United States v. Smith

• Decision Date: 23 October 2015
• Docket Number: No. 14–60688.,14–60688.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Calvin Louis SMITH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

804 F.3d 724

UNITED STATES of America, Plaintiff–Appellee

v.Calvin Louis SMITH, Defendant–Appellant.

No. 14–60688.

United States Court of Appeals, Fifth Circuit.

Oct. 23, 2015.

Gregory Layne Kennedy, Esq., Assistant U.S. Attorney, Jerry Lynn Rushing, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Jackson, MS, for Plaintiff–Appellee.

William Carl Barrett, Esq., Jackson, MS, for Defendant–Appellant.

Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.

Opinion

FORTUNATO P. BENAVIDES, Circuit Judge:

Calvin Louis Smith (“Defendant”) appeals his jury trial conviction for soliciting or accepting a bribe in violation of 18 U.S.C. § 666(a)(1)(B). Defendant served as an alderman for the City of Canton, Mississippi, and the jury found that he agreed to accept several thousand dollars in exchange for influencing the award of a city ditch-spraying contract in 2012. Defendant argues on appeal that the evidence at trial was insufficient to support a finding that the City of Canton received over $10,000 in federal funds as required to satisfy a statutory element of the offense. Defendant also challenges a number of the district court's evidentiary rulings, and he objects to the imposition of a two-level sentencing enhancement for obstruction of justice based on his alleged perjury at trial. For the reasons set forth below, we AFFIRM the conviction and sentence.

I. Background

In 2012, Defendant held the elected position of alderman in Canton, Mississippi. During the spring of that year, Michael Bouldin approached Defendant for help in obtaining a city contract to spray vegetation in a ditch. Bouldin had already partnered with another local business to bid on the project, and he testified that Defendant asked for $3,000 of the bid money in order to steer the contract to Bouldin. Bouldin discussed this proposition with his partner, but the partner refused to become involved in bribery. Bouldin then contacted the FBI and agreed to cooperate with them.

At the FBI's request, Bouldin wore audio and video recording devices during subsequent meetings with Defendant. Bouldin informed Defendant that his partner was not willing to pay for the contract, but he offered to give Defendant $3,000 from his own money in exchange for Defendant's help. Defendant agreed to this arrangement, and he was recorded on audio and video accepting $1,500 from Bouldin at a later meeting between the two men. After receiving the ditch-spraying contract and completing the project, Bouldin met with Defendant again to pay him the remaining $1,500, but Defendant refused to take the money and instructed him to give it to a third party.

Defendant was subsequently arrested and indicted on a single count of soliciting or accepting a bribe in violation of 18 U.S.C. § 666(a)(1)(B). He was convicted following a jury trial and was sentenced to 66 months of imprisonment, a $1,000 fine, two years of supervised release, forfeiture of the $1,500, and a $100 special assessment. He filed a timely notice of appeal.

II. Discussion

A. Admissibility of the City Revenue Ledger

Among other things, 18 U.S.C. § 666 makes it a crime for an agent of a local government, organization, or agency to solicit or accept a bribe if the relevant entity “receives, in any one year period, benefits in excess of $10,000 under a Federal program.” See 18 U.S.C. § 666(a) -(b). Thus, in order to make its case against Defendant, the Government was required to prove that the City of Canton received more than $10,000 in federal funds during a twelve-month period encompassing the charged conduct. Id. § 666(d)(5). The Government sought to prove this element of the offense by introducing a ledger of city revenues through the testimony of Canton City Clerk Valerie Smith (“Ms. Smith”). The district court permitted the ledger to be admitted as a business record under Federal Rule of Evidence 803(6), but Defendant now argues that the ledger lacked the requisite “trustworthiness” to be treated as a business record. Defendant also argues that the ledger was inadmissible because it was not the “best evidence” of the underlying transactions.

We review the district court's evidentiary rulings for abuse of discretion, asking whether the court below relied on an “erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Jackson, 636 F.3d 687, 692 (5th Cir.2011) (quoting United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir.2008) ). We conclude that the district court did not abuse its discretion in admitting the ledger of city revenues.

1. Trustworthiness Under Rule 803(6)

At the time of trial, Federal Rule of Evidence 803(6) provided that a record of a regularly conducted activity would not be excluded by the rule against hearsay if:

(A) the record was made at or near the time [of the acts or events recorded] by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Fed.R.Evid. 803(6) (2014). Defendant appears to concede on appeal that the city's revenue ledger meets subsections (A) through (D) of Rule 803(6). However, Defendant argues the ledger lacks trustworthiness under subsection (E) because Ms. Smith, who personally made the entries in the ledger, acknowledged at trial that (1) she did not “go back” in city records to verify underlying documentation, and (2) she was unaware that some ostensibly federal funds could have come from non-federal sources. In Defendant's view, this testimony indicated that Ms. Smith categorized funds as federal in the ledger “based upon the source of the check and not the source of the funds,” rendering the ledger untrustworthy and inadmissible under Rule 803(6).

We reject this argument. We have explained that the district court “has great latitude on the issue of trustworthiness,”United States v. Duncan, 919 F.2d 981, 986 (5th Cir.1990), and the burden of establishing that a piece of evidence lacks trustworthiness is on its opponent. Graef v. Chemical Leaman Corp., 106 F.3d 112, 118 (5th Cir.1997). In this regard, “[t]here is no requirement that the witness who lays the foundation” for admission of a business record “be able to personally attest to its accuracy.” Duncan, 919 F.2d at 986. In fact, “courts should not focus on questions regarding the accuracy” of a record in making the trustworthiness determination required by Rule 803, because the jury is responsible for assessing credibility and deciding what weight to afford admitted evidence. Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir.1991).

This court has thus repeatedly recognized that a challenge to the accuracy or completeness of a record goes to its weight, not its admissibility. See, e.g., United States v. Tafoya, 757 F.2d 1522, 1528–29 (5th Cir.1985) ; Matador Drilling Co., Inc. v. Post, 662 F.2d 1190, 1199 (5th Cir.1981) ; Crompton–Richmond Co., Inc. Factors v. Briggs, 560 F.2d 1195, 1202 n. 12 (5th Cir.1977). Because Defendant essentially challenges the accuracy of the city ledger, his argument goes only to its weight, and he has not shown that the district court abused its discretion by admitting the ledger under Rule 803(6).

2. The Original Writing Rule

Defendant also asserts that the revenue ledger entries were inadmissible under Federal Rule of Evidence 1002, because the Government should have proffered “supporting documentation” to prove the amount of federal funds received by the city in 2012. An examination of Rule 1002's scope, however, reveals that it has no application in this case. The rule applies when a litigant seeks to “prove the content” of a writing, recording, or photograph. See Fed.R.Evid. 1002 ; United States v. McNealy, 625 F.3d 858, 867 (5th Cir.2010). In such a circumstance, an original copy of the writing or record is favored over secondary evidence of its content. Id. It is well-established that Rule 1002 does not apply in situations where the mere existence of an independent factual condition is sought to be proved, even if the condition is contained in or effectuated through a writing.¹ See Fed.R.Evid. 1002 advisory committee's note (“[A]n event may be proved by nondocumentary evidence, even though a written record of it was made.... For example, payment may be proved without producing the written receipt which was given. Earnings may be proved without producing books of account in which they are entered.”); Dalton v. FDIC, 987 F.2d 1216, 1223 (5th Cir.1993) (concluding the rule did not apply to proof of a debt through an affidavit rather than bank documentation); see also United States v. Sliker, 751 F.2d 477, 483 (2d Cir.1984) (recognizing that production of a written insurance policy was unnecessary to prove the existence of the policy, because “the proof required was proof of the fact of insurance and not of the contents of a writing”).

In the present case, Ms. Smith testified that she personally received the disputed federal grant money in 2012 and recorded it in the city's revenue ledger. The ledger entries were thus not offered through her testimony to “prove the contents” of any writing or supporting documentation—rather, supporting documentation would itself, if offered, act only as evidence of the receipt of money from the federal government. Put another way, the Government used the city's revenue ledger to prove the existence of tangible representations of money and their delivery to the person who made the ledger, not to prove the terms of underlying documents reflecting payments.²

Federal Rule...