     Case: 13-30134      Document: 00512490137         Page: 1    Date Filed: 01/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 13-30134                           January 6, 2014
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

JAMES LAMAR KELLY,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CR-268-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       James Lamar Kelly challenges the sufficiency of the evidence for his
jury-trial conviction for interference, or attempted interference, with an
aircraft, in violation of 18 U.S.C. § 32(a)(5) and 32(a)(8), performing, or
attempted performance, of an act of violence against an individual on an
aircraft, in violation of 18 U.S.C. § 32(a)(6) and 32(a)(8), and assault of a federal




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-30134     Document: 00512490137      Page: 2   Date Filed: 01/06/2014


                                 No. 13-30134

officer, in violation of 18 U.S.C. § 111. (He does not challenge his guilty-plea
theft-of-mail conviction under the same indictment.)
      Kelly moved for judgment of acquittal at the close of the Government’s
case, after the defense rested, and at the close of all of the evidence;
accordingly, his claims are reviewed de novo. E.g., United States v. Jimenez,
509 F.3d 682, 690 (5th Cir. 2007) (citation omitted). For determining whether
the evidence was sufficient, “the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt”. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original) (citation omitted).
      First, Kelly, who testified, challenges the sufficiency of the evidence
supporting the three offenses by asserting he has consistently maintained he
only fired “warning shots” away from the helicopter, which was involved in a
marijuana-eradication search. The verdict shows the jury believed testimony
of a state trooper riding in the helicopter and that of the United States Army
pilot flying it that Kelly pointed a firearm at the aircraft, shook the firearm,
and fired shots in the direction of the aircraft, as well as the testimony of two
law enforcement officers to whom Kelly admitted shooting at the helicopter.
This credibility finding “was within the sole province of the jury as the fact
finder”, which “[w]e will not second guess”. United States v. Zuniga, 18 F.3d
1254, 1260 (5th Cir. 1994) (citations omitted).
      Second, with respect to Kelly’s assault-of-a-federal-officer conviction, he
asserts the evidence was insufficient to establish an assault occurred because
any threat was not witnessed by the pilot, but conveyed to the pilot by the
trooper. The pilot claims he saw Kelly shaking the firearm at him but was
unable to concentrate on Kelly because he was flying the helicopter. He heard



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                                  No. 13-30134

the trooper state that Kelly was shooting at them, and he trusted the trooper’s
assessment. He then looked back and saw Kelly pointing the firearm at the
helicopter. The pilot felt fearful, threatened, and intimidated. He took evasive
action with the helicopter and flew away. In the light of this evidence, a
rational juror could find Kelly committed the assault beyond a reasonable
doubt. See Jackson, 443 U.S. at 319.
      Third, Kelly claims he lacked the requisite criminal intent to commit an
assault against a federal officer because he did not know the pilot was a federal
officer flying a military helicopter. Rather, Kelly maintains he believed his
actions were necessary for the lawful defense of himself or his property because
he could not discern any markings on the helicopter; he gestured for it to
identify itself or leave; and, he became fearful “it could have been drug
smugglers” or “gun runners”.
      In United States v. Feola, the Supreme Court noted a defendant who does
not know the victim is a federal officer, and who reasonably believes his actions
are necessary to defend himself or his property, might lack the requisite
criminal intent under 18 U.S.C. § 111. 420 U.S. 671, 686 (1975). The Court
was concerned with the possibility of a situation in which a federal officer fails
to identify himself when his actions “might reasonably be interpreted as the
unlawful use of force directed either at the defendant or his property”. Id. In
such a case, “one might be justified in exerting an element of resistance”,
precluding a finding of criminal intent. Id.
      The facts at hand do not reflect such a situation because the actions by
the pilot or the helicopter could not reasonably be interpreted as the unlawful
use of force against Kelly or his property, justifying the use of a deadly weapon.
Although Kelly testified the helicopter flew “extremely low” and hovered over
his property, this description of the helicopter’s behavior was rebutted by the



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                                No. 13-30134

pilot and trooper, who testified the helicopter flew at an altitude of
approximately 500 feet and did not hover over Kelly’s property. Kelly also
admitted he did not see any firearms on the helicopter. And, the jury was
instructed that Kelly would not be guilty if there was a reasonable doubt he
was unaware the pilot was a federal officer and if he acted only based on a
reasonable good-faith belief that he needed to defend himself against an
assault by a private citizen. See Zuniga, 18 F.3d at 1260.
      AFFIRMED.




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