IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 07-60891
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BURNELL HARRIS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:07-CR-1-1
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Burnell Harris, the former circuit clerk of Jefferson County, Mississippi,
appeals his convictions and sentence for three counts of embezzlement from a
local government that receives federal funds by an agent of the local government
in violation of 18 U.S.C. § 666(a)(1), two counts of money laundering, and four
counts of tax evasion. Harris argues that the district court erred by refusing to
dismiss the embezzlement counts because he was not an agent of Jefferson
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
No. 07-60891
County under § 666(d)(1) pursuant to this court’s decision in United States v.
Phillips, 219 F.3d 404 (5th Cir. 2000). Relying primarily upon the Ninth
Circuit’s ruling in United States v. Wyncoop, 11 F.3d 119 (9th Cir. 1993), Harris
asserts that the embezzlement counts should have been dismissed because there
was no connection between the money he embezzled, the circuit clerk’s office,
and any federal funds received by Jefferson County. Harris additionally
maintains that the money laundering counts and some forfeiture counts that
were based upon the embezzlement counts should have also been dismissed.
Because the jury was required to find that all of the elements of § 666(a)(1)
were met in order to find Harris guilty, we review the evidence in the light most
favorable to the Government as the prevailing party at trial. See Phillips, 219
F.3d at 409. We review issues of law de novo. Id.
As this court noted in Phillips, 219 F.3d at 411, § 666(d)(1) defines agent
very broadly. By the terms of § 666(d)(1), a county officer is an agent of the
county, and Mississippi law identifies circuit clerks as county officers. See MS.
CONST. art. V, § 138. Harris, as the circuit clerk of Jefferson County, collected
fees that were property of Jefferson County once the amount of fees collected
exceeded the maximum amount allowed for his salary. See MISS. CODE ANN. § 9-
1-43(1). Harris directed and controlled deputy clerks, who were county
employees. See MISS. CODE ANN. § 9-7-126(1). Harris, as an officer of Jefferson
County, collected money belonging to Jefferson County and was authorized to act
on behalf of Jefferson County in directing Jefferson County employees; Harris
was, therefore, an agent of Jefferson County. See § 666(d)(1); United States v.
Moeller, 987 F.2d 1134, 1137-38 (5th Cir. 1993).
Harris’s reliance on Phillips is unpersuasive. In Phillips, 219 F.3d at 411-
15, this court ruled that the defendant, the former tax assessor of St. Helena
Parish, Louisiana, was not an agent of St. Helena Parish under § 666(d)(1),
because Louisiana law completely separated the tax assessor’s office from the
parish government. Circuit clerks, however, are not completely separated from
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No. 07-60891
county governments in Mississippi, and Phillips is not applicable in the present
case. See MS. CONST. art. V, § 138; MISS. CODE ANN. §§ 9-1-43(1), 9-7-126(1).
While the circuit clerk’s office did not receive federal funds, Harris was
charged with, and found guilty of, being an agent of Jefferson County and
embezzling money that was owned by Jefferson County. Harris was an agent
of Jefferson County for the purposes of § 666. The evidence showed that Harris
embezzled more than $5,000 belonging to Jefferson County in the relevant years
and that Jefferson County received more than $10,000 in grants from the federal
government during the relevant years. Thus, the evidence showed that the
elements of the § 666(a)(1) offense were met. See § 666(a)(1), (b); Phillips, 219
F.3d at 409-10. Harris’s contention that there should be an additional nexus
element to a § 666(a)(1) offense has been rejected in the context of prosecutions
under § 666(a)(2) for bribery of a public official. See Sabri v. United States, 541
U.S. 600, 604-08 (2004); United States v. Lipscomb, 299 F.3d 303, 309-16 (5th
Cir. 2002). The elements of the offenses under § 666(a)(1) and § 666(a)(2) are
identical except that § 666(a)(1) prohibits theft and accepting bribes while
§ 666(a)(2) prohibits bribery, and there is no reason to distinguish between
§ 666(a)(1) and § 666(a)(2) on the issue of whether a nexus between the theft or
bribery and the federal funds is required. See United States v. Spano, 401 F.3d
837, 840 n.2 (7th Cir. 2005). Harris’s reliance on Wyncoop, 11 F.3d at 120-23, is
misplaced as that case involved a defendant who was employed by a private
school that received no direct federal funding, a factual situation far different
from the present case.
Harris argues that the district court violated his Fifth Amendment right
to due process and Sixth Amendment right to trial by an unbiased jury by
refusing his motion for a new trial on the grounds of juror misconduct and mid-
trial publicity. Harris maintains that a newspaper article about the trial was
unduly prejudicial and that the district court should have specifically asked the
jurors whether they had seen the article. He asserts that his counsel saw two
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No. 07-60891
jurors, including a white male juror who was placed on the jury over his
preemptory strike, with newspaper in their possession talking to each other and
three other jurors during a recess in the trial. He maintains that the white male
juror should not have been put on the jury. He argues that the jury was biased
because of a comment made by a prospective juror during voir dire that African-
American public officials in the area were being prosecuted. He asserts the
jury’s bias was demonstrated by the fact that the jury deliberated for less than
an hour and a half before finding him guilty. He maintains that the district
court violated his Fifth and Sixth Amendment rights by not providing him the
names of the members of the jury pool until the morning of trial. He contends
that the late disclosure of the names of the jury pool members prejudiced him
because he would have found that one of the jurors was running for public office
against his nephew if he had had more time to investigate.
We review the district court’s refusal to grant a new trial on these claims
for an abuse of discretion. See United States v. Martinez-Moncivais, 14 F.3d
1030, 1036 (5th Cir. 1994). A motion for a new trial based on any ground other
than newly discovered evidence must be filed with seven days of the jury verdict.
FED. R. CRIM. P. 33(b)(2).
The record shows that Harris knew about the newspaper article, the
incident involving the jurors with the newspaper, the prospective juror’s
comment during voir dire, and the timing of the release of the names of the
members of the jury pool prior to the verdict in the trial.1 Harris did not seek a
mistrial based on these issues, nor did he request that the district court
specifically inquire whether any members of the jury had read the newspaper
article. The motion for a new trial was filed more than seven days after the
1
In the district court, Harris raised a second allegation that jurors were
seen reading the newspaper during a recess in the trial that was arguably based
on newly discovered evidence. In this court, he does not argue that he was
entitled to a new trial on the basis of this allegation.
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No. 07-60891
verdict was rendered, and the Government objected to the timeliness of the
motion.
The district court determined that Harris’s motion for a new trial was
untimely for all claims not based upon newly discovered evidence, and Harris
does not challenge that ruling. Accordingly, Harris’s claims regarding the
newspaper article, the incident involving jurors in possession of the newspaper,
the comment during voir dire, and the timing of the release of the names of the
members of the jury pool were not timely raised because they were not based
upon newly discovered evidence. See United States v. Jones, 597 F.2d 485, 488-
89 (5th Cir. 1979). Furthermore, Harris waived the claims of juror misconduct
because he knew about them prior to the verdict but did not seek act upon them.
See id. at 488 n.3. To the extent that Harris raises a separate claim that the
district court improperly put the white male juror on the jury, he has not
properly briefed the issue and, therefore, has waived it. See FED. R. APP.
P. 28(a)(9); see also United States v. Gourley, 168 F.3d 165, 172 n.11 (5th Cir.
1999). Harris’s argument that the jury was biased because of the short length
of its deliberations is unavailing as Harris has not argued or shown that the
jury’s verdict was not supported by the evidence. See Guar. Serv. Corp. v.
American Employers’ Ins. Co., 893 F.2d 725, 729 (5th Cir. 1990).
Harris argues that he is entitled to a new trial because the district court
improperly admitted certain evidence over his objections. Harris has not
identified what evidence was improperly admitted, and his argument on this
issue does not include any citations to the record or law beyond boilerplate
citations of FED. R. CRIM. P. 16 and cases concerning the standard of review. As
Harris has not properly briefed this issue, he has waived it. See FED. R. APP.
P. 28(a)(9); see also Gourley, 168 F.3d at 172 n.11.
AFFIRMED.
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