U.S. v. Smith

• Decision Date: 23 July 2008
• Docket Number: No. 07-3061.,07-3061.
• Citation: 534 F.3d 1211
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tracy M. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

534 F.3d 1211

UNITED STATES of America, Plaintiff-Appellee, v. Tracy M. SMITH, Defendant-Appellant.

No. 07-3061.

United States Court of Appeals, Tenth Circuit.

July 23, 2008.

Thomas D. Haney, Henson, Clark, Hutton, Mudrick & Gragson, LLP, Topeka, KS, for Defendant-Appellant.

Anthony W. Mattivi, Assistant United States Attorney (Eric F. Melgren, United States Attorney and James A. Brown, Assistant United States Attorney, on the brief) Topeka, KS, for Plaintiff-Appellee.

Before HENRY, Chief Judge, TACHA, and LUCERO, Circuit Judges.

HENRY, Chief Judge.

Tracy Smith was convicted by a jury on seventeen charges related to a drug conspiracy. The district court sentenced her to 324 months' imprisonment. Ms. Smith appeals her conviction and her sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm both.

I. BACKGROUND

Ms. Smith was indicted on charges relating to a drug conspiracy she entered with Dennis Torrence during an eighteen-month span, from October 2003 to June 2005. Mr. Torrence pleaded guilty and testified against Ms. Smith.

The investigation of Ms. Smith began with a series of "trash pulls" — or seizures of the garbage from Ms. Smith's home — in the fall of 2003. Over the course of three trash pulls, Shawnee County (Kansas) Sheriff's deputies found plastic baggies with cocaine residue, other drug paraphernalia, and mail addressed to Ms. Smith. Deputies also conducted surveillance of Ms. Smith's business, TeRay's, a clothing store in Topeka. The deputies observed, among other things, what they considered to be counter-surveillance activity, indicating that Ms. Smith and her employees were aware that the police may have been watching them, or were at least trying to prevent such surveillance.

On December 13, 2003, two women were murdered and one was severely injured in a shooting at a Topeka residence. Phillip Cheatham, a local drug dealer, was later convicted of these murders. Annetta Thomas (the surviving victim) indicated that Mr. Cheatham was known within the community to be Ms. Smith's "flunkie" or "punk." Rec. supp. vol. I, doc. 216, at 74. Topeka Police Department homicide detectives came to suspect that Ms. Smith was involved in the murders, so they obtained warrants and conducted searches of both Ms. Smith's home and her business on December 15. In her home, they found a notebook with records of drug sales, approximately $14,000 in cash, and a credit card belonging to one of the murdered women. At TeRay's (Ms. Smith's store), they found one 9mm bullet, $1200 in a candy bowl beneath the front counter, $262 in the cash register, and several digital scales. The detectives later returned the $14,000 to Ms. Smith, hoping it would encourage her to speak with them. She agreed.

On December 17, she presented herself at the police department, along with her attorney, Chris Cowger. She brokered an agreement with the detectives to provide truthful information, and in exchange she would not be charged with any drug-related offenses that occurred prior to the murders. However, Ms. Smith breached her cooperation agreement — most notably she failed to deliver promised information about a possible second shooter. Mr. Cowger later testified against Ms. Smith, telling the jury that while representing Ms. Smith, he bought small quantities of marijuana from her at her home and TeRay's. Ms. Smith did not know Mr. Cowger was going to testify against her until the prosecution called him as its last witness.

After Ms. Smith breached her cooperation agreement, officers continued to investigate her drug activities, primarily through the use of informants. One informant was Lester Campbell. Mr. Campbell went into TeRay's, asked Ms. Smith about purchasing "dope," and left his phone number. That same day, Mr. Torrence (Ms. Smith's alleged co-conspirator), who did not previously have Mr. Campbell's phone number, called Mr. Campbell about purchasing crack. In cooperation with police, Mr. Campbell then purchased crack from Mr. Torrence three times that month.

Another informant was James Jensen. Mr. Jensen had been purchasing drugs from Ms. Smith for a few months up to the date of the double homicide. After the homicide, Mr. Jensen approached police and offered to provide information. He later made three controlled-buys — two of crack and one of methamphetamine — from Ms. Smith that month. Mr. Torrence delivered the methamphetamine, after Mr. Jensen arranged the purchase from Ms. Smith.

A third informant was Sharriff Tilghman. Mr. Tilghman made four controlled-buys from Ms. Smith, at least two of which were delivered by Mr. Torrence.

Officers searched Ms. Smith's home again in June 2005, finding a scanner and several photos of police officers, believed to be used for counter-surveillance purposes. Officers also found approximately $20,000 hidden in a crawl space.

In addition to the informants, the government presented several other witnesses, most importantly Mr. Torrence, who pleaded guilty to being a co-conspirator of Ms. Smith's. He testified that he had grown up with Ms. Smith and had dated her. He rented an apartment in her garage, and described Ms. Smith as "the kingpin" of the operation for which he worked. Rec. vol. X, at 1458. His role was to sell and deliver crack for Ms. Smith. He delivered drugs to several people, including Mr. Cheatham (who was convicted of the double murder), and sold it from TeRay's as well. Mr. Torrence also testified that a few days before the murder, he heard Ms. Smith and Mr. Cheatham saying that someone had stolen money from Mr. Cheatham and he saw Mr. Cheatham crying. Id. at 1475. Mr. Torrence asked Ms. Smith what was wrong, and she replied, "if he allow — let somebody take $15,000 from me and nine ounces of dope, he a wuss and I don't need nobody on my team like this. . . ." Id.

There were various other witnesses to the conspiracy who testified. James Worford testified that he would arrange drug transactions with Ms. Smith and Mr. Torrence would deliver them. He also testified that Ms. Smith had a little notepad, just like the one police recovered at her house, where she would keep track of their transactions. Steven Bell testified that he knew Mr. Cheatham was working for Ms. Smith. He saw Ms. Smith through a window at a federal holding facility, when she made two gestures to him: one indicating that she knew Mr. Bell was "snitching" and the other indicating that she would kill him for doing so. Rec. vol. X, at 1712. Ronald Redmond was an inmate who had been in a holding cell neighboring Ms. Smith's. He testified that Ms. Smith bragged about being a "major drug figure." Rec. vol. XI, at 1919. Mr. Redmond further testified that when he noted she would get robbed if she was a woman making so much money in Chicago, where he was from, "she gave like a chuckle, like, `Huh, some bitches down here tried that before . . . but . . . I had those bitches murdered.'" Id. at 1920.

Annetta Thomas, the woman who was seriously injured during the double murder, also testified. She stated that she and one of the women who was killed were lovers and that she (Ms. Thomas) and Ms. Smith were good friends. Ms. Thomas was living with Mr. Cheatham at the time of the murders, and knew he was an underling in Ms. Smith's drug business. She saw him prepare and sell the drugs with Ms. Smith, and she personally purchased crack from Ms. Smith on several occasions. She also testified that prior to the shooting, Mr. Cheatham told her that a safe was missing from his room, but would not tell her its contents. He called Ms. Smith, who came over to Ms. Thomas's apartment and asked Ms. Thomas if she had taken it, "[b]ecause it was mine." Rec. supp. vol. I, doc. 216, at 91. Mr. Cheatham ultimately told Ms. Thomas that the safe had $10,000 in it. On the night of the shooting, Mr. Cheatham shot Ms. Thomas at least seven times, until she played dead. After Mr. Cheatham left, she dragged herself to the door to call for help.

After a three-week jury trial, Ms. Smith was convicted of one count of conspiracy to distribute crack cocaine, methamphetamine, and marijuana, in violation of 21 U.S.C. § 846; seven counts of managing or controlling a building for the purpose of using, storing, or distributing a controlled substance, in violation of 21 U.S.C. § 856; two counts of using a communication facility to facilitate conspiracy to distribute controlled substances and distribution of controlled substances, in violation of 21 U.S.C. § 843(b); six counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1); and one count of distribution of methamphetamine, also in violation of 21 U.S.C. § 841(a)(1). The district court sentenced her to 324 months' imprisonment to be followed by ten years' supervised release. Ms. Smith filed a motion for a new trial, which the district court denied.

On appeal, Ms. Smith lists nine issues. However, two of these — sufficiency of the evidence and cumulative error — are listed, but not argued. The Federal Rules of Appellate Procedure require that, "[t]he appellant's brief must contain . . . appellant's contentions and the reasons for them, with citations to the authorities . . . on which the appellant relies." FED. R.APP. P. 28(a)(9)(A). Because "[w]e will not make arguments for [Ms. Smith] that [she] did not make in [her] briefs," we decline to address these two issues that were only raised summarily. O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1257 n. 1 (10th Cir.2001).

We will address, in turn, Ms. Smith's remaining seven arguments that: (1) the district court erred in allowing the government to introduce evidence of the double murder, specifically graphic photographs; (2) the district court erred in instructing the jury that it could consider evidence of the murders even if the government had not proved Ms. Smith's participation beyond a reasonable doubt; (3) the district court erred in failing to grant Ms. Smith a new trial after the government...