U.S. v. Smith

• Decision Date: 17 December 2003
• Docket Number: No. 02-31170.,02-31170.
• Citation: 354 F.3d 390
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth Boyett SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

354 F.3d 390

UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth Boyett SMITH, Defendant-Appellant.

No. 02-31170.

United States Court of Appeals, Fifth Circuit.

December 17, 2003.

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Tania Christina Tetlow, Asst. U.S. Atty. (argued), New Orleans, LA, for Plaintiff-Appellee.

John H. Craft, Asst. Fed. Pub. Def. (argued), Robin Elise Schulberg, New Orleans, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH, BARKSDALE and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

A jury found Elizabeth Smith guilty of arson, mail fraud, conspiracy, witness tampering, and the use of fire in the commission of a felony. She raises five claims of trial error and contends that the district court misapplied the sentencing guidelines and that part of her sentence violates the double jeopardy clause of the Fifth Amendment. Finding only harmless error with respect to one evidentiary issue, we affirm.

I.

The underlying facts have their origin in a scene familiar to many households: A mother asks her son to perform a simple chore, he refuses, and she ends up having to hire one of the kids from the neighborhood to do the job instead. Although ordinarily this would not land anyone in federal prison, it is also not the typical mother who would ask her son to set fire to a motel. Smith did just that. Motivated by a desire to collect on a $325,000 insurance policy, she asked her son, Johnathon Williams, to set fire to a motel she owned. When he refused, Smith turned to Josh Booty, a family friend, and offered to buy him a truck if he would burn down the motel.

Acting under Smith's direction, Booty borrowed a truck from Williams's roommate, Anthony Turnley, and drove to the motel, where he used a set of keys given to him by Smith to enter the unoccupied motel, spread gasoline in several of its bedrooms, and set them (and nearly himself) on fire. Though damaged by the fire, the motel was not completely destroyed. Smith, meanwhile, created an alibi for herself by driving to another city with her husband, Spencer Smith. She later made statements to the FBI, the insurance company, and the grand jury accusing, among others, the fire chief, mayor, and former police chief of setting the fire.

It did not take long for these well-laid plans to go up in smoke. When Booty returned the truck to Turnley that night, he was carrying a revolver, his eyebrows were singed, and he "reeked like a barn fire." Startled by Booty's appearance, Turnley asked Booty what he had used the truck for, and was told about the fire and Smith's role in planning it.

The next day, after Turnley found the gas cans Booty had left in the bed of his truck, Turnley's father called the fire department and turned over the cans as evidence. That started an investigation in which Turnley and Booty cooperated with the Bureau of Alcohol, Tobacco and Firearms ("ATF") by tape recording numerous conversations between themselves and Smith in which she acknowledged her role in the conspiracy and cover-up. The government prosecuted Smith on the basis of those tapes and the testimony of Booty, Turnley, and Spencer Smith. A jury returned a verdict of guilty on all seven counts.¹

II.

Smith claims a new trial is warranted by the jury's potential exposure to extrinsic evidence. At the beginning of the trial, the government provided jurors with a binder containing transcripts of the surveillance tapes it planned to introduce into evidence. One of those transcripts, detailing a statement Williams made to the ATF, was for a tape that the government did not introduce into evidence. During its deliberations, however, the jury sent a note to the court asking to see a copy of "Johnathon's Statement to ATF," indicating it at least was aware of the existence of the extrinsic evidence.

The court refused the request, explaining that the tape was not evidence that could be used in deliberations. At no time did the transcript enter the jury room. On this basis, Smith argues that the verdict is tainted by an exposure to improper evidence and that the district court abused its discretion in denying her motion for a new trial without questioning the jurors on their exposure to the transcript.

We review only for abuse of discretion a court's handling of complaints of outside influence on the jury. United States v. Sylvester, 143 F.3d 923, 931 (5th Cir.1998). "In granting a broad discretion to the trial judge, we acknowledge and underscore the obvious, that the trial judge is in the best position to evaluate accurately the potential impact of the complained-of outside influence." United States v. Ramos, 71 F.3d 1150, 1153-54 (5th Cir.1995). The initial presumption that the jury is impartial can be overcome by evidence that an extrinsic factual matter affected deliberations. United States v. Kelley, 140 F.3d 596, 608 (5th Cir.1998).

The district court did not err in denying Smith's motion without first questioning the jurors on their exposure to the transcript. A district court is not required to conduct a "full-blown evidentiary hearing in every instance in which an outside influence is brought to bear upon a petit jury." Ramos, 71 F.3d at 1153. Rather, the court "must balance the probable harm resulting from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by the misconduct." Id.; United States v. Bernard, 299 F.3d 467, 476-77 (5th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 2572, 156 L.Ed.2d 607, and cert. denied, ___ U.S. ___, 123 S.Ct. 2572, 156 L.Ed.2d 607 (2003). The court is not required to conduct an investigation into claims of exposure that are merely speculative. Kelley, 140 F.3d at 608.

There is scant evidence that the jury was exposed to the contents of the transcript. The jury was aware at least of the existence of the transcript; otherwise, it could not have known specifically to request a copy of "Johnathon's Statement to ATF." This much, however, is explained by the fact that the transcripts in the jurors' binders were separated and identified by tabs, one of which was visibly labeled "Johnathon's Statement 2." Moreover, on multiple occasions, trial testimony refers to the fact that Williams spoke with ATF agents. As a result, the mere fact that the jury was aware of the existence of the transcript does not prove that any individual juror read, or was exposed to, the contents of the transcript.

In addition, there is no reason to believe that the jury had meaningful exposure to the evidence contained in the transcript. In denying a new trial, the court detailed the procedures it had used to limit the jury's access to the transcripts:

The jury was never afforded the opportunity to turn to that transcription and read only the transcript of the statements which were contemporaneously played into evidence, and through the earphones provided each juror. The jurors were instructed to pick up their books at the beginning of a recording, to turn to the appropriately tabbed transcript and to read along. At the end of each recording, the jurors placed their books of transcripts down beside their seats as instructed at the outset, and turned their attention to evidence emanating from the witness stand.

Smith does not dispute these facts and instead suggests only one possible opportunity by which a juror could have seen and read Williams's statement. This is mere speculation that does not trigger the requirement of a broader investigation.² Id.

Because Smith has shown that the jurors were at least minimally exposed to the transcript, inasmuch as they knew the statement was in their binders, we must consider whether that exposure had a prejudicial effect on the verdict. Smith argues that it is the government's burden to prove that the exposure was harmless. Although this was once the law of the circuit, see, e.g., United States v. Luffred, 911 F.2d 1011, 1014 (5th Cir.1990), it is no longer the case that any intrusion on the jury, no matter how slight, creates a rebuttable presumption of prejudice to the defendant. In Sylvester, 143 F.3d at 932-34, we recognized that Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), and United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), undermined the presumption of prejudice.³ Consistent with our longstanding rule that a district court is entitled to discretion in investigating and resolving charges of jury tampering, we held in Sylvester, 143 F.3d at 934, that "only when the court determines that prejudice is likely should the government be required to prove its absence."

To exercise this discretion properly, a district court must examine the complained-of intrusion on the jury and determine whether it is of a nature and degree that is likely to have a prejudicial effect. In some cases, the intrusion will be as serious as that in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), in which the Court held that an attempt to bribe a jury foreman was presumptively prejudicial to the defendant. At the other end of the spectrum are cases like the present one, in which the defendant can do no more than show that the jury improperly learned of the existence of a transcript, but nothing of its contents. Given such a de minimis intrusion on the jury, it is not an abuse of discretion for the district court to require some evidence of a prejudicial effect before burdening the government with a requirement that it prove the intrusion harmless.

The district court did not abuse its discretion in finding that Smith was unable to make a colorable showing of prejudice. Unlike the situation in Luffred, 911 F.2d at 1015, on which Smith heavily relies, the transcript of Williams's statement did not make it into the jury room and could not have been...