193 F.3d 852 (5th Cir. 1999), 97-60263, United States v Sharpe

Docket Nº:97-60263, No. 97-60704.
Citation:193 F.3d 852
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHERI LARA SHARPE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHERI LARA SHARPE; THOMAS LESLIE HOLCOMB; PETER HALAT, JR.; AND KIRKSEY MCCORD NIX, JR. also known as J R, also known as Junior, also known as Kirk, Defendants-Appellants.
Case Date:October 20, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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193 F.3d 852 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

SHERI LARA SHARPE, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

SHERI LARA SHARPE; THOMAS LESLIE HOLCOMB; PETER HALAT, JR.; AND KIRKSEY MCCORD NIX, JR. also known as J R, also known as Junior, also known as Kirk, Defendants-Appellants.

No. 97-60263, No. 97-60704.

United States Court of Appeals, Fifth Circuit

October 20, 1999

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Appeals from the United States District Court For the Southern District of Mississippi

Before POLITZ, JOLLY and DUHE, Circuit Judges.

DUHE, Circuit Judge:

In this criminal appeal, we examine once again the sordid tale of Kirksey McCord Nix's ("Nix") prison-based criminal empire and the related murders of Vincent and Margaret Sherry. We first examined these events in United States v. Sharpe, 995 F.2d 49 (5th Cir. 1993) ("Sharpe I"). Since Sharpe I new facts have come to

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light implicating Thomas Leslie Holcomb ("Holcomb") and Peter Halat, Jr. ("Halat") in the Sherrys' murder. As a result of this new information a grand jury issued a fifty-two count indictment against Nix, Holcomb, Halat, and Sheri LaRa Sharpe ("Sharpe"). Following a new trial ("Sharpe II"), Nix and Sharpe were again convicted. Additionally, the jury convicted both Holcomb and Halat for their respective roles in this affair.

I. BACKGROUND

SHARPE I

While serving a life sentence for murder at Angola State Penitentiary, Nix built a criminal empire from which he hoped to earn enough money to buy his way out of prison. Although he dabbled in insurance fraud and drug dealing, Nix's primary money-making scheme was a "lonely hearts" scam designed to defraud homosexual men. Nix and his prison syndicate would place personal advertisements in national homosexual magazines. When men would respond to these ads, Nix or one of his associates would indicate that he was having financial difficulties and needed the respondent to wire money to a Nix associate outside prison. Nix acquired hundreds of thousands of dollars from this scam.

Mike Gillich ("Gillich"), the alleged "underworld boss" of Biloxi, Mississippi, aided Nix in his various schemes. Peter Halat, a Biloxi attorney, maintained a trust account for Nix. Nix's girlfriend, LaRa Sharpe also assisted in the schemes. She worked out of Halat's office and along with Halat rented a safety deposit box in which they kept cash generated by Nix's operations.

In December 1986, Halat told Nix and Gillich that approximately $100,000 of Nix's money was missing from the office trust account. Halat indicated that he suspected Vincent Sherry, Halat's former law partner and a Mississippi Circuit Judge, of stealing the money. Coincidentally, Judge Sherry's wife Margaret was a Biloxi mayoral candidate critical of Gillich's operations. The prosecution produced evidence that the three men arranged to have the Sherrys killed. In September 1987 Halat discovered the Sherrys dead in their home.

At the first trial for fraud and the attendant murders in 1991, the government argued that Nix, with the assistance of Sharpe, Sharpe's mother, and Gillich, hired ex-convict John Ransom ("Ransom") to kill the Sherrys. Bill Rhodes ("Rhodes"), an associate of Ransom's, testified that Gillich had discussed with him and Rhodes a possible contract murder. Rhodes testified further that he was out of town during the murders and that later Ransom told him that he had murdered the Sherrys. At the first trial, Gillich insisted that Halat had nothing to do with the homosexual scam or the murders. As a result, the government did not prosecute Halat. The jury convicted Nix, Gillich, Sharpe, and Ransom of wire fraud and conspiracy to commit wire fraud. The jury also found Nix and Gillich guilty of travel in aid of murder-for-hire. We affirmed these convictions in Sharpe I, 995 F.2d 49 (5th Cir. 1993).

SHARPE II

Nix continued his schemes from jail after the 1991 trial. The government also continued its investigation into the scam and murders. This time, the government concentrated its efforts on determining what role Halat, by then the Mayor of Biloxi, played in the crimes. In 1994 Mike Gillich turned state's evidence in exchange for a reduction of his Sharpe I sentence. Gillich admitted that Halat was involved in the scams and the murders. Moreover, Gillich indicated that it was not Ransom who had murdered the Sherrys 1; but, rather, Thomas Holcomb, a contract killer hired by Gillich. While the government was procuring Gillich's testimony, it was

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negotiating with Robert Wright ("Wright") for his testimony concerning a number of drug deals that he had engaged in with Nix and his associates. In the end, the government granted Wright full immunity for his testimony.

As a result of its further investigations and Gillich's testimony, the government brought a new indictment against Nix, Sharpe, Halat, and Holcomb in 1996. The indictment charged Nix with racketeering, conspiracy to violate the racketeering statute, fraud, conspiracy to commit wire fraud, money laundering, and conspiracy to obstruct justice. It charged Sharpe with obstruction of justice and conspiracy to obstruct justice for false testimony she gave in the 1991 trial. It charged Halat with obstruction of justice, conspiracy to obstruct justice based on false statements made during the 1991 investigation and trial testimony, conspiracy to violate the racketeering statute, racketeering, and conspiracy to commit wire fraud. Finally, the indictment charged Holcomb with conspiracy to violate the racketeering statute and conspiracy to obstruct justice.

After a lengthy trial, the jury began deliberations on July 11, 1997. During deliberations some of the jurors complained that one of the jurors was making inappropriate sexual remarks and was refusing to participate in the deliberative process. The judge overruled a defense motion for a mistrial and investigated the alleged juror misconduct. Satisfied with his investigation of the matter, the trial judge sent the jurors back for further deliberations. On July 16, 1997 the jury rendered a partial guilty verdict on all of the charges against Nix, Sharpe, and Holcomb and Halat's obstruction of justice and conspiracy to obstruct justice charges. The judge gave the jury an Allen charge and instructed them to continue deliberating on the charges remaining against Halat. On July 17, 1997 the jury found Halat guilty of conspiracy to commit wire fraud and conspiracy to violate the racketeering statute. Each defendant now challenges his or her convictions on multiple grounds.

II. ISSUES RAISED BY MULTIPLE DEFENDANTS

A. Motion for Mistrial Based on Jury Misconduct

After three days of jury deliberation, the court advised the parties that it had received several complaints concerning conduct of juror number six. When a juror complained to the marshal, the marshal instructed the juror to put his complaints in writing for the court. The complaints alleged that juror number six used lewd and sexually explicit language towards other jurors, made sexually explicit comments about trial participants, behaved rudely, and made his decision based on factors outside of the evidence. The court, in the presence of the lawyers and defendants, questioned each juror individually, asking each to specify any incidents of sexual misconduct, intimidation, or the interjection of extrinsic factors into the deliberative process by juror number six. After the individual inquiries, the judge recalled all the jurors to the courtroom, and urged them to consider the evidence, to deliberate, and to act civilly. Finally, the judge polled the jurors, asking each if they could be impartial, fair, follow the court's instructions, and base their verdict only on the evidence and the law. Each juror responded affirmatively.

The defendants several times objected unsuccessfully to the judge questioning the jurors, recommending instead that the judge respond in writing instructing the jury to follow the court's instructions. The government several times moved unsuccessfully to remove juror number six.

The defendants contend that juror misconduct directly impacting the deliberative process warranted a mistrial.2 We

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review a district court's decision to hold a hearing to determine whether juror misconduct has occurred for abuse of discretion. See United States v. Chiantese, 582 F.2d 974, 978 (5th Cir. 1978). The district court did not abuse its discretion in investigating complaints of sexual harassment, intimidation, and reliance on extrinsic evidence. In addition, the record does not show that questioning the jurors in any way impacted the deliberative process. On the contrary, Judge Pickering proceeded in a very careful and conscientious manner. He prefaced each inquiry by reminding the jurors that they were the ultimate judges of fact and that they should not be influenced by anything he said or did. He also warned the jurors not to reveal the details of the deliberative process in their responses. Finally, he consulted with the lawyers throughout, giving thoughtful consideration to their suggestions.

B. Sharpe's and Holcomb's Motion for Severance

The district court denied Sharpe's and Holcomb's motion to sever. Sharpe asserts that she suffered specific and compelling prejudice from being tried jointly with Nix and Holcomb. Sharpe contends that: she was the only defendant not indicted on the drug conspiracy charge which was the primary...

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