IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10650
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant Cross-Appellee
v.
JANET MITCHELL ELI,
Defendant-Appellee Cross-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:94-CR-433-T)
_________________________________________________________________
August 22, 1996
Before KING, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Janet Mitchell Eli was indicted on counts charging her with
threatening federal law enforcement officers and a witness in a
federal criminal trial and making false statements to a federal
court. Following a jury verdict of guilty on all counts, the
district court granted Eli’s motion for acquittal on the false
statement counts and for a new trial on the threat counts. The
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
Government appeals the order granting the motion for a new trial.
We vacate the order granting a new trial and remand for further
consideration by the district court.
I. BACKGROUND
A. Facts
During late February 1992, Eli and other individuals,
including Shenna Fisher, stole U.S. Treasury checks from the
mails. Eli and some of her co-conspirators forged and cashed the
stolen checks. In May 1992, Fisher gave a sworn statement to
Postal Inspector David McDermott in which she admitted
participating in the thefts and forgeries and identified Eli as
the mastermind of the scheme. Fisher was convicted of offenses
related to this scheme and sentenced to three years probation.
She violated this probation in late 1993 and was sentenced to
twelve months imprisonment. She commenced serving this sentence
in January 1994 at a federal prison for women in Bryan, Texas.
In August 1993, Eli was convicted of possession of stolen
mail and forgery of U.S. Treasury checks. At this trial, Judge
Sidney Fitzwater presided, Joseph Revesz was the prosecutor,
McDermott was the case agent, and Fisher was a witness for the
Government. Eli was sentenced to a prison term and began serving
this sentence at the Bryan prison in April 1994, approximately
two months after Fisher had been sent there.
2
In May 1994, Judge Fitzwater, Judge Joe Kendall, and Eli’s
defense counsel received letters signed by Fisher in which she
recanted her trial testimony against Eli and alleged that Revesz
and McDermott had instructed her to lie about Eli and had
otherwise coerced her cooperation. Also in May, Fisher signed an
affidavit making the same allegations found in the letters; this
affidavit was notarized. On May 31, Eli herself sent a letter to
Judge Fitzwater, stating that Fisher had admitted committing
perjury at Eli’s trial.
In July 1994, Postal Inspector R.T. Welborn interviewed
Fisher at the Bryan prison. Fisher told Welborn that Eli had
prepared or directed the preparation of all of the letters and
the affidavit, that Eli had threatened her with bodily harm if
she did not cooperate, and that Eli had told her she would
receive home confinement if she signed the letters. In addition,
Fisher told Welborn that her trial testimony was true and that
the contents of the letters were false. Later, Welborn
interviewed Bryan inmate Lindy Lovett. Lovett told Welborn that
Eli had tricked Fisher into signing letters and an affidavit.
Lovett also stated that Fisher was afraid of Eli and feared that
she would have been harmed if she had not cooperated with Eli.
Following Welborn’s investigation, Eli was transferred from
the Bryan prison. In late 1994, Eli was incarcerated in the
Dallas County Jail. Tanya Nicosia, a Dallas County inmate,
notified Revesz that Eli was making threats against Revesz,
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McDermott, and Fisher. Nicosia also stated that Eli’s father had
spoken with Eli on the phone about offering contracts to kill
certain individuals and that Eli’s father came to Dallas in
October 1994 for the purpose of executing contracts to kill
Revesz, McDermott, and Fisher. Nicosia prepared a statement in
which she recounted these allegations in detail and also reported
that Eli had told her about coercing Fisher to recant her trial
testimony.
B. Procedural History
In December 1994, Eli was indicted by a grand jury. Counts
1-3 alleged that Eli had threatened Revesz, McDermott, and Fisher
on October 30, 1994, while Eli was incarcerated in the Dallas
County Jail, in violation of 18 U.S.C. § 115(a)(1)(B)1 and 18
U.S.C. § 1513(a)(1).2 Counts 4-8 charged that Eli had caused
1
18 U.S.C. § 115(a)(1)(B) states in pertinent part:
Whoever . . . threatens to assault, kidnap, or
murder, a United States official . . . [or] a Federal
law enforcement officer . . . with intent to . . .
retaliate against such official . . . or law
enforcement officer on account of the performance of
official duties, shall be punished . . . .
2
18 U.S.C. § 1513(a)(1) states in pertinent part:
Whoever . . . attempts to kill another person with
intent to retaliate against any person for--
(A) the attendance of a witness . . . at an
official proceeding, or any testimony given .
. . in an official proceeding; or
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Fisher to make false statements to United States District Court
judges and that she herself had also made false statements, in
violation of 18 U.S.C. § 1001. Eli pled not guilty and was tried
before a jury.
For its case in chief, the Government introduced the
following witnesses: Nicosia, Revesz, McDermott, Fisher,
Welborn, Lovett, Postal Inspector Jack McDonough (who was
involved in the original investigation of the stolen checks),
Danette Williams (another Bryan inmate), Raymona Galloway (a co-
conspirator in the stolen check scheme), a typewriter expert, and
three government officials who had previously used Nicosia as an
informant. Nicosia testified that Eli had made threats against
Revesz, McDermott, and Fisher while she was incarcerated in the
Dallas County Jail and that she had made arrangements with her
father to have those individuals killed. The government
officials who had previously used Nicosia as an informant
testified as character witnesses on her behalf. Fisher testified
that Eli coerced her to sign the letters and the affidavit
recanting her trial testimony, while threatening her, her mother,
and her children; she also testified that Eli threatened to
“knock off” Revesz and McDermott. The Government offered
(B) providing to a law enforcement officer
any information relating to the commission or
possible commission of a Federal offense . .
.
shall be punished . . . .
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testimony from Lovett, Williams, and Welborn to corroborate
Fisher’s version of the events at the Bryan prison. The
typewriter expert verified that the letters and the affidavit had
been typed in the Bryan prison. Revesz, McDermott, and McDonough
gave testimony regarding their involvement in the investigation
and prosecution of the stolen check case. Finally, Galloway
testified that, after their arrest, Eli threatened to “get” the
person who started the investigation.
The jury found Eli guilty on all counts. Eli filed a motion
for a judgment of acquittal or for a new trial. The court denied
the motion on May 17, 1995. On May 15, 1995, the Supreme Court
decided Hubbard v. United States, 115 S. Ct. 1754 (1995), which
held that 18 U.S.C. § 1001 does not apply to the making of false
statements in judicial proceedings. As a result, Eli filed a
motion for reconsideration of the court’s denial of her motion
for acquittal or new trial. Specifically, Eli moved for a
judgment of acquittal on Counts 4-8, the false statement counts,
and a new trial on Counts 1-3, the threat counts. In response,
the Government conceded that, in light of Hubbard, the
convictions on Counts 4-8 could not stand; however, the
Government asserted that the convictions on Counts 1-3 were not
affected by the infirm counts.
The district court entered a judgment of acquittal on Counts
4-8 and granted Eli’s motion for a new trial on Counts 1-3. The
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court concluded that: (1) the evidence on the invalidated counts
prejudicially spilled over such that the jury probably used that
evidence in reaching a verdict on the remaining counts, and (2)
the Government had failed to establish that the evidence admitted
on the invalidated counts would be admissible in a trial on the
remaining counts alone. The Government timely appealed.
II. DISCUSSION
A. Standard of Review
We review a district court’s order granting a new trial in a
criminal case for abuse of discretion. United States v. Logan,
861 F.2d 859, 863 (5th Cir. 1988); United States v. Arroyo, 805
F.2d 589, 597 (5th Cir. 1986).
B. Arguments
The Government contends that the district court abused its
discretion in granting Eli’s motion for a new trial, asserting
that the evidence admitted on the false statement counts would
have been admissible in a trial on the threat counts alone.
First, the Government argues that the evidence offered on the
false statement counts was inextricably intertwined with the
evidence on the threat counts, and therefore was admissible
intrinsic evidence. Alternatively, if the evidence on the false
statement counts was extrinsic with respect to the threat counts,
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the Government argues that it was admissible extrinsic evidence
under FED. R. EVID. 404(b). In this regard, the Government
contends that this evidence would have been admissible to show:
(1) an overall plan of retaliation to cause death or bodily harm
to those responsible for Eli’s conviction and to get her
conviction overturned; (2) Eli’s motive for making the threats;
or (3) Eli’s specific intent to retaliate.
C. Analysis
Rule 33 of the Federal Rules of Criminal Procedure provides
the general standard to be applied by district courts in granting
new trials: “The court on motion of a defendant may grant a new
trial to that defendant if required in the interest of justice.”
FED. R. CRIM. P. 33. Further, “in acting on new trials generally,
the harmless error rule is usually appropriate.” United States
v. Logan, 861 F.2d 859, 864 n.3 (5th Cir. 1988).
Of course, application of the harmless error standard
presumes the existence of error. Accordingly, the district court
must first determine whether there has been an error at all.
Here, the alleged error is that the evidence presented to support
the invalidated false statements counts would not have been
admissible in a trial on the threat counts alone. Therefore, the
district court in this case was required to determine whether the
8
evidence introduced in support of the false statement counts
would have been admissible in the absence of those counts.
If some of the evidence presented on the false statement
counts would not have been otherwise admissible, the district
court was then required to determine whether the error in this
regard was harmless. “In determining whether an erroneous
admission of evidence is harmless error, the court . . . must
decide whether the inadmissible evidence actually contributed to
the jury’s verdict; . . . the evidence [must have] had a
substantial impact on the verdict.” United States v. Campbell,
73 F.3d 44, 47 (5th Cir. 1996); see also United States v.
Gadison, 8 F.3d 186, 192 (5th Cir. 1993). Considerations
relevant to this inquiry include the strength of the Government’s
case without the inadmissible evidence, the manner in which the
inadmissible evidence was presented to the jury, and whether the
impact of the inadmissible evidence was minimized by a curative
jury instruction. See Gadison, 8 F.3d at 192 (holding that
admission of evidence of a prior conviction would be harmless
error where the evidence added little to the Government’s case,
the details of the conviction were not explained to the jury, and
the court minimized any prejudice through a jury instruction);
see also United States v. El-Zoubi, 993 F.2d 442, 446-47 (5th
Cir. 1993) (holding erroneous admission of evidence harmless
9
based on strength of remaining evidence); United States v. Evans,
950 F.2d 187, 191 (5th Cir. 1991) (same).
In granting Eli’s motion for a new trial, the district court
applied a test enunciated in an analogous Second Circuit
decision, United States v. Rooney, 37 F.3d 847 (2d Cir. 1994),
that echoes somewhat the harmless error standard. The court of
appeals in Rooney reversed one count of a multicount conviction.
Id. at 854. The court then described its next task as being to
“determine if prejudicial spillover from evidence introduced in
support of the reversed count requires the remaining convictions
to be upset.” Id. at 855. To make this determination, the court
analyzed three factors:
(1) whether the evidence on the reversed counts would
have tended to incite or arouse the jury on the
remaining counts;
(2) whether the evidence introduced on the invalidated
counts would have been inadmissible on the
remaining counts and was presented in a way that
tends to indicate that the jury probably used it
in reaching a verdict on the remaining counts;
(3) whether the government had a strong case on the
remaining counts.
Id. at 855-56.
Here, the district court did not discuss whether there was
any evidence on the reversed counts that would tend to incite or
arouse the jury on the remaining counts. With respect to the
second Rooney factor, the court stated that “the [G]overnment has
failed to establish that all evidence admitted on the invalidated
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counts would have been admissible on the remaining counts” and
that the Government “repeatedly requested the jury to consider
evidence on the invalidated counts in assessing the evidence on
the remaining counts.” Finally, with respect to the strength of
the Government’s case on the remaining counts, the court noted
that the Government primarily relied on one witness to establish
that Eli threatened Revesz, McDermott, and Fisher on October 30,
1994, while Eli was incarcerated in the Dallas County Jail --
Nicosia. The court questioned Nicosia’s credibility, apparently
alluding to the fact that Nicosia was a career criminal, with
multiple convictions for theft and fraud, and that there were
inconsistencies in her testimony. Based on these factors, the
court determined that there was a prejudicial spillover of
evidence that warranted a new trial.
If we realign the district court’s reasoning into the
harmless error procedural framework outlined above, it is clear
that the court explained in some detail its conclusion that any
error in this case was not harmless. Specifically, the court
discussed the strength of the Government’s case on the threat
counts and the manner in which the evidence offered in support of
the other counts was presented to the jury. However, with
respect to the threshold inquiry -- whether there was error at
all -- the court offered no reasons for its determination that
not all of the evidence would have been admissible in a trial on
the threat counts alone. The court failed to explain which
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evidence would not have been admissible. Further, the court did
not discuss why the unspecified evidence was not intrinsic
evidence or admissible extrinsic evidence under FED. R. EVID.
404(b).3
Given this sparse analysis by the district court, we
conclude that we are unable to review the court’s decision for an
abuse of discretion. We could resolve the evidentiary issues
ourselves and then determine whether the district court’s grant
of a new trial constituted an abuse of discretion; however,
because the admissibility of evidence is itself a matter within
the trial court’s discretion, we would be ill-advised to decide
these evidentiary issues in the first instance.4 Accordingly, we
think it advisable to vacate the grant of a new trial and to
remand with instructions that the district court reconsider the
motion under the harmless error standard and set forth with
specificity the reasons for its decision. While we appreciate
the district court’s hesitation to discuss in detail the
admissibility of evidence that the Government may proffer later
3
Also, the district court may have misallocated the burden
of proof on this issue. The court indicated that the Government
had failed to establish that all of the evidence would have been
admissible in a trial on the threat counts alone. As Eli
concedes, however, the movant bears at least the initial burden
in this regard.
4
That is not to say that we would necessarily refrain from
deciding such evidentiary issues in another case.
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if the case is retried, it is an inquiry that the court cannot
avoid under these circumstances.
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s
order granting Eli’s motion for a new trial on Counts 1-3 of the
indictment and REMAND for further consideration of the motion
consistent with this opinion.
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