UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4426
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MISSY SMITH,
Defendant - Appellant.
No. 07-4451
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STACY C. SMITH,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:05-cr-00028-gec)
Submitted: October 22, 2008 Decided: December 2, 2008
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph Graham Painter, Jr., JOSEPH GRAHAM PAINTER, JR., P.C.,
Blacksburg, Virginia; Steven Paul Hanna, Richmond, Virginia, for
Appellants. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Missy Smith and Stacy Smith* were convicted of conspiracy
to distribute more than 500 grams of methamphetamine, in violation
of 21 U.S.C. § 846 (2000). They appeal on separate grounds from
their convictions and sentences. We affirm.
Missy Smith argues that the district court erred in
denying her motion for judgment of acquittal, Fed. R. Crim. P. 29,
because the Government did not present sufficient evidence that she
was personally involved in the distribution, rather than
consumption, of more than 500 grams of methamphetamine. She also
contends that the Government did not present sufficient evidence to
prove that Smith’s knowledge of her coconspirators’ activities made
it foreseeable to her that the conspiracy would be responsible for
the distribution of more than 500 grams of methamphetamine.
We review de novo the district court’s decision to deny
a Rule 29 motion. United States v. Smith, 451 F.3d 209, 216 (4th
Cir. 2006). A jury’s verdict must be upheld on appeal if there is
substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). “[A]n appellate court’s
reversal of a conviction on grounds of insufficient evidence should
be confined to cases where the prosecution’s failure is clear.”
United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (internal
quotation marks and citation omitted). In determining whether the
*
The defendants are not related.
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evidence in the record is substantial, we view the evidence in the
light most favorable to the government and inquire whether there is
“evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (en banc). “A defendant challenging the
sufficiency of the evidence . . . bears a heavy burden.” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal
quotation marks and citation omitted). In evaluating the
sufficiency of the evidence, this court does not review the
credibility of the witnesses and assumes that the jury resolved all
contradictions in the testimony in favor of the government. United
States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007).
At trial, the government presented extensive and
corroborating evidence that supported the jury’s verdict against
Missy Smith. In summary, this included the following: Martin
Garcia, a codefendant, testified that, for six months, he sold two
ounces of methamphetamine per week to Missy Smith. Smith was aware
that another codefendant, Rigo Martinez, supplied methamphetamine
to Garcia, and she also purchased distribution quantities of
methamphetamine from codefendants Terry Bartlett, Gary Todd,
Tabitha Isom, and Lisa Alley. Smith knew that Bartlett, Todd, and
Alley were being supplied with methamphetamine by Garcia, and that
Isom was being supplied by Garcia and Martinez. Taken together,
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the testimony of Isom, Alley, Bartlett, and Todd provided evidence
that Smith was selling methamphetamine and paying for her own
purchases with the proceeds. Dustin Harmon, a Special Agent with
the Drug Enforcement Administration, testified that in his opinion,
based upon his experience investigating methamphetamine dealers and
users, the quantities of methamphetamine that Smith purchased were
consistent with resale distribution, and not with personal
consumption alone. The testimonial evidence at trial was
sufficient to prove that Missy Smith was conspiring to distribute,
rather than solely consuming, methamphetamine, and that sales of at
least 500 grams of methamphetamine were reasonably foreseeable to
her. See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).
Stacy Smith raises five claims on appeal. First, Smith
contends that the district court should have dismissed a
prospective juror who was ultimately seated on the jury because she
was married to a police officer who was involved in a case that
Smith’s counsel was working on.
A trial judge’s decision regarding whether to remove a
juror for cause will not be overruled except for a “manifest abuse
of . . . discretion.” Poynter v. Ratcliff, 874 F.2d 219, 222 (4th
Cir. 1989). A district court’s determination not to excuse a juror
for cause is entitled to “special deference.” Patton v. Yount, 467
U.S. 1025, 1038 (1984). The critical issue in deciding a challenge
for cause is whether the juror “could be fair and impartial and
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decide the case on the facts and law presented.” United States v.
Capers, 61 F.3d 1100, 1105 (4th Cir. 1995). A challenge to a juror
for cause is usually limited to demonstrations of actual bias, with
the doctrine of implied bias applying only to “extreme situations”
where the circumstances make it highly unlikely that the average
person could remain impartial. United States v. Turner, 389 F.3d
111, 117 (4th Cir. 2004).
The district court questioned the prospective juror
regarding her potential bias and she answered that she could be
fair and impartial. The juror’s relationship does not rise to the
level of an “extreme situation” that would imply she was unlikely
to remain impartial. Accordingly, the district court did not abuse
its discretion in denying Smith’s motion to strike.
Next, Smith argues that the district court erred in
refusing to allow his counsel to interview a juror who expressed
concern to the court that the jury did not deliberate objectively
and with adequate consideration.
“[C]ourts have consistently rejected juror affidavits or
testimony about mental processes unless ‘extraneous prejudicial
information’ or ‘outside influence’ is clearly present.” United
States v. Acker, 52 F.3d 509, 516 (4th Cir. 1995). Smith has made
no showing of “extraneous prejudicial information” or “outside
influence” being brought to bear on any juror. Therefore, the
district court did not err in denying Smith’s motion for permission
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to interview the juror who expressed concern to the court. See
Tanner v. United States, 483 U.S. 107, 119-28 (1987) (finding
efforts to impeach jury verdicts by post-trial contact with such
jurors are disfavored); United States v. Gravely, 840 F.2d 1156,
1159 (4th Cir. 1988) (upholding the denial of a defendant’s request
to interview jurors to determine if the pressure or lack of
adequate time for deliberation was self imposed or the result of
outside influence because the defendant made no threshold showing
of improper outside influence).
Next, Smith contends that the district court erred in
denying his motion for a new trial based upon newly discovered
evidence. The new evidence consisted of Isom’s statement regarding
her testimony at Smith’s trial, made to Alley and Kimberly Perry,
another witness and codefendant, in their shared cell after Isom
testified. Isom exclaimed when she was returned to the cell that
she “could not believe” two of the questions that she was asked.
Alley and Perry did not respond to Isom. Smith argues that he
could have used the evidence to impeach their credibility because
both Isom and Alley testified on the following day that they had
not discussed their testimony with anyone. When questioned
regarding her statements in the cell, Isom did not deny making the
statements, but answered that she did not believe she had discussed
the case with anyone when she was questioned at trial because her
cellmates did not respond to her statements in any way. Isom
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explained that her understanding of the word discussion is that it
involves “people talking back and forth.” Perry testified that she
did not recall Isom’s statements to her.
A district court may grant a defendant’s motion for a new
trial “if the interest of justice so requires.” Fed. R. Crim. P.
33(a). A district court “‘should exercise its discretion to grant
a new trial sparingly,’ and . . . should do so ‘only when the
evidence weighs heavily against the verdict.’” United States v.
Perry, 335 F.3d 316, 320 (4th Cir. 2003) (quoting United States v.
Wilson, 118 F.3d 228, 237 (4th Cir. 1997). This court reviews the
denial of a Rule 33 motion for abuse of discretion. United
States v. Adam, 70 F.3d 776, 779 (4th Cir. 1995). In order to
warrant a new trial based on newly discovered evidence, a defendant
must show that: (1) the evidence is newly discovered; (2) the
defendant used due diligence; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) the
evidence would probably result in an acquittal at a new trial.
United States v. Lofton, 233 F.3d 313 (4th Cir. 2000). Unless the
defendant demonstrates all five of these factors, the motion should
be denied. United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989).
Because the evidence at issue would not have resulted in
an acquittal at a new trial, but was merely impeachment evidence of
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relatively minor significance, the district court did not abuse its
discretion in denying Smith’s motion for a new trial.
Smith next argues that the district court erred in
enhancing his offense level for obstruction of justice, based upon
its finding that Smith gave materially false testimony on the
stand, because the district court did not make adequate findings
concerning his alleged perjury.
The sentencing court must impose a two-level adjustment
under U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2007) if
the defendant willfully obstructed or impeded the administration of
justice during the investigation, prosecution, or sentencing of the
offense of conviction and any relevant conduct relating to the
offense of conviction. The adjustment applies when the district
court determines that a defendant committed perjury. USSG § 3C1.1,
comment. (n.4(b)); see also United States v. Dunnigan, 507 U.S. 87,
94 (1993). The adjustment for perjury is not applicable merely
because the defendant testified and was subsequently convicted.
Id. at 95. The court must find that the defendant gave false
testimony under oath “concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” Id. at 94; United States v.
Smith, 62 F.3d 641, 646-47 (4th Cir. 1995). When the sentencing
court finds that a defendant has committed perjury, it is
preferable if the court addresses all the elements of perjury
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separately and clearly, but a finding that “encompasses all of the
factual predicates for a finding of perjury” is sufficient.
Dunnigan, 507 U.S. at 95.
The district court found, based upon the weight of other
testimonial evidence presented at trial and credited by the jury in
reaching its verdict, that Smith testified falsely that he did not
sell methamphetamine or assist the methamphetamine distribution
conspiracy. The issue of whether or not Smith sold methamphetamine
or was involved in the conspiracy was obviously material. The
district court found that Smith knowingly testified falsely, not as
a result of confusion, mistake, or faulty memory. The court did
not commit any error in enhancing Smith’s sentence for obstruction
of justice.
Finally, Smith contends that he was entitled to a
downward adjustment in his offense level based upon his minor role
in the conspiracy. “A defendant seeking a downward adjustment for
his minor role in a criminal offense bears the burden of proving by
a preponderance of the evidence that he is entitled to such
adjustment.” United States v. Nelson, 6 F.3d 1049, 1058 (4th Cir.
1993)(citation omitted). The standard of review for factual
determinations, such as whether the appellant’s conduct warrants a
minor role sentencing reduction, is clear error. United States v.
Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). A defendant who is
only a “minor participant” in a criminal activity may have his
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offense level reduced by two levels. USSG § 3B1.2(b). This
applies to a defendant “who is less culpable than most other
participants, but whose role could not be described as minimal.”
USSG § 3B1.2(b), comment. (n.5). However, the court should not
only compare the defendant’s culpability to that of the other
participants, but also measure it against the elements of the
offense of conviction. United States v. Reavis, 48 F.3d 763, 769
(4th Cir. 1995). “The critical inquiry is thus not just whether
the defendant has done fewer ‘bad acts’ than his codefendants, but
whether the defendant’s conduct is material or essential to
committing the offense.” United States v. Palinkas, 938 F.2d 456,
460 (4th Cir. 1991), vacated, 503 U.S. 931 (1992), reinstated,
United States v. Kochekian, 977 F.2d 905 (4th Cir. 1992).
The Government presented evidence that Smith lived with
Isom, sold methamphetamine, provided security and transportation
services for the conspirators, and knew several other members of
the conspiracy, including high-level distributors. The district
court did not err in finding that Smith did not meet his burden of
proving that his conduct was not material or essential to the
conspiracy, based upon his close relationship with Isom and his
interactions with other conspirators.
For the reasons stated above, we affirm the Appellants’
convictions and sentences. We deny Missy Smith’s motion for
preparation of a transcript at government expense. We dispense
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with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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