United States v. Gwendolyn Moyo , 371 F. App'x 463 ( 2010 )

Case: 09-30347 Document: 00511056678 Page: 1 Date Filed: 03/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 19, 2010
No. 09-30347 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
versus
GWENDOLYN JOSEPH MOYO, also known as Gwen Moyo, also known as
Gwendolyn J. Carr, also known as Gwendolyn Joseph
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CR-384-1
Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.*
PER CURIAM:**
In this appeal, Gwendolyn Moyo challenges her conviction based on the
admission of certain statements into evidence at her criminal trial, which she
contends violates the Federal Rules of Evidence (FRE) and the Confrontation
Clause of the Constitution. Because we conclude that the evidence was
*
District Judge, Southern District of Mississippi, sitting by designation.
**
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-30347 Document: 00511056678 Page: 2 Date Filed: 03/19/2010
No. 09-30347
harmless, we need not address whether the admitted statements actually
contravened the FRE or the Confrontation Clause.
In 2008, Moyo was tried for crimes stemming from her involvement in an
insurance fraud and money laundering scheme. During trial, the government
introduced the statements of a co-conspirator, Derrick Shepherd, in an attempt
to demonstrate the origin of the conspiracy between Moyo and Shepherd.
Instead of calling Shepherd, the government called FBI Agent Smith, who had
questioned Shepherd on two occasions. Over Moyo’s objections, Smith was
permitted to testify to the following:
Q. Mr. Smith, I was asking you regarding your interview with state
Senator Shepherd the first time you spoke to him. Did you ask him
how it was that Ms. Moyo became a client of his?
A. Yes, we did. . . . He could not recall who introduced him at the
time.
...
Q. And subsequent to that, did you have an opportunity, as you said,
to interview him again regarding?
A. About three weeks later, we interviewed him, and at that time he
told us he was introduced to Ms. Moyo by Congressman William
Jefferson.
Both hearsay and Confrontation Clause errors are subject to harmless
error analysis. See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (deprivation of
face-to-face confrontation under the Confrontation Clause); United States v.
Dickey, 102 F.3d 157, 163 (5th Cir. 1996) (erroneous admission of hearsay
testimony). “A defendant convicted on the basis of constitutionally inadmissible
Confrontation Clause evidence is entitled to a new trial unless it was harmless
in that there was no reasonable possibility that the evidence complained of
might have contributed to the conviction.” United States v. Alvarado-Valdez, 521
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No. 09-30347
F.3d 337, 341 (5th Cir. 2008) (internal quotation marks, brackets, and citations
omitted). “The government bears the burden of establishing the error is
harmless beyond a reasonable doubt.” Id.Moyo argues that the error was not harmless because by introducing the
challenged statements the government went out of its way to establish a
connection between Ms. Moyo and Congressman Jefferson, a man with a
“troublesome public reputation.” She argues that Jefferson’s reputation is so
toxic as to have tainted the entire proceeding. A review of the record, however,
reveals a number of references to Jefferson, other members of the Jefferson
family, and Jefferson-owned enterprises. Given that the jury was already well
aware of Moyo’s connection to Jefferson through evidence that is not challenged
on appeal, we easily come to the conclusion that the admission of the challenged
statement, if erroneous, was harmless.
AFFIRMED.
3