United States v. Helen Page , 615 F. App'x 212 ( 2015 )

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     Case: 14-60746      Document: 00513185935         Page: 1    Date Filed: 09/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60746
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA,                                               September 9, 2015
Lyle W. Cayce
Plaintiff–Appellee                                                Clerk
v.
HELEN PAGE,
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:13-CR-18-1
Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM: *
Helen Page appeals her convictions for perjury, subornation of perjury,
obstruction of justice, and conspiracy. The crimes were committed during
Page’s 2011 trial for forgery. That trial resulted in a conviction and 33-month
sentence.
Page first contends that the trial court improperly admitted testimony
from Owen Cook, the jury foreman from the forgery trial. We review the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60746
district court’s decision to admit evidence for abuse of discretion. United States
v. McCann,

613 F.3d 486

, 498 (5th Cir. 2010). Ordinarily, we review Page’s
unpreserved argument based on Federal Rule of Evidence 403 for plain error,
United States v. Escalante–Reyes,

689 F.3d 415

, 418–19 (5th Cir. 2012), but
Page’s argument also fails under ordinary review for abuse of discretion.
Cook, the jury foreman, testified that the false statements made at the
forgery trial had a natural tendency to influence, or were capable of
influencing, his decision as to Page’s guilt and the Government’s burden of
proof. The forgery verdict was never mentioned. Cook’s testimony was relevant
and probative of the materiality of the previous false statements, which the
Government had the burden to prove. See Johnson v. United States,

520 U.S. 461

, 465 (1997); Kungys v. United States,

485 U.S. 759

, 770 (1988); United
States v. Damato,

554 F.2d 1371

, 1372 (5th Cir. 1977). Cook was permitted to
testify about materiality because he witnessed the prior proceedings. See
United States v. Thompson,

637 F.2d 267

, 268–69 (5th Cir. 1981) (“We have
held, however, that those who actually witness the grand jury proceedings may
testify to the subject matter of the grand jury investigation in order to establish
the materiality of testimony given to it.”). Page had ample opportunity to cross-
examine Cook, so there was no violation of the Confrontation Clause. See
United States v. Davis,

393 F.3d 540

, 548 (5th Cir. 2004). Page also fails to
show that the probative value of Cook’s testimony was “substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, [or]
misleading the jury.” Fed. R. Evid. 403.
In her second contention, Page argues that the court abused its
discretion by not granting a mistrial because the Government did not disclose
before trial some recordings of telephone messages left for Page by a
coconspirator. See Giglio v. United States,

405 U.S. 150

, 153–54 (1972); Brady
2
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No. 14-60746
v. Maryland,

373 U.S. 83

, 87–88 (1963). Page did not answer any of the calls,
but in one of the recordings, the coconspirator arguably threatened Page with
harm if she did not pay the coconspirator for her perjury as arranged. The
Government made the recorded messages available to Page during trial, and
the court granted Page a four-day continuance to study them. Page cross-
examined the coconspirator about the messages and the potential threat. She
fails to show “a reasonable probability that, had the evidence been disclosed to
the defense [prior to trial], the result of the proceeding would have been
different.” United States v. Bagley,

473 U.S. 667

, 682 (1985).
Finally, Page contends that the court abused its discretion by not
dismissing the jury venire after the prosecutor said, “My job is great because I
just get to do the right thing and get a good jury for both the defendant and the
government.” We assume that this comment was improper in light of United
States v. Vaccaro,

115 F.3d 1211

, 1217–18 (5th Cir. 1997). Upon defense’s
immediate objection, however, the court told the venire to ignore the comment,
and it reminded them that the voir dire process was designed to enable both
sides and the court “to select a jury that is supposed to be fair and impartial to
both sides and to base a verdict only upon the evidence in the case.” Any
prejudicial effect was corrected when the court immediately sustained the
objection and gave a curative instruction. See United States v. Valencia,

600 F.3d 389