United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
discussed Cited as authority (rule) United States v. Chavez
11th Cir. · 2000 · confidence medium
Sentences for Class B misdemeanors, such as the charged offense, are not subject to the Sentencing Guidelines and will not be disturbed on appeal unless “they were imposed in violation of law (such as by exceeding statutory limits) or are ‘plainly unreasonable.’” United States v. Bichsel, 156 F.3d 1148, 1151 (11th Cir. 1998) (citations omitted).
discussed Cited as authority (rule) United States v. Chavez
11th Cir. · 2000 · confidence medium
Sentences for Class B misdemeanors, such as the charged offense, are not subject to the Sentencing Guidelines and will not be disturbed on appeal unless “they were imposed in violation of law (such as by exceeding statutory limits) or are ‘plainly unreasonable.’ ” United States v. Bichsel, 156 F.3d 1148, 1151 (11th Cir.1998) (citations omitted).
cited Cited "see" United States v. Hakim Amal Archible
11th Cir. · 2022 · signal: see · confidence high
See United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998).
cited Cited "see" United States v. Shane Patrick Sprague
11th Cir. · 2021 · signal: see · confidence high
See United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998) (per curiam).
cited Cited "see" United States v. Lerone Bernard Butler
11th Cir. · 2020 · signal: see · confidence high
See United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998).
discussed Cited "see" United States v. Joel Esquenazi
11th Cir. · 2014 · signal: see · confidence high
See United States v. Bichsel, 156 F.3d 1148, 1150 (llth Cir. 1998) (concluding that challenge to the sufficiency of the evidence must be raised at the close of the evidence to properly preserve it for appeal); see also United States v. Langford, 647 F.3d 1309 , 1326 n. 11 (11th Cir.2011) ("To preserve an issue for appeal ... an objection on other grounds will not suffice.” (internal quotation marks omitted)). 19 .
cited Cited "see" United States v. Chesire Martinez Robinson
11th Cir. · 2013 · signal: see · confidence high
See United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
cited Cited "see" United States v. Nery Campaz-Guerrero
11th Cir. · 2011 · signal: see · confidence high
See United States v. Bichsel, 156 F.3d 1148 , 1150 n. 1 (11th Cir. 1998). 2 .
discussed Cited "see" United States v. Alfredo Isles Hernandez
11th Cir. · 2010 · signal: accord · confidence high
In fact, his counsel’s statements, as quoted above, conceded that the government presented sufficient evidence for the jury to consider the two charges in the indictment and characterized a motion for acquittal as a “frivolous motion.” When the defendant fails to move for judgment of acquittal at the close of evidence, as in this case, this “operates as a waiver of the motion for acquittal and forecloses any review of the sufficiency of the evidence except where a miscarriage of justice would result,” which requires a finding that “the evidence on a key element of the offense is so…
cited Cited "see" United States v. Bryan Timothyleenard Smith
11th Cir. · 2007 · signal: see · confidence high
See United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.1998).
discussed Cited "see, e.g." United States v. Johnson
7th Cir. · 2005 · signal: see also · confidence low
See United States v. Foster, 789 F.2d 457, 462 (7th Cir.1986) (stating that this type of incorporation method violates Rule 28); see also United States v. Bichsel, 156 F.3d 1148 , 1150 n. 1 (11th Cir. 1998) (stating that Rule 28 "does not permit such adoption by reference between cases”); United States v. McDougal, 133 F.3d 1110, 1114 (8th Cir.1998) (stating that the appellant cannot adopt arguments from briefs in a related but separate appeal under Rule 28 and that the arguments were thus waived). .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
William J. BICHSEL, Roy L. Bourgeois, Et Al., Defendants-Appellants
98-8131.
Court of Appeals for the Eleventh Circuit.
Oct 2, 1998.
156 F.3d 1148
David J. Grindle, Columbus, GA, for Defendants-Appellants., Beverly Martin, U.S. Atty., Dixie A. Morrow, Asst. U.S. Atty., Macon, GA, George Smawley, HQ, USAIC, Ft. Benning, GA, for Plaintiff-Appellee.
Anderson, Cox, Dubina, Per Curiam.
Cited by 39 opinions  |  Published
PER CURIAM:

Twenty-two defendants appeal their convictions and sentences for reentering a military installation after the installation’s commander had ordered them not to reenter, in violation of 18 U.S.C. § 1382. We affirm.

Background

Fort Benning, Georgia, is home to the United States Army School of the Americas, a U.S.-funded military training center that caters to Latin American soldiers. Because its alumni include military men (such as Manuel Noriega) who are believed to be responsible for human rights abuses in Latin America, the School has long been a focus of protest. Each November protesters march to commemorate the 1989 murder of six Jesuits in El Salvador, allegedly the victims of School alumni. The defendants here had participated in such protests before. Three, Edward Kinane, William Bichsel, and Roy Bourgeois, were convicted of violating § 1382 in 1995; Bourgeois also had multiple convictions arising from his participation in 1994’s protests. The other nineteen defendants[*1150] marched in 1996, and that year the Fort’s commanding officer sent letters barring them from entering Fort property again. In November 1997, the defendants nonetheless joined a mock funeral procession on Fort property with about 600 other protesters.

The defendants were charged by information with violation of § 1382. The relevant part of the statute prohibits reentry into a military installation “after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof.” 18 U.S.C. § 1382. The information, however, charged the defendants simply with reentering “after having been ordered not to reenter by the installation commander.” (R.l-1.)

The defendants were convicted and sentenced to six months’ imprisonment and a $3,000 fine each. On appeal, they raise two issues worthy of discussion. First, they argue that the evidence is insufficient to convict them because the Government did not prove that they received the letters containing the Fort commander’s order prohibiting reentry. Second, they challenge the length of their sentences and the fines imposed on them. [1]

Discussion

Sufficiency of the Evidence

The defendants moved for judgment of acquittal after the Government rested. The court denied the motion, and the defendants presented evidence. They did not, however, renew their motion for judgment of acquittal at the close of the evidence. In such circumstances, the defendants have waived any objection to the sufficiency of the evidence. See United States v. Williams, 144 F.3d 1397, 1402 (11th Cir.1998). This court will accordingly affirm the convictions unless there is a manifest miscarriage of justice — if the evidence “on a key element of the offense is so tenuous that a conviction would be shocking.” Id. (quoting United States v. Tapia, 761 F.2d 1488, 1491-92 (11th Cir.1985)).

The asserted lack of evidence here does not qualify as “shocking.” To prove the offense as charged, the Government was required to show that the defendants received notice that the Fort’s commander had barred future entry. See 18 U.S.C. § 1382. For three defendants, the evidence was quite strong. Fort Benning’s commanding officer sent Bichsel and Bourgeois bar letters in 1994 and Í991, respectively. In 1995, Bichsel and Bourgeois joined the annual November protest. They were convicted of violating § 1382 following that protest, and these prior judgments were in evidence in this case. Because the Government based the charge here on the same 1991 and 1994 letters, the prior conviction based upon those letters qualifies as more than tenuous evidence that the two received those letters. Cf. United States v. McCoy, 866 F.2d 826, 828 (6th Cir.1989) (taking notice as a foregone conclusion on similar facts). A third defendant, Edward Kinane, received his bar letter in 1995 by hand delivery; the officer in charge of maintaining order during the 1995 demonstration described how all the protesters that year were arrested and handed a bar letter before they were allowed to leave.

The remaining defendants’ bar letters were issued in 1996 and mailed to them, return receipt requested. In each case, the green return-receipt card was returned with a signature appearing to be the defendant’s. The defendants now make much of the possibility that a letter arrived at the wrong destination, and that someone forged the defendant’s signature. (The defendants point out that the record contains two signatures that purport to be defendant Ruth Woodring’s, and they argue that the two signatures differ.) It is not impossible that such an event occurred, and that some defendants never received the letters. But a factfinder may[*1151] legitimately infer that a defendant actually received a letter addressed to him or her when the sender received a return receipt bearing what purports to be the defendant’s signature. This inference is strong enough that the district court’s reliance on it is hardly “shocking.” We therefore conclude that there has been no manifest miscarriage of justice.

Sentencing Issues

Section 1382 is a Class B misdemean- or because a violation carries a maximum term of imprisonment of six months. See 18 U.S.C. § 1382; 18 U.S.C. § 3559(a)(7). The Sentencing Guidelines do not apply to Class B misdemeanors. See U.S.S.G. § 1B1.9 (1997). The defendants’ sentences thus may be disturbed on appeal only if they were imposed in violation of law (such as by exceeding statutory limits) or are “plainly unreasonable.” 18 U.S.C. § 3742(e)(1), (4); id. § 3742(f)(1), (3); see United States v. Underwood, 61 F.3d 306, 308 (5th Cir.1995); United States v. Ard, 731 F.2d 718, 727 (11th Cir.1984). The defendants do not contend that their sentences are illegal. [2] Rather, they seem to argue, for two independent reasons, that the sentences are “plainly unreasonable.”

The defendants first contend that the district court improperly failed to individualize their sentences because some defendants were repeat offenders, and others were not, but they all received the same six-month sentence. We disagree. Under extra-Guidelines law, the district court is not bound to respect any difference in criminal histories. Rather, the statute requires the district court to weigh many factors in its discretion. The court must consider, for instance, not only the defendants’ history but also the “need for the sentence imposed ... to promote respect for the law [and] to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(A)-(B). Each defendant here made a defiant political statement at sentencing, effectively promising to break the law again. It was not unreasonable for the district court to conclude that a six-month sentence was necessary to serve the statutory objectives, whatever the defendants’ individual criminal histories.

The defendants also complain that the district court imposed fines without a finding as to the defendants’ ability to pay. Under extra-Guidelines law, however, such a finding is not required. The district court must, of course, “consider ... the defendant’s income, earning capacity, and financial resources.” 18 U.S.C. § 3572(a)(1). There is no suggestion in the record that the court failed to do so; rather, it seems that the court made a calculated decision to impose the fine — whatever the defendants’ ability to pay — in hope of dissuading the protesters from future trespassing. The court offered to remit the fine for each assertedly indigent defendant who would make a written representation to the court that he or she would not reenter Fort Benning; all the defendants declined this offer. While this approach may be novel, it is not “plainly unreasonable.” We therefore conclude that we must affirm the sentences. See 18 U.S.C. § 3742(f)(3).

Conclusion

For the foregoing reasons, the defendants’ convictions and sentences are affirmed.

AFFIRMED.

1

. The defendants also raise the issue that their protest was protected First Amendment activity. They do not, however, brief the issue, relying instead on the briefs in another case. Federal Rule of Appellate Procedure 28(i) does not permit such adoption by reference between cases, and the defendants have not separately moved to adopt the briefs. Until such a motion is made and granted, the briefs from the other case are not readily accessible to judges of the court. We have not read them for this case. In any event, this court resolved the First Amendment issue against a group of School of the Americas protesters arrested following the November 1996 protests. See United States v. Corrigan, 144 F.3d 763, 769 (11th Cir.1998). For all that appears, this case is indistinguishable.

2

. The sentences imposed here were six months' imprisonment and a $3000 fine; this is within the statutory six-month imprisonment-term limit and under the $5000 maximum fine. See 18 U.S.C. § 1382; 18 U.S.C. § 3571(b)(6).