Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

MEMORANDUM^** 

In August 1984, Ronald Joseph Kurka and his companion, David Lee Combs, chased a Greyhound bus for several miles in Kurka's pickup truck. Combs fired at the bus twice with Kurka's rifle, hitting it both times.

In January 1986, Kurka and Combs were tried together and convicted by a jury of violating 18 U.S.C. §§ 33 and 2, which prohibit aiding and abetting the damaging or destruction of a motor vehicle. This court reversed the convictions for failure to instruct the jury that the accused must "willfully" damage the vehicle, as well as intentionally or recklessly endanger human life. United States v. Kurka, 818 F.2d 1427, 1431 (9th Cir. 1987). We also held it was error to admit against Kurka portions of a statement made by Combs to an FBI agent, and to fail to instruct the jury on voluntary intoxication as a defense. Kurka, 818 F.2d at 1431-2. On remand, the trial judge denied Kurka's motion to dismiss a superseding indictment for former jeopardy. This interlocutory appeal followed.

The Double Jeopardy Clause does not bar retrial when, as in this case, reversal was based on trial error (incorrect jury instructions and improper receipt of evidence) provided, however, that the evidence submitted at the trial was sufficient to sustain the conviction. United States v. Hodges, 770 F.2d 1475, 1477 (9th Cir. 1985); United States v. Bibbero, 749 F.2d 581, 586 (9th Cir. 1984). The court must "examine all of the evidence presented in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Hodges, 770 F.2d at 1478 (citations omitted). Because the Kurka panel did not determine whether the evidence was sufficient to uphold the verdict, this court must do so.

Kurka argues that because of testimony that he was intoxicated during the incident, a rational trier of fact could not have determined he acted willfully. The government points to testimony of other witnesses that, although Kurka had been drinking, he was not intoxicated. The issue was one of credibility for the jury to decide. Such questions are generally immune from appellate review. Hodges, 770 F.2d at 1478 (citations omitted).

The order denying the motion is affirmed. The case is remanded for further proceedings consistent with this disposition.