United States v. Smith

FILED
United States Court of Appeals
Tenth Circuit

July 23, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 07-3061
TRACY M. SMITH,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 05-CR-40065-RDR)

Thomas D. Haney, Henson, Clark, Hutton, Mudrick & Gragson, LLP, Topeka,
Kansas, 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, Kansas, 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,

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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.

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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

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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

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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

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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.” F ED . R. A PP . 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

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government committed a Brady violation by not disclosing prior statements made

by her attorney who later testified against her; (4) the government in bad faith

intentionally destroyed exculpatory evidence when it deposited seized cash into a

forfeiture account without documenting the serial numbers on the bills; (5) the

district court erred in admitting evidence without an appropriate chain of custody;

(6) the district court erred by not finding a Batson violation when the government

used a peremptory challenge to remove an African-American during venire; and

(7) the district court improperly applied USSG § 3C1.1 enhancement provision for

obstruction of justice.

II. DISCUSSION

A. The Double Homicide

1. Introduction of the double homicide evidence

We review the district court’s admission of evidence for an abuse of

discretion. United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006). We

cannot reverse a district court’s ruling if “it falls within the bounds of permissible

choice in the circumstances and is not arbitrary, capricious or whimsical.” Id.

(internal quotation marks omitted).

Ms. Smith challenges the admission of evidence relating to the double

murder. The challenged evidence includes photos of the bullet-ridden deceased

bodies and of the bloody clothes and bloody area of the house where the murders

8
occurred. The government also presented evidence that the convicted murderer,

Mr. Cheatham, had made nine phone calls to Ms. Smith in the minutes surrounding

the murders. According to Detective Brian Hill, during one of these phone calls,

Ms. Thomas (playing dead after having been shot at least seven times) heard Mr.

Cheatham say, “All these bitches are dead.” Rec. vol. V, at 575.

Ms. Smith filed a pre-trial motion in limine to prohibit the government from

presenting any evidence about the double murder. The district court denied this

motion, finding that the evidence was intrinsic to the conspiracy and was not

unfairly prejudicial.

The Federal Rules of Evidence provide:

Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge [etc.] . . . .

F ED . R. E VID . 404(b). The Federal Rules further provide that “evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” F ED . R. E VID . 403.

The government first argues that because the murders were committed in

furtherance of the drug conspiracy, they are part of the charged act, and therefore

not an “other crime[]” subject to Rule 404(b). On this, we agree. “[C]onduct

which occurs during the life of a conspiracy and is a part of the same is direct

evidence of the conspiracy and therefore not subject to Rule 404(b).” United

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States v. Portillo-Quezada, 469 F.3d 1345, 1353 (10th Cir. 2006). Because the

evidence supported the conclusion that the double murder occurred during the life

of the conspiracy and was part of it, under Portillo-Quezada, the district court did

not abuse its discretion in admitting the evidence, finding that Rule 404(b) did not

apply.

Ms. Smith also claims that she suffered undue prejudice as a result of the

graphic photographs of the murder scene. We test for undue prejudice by using the

balancing test in Rule 403, which provides that relevant evidence may be excluded

if its prejudicial value substantially outweighs its probative value. F ED . R. E VID .

403. “Rule 403 does not protect a party from all prejudice, only unfair prejudice.”

Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000).

In order for evidence to be excluded, it must “make a conviction more likely

because it provokes an emotional response in the jury or otherwise tends to affect

adversely the jury’s attitude toward the defendant wholly apart from its judgment

as to his guilt or innocence of the crime charged.” Portillo-Quezada, 469 F.3d at

1354 (internal quotation marks omitted).

The government relies on Portillo-Quezada as support for its proposition

that the evidence was not unduly prejudicial because it “did not shock the jury

given the evidence [the defendants] had been shot.” Id. Specifically, the

government argues that a jury would not have been unduly swayed by the

photographs “[g]iven that the nature of the evidence relating to almost any murder

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includes graphic photographs . . . .” Aple’s Br. at 25. But the government, in

attempting to convince us to adopt the reasoning of Portillo-Quezada, mistakes the

facts of that case. The government claims that in that case, “[t]his Court

considered this precise issue and found there that the introduction of similar

photographs in a drug conspiracy case . . . was not unduly prejudicial under Rule

403.” Aple’s Br. at 25 (emphasis added). This is an incorrect account. There

were no photographs at issue in Portillo-Quezada. Instead, the question before us

in that case was whether an officer’s graphic testimony was unduly prejudicial.

469 F.3d at 1353. Portillo-Quezada held that because the jury had heard

testimony that the murder victim was shot at close range, the officer’s testimony

did not shock the jury. Id. at 1354.

The district court argued similarly in Ms. Smith’s case, finding that the

photos were not unduly prejudicial because “[t]he jury had some expectation that

these photographs would be lurid given the testimony provided by the survivor of

the shootings.” Rec. vol. I, doc. 228, at 20 (denial of motion for a new trial).

However, we must be careful not to extend this reasoning, clearly informed by

Portillo-Quezada, too far. It is not enough that “the jury ha[ve] some expectation”

of the graphic nature of the photos. Instead, the test is whether the photos would

elicit such an emotional response that the jury’s attitude toward Ms. Smith would

be adversely affected wholly apart from its feelings as to her guilt or innocence of

the drug conspiracy with which she was charged. Portillo-Quezada, 469 F.3d at

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1354.

Photographs of bloodied, bullet-ridden bodies and blood-stained clothes are

different than testimony of the sort at issue in Portillo-Quezada – they are much

more shocking and much more likely to provoke an emotional response. “Under

Rule 403’s balancing test, it is not enough that the risk of unfair prejudice be

greater than the probative value of the evidence; the danger of that prejudice must

substantially outweigh the evidence’s probative value.” United States v. Cerno, –

F.3d — , 2008 WL 2502526, at *8 (10th Cir. Jun. 24, 2008). These photos would

likely have substantially more prejudicial than probative value. Indeed, if they

were not intended to provoke a substantial emotional response, one must ask why

the government felt the need to include them at all: it was obvious that these were

two murders done with multiple bullet wounds. While evidence of the murders is

certainly admissible, graphic evidence that adds nothing to the description of the

bullet-ridden bodies except shock, is prejudicial under Rule 403. See id.; Portillo-

Quezada, 469 F.3d at 1154.

“We will not reverse a district court’s decision to admit evidence if it falls

within the bounds of permissible choice in the circumstances . . . .” Id. at 1353

(internal quotation marks omitted). Determining whether admitting these

gruesome photos (which depicted the aftermath of a murder that Ms. Smith was

never charged for having played any part in) was within the bounds of permissible

choice is a close call. However, we need not resolve this issue because any error

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that may have occurred was harmless. A non-constitutional error is harmless

unless it affects the substantial rights of a party. United States v. Sells, 477 F.3d

1226, 1240 (10th Cir. 2007). An error affects a substantial right when it has

“substantial influence on the outcome or leaves one in grave doubt as to whether it

had such effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)

(en banc) (internal quotation marks omitted). The government bears the burden of

showing that an error is harmless. United States v. Stiger, 413 F.3d 1185, 1190

(10th Cir. 2005).

The government argues that even if Ms. Smith was unduly prejudiced, the

error was harmless because other evidence overwhelmingly established that she

was involved in a conspiracy. Substantial evidence was presented that Ms. Smith

conspired with Mr. Torrence and others to distribute drugs. This evidence

included Mr. Torrence’s own guilty plea and subsequent testimony against Ms.

Smith. There was also testimony from Mr. Worford that he had purchased large

quantities of crack and marijuana from Ms. Smith. Mr. Bell testified that Mr.

Cheatham worked for Ms. Smith and that Ms. Smith had twice purchased cocaine

from his suppliers. Ms. Thomas testified that she had seen Mr. Cheatham and Ms.

Smith cook powder cocaine into crack cocaine several times, and that Ms. Smith

claimed an interest in the money that Mr. Cheatham had stolen from him. Further,

the controlled-buy evidence showed that Ms. Smith and Mr. Torrence worked

together to perform these transactions. Various other bits of circumstantial

13
evidence also help prove the conspiracy, such as the trash pulls from Ms. Smith’s

house, and the testimony that Ms. Smith had bragged about being a “major drug

figure” in the Topeka/Lawrence area. Finally, evidence tied Ms. Smith to the

murders and these murders to the drug conspiracy.

Because the remaining evidence against Ms. Smith was so strong, any

potential error in admitting the photographs did not have a “substantial influence

on the outcome” or call the verdict into “grave doubt,” and therefore her

substantial rights have not been affected. Rivera, 900 F.2d at 1469 (internal

quotation marks omitted). Because her substantial rights were not violated, even

if the evidence of the homicides imposed undue prejudice on Ms. Smith, any error

was harmless. See Sells, 477 F.3d at 1240.

2. Double homicide jury instruction

Ms. Smith also challenges the instruction to the jury that it could consider

the double murder as evidence of the conspiracy, because the instruction did not

state that the government had to prove her involvement in the murders beyond a

reasonable doubt. We “review a district court’s decision to give a particular jury

instruction for an abuse of discretion.” United States v. Gwathney, 465 F.3d 1133,

1142 (10th Cir. 2006). We must also “consider the instructions as a whole de

novo to determine whether they accurately informed the jury of the governing

law.” Id. We will uphold a guilty verdict following an erroneous instruction if “it

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appears beyond a reasonable doubt that the error complained of did not contribute

to the verdict obtained.” United States v. Luke-Sanchez, 483 F.3d 703, 705 (10th

Cir. 2007) (internal quotation marks omitted).

At the instructions conference, Ms. Smith objected to Instruction 8, which

stated:

The government contends that defendant was involved in directing a
double homicide to further the drug conspiracy alleged in Count 1.
Defendant denies any involvement in the double homicide. If you
believe that defendant ordered the double homicide and that it was
ordered in furtherance of the drug conspiracy alleged in Count 1, then
you may consider that evidence in deciding whether defendant is guilty
or not guilty of Count 1. Otherwise, you should disregard the evidence
of the double homicide in deciding whether defendant is guilty or not
guilty of the charge in Count 1. The evidence of the double homicide
should not be considered in your deliberations regarding other counts of
the indictment.

Rec. vol. I, doc. 205, at 20. Ms. Smith objected because the instruction did not

state that the government had to prove her involvement in the murders beyond a

reasonable doubt. The district court overruled the objection.

On appeal, Ms. Smith argues, “[t]he jury was given a blank check, over

defendant’s objection,” to determine whether she was guilty of the ordering the

homicide and whether that proved that she was guilty of conspiracy. Aplt’s Br. at

18. Ms. Smith quotes the standard conspiracy instruction, which requires that the

jury find beyond a reasonable doubt that one of the conspirators engaged in at

least one overt act furthering the conspiracy. See 10th Cir. Criminal Pattern Jury

Instructions § 2.19 (2005). She argues that because the murder was the only overt

15
act the government tried to prove, the government had to prove it beyond a

reasonable doubt. However the instruction she quotes pertains to violations of 18

U.S.C. § 371 – a general conspiracy statute –, and not the drug conspiracy statute,

21 U.S.C. § 846, under which Ms. Smith was charged.

A conviction under § 846 does not require proof of any overt act. United

States v. Williams, 374 F.3d 941, 949 (10th Cir. 2004) (noting that drug

conspiracies are unique in this sense). Instead, as the district court noted in its

denial of the motion for new trial, “In order to convict a defendant of a § 846

conspiracy, the government must prove only the existence of a conspiracy, that the

defendant knew of it, and that, with knowledge, the defendant voluntarily became

a part of the conspiracy.” Rec. vol. I, doc. 228, at 32. See Williams, 374 F.3d at

949 (“Drug conspiracies under 21 U.S.C. § 846 are unique because the government

need not prove an overt act. . . . Instead, the government must prove that the

defendant knew at least the essential objectives of the conspiracy and knowingly

and voluntarily became a part of it.”). “Although the Government need not prove

an overt act to establish a conspiracy under § 846, the jury may infer an agreement

constituting a conspiracy from the acts of the parties indicating concert of action

for the accomplishment of a common purpose.” United States v. Delatorre, 157

F.3d 1205, 1207 (10th Cir. 1998) (internal quotation marks omitted). Therefore,

as the government notes, because the law does not require the government to prove

any overt act, the government was not legally required to prove any such act

16
beyond a reasonable doubt. The trial court then did not abuse its discretion in

refusing to instruct the jury as Ms. Smith requested.

B. Brady

Brady v. Maryland held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith

of the prosecution.” 373 U.S. 83, 87 (1963). This duty to disclose applies not

only to prosecutors, but also to police and other government investigators. Kyles

v. Whitley, 514 U.S. 419, 437-38 (1995). When a district court’s denial of a

motion for a new trial is based on an alleged Brady violation, we review the

district court’s decision de novo. United States v. LaVallee, 439 F.3d 670, 698

(10th Cir. 2006).

A defendant seeking a new trial on Brady grounds must show that “(1) the

prosecution suppressed evidence; (2) the evidence was favorable to the defendant;

and (3) the evidence was material.” United States v. Quintanilla, 193 F.3d 1139,

1149 (10th Cir. 1999). Evidence is material if it creates “a reasonable probability

that, ‘had the evidence been disclosed to the defense, the result of the proceeding

would have been different.’” Scott v. Mullin, 303 F.3d 1222, 1230 (10th Cir. 2002)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “A ‘reasonable

probability’ is a ‘probability sufficient to undermine confidence in the outcome.’”

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Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

During and after the trial, Ms. Smith claimed that the government failed to

provide her with exculpatory, i.e. Brady, material with respect to several of its

witnesses, including Chris Cowger (her former attorney), Steven Bell, Sheena

Davis, and James Worford. Ms. Smith specifically objected that she did not learn

of the deals that each of the witnesses had with the government until or after the

witness testified. The district court either overruled or denied Ms. Smith’s Brady

claims with respect to each witness. It is worth noting that the district court did

find that while the government should have disclosed a police report on Mr.

Cowger (detailed below), a new trial was not warranted because (1) the evidence

against Ms. Smith was overwhelming, so the failure to disclose does not

undermine confidence in the verdict, and (2) “the significance of Mr. Cowger’s

testimony in this trial was insubstantial.” Rec. vol. I, doc. 255, at 9.

1. Mr. Cowger

Ms. Smith did not know that Mr. Cowger, her former attorney, was going to

testify against her until the government called him as the final witness. She argues

that the government violated Brady by failing to disclose a report prepared by Sgt.

Higdon, in which Sgt. Higdon reported that Mr. Cowger admitted (1) he was

having an affair with a woman who had a cocaine problem; (2) he had given her

money that she used to buy cocaine; (3) she was blackmailing him; (4) he was in

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counseling for boundary issues with clients; and (5) that he had smoked marijuana

with Ms. Smith on one occasion at her residence. Ms. Smith argues that if she had

had this evidence at the time of trial, it could have served to impeach Mr.

Cowger’s credibility, thereby undermining his claim that he bought marijuana

from her on multiple occasions.

As noted above, a defendant seeking a new trial on Brady grounds must

show that “(1) the prosecution suppressed evidence; (2) the evidence was

favorable to the defendant; and (3) the evidence was material.” Quintanilla, 193

F.3d at 1149. We must first determine whether the prosecution suppressed

evidence favorable to Ms. Smith. Impeachment evidence is exculpatory for Brady

purposes. Bagley, 473 U.S. at 676. The district court found that the only

significant impeachment evidence from the report was the fact that Mr. Cowger

had smoked marijuana with Ms. Smith at her home, and that the rest lacked

relevance to the case. We agree. United States v. Combs holds that drug use of a

witness should be disclosed under Brady. 267 F.3d 1167, 1175 (10th Cir. 2001).

The government conceded that it did not disclose this report, and argued that

at the time of trial it did not know that the report existed. However, a defendant

may base a Brady claim on a piece of material evidence not disclosed by an

investigator, even if the prosecutor did not know of the evidence. Kyles, 514 U.S.

at 437-48. Sergeant Higdon, a State investigator, knew about this report well in

advance of the trial, so even if the prosecutor did not know it existed, Ms. Smith

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could still base her Brady claim on the failure to disclose the report.

However, as noted above, even if the government suppressed evidence that

was favorable to her, in order to receive a new trial on Brady grounds, Ms. Smith

must also show that the evidence was material. Quintanilla, 193 F.3d at 1149.

Evidence is only material if it creates “a reasonable probability that, ‘had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.’” Scott, 303 F.3d at 1222 (quoting Bagley, 473 U.S. at 682 ). “A

‘reasonable probability’ is a ‘probability sufficient to undermine confidence in the

outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As detailed above, the other

evidence against Ms. Smith was overwhelming. Considering the weight of Mr.

Torrence, her co-conspirator’s, confession and testimony against her, along with

the informants’ testimony and that of numerous additional witnesses, the testimony

of Mr. Cowger was not a crucial part of the government’s case. Ms. Smith argues

that Mr. Cowger was different than the rest of the witnesses because he was an

attorney and therefore a more credible witness. However, the other testimony

against Ms. Smith was still overwhelming. The critical question is whether the

lack of impeachment evidence shakes our confidence in the guilty verdict. Kyles,

514 U.S. at 434. Because it does not, even though the government violated the

first two prongs of Brady by suppressing evidence favorable to Ms. Smith, the

third prong of Brady is not met – i.e., the evidence is not material –, and Ms.

Smith was not entitled to a new trial. See Quintanilla, 193 F.3d at 1149.

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Mr. Bell, Ms. Davis, and Mr. Worford

Ms. Smith also contends that the government violated Brady by failing to

provide impeachment evidence regarding three witnesses, Steven Bell, Sheena

Davis, and James Worford. Specifically, she argues that the government violated

Brady by waiting until direct examination to disclose that these three witnesses

had each made some agreement with the government in exchange for their

testimony. Aplt’s Br. at 46. However, Ms. Smith does not dispute that the

government did disclose each of these witness’s agreements during direct

examination. 1 “The Brady rule is not violated when the material requested is made

available during trial.” United States v. Rogers, 960 F.2d 1501, 1510 (10th Cir.

1992). Because the government made this information available at trial, there was

no Brady violation with respect to these three witnesses.

C. Other evidentiary issues

1. The government’s failure to maintain seized cash

1
Rec. vol. X, at 1661-64 (Mr. Bell testifying that although he was not
promised anything, it was his understanding that if he got on the stand to “tell
nothing but the truth,” about Ms. Smith, then the government would bring no
further charges against him); Rec. vol. XI, at 1761-63 (the prosecution and
counsel for Ms. Davis stated that there was an understanding that if Ms. Davis
testified, she would not be prosecuted); Rec. vol. X, at 1589-94 (Mr. Worford
testifying that Sgt. Higdon assured Mr. Worford that he would not bring charges
against him for possessing marijuana if he testified).

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 We review a district court’s determination that the government did not

destroy potentially exculpatory evidence for clear error. United States v. Pearl,

324 F.3d 1210, 1215 (10th Cir. 2003). “The inquiry into allegations of

prosecutorial bad faith presents a mixed question of fact and law in which the

quintessential factual question of intent predominates.” United States v. Bohl, 25

F.3d 904, 909-10 (10th Cir. 1994). The burden is on Ms. Smith to show bad faith.

United States v. Beckstead, 500 F.3d 1154, 1157 (10th Cir. 2007), cert. denied,

128 S.Ct. 1757 (2008).

On June 2, 2005, officers found approximately $20,000 during a search of

Ms. Smith’s home. The government did not photocopy the bills or otherwise

record their serial numbers. Pursuant to the Shawnee County Sheriff’s Department

policy, they deposited the bills into an asset forfeiture fund.

At trial, the government argued that drug dealers frequently turn over large

sums of money quickly. Ms. Smith argues that if the government had recorded the

serial numbers on the bills, she could have shown that some of the money the

officers seized in this 2005 search was also seized in a 2003 search. This, Ms.

Smith claims, would have shown that she did not turn over money quickly,

supporting her claim that she was not, in fact, trafficking drugs.

To establish that the government deprived her of her due process rights by

destroying potentially exculpatory evidence, Ms. Smith “must show both that 1)

the evidence destroyed was potentially exculpatory and 2) the government acted in

22
bad faith in destroying it.” Beckstead, 500 F.3d at 1158. These principles were

articulated by the Supreme Court in California v. Trombetta, 467 U.S. 479 (1984)

and Arizona v. Youngblood, 488 U.S. 51 (1988). Here, Ms. Smith’s due process

rights were not violated, because the serial numbers on the cash were not

exculpatory. They would not have proven her innocence but shown only that

perhaps she handled her money differently than a typical drug dealer.

Even if the evidence was potentially exculpatory, Ms. Smith has presented

no evidence that the police acted in bad faith. “[U]nless a criminal defendant can

show bad faith on the part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of law.” Youngblood, 488

U.S. at 58. The seized cash was put into an asset forfeiture fund according to the

procedure laid out in the Sheriff’s Department policy. Rec. vol. VII, at 801-02.

Generally, destroying the evidence according to an established government

procedure “precludes a finding of bad faith absent other compelling evidence.”

Beckstead, 500 F.3d at 1159 (internal quotation marks omitted). Ms. Smith

provides no such compelling evidence. She only speculates that “[t]he State

presumably was concerned that holding money from a suspect may be problematic

if the suspect seeks or requests interest on money that is being held” and that if the

money was deposited, the state would get the interest, not Ms. Smith. Aplt’s Br.

at 43. This speculation alone is not “compelling evidence” that the government

acted in bad faith.

23
 In considering whether the government acted in bad faith, we look to such

factors as: (1) whether the government had explicit notice that Ms. Smith believed

the money was exculpatory; (2) whether the claim that the evidence is potentially

exculpatory is conclusory, or instead “backed up with objective, independent

evidence giving the government reason to believe that further tests of the

[destroyed evidence] might lead to exculpatory evidence”; (3) whether the

government could control the disposition of the evidence once Ms. Smith indicated

that it might be exculpatory; (4) whether the evidence was central to the case; and

(5) whether the government offers any innocent explanation for its disposal of the

evidence. Beckstead, 500 F.3d at 1160-61 (alterations in original) (citing United

States v. Bohl, 25 F.3d 904, 911-13 (10th Cir. 1994)). The government has offered

an innocent explanation – the officers were simply complying with department

policy. Because Ms. Smith has not presented compelling evidence that any of the

other factors indicating bad faith were present, the district court did not err in

denying her motion for a new trial on this ground.

2. Proper chain of custody of drugs obtained by an informant

During the trial, the government moved for admission of exhibits of crack

cocaine that Sharriff Tilghman had purchased from Mr. Torrence on at least three

occasions. (While Mr. Torrence delivered the drugs, the sales were arranged

through Ms. Smith.) Mr. Tilghman did not wear any recording device during the

24
transactions with Mr. Torrence. He also did not testify at Ms. Smith’s trial. Ms.

Smith objected that the government did not establish an adequate chain of custody

for each exhibit. The district court denied Ms. Smith’s objection during the trial

and denied relief in its order denying a new trial. We review evidentiary rulings

for abuse of discretion. United States v. Ramirez, 479 F.3d 1229, 1245 (10th Cir.

2007).

As the government notes, in order for a chain of custody to be adequate, it

“need not be perfect. Where the chain of custody is imperfect, deficiencies . . . go

to the weight of the evidence, not its admissibility; once admitted, the jury

evaluates the defects and, based on its evaluation, may accept or disregard the

evidence.” United States v. Humphrey, 208 F.3d 1190, 1205 (10th Cir. 2000)

(internal quotation marks and citations omitted). Therefore, it was for the jury to

weigh whether the officers’ testimony was sufficient to establish a sufficient

foundation for the evidence.

As to the first buy, Deputy Harry Bowen testified that officers searched Mr.

Tilghman before the buy, conducted both visual and audio surveillance of the

transaction, seized the drugs immediately after the buy, produced a recording of a

phone call between Ms. Smith and Mr. Tilghman setting up the buy, and produced

an audiotape of the buy from Mr. Torrence. Rec. vol. IX, at 1303-16. With

respect to Mr. Tilghman’s second and third controlled buys, Deputy Bowen

testified that they searched Mr. Tilghman before the buys, conducted visual

25
surveillance of the transactions, and seized the drugs immediately afterwards. Id.

at 1319-26; 1343-46.

Even though some of the controlled buys were without audio surveillance,

because, under Humphrey, any doubts regarding the foundation go to the weight

the jury gives the evidence and not to its admissibility, the district court did not

abuse its discretion in admitting it. See Humphrey, 208 F.3d at 1205.

D. Batson

Ms. Smith also challenges the government’s peremptory challenge against

an African-American potential juror. Batson v. Kentucky, 476 U.S. 79 (1986)

provides a three-step process for a trial court to follow when determining whether

a peremptory challenge was based on race. “First, a defendant must make a prima

facie showing that a peremptory challenge has been exercised on the basis of race;

second, if that showing has been made, the prosecution must offer a race-neutral

basis for striking the juror in question; and third, in light of the parties’

submissions, the trial court must determine whether the defendant has shown

purposeful discrimination.” Snyder v. Louisiana, 128 S. Ct. 1203, 1207 (2008)

(internal quotation marks, citations, and alterations omitted). When considering a

Batson claim, we review de novo whether the proffered explanations were race-

neutral. United States v. Barrett, 496 F.3d 1079, 1105 (10th Cir. 2007).

Ms. Smith argues that the government violated Batson by using a

26
peremptory challenge against an African-American woman, Ms. Campbell. The

government here offered three race-neutral reasons for striking Ms. Campbell.

First, it inferred that Ms. Campbell had been an unsatisfactory employee based on

the fact that she had not been hired full-time in a previous grant position. Second,

the government expressed concern that she had not yet found another job. Third,

the government was concerned that Ms. Campbell had taken some law school

courses, but had since dropped out. Aple’s Br. at 55. Ms. Smith, without more

argument, says merely that these reasons were “insufficient.” Aplt’s Br. at 49. “A

race-neutral explanation is simply an explanation, no matter how implausible, that

is based on something other than the race of the juror.” Barrett, 496 F.3d at 1105.

In providing these three reasons then, the government met its burden of providing

race-neutral reasons for removing Ms. Campbell from the jury.

We next turn to the ultimate question of whether Ms. Smith proved that

these reasons were evidence of discriminatory intent. See Snyder, 128 S. Ct. at

1207. We review for clear error a trial court’s ruling on whether the prosecutor

intentionally discriminated. Id. “The district court’s answer to the ultimate

question of discriminatory intent represents a finding of fact of the sort accorded

great deference on appeal, because such a finding largely turns on the trial court’s

evaluation of the prosecutor’s credibility.” United States v. Nelson, 450 F.3d

1201, 1207 (10th Cir. 2006) (internal quotation marks omitted). As in Barrett,

Ms. Smith gave the district court “no reasonable basis for questioning the

27
government’s credibility in offering its race-neutral reasons,” Barrett, 496 F.3d at

1106. Because Ms. Smith did not meet her burden of showing discriminatory

intent, see Snyder, 128 S. Ct. at 1207, the district court did not clearly err in

determining that there was no Batson violation.

E. Sentencing

Ms. Smith “challenges only the procedural reasonableness of [her] sentence,

which requires, among other things, a properly calculated Guidelines range.”

United States v. Saavedra, 523 F.3d 1287, 1289 (10th Cir. 2008). Specifically, she

challenges the district court’s application of the obstruction enhancement under

USSG § 3C1.1. When considering a challenge to an application of the Sentencing

Guidelines, we review a district court’s legal interpretation of the Guidelines de

novo and its factual findings for clear error. United States v. Chee, 514 F.3d 1106,

1116 (10th Cir. 2008). The Guidelines require that an offender’s offense level be

increased by two levels:

[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to . . . the
defendant’s offense of conviction . . . .”

USSG § 3C1.1.

The district court’s application of this enhancement was based on Mr.

Worford’s testimony. He testified that after he appeared before the grand jury,

28
Ms. Smith confronted him in person and asked, “Are you snitching?” Rec. vol. X,

at 1628. He also testified that she called him and asked again if he was

“snitching” because people had seen him coming out of the courthouse. Id. When

asked on cross-examination if Ms. Smith had ever threatened him, Mr. Worford

said, “Not directly, but it was just – you could tell. I mean, I can tell when . . . It

was just the way people, you know, ask you stuff you can tell, I can tell.” Id. at

1653.

Obstruction under § 3C1.1 includes “threatening, intimidating, or otherwise

unlawfully influencing a co-defendant, witness, or jury, directly or indirectly, or

attempting to do so.” USSG § 3C1.1, cmt. 4(a) (emphasis added). “Commentary

in the Guidelines Manual that interprets or explains a guideline is authoritative

unless it violates the Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.” United States v. Torres-Ruiz, 387

F.3d 1179, 1181 (10th Cir. 2004) (internal quotation marks omitted).

Because Ms. Smith has presented no evidence that the relevant commentary

violates her constitutional or statutory rights, or that it is inconsistent with or a

plainly erroneous reading of § 3C1.1, and because that commentary states that

even indirect threats fall under § 3C1.1’s offense-level increase, the district court

did not clearly err in applying § 3C1.1 to Ms. Smith’s sentence.

Ms. Smith summarily raises two other complaints about her sentence, but

does not make arguments or cite authority with respect to either. See F ED . R. A PP .

29
P. 28(a)(9) (“The appellant’s brief must contain . . . appellant’s contentions and

the reasons for them, with citations to the authorities . . . on which the appellant

relies.”).

III. CONCLUSION

For the foregoing reasons, we AFFIRM Ms. Smith’s conviction and

sentence.

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