United States v. King ( 2023 )

Case: 22-20532 Document: 00516777319 Page: 1 Date Filed: 06/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 6, 2023
No. 22-20532
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Michael D. King; Ascent Aviation Solution, L.L.C.,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1418
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
Per Curiam:*
Appellants Michael King and his company Ascent Aviation Solutions
LLC were convicted by a jury of violating the Federal Aviation Act by
operating an unlicensed air charter service. On appeal, Appellants challenge
the district court’s partial denial of their motion for summary judgment and
denial of their Rule 59 motion for a new trial. The United States moved for
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20532 Document: 00516777319 Page: 2 Date Filed: 06/06/2023
No. 22-20532
summary affirmance of the district court’s orders based on Appellants’
failure to preserve their objections to the district court’s orders.
Appellants first challenge the district court’s partial denial of their
motion for summary judgment. Yet Appellants forfeited this argument by
failing to raise it before the district court. Rollins v. Home Depot USA, 8 F.4th
393, 397 (5th Cir. 2021) (“A party forfeits an argument by failing to raise it in
the first instance in the district court—thus raising it for the first time on
appeal[.]”).
Appellants also object to the sufficiency of the evidence the United
States presented at trial. However, because Appellants filed neither a pre-
verdict Rule 50(a) motion nor a post-verdict Rule 50(b) motion challenging
the sufficiency of the evidence, they forfeited their right to do so on appeal.
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006) (“[A]
district court may only order a new trial on the basis of issues raised in a
preverdict Rule 50(a) motion when ‘ruling on a renewed motion’ under Rule
50(b).”); see also HTC Corp. v. Telefonaktiebolaget LM Ericsson, 12 F.4th 476,
488 (5th Cir. 2021) (“Absent [a Rule 50(b)] motion, . . . an appellate court is
‘powerless’ to review the sufficiency of the evidence after trial.”); accord
Ortiz v. Jordan, 562 U.S. 180, 189 (2011)). Moreover,
“[where] a motion for a new trial has been made on the ground
of insufficient evidence to support the verdict . . . the failure by
the losing party to move for a directed verdict as well still
operates to foreclose consideration of the question of
sufficiency on appeal, and the appellate court may inquire only
whether the trial court abused its discretion in overruling the
motion for a new trial.”
Little v. Bankers Life & Cas. Co., 426 F.2d 509, 511 (5th Cir. 1970).
Here, the district court did not abuse its discretion in denying Appellants’
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Case: 22-20532 Document: 00516777319 Page: 3 Date Filed: 06/06/2023
No. 22-20532
Rule 59 motion for a new trial as the record reflects the existence of evidence
supporting the jury’s verdict.
Because Appellants failed to properly raise their challenges to the
partial denial of their motion for summary judgment or the sufficiency of the
evidence presented at trial before the district court, they forfeited their right
to do so on appeal. Accordingly, the United States’ motion for summary
affirmance is GRANTED, and the district court’s judgment is
AFFIRMED.
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