United States v. Elain Young , 753 F.3d 757 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2527
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Elain Kay Young
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-2593
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Katherine A. Mock
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 26, 2013
Filed: May 23, 2014
____________
Before WOLLMAN, SMITH, and KELLY, Circuit Judges.
____________
SMITH, Circuit Judge.
After a six-day trial, a jury convicted Elain "Kay" Young and Katherine
"Kathy" Mock of conspiracy to commit murder-for-hire, resulting in death, in
violation of 18 U.S.C. § 1958 and murder-for-hire, resulting in death, in violation of
18 U.S.C. §§ 1958 and 2 based on the death of Young's husband. Young argues that
the district court1 erroneously (1) admitted testimony of three witnesses regarding
Young's prior bad acts that reflected a propensity to commit the crimes charged under
Federal Rule of Evidence 404(b); (2) admitted into evidence coconspirator statements
despite the lack of corroborating evidence as to the conspiracy's existence; (3)
admitted Mock's out-of-court statements in violation of Young's confrontation rights;
and (4) admitted into evidence a note found with Young despite the note's lack of
authentication. Mock raises one issue unique to her, contending that the district court
erroneously prohibited Mock from introducing Young's subsequent inconsistent
statement involving Mock's whereabouts following the murder. Both Young and
Mock argue that the district court erroneously (1) denied their motions to sever their
joint trial; (2) overruled their Batson2 challenges; and (3) overruled their motions for
judgment as a matter of law because the government failed to prove an essential
element of the offenses—the presence of a bargained-for exchange between the
defendants. We review the facts in a light most favorable to the guilty verdict. United
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
2
Batson v. Kentucky, 476 U.S. 79 (1986).
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States v. McCauley, 715 F.3d 1119, 1121 (8th Cir. 2013). We affirm the convictions
of both defendants.
I. Background
Young married Melvin Griesbauer in 2004. They lived together on a farm in
northern Missouri. The farm had been in Young's family for several years. Young
bred dogs on the farm and befriended Mock through their common interest in the
avocation.
Shortly after Young and Griesbauer married, the Missouri Army National
Guard deployed Griesbauer to Iraq for nearly one year, beginning in October 2004.
Immediately before and during his deployment, Young purchased multiple life
insurance policies on Griesbauer that listed Young as the primary beneficiary. Under
the policies, Young stood to receive over $1.1 million in the event of Griesbauer's
death.
By early 2006, Young began to experience financial difficulty. Young
mortgaged the farm. To qualify for the loan, Young added Griesbauer to the farm's
title. The loan proceeds enabled Young to pay off several farm debts. She also
explicitly requested and received an additional $10,000 from the lender. Young and
her lender finalized the loan less than twenty-four hours before Griesbauer's death.
Mock lived approximately three hundred miles away in southern Missouri.
Mock had two sons, each of whom were experiencing problems, causing Mock
significant stress. Mock also struggled financially. Keri Ponder ("Keri"), Mock's
former daughter-in-law, traveled from Massachusetts to Mock's home to assist Mock
during this difficult time. Keri testified that Mock was "at the end of her rope."
Approximately nine days before Griesbauer's death and in Keri's presence, Mock
received a phone call from Young. After the call, Mock told Keri that Young was
upset because Griesbauer purchased a life insurance policy on Young's life. According
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to Keri, Griesbauer told Young that he planned to buy items that he would not allow
Young to enjoy. Keri testified that the phone call upset Mock. Mock then asked Keri
if she knew anyone that would kill somebody. Keri responded that she did not, so
Mock asked Keri if she would be willing to kill someone. Keri declined, but out of
curiosity, Keri asked "how much a life went for." Mock told her, "They're willing to
pay $6000."
The following day, Mock and her other daughter-in-law, Rita Lee Ponder
("Rita"), traveled to Young's farm to visit Young and deliver dogs. Rita overheard
Young tell Mock that Young was afraid of Griesbauer and intended on leaving him
because he threatened to kill her. Mock agreed to help Young get away from
Griesbauer. Two days later, Mock asked her son Thomas Ponder ("Thomas") if he
knew anyone that could kill somebody. Mock told him that Young wanted someone
killed and was willing to pay $10,000. Mock told Thomas that Griesbauer was abusing
Young, causing Mock to fear for Young's safety. Thomas declined Young's
solicitation because he did not take the conversation seriously. Five days later on
March 22, 2006, Mock traveled back to Young's farm. Mock asked Thomas to drive
her there, but he declined. Mock lied to Rita, saying she was simply going to get stress
relief at a nearby hospital.
According to Young's initial statement to Adair County Sheriff Leonard Clark,
on the night of Griesbauer's death, Young picked up Griesbauer from work just after
1:04 a.m. to bring him home. Mock had already arrived at Young's farm by this time.
After arriving at home, Griesbauer went outside to the barn to check on some puppies.
Young then heard a gunshot in the direction of the barn. Young awakened Mock so
that Mock could accompany her to the barn to check on Griesbauer. Young noted that
Griesbauer frequently carried the gun recklessly—loaded and cocked. Young and
Mock located Griesbauer and discovered that he had been shot in the face and killed.
They called 911.
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Deputy Tracy Salsberry of the Adair County Sheriff's Office arrived first on
scene. Mock led Deputy Salsberry to Griesbauer's body near the front of the barn.
After verifying Griesbauer's recent death, Deputy Salsberry examined the firearm at
the death scene. It was Young's 30-30 caliber, lever-action rifle. Deputy Salsberry
discovered that the rifle was cocked and had a live round in the chamber. Deputy
Salsberry concluded that Griesbauer's death was not the result of an accident or
suicide because a suicide shooter could not have reloaded the lever-action rifle.
Deputies Salsberry and Brian Burns, who had just arrived on scene, swept the area but
discovered no one else present. Sheriff Clark arrived shortly thereafter and separately
interviewed both Young and Mock, who were the only individuals at the scene. Their
initial accounts and alibis largely matched.
The police discovered other critical pieces of evidence at the crime scene.
During the protective sweep, they found a 30-30 shell casing inside the doorway to
the barn. The police also discovered shoe prints in a star pattern near the body that
later matched Mock's shoes. Pursuant to a warrant, police searched the entire area and
discovered a three-hole ski mask wrapped around a pair of used latex gloves away
from the barn near the residence. The police later determined that Mock purchased the
mask at a Wal-Mart en route to Young's home hours before Griesbauer's death. Mock
signed the receipt for the mask when she purchased it with her credit card. Police
found a copy of this receipt in Mock's purse. Mock's DNA was also present on the
interior of the mask and the gloves. The gloves also contained detectable amounts of
gunshot residue and a partially burnt particle of gunpowder, which matched
gunpowder removed from the remaining live shells in the murder weapon.
The next day, Young presented a different account of the night's events to
Sheriff Clark. Young told Sheriff Clark that, after hearing the gunshot outside, she
searched for Mock but could not find her. She stated that she found Mock after three
or four minutes sitting fully dressed in the bathroom and "flipping out." Young altered
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her account of events. Previously, she had told Sheriff Clark that she had awakened
Mock from sleep and that they had proceeded outside together.
Mock left Young's farm the following morning and traveled to the home of a
close friend named Jean Ballard. Mock asked Ballard for help because Mock had
ingested several Vicodin pills that Young had provided to her.3 Mock alleges that
Young told Mock to ingest over 100 pills so that "she would get thirty to sixty days
in an insane asylum instead of penitentiary time." Mock, who owed Ballard
approximately $2800, had recently told Ballard that Mock was going to pay
everything back with interest, indicating that she expected to receive money soon.
While Ballard cared for Mock, Young called Ballard multiple times to check
on Mock. Young instructed Ballard not to upset Mock and to tell Mock that Young
loved her. Young did not mention Griesbauer's death to Ballard at that time. Mock
later disclosed Griesbauer's death to Ballard. Ballard then transported Mock to a
nearby hospital. En route, Ballard asked Mock if she murdered Griesbauer. Mock
responded, "I think I shot him, but I don't remember it. Wouldn't I remember doing
something like that?"
Approximately two years after Griesbauer's death, Missouri authorities arrested
Young and charged her in state court with first-degree murder. Upon her arrest, Young
feigned ignorance by asking, "Murder of who?" After performing a search incident to
arrest, police discovered a photocopied note located in the only purse in the truck
where Young was driving alone. The note read in pertinent part, "Use her drugged
state to convince her she shot him. Offered 10,000 to kill him. Was turned down. If
I collaborate her story. Bucks." Mock was also arrested. State authorities eventually
transferred Young and Mock into federal custody in October 2009.
3
Young was a nurse, and according to one witness, she was a "walking
pharmacy."
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While in custody, Young allegedly spoke with a jailhouse informant named
Amanda Bax. The government called Bax to testify against Young. Bax testified that
Young told her that she killed Griesbauer for insurance money because she was about
to lose her farm. She also stated that Young told her she would "rather lose her
husband than lose that farm." Bax further testified that Young told her, "[S]he was
trying to get [Mock] to find somebody to commit the murder for her and that she was
going to end up being the fall guy for her." Bax admitted that she was sentenced to
prison for twelve years stemming from convictions related to writing bad checks and
for stealing by deceit. She also admitted that she may benefit personally by testifying
against Young. Additionally, one of Young's paramours, Kris Robbins, testified that
Young proclaimed many times in relation to Griesbauer, "I would like to kill the son-
of-a-bitch" and "I wish he was dead."
A joint, six-day jury trial commenced on March 12, 2012. The district court
denied the defendants' multiple motions to sever the trial. The jury found Young and
Mock guilty of both counts. The district court sentenced them both to two concurrent
life sentences.
II. Discussion
On appeal, Young argues that the district court erroneously (1) admitted
testimony of three witnesses regarding Young's prior bad acts that reflected a
propensity to commit the crimes charged under Federal Rule of Evidence 404(b); (2)
admitted into evidence coconspirator statements despite the lack of corroborating
evidence as to the conspiracy's existence; (3) admitted Mock's out-of-court statements
in violation of Young's confrontation rights; and (4) admitted into evidence a note
found with Young despite the note's lack of authentication. Mock raises one issue
unique to her, contending that the district court erroneously prohibited Mock from
introducing Young's subsequent inconsistent statement involving Mock's whereabouts
following the murder. Both Young and Mock argue that the district court erroneously
(1) denied their motions to sever their joint trial; (2) overruled their Batson challenges;
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and (3) overruled their motions for judgment as a matter of law because the
government failed to prove an essential element of the offenses—the presence of a
bargained-for exchange between the defendants. We affirm the convictions of both
defendants.
A. Rule 404(b)
Young objected to the admission of testimony of three government witnesses:
Norman Newlin, Tim Eschmann and Jim Goodwin. On appeal, Young contends that
the district court erred by allowing the government to elicit testimony from these
witnesses showing that Young had a propensity to commit murder-for-hire, in
violation of Federal Rule of Evidence 404(b). We review a district court's decision to
admit 404(b) evidence for an abuse of discretion and reverse "only when the evidence
clearly had no bearing on the case and was introduced solely to show defendant's
propensity to engage in criminal misconduct." United States v. Gant, 721 F.3d 505,
509 (8th Cir. 2013) (quotation and citation omitted).
Rule 404(b)(1) provides that "[e]vidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a particular occasion
the person acted in accordance with the character." However, evidence may be
admitted for another purpose like proving "motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid.
404(b)(2). Thus, Rule 404(b) "generally prohibits the introduction of evidence of
extrinsic acts that might adversely reflect on the actor's character, unless that evidence
bears upon a relevant issue in the case." Huddleston v. United States, 485 U.S. 681,
685 (1988). "The threshold inquiry . . . is whether that evidence is probative of a
material issue other than character." Id. at 686. "Rule 404(b) is a rule of inclusion,
prohibiting only evidence that tends solely to prove the defendant's criminal
disposition." United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995). "[F]or
evidence of prior bad acts to be admissible, the evidence must be: (1) relevant to a
material issue; (2) proved by a preponderance of the evidence; (3) higher in probative
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value than in prejudicial effect; and (4) similar in kind and close in time to the crime
charged." United States v. Jourdain, 433 F.3d 652, 659 (8th Cir. 2006) (quotation and
citation omitted). Before we reverse, we must conclude that the evidence "clearly
ha[d] no bearing on any issue involved." Id. (quotation and citation omitted). Finally,
when admitting evidence under Rule 404(b) to show the defendant's intent, the prior
act need not duplicate the charged conduct but be similar enough to support an
inference of criminal intent. United States v. Walker, 470 F.3d 1271, 1275 (8th Cir.
2006).
1. Norman Newlin
Newlin testified that, while living on Young's farm as a tenant in 2002, Young
and Newlin discussed Young's problems with her then-husband David Crawford.
Newlin testified that Young solicited him to murder Crawford. In exchange, Young
would pay Newlin $10,000 and murder Newlin's wife by staging a horseback-riding
accident. Young also instructed Newlin to purchase a life insurance policy on his
wife's life because Young had a policy on Crawford. Young eschewed divorcing
Crawford for fear that a court could award him the farm. Newlin testified that Young
had several serious conversations with him about this arrangement. Newlin rejected
her offer, and Crawford was never harmed.
Young asserts that the government introduced Newlin's testimony to
demonstrate that Young has a propensity to solicit murder. Young argues primarily
that her statements to Newlin about killing Crawford for $10,000 to protect her farm
are not similar in kind or close in time to Griesbauer's murder. In support of her
contention, Young cites United States v. Fawbush, where this court reversed a district
court's decision to admit evidence that the defendant molested his daughters and
impregnated one daughter eight years prior to the molestation charge at issue. 634
F.3d 420, 421–23 (8th Cir. 2011). The impregnated daughter was fifteen at the time,
and the unrelated victim of Fawbush's charged offense was three. Id. at 421. This court
determined that the district court abused its discretion in admitting the testimony
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because the prior acts were unrelated to the charged acts. Id. at 422. Additionally, the
sexual abuse did not show any unique methods, motive, intent, plan, or knowledge.
Id. Furthermore, the district court violated Federal Rule of Evidence 403 because the
testimony was so inflammatory that its resulting unfair prejudice outweighed its
probative value. Id. at 423.
"[W]e apply a reasonableness standard, considering the facts and circumstances
of each case," to determine whether the prior bad act is too remote in time. Walker,
470 F.3d at 1275. Generally, we are reluctant to allow evidence of prior bad acts that
"occurr[ed] more than 13 years prior to the charged offense." Id. However, we have
upheld admission of a prior bad act that occurred twenty years earlier. Id. (citing
United States v. Williams, 308 F.3d 833, 836–37 (8th Cir. 2002)). Young's solicitation
of Newlin occurred only three years prior to the charged crime. Considering that it
involved a different husband, the lapse of three years is quite short.
Here, unlike Fawbush, Newlin's testimony helped the jury understand Young's
intent, motive, knowledge, and plan for Griesbauer's death. Therefore, Newlin's
testimony demonstrates more than Young's propensity to commit murders for hire.
The circumstances surrounding Young's solicitation of Newlin are strikingly similar
to the circumstances surrounding the charged offense. In both instances, Young
solicited another to murder her husband for $10,000 because she feared losing the
family farm. They both involved the same crime, a similarly-situated victim, a threat
to the farm, and the promise of a life insurance payout. Newlin's testimony helped the
jury understand that Young knowingly and intentionally hired Mock to murder
Griesbauer for the purposes of saving her farm and collecting life insurance proceeds.
Newlin's testimony demonstrated how Young's desire to protect her farm motivated
her to kill. The prior bad act demonstrated a particular plan of action.
In addition, the district court instructed the jury not to consider Newlin's
testimony for propensity purposes. See United States v. Strong, 415 F.3d 902, 906 (8th
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Cir. 2005) ("[T]he presence of a limiting instruction diminishes the danger of any
unfair prejudice arising from the admission of other acts." (quotation and citation
omitted)). Newlin's testimony is therefore sufficiently close in time and similar in kind
under Rule 404(b) such that the district court did not abuse its discretion in admitting
it.
Because Newlin's testimony demonstrated Young's intent, motive, knowledge,
and plan for Griesbauer's death, the district court's 404(b) instruction was proper
where the district court instructed that Young was "on trial only for the crimes
charged, and you may consider the evidence of prior acts only on the issue of motive,
intent, knowledge, or plan."
Additionally, we hold that the district court did not abuse its discretion by
allowing the testimony under Rule 403.
2. Tim Eschmann and Jim Goodwin
Eschmann testified that he met Young through Young's online-dating profile
on the internet website "Adult Friend Finder" in the fall of 2005. Eschmann testified
that Young discussed divorcing Griesbauer. He dated Young on the evening before
Griesbauer's murder, and Young gave him a birthday present. Additionally, he
testified that Young had asked for his advice on how to best invest life insurance
proceeds that she would soon receive.
Goodwin testified to meeting Young one month after Griesbauer's death. He
noted how they developed a sexual relationship, often spending weekends together.
He also loaned her money, and he testified that Young requested that he list her as a
beneficiary of a life insurance policy. Goodwin ended his relationship with Young
after he discovered an email conversation between Young and Robbins that occurred
after Griesbauer's murder where Robbins promised not to alert police to Griesbauer's
death in return for sexual favors.
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Young argues that the government introduced the testimony of these men to
paint her in a bad light. She contends that the testimony was merely extrinsic evidence
of Young's promiscuous character with other men during and immediately after her
marriage to Griesbauer. The government argued at trial that the testimony is instead
intrinsic because Young's dating profile and dating habits prove her discontent with
Griesbauer and pursuit of companionship with other men. Furthermore, she discussed
life insurance with each of them, further showing her motivation for killing
Griesbauer.
Rule 404(b) applies only to extrinsic, not intrinsic, evidence. United States v.
Johnson, 463 F.3d 803, 808 (8th Cir. 2006). "Evidence of other wrongful conduct is
considered intrinsic when it is offered for the purpose of providing the context in
which the charged crime occurred." Id. "Such evidence is admitted because the other
crime evidence 'completes the story' or provides a 'total picture' of the charged crime."
Id. (citation omitted). Evidence may be intrinsic if "it 'explain[s] the circumstances of'
[a] charged murder conspiracy." United States v. Hall, 604 F.3d 539, 544 (8th Cir.
2010) (quoting United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir. 1995)).
Intrinsic evidence may help to fill the gaps in the jury's understanding of the crime
charged. See Hall, 604 F.3d at 543–44.
We have also determined that intrinsic evidence is "inextricably intertwined as
an integral part of the immediate context of the crime charged." United States v.
Rolett, 151 F.3d 787, 790 (8th Cir. 1998) (quotation and citation omitted). Young
argues that this language implies that intrinsic evidence must be necessary to an
understanding of the current crime; without that evidence, the jury could not make
sense of the crime charged. The government argues that intrinsic evidence need not
be necessary to the jury's understanding of the issues, only that the evidence
contribute to the narrative of the story. We agree with the government. Young seeks
a standard that is incongruent with the more-inclusive standard articulated in Johnson
and Hall. Consequently, intrinsic evidence includes both evidence that is inextricably
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intertwined with the crime charged as well as evidence that merely "completes the
story" or provides context to the charged crime. See Johnson, 463 F.3d at 808; Hall,
604 F.3d at 543–44.
The government properly supported introduction of Eschmann's and Goodwin's
testimonies. First, their testimonies show that Young actively sought another male
companion although Griesbauer was still alive, indicating his disposability. Second,
their testimonies demonstrate her preoccupation with realizing a financial return on
her husbands' deaths with life insurance proceeds. Although their testimonies reflect
poorly on Young, their testimonies nonetheless carry sufficient probative value
relating to Young's motives for hiring Mock to murder Griesbauer. As a result, their
testimonies are intrinsic because they complete the story surrounding the murders and
go beyond mere propensity evidence.
Consequently, the district court did not err in admitting Eschmann's and
Goodwin's testimonies over Young's 404(b) objections because their testimonies
provided intrinsic evidence of Young's offense.
B. Evidence of Conspiracy
Young contends that the district court erred in admitting Keri's and Thomas's
statements against Young that Mock solicited their help in finding someone to murder
Griesbauer for Young. Young contends that these statements should have been
admitted against only Mock; however, the district court admitted these non-hearsay
statements pursuant to Federal Rule of Evidence 801(d)(2)(E) as coconspirator
statements. Specifically, Young argues that the government failed to provide
corroborating evidence that Young and Mock entered into a conspiracy. In response
to Young's objection, the government told the district court that it was "in the process
of proving up the conspiracy" and that the conspiracy would be proven as they
proceeded. The court overruled Young's objection and allowed the government to
elicit the testimony. "We review the district court's interpretation of Federal Rule of
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Evidence 801(d)(2)(E) de novo . . . ." United States v. Cazares, 521 F.3d 991, 998 (8th
Cir. 2008). However, we "review the district court's admission of the out-of-court
statements as coconspirator statements made during and in furtherance of the
conspiracy under Rule 801(d)(2)(E) for an abuse of discretion, 'keeping in mind that
its discretion is particularly broad in a conspiracy trial.'" Id. (quoting United States v.
Davis, 457 F.3d 817, 824–25 (8th Cir. 2006)).
Federal Rule of Evidence 801(d)(2)(E) provides that a coconspirator's out-of-
court statement is not hearsay if the statement was made "during and in furtherance
of the conspiracy." A party may admit evidence pursuant to this Rule only if the party
demonstrates a conspiracy between the declarant and the defendant. Bourjaily v.
United States, 483 U.S. 171, 175 (1987). The district court must also find by a
preponderance of the evidence that the declarant made the statement "in the course of
and in furtherance of the conspiracy." United States v. Spotted Elk, 548 F.3d 641, 661
(8th Cir. 2008) (citing Bourjaily, 483 U.S. at 175). A court may conditionally admit
a coconspirator statement subject to later proof of the conspiracy to satisfy the
coconspirator rule and defer a final ruling on its admissibility until after hearing all
evidence. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). Additionally,
although courts may consider the contents of the statements, the government must
produce independent evidence outside of the statements themselves to establish the
existence of the conspiracy. United States v. Ragland, 555 F.3d 706, 713 (8th Cir.
2009). Finally, independent evidence of a conspiracy or illicit association may be
completely circumstantial. United States v. Martin, 866 F.2d 972, 980 (8th Cir. 1989)
(citing United States v. Scholle, 553 F.2d 1109, 1117 (8th Cir. 1977)).
We conclude that the government provided substantial evidence of Young and
Mock's conspiracy outside of the statements themselves. This evidence includes their
joint 911 call, their common alibi, their presence at the murder scene at the exclusion
of all others, the clear lack of suicide or accident, the ski mask that Mock purchased
that was found at the murder scene, Young's disdain for Griesbauer, the note found
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in Young's vehicle at her arrest, the life insurance policies, their financial distress, the
additional $10,000 Young requested when she refinanced the farm, Mock's belief that
she would receive money soon, and Bax's testimony relating to Young's jailhouse
statements. Furthermore, although some of the government's evidence related to
events that occurred after the events comprising Keri's and Thomas's testimonies, they
nonetheless indicate the presence of a conspiracy at the time Mock solicited their help
to kill Griesbauer. The government provided ample evidence of a conspiracy.
C. Confrontation Clause
Young argues that the admission of Deputy Salsberry's testimony stating
Mock's alibi violated Young's confrontation rights under the Sixth Amendment
because Young never had the opportunity to cross-examine Mock. The government
counters that the Confrontation Clause does not apply because Deputy Salsberry's
statements were not offered to prove the truth of Mock's assertion. Instead, the
statements showed that Young and Mock purposely matched their accounts to police.
"We review a district court's evidentiary rulings for clear abuse of discretion . . . ."
United States v. Watson, 650 F.3d 1084, 1088 (8th Cir. 2011). But "[w]e review
Confrontation Clause objections to the admission of evidence de novo." United States
v. Watson, 650 F.3d 1084, 1088 (8th Cir. 2011). Id.
After Deputy Salsberry arrived at the crime scene, he interviewed both Mock
and Young regarding Griesbauer's death. Mock and Young told Deputy Salsberry the
same story, essentially that Young heard a gunshot, hurried upstairs to wake Mock,
and the two ran outside to check on Griesbauer only to find him dead. The
government elicited Deputy Salsberry's statements about his conversations with
Young and Mock to illustrate that they had developed a common alibi.
The Sixth Amendment's Confrontation Clause provides that an accused in a
criminal case shall enjoy the right to confront witnesses who testify against him.
Crawford v. Washington, 541 U.S. 36, 42 (2004). In Crawford, the Court held that the
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Confrontation Clause bars testimonial out-of-court statements against a defendant who
has no opportunity to cross-examine the declarant. Id. at 68–69. Thus, a statement may
be admissible under the Rules of Evidence but be inadmissible under the
Confrontation Clause. Statements that police officers take pursuant to an interrogation
are testimonial. Id. at 52.
Crawford's reach has been limited in one key respect. The Crawford Court
indicated that the Confrontation Clause "does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted." Id. at 59, n.9.
Federal Rule of Evidence 801(c) defines hearsay as "a statement that: (1) the declarant
does not make while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement." Accordingly, some
courts have determined that the Confrontation Clause does not apply to out-of-court
statements that are non-hearsay. See, e.g., United States v. Woods, 301 F.3d 556, 561
(7th Cir. 2002) ("If statements are admissible because they are non-hearsay, there is
no confrontation clause problem.").
Most notably, this court has also acknowledged that non-hearsay out-of-court
statements do not implicate the Confrontation Clause. United States v. Yielding, 657
F.3d 688, 700 (8th Cir. 2011). In Yielding, we noted, "Statements are not hearsay
when 'the point of the prosecutor's introducing those statements was simply to prove
that the statements were made so as to establish a foundation for later showing,
through other admissible evidence, that they were false.'" Id. (quoting Anderson v.
United States, 417 U.S. 211, 219–20 (1974)). Furthermore, we concluded in Yielding
that "[b]ecause the statement [at issue] was not used to establish the truth of the matter
asserted, the evidence was not hearsay, and its admission also did not violate the
Confrontation Clause." Id.
Deputy Salsberry interviewed Mock after Deputy Salsberry knew that a
homicide occurred. Thus, he elicited testimonial statements from Mock during this
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interview. However, the government did not introduce these statements to prove the
truth of the matter asserted; rather, the government introduced these statements to
show that Young and Mock had a common alibi, scheme, or conspiracy. In fact,
Mock's statements to Deputy Salsberry are valuable to the government because they
are false. Therefore, the Confrontation Clause does not bar Deputy Salsberry’s
testimony.
D. Authentication of the Note
Young contends that the district court erred by allowing Mock to admit into
evidence a photocopied note that Young supposedly wrote. Police found the note
during a search incident to Young's arrest in a purse located in the passenger seat of
Young's truck.4 The note read, in relevant part, "Use her drugged state to convince her
she shot him. Offered 10,000 to kill him. Was turned down. If I collaborate her story.
Bucks. Sheriff here 3:30 p.m." Young specifically avers that Mock never properly
authenticated the note. The government did not attempt to introduce the note into
evidence because it could not "identify" the note. We review whether the district court
erred by admitting improperly authenticated evidence for an abuse of discretion and
disregard errors that do not affect a substantial right of a party. Kaplan v. Mayo Clinic,
653 F.3d 720, 725 (8th Cir. 2011).
Federal Rule of Evidence 901(a) provides that, to authenticate an item of
evidence, "the proponent must produce evidence sufficient to support a finding that
the item is what the proponent claims it is." Proponents of evidence may authenticate
an item through several methods including, "[t]he appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken together with
all the circumstances." Fed. R. Evid. 901(b)(4). A proponent of evidence may use
4
Young contends that neither the government nor Mock established that the
purse belonged to Young. However, Young was the only person in the truck at her
arrest. Furthermore, the purse sat atop the passenger seat within her reach. Thus, it is
reasonable to infer that the purse belonged to her.
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circumstantial evidence to satisfy this standard. Kaplan, 653 F.3d at 725–26. Once the
proponent satisfies this burden, the jury determines any further questions as to the
evidence's authenticity. Id. at 726. The contents of the writing may be considered to
authenticate it. United States v. Helmel, 769 F.2d 1306, 1312 (8th Cir. 1985). Notes
and other documents may be admitted despite the author's anonymity, especially when
the writings demonstrate the author's intimate familiarity with the events in question.
See id.
Young cites a Fifth Circuit case where the government failed to authenticate a
drug ledger when the government could not connect it to the crime at issue. United
States v. Jackson, 636 F.3d 687, 693–94 (5th Cir. 2011). Jackson is distinguishable.
First, the proponent in Jackson attempted to introduce the ledger under the business-
records exception to the hearsay rule, which requires establishment of a different
foundation before admission. Id. at 693. Based on this different foundation, the
Jackson court noted that it could not decipher "whether the ledgers were prepared by
someone with knowledge of the transactions they supposedly record, or whether they
record transactions at all." Id. Second, the codefendant produced the ledgers
voluntarily seeking a lighter sentence. Id. The ledgers were not found on the defendant
or in an item belonging to the defendant. Id. Third, the contents of the writing
contained numbers that could not be connected to the conspiracy by any conspirators.
Id. at 693–94. The subject matter of the ledger was therefore unclear. Id.
Here, on the other hand, the contents of the writing connect the writing to the
defendant. First, the writing was found in Young's purse. Second, the contents of the
note refer to drugging someone to get them to accept responsibility for a murder as
well as mentioning a $10,000 offer for killing someone and obtaining "bucks." The
writing did not contain mere numbers but a description, albeit brief, of a unique,
factual scenario to which the defendant was involved. Finally, Mock did not introduce
the writing under the business-record exception, which contains additional
foundational requirements. For these reasons, Jackson does not apply.
-18-
Additionally, the contents of the writing and the presence of the writing in
Young's purse satisfy the low threshold requiring the government to show that the
evidence is what it claims. The note was not admitted as a confession but merely as
a note in Young's possession that corroborated Mock's defense that Mock was
Young's intended "fall guy" for Griesbauer's murder. Mock therefore demonstrated
that this note is what she claimed it is by showing that the note's contents and
surrounding circumstances tied the note to Griesbauer's murder. The jury then decided
the weight to give this evidence and any additional questions of authenticity.
Furthermore, assuming that the district court erred, this court will disregard a
district court's error in admitting evidence if the error does not affect a party’s
substantial rights. See Kaplan, 653 F.3d at 725. In other words, we will not reverse the
district court's decision if the note's admission was harmless. Here, admission of the
note was harmless. First, while Mock introduced the note into evidence, the note was
never discussed or highlighted to the jury until Mock referenced the note briefly
during closing arguments. Second, abundant evidence supported the finding of
conspiracy without consideration of the note; in fact, the government had already
rested its case-in-chief without admitting the note. Instead, Mock introduced the note
after the government had already presented its case against Young.
E. Young's Second Account to Sheriff Clark
Mock sought to elicit testimony from Sheriff Clark that would inform the jury
of Young's second, conflicting account of the events that occurred on the night of
Griesbauer's death. Mock hoped that presentation of Young's conflicting accounts to
Sheriff Clark would provide evidence of Young's guilty conscience as well as
corroborate Mock's theory that Young set Mock up to be the "fall guy" for
Griesbauer's murder. The district court forbade the questions to Sheriff Clark at that
time, stating,
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[T]he most salient part of the discussion I think is the last thing that [the
Assistant United States Attorney] alluded to, which is that the statement
is in large part self-serving at this point in time. Now looking down the
road though, it's clear to me that more likely than not at some point in
time, we will be revisiting this statement, and more likely than not if
circumstances are right, it's probably going to come in. There is also an
incidental problem to the use of the statement now. That is a timing
issue. There are some things that most likely need to be brought out or
established before the statement can come in because it's just kind of
there and hanging there now. So having said that, I guess I'm sustaining
the Government's objection at this point in time.
Mock never again sought to introduce this testimony at trial; however, Mock now
challenges on appeal the district court's decision to exclude this testimony. We hold
that Mock failed to preserve this issue for appellate review.
Mock avers that the district court's ruling as to her objection was definitive
because the district court stated that it was "sustaining" the government's objection.
Federal Rule of Evidence 103(b) was amended in 2000 to provide, "Once the court
rules definitively on the record—either before or at trial—a party need not renew an
objection or offer of proof to preserve a claim of error for appeal." (emphasis added.)
The rule focuses on the definitiveness of the district court's ruling because renewed
objections to a district court's definitive decisions are an unnecessary formalism. Fed.
R. Evid. 103 advisory committee's note to 2000 Amendment. However, when the
district court reserves its ruling or otherwise indicates that the ruling is provisional,
then the proponent should reintroduce the court to the issue at the appropriate time.
Id. "The amendment imposes the obligation on counsel to clarify whether an in limine
or other evidentiary ruling is definitive when there is doubt on that point." Id.
This court has never defined precisely the bounds of a "definitive" ruling. We
have determined that a party failed to preserve an issue for appeal when the district
court made a tentative pretrial ruling and expressly invited the party to raise the issue
-20-
during trial where it could better assess the issue's relevance in the case. United States
v. Echols, 346 F.3d 818, 820 (8th Cir. 2003). The district court in Echols refused to
rule as to the relevance of the defendant's illegal-immigrant status, requiring instead
that the government approach the bench before eliciting this testimony. Id. The district
court never stated that it was "overruling" or "sustaining" any objection; however, by
reserving its ruling, the district court effectively excluded the evidence until the
parties presented additional facts that would make immigration status relevant. We
have reiterated the Echols holding where the district court expressly postpones ruling
on an evidentiary matter until the parties develop the factual context at trial. See
United States v. Morales, 684 F.3d 749, 755 (8th Cir. 2012).
We have also indicated that definitive rulings do not invite reconsideration. In
Sprynczynatyk v. General Motors Corp., we stated, "In the instant case the district
court made a definitive pre-trial ruling that affected the entire course of the trial. The
district court's denial of the motion was not made conditionally or with the suggestion
that the matter would be reconsidered." 771 F.2d 1112, 1118 (8th Cir. 1985)
(emphasis added).
Therefore, a district court's invitation to re-raise evidentiary challenges renders
its ruling non-definitive. The inquiry does not focus on magic words like "sustained"
or "overruled" but on the overall context of the ruling. When that context includes a
district court's invitation to re-raise the issue later at trial, then the ruling is not
definitive. As the advisory committee note to the 2000 amendment suggests, counsel
bears the burden of obtaining clarification as to whether a district court's ruling is
definitive. Here, the district court's invitation to re-raise the issue of whether it should
allow introduction of Young's conflicting account prevented its ruling from being
definitive. As a result, Mock failed to preserve this issue for normal appellate review.
-21-
Assuming, without deciding, that plain-error review is appropriate, Mock fails
to satisfy that standard.5 To prevail under plain-error review, the appellant must show
"(1) there was an error that was not affirmatively waived, (2) the error was . . . clear
and obvious, (3) the error affects . . . substantial rights, and (4) the error seriously
affects the fairness, integrity or public reputation of judicial proceedings." Lindsey,
702 F.3d at 1100 (alterations in original) (quoting United States v. Johnson, 688 F.3d
494, 504 (8th Cir. 2012)). Assuming, without deciding, that plain error occurred in
this case, the error did not affect Mock's substantial rights because the evidence
supporting her conviction was overwhelming. See Lindsey, 702 F.3d at 1100–01
(noting that a party's substantial rights are not violated where overwhelming evidence
of guilt supports verdict). This evidence includes Mock's presence at the crime scene,
her purchase of the ski mask, the presence of her DNA on the ski mask and latex
gloves, the gunpowder and gunshot residue on the gloves, her solicitations of Keri and
Thomas to kill Griesbauer, her financial struggles, and her statements to Ballard the
day after Griesbauer's death. Furthermore, introduction of Sheriff Clark's testimony
would be of little probative value considering that one of the primary purposes for its
introduction was to demonstrate Young's guilty conscience. The jury apparently did
not need additional evidence of Young's guilty conscience because the admitted
evidence was sufficient to convince the jury of Young's guilt. As a result, the district
5
Our cases are unclear as to the next step in the analysis following a
determination that the appellant failed to preserve an issue under Rule 103(b). We
have taken at least three positions. First, we have determined that a party's failure to
seek a final ruling waives the issue such that the appellate court undertakes no review.
Morales, 684 F.3d at 755; Echols, 346 F.3d at 821. Second, we have determined that
a party's failure to seek a final, definitive ruling allows us to review for plain error.
United States v. Lindsey, 702 F.3d 1092, 1100 (8th Cir.), cert. denied, 133 S. Ct. 2842
(2013). Finally, we have determined that we will conduct plain-error review when the
appellant fails to obtain a definitive ruling as a matter of oversight rather than from
a tactical decision not to object. United States v. Frokjer, 415 F.3d 865, 871 (8th Cir.
2005). This court will not review a district court's non-definitive ruling where the
appellant makes the tactical decision to refrain from further objections. Id.
-22-
court did not adversely affect Mock's substantial rights by excluding testimony
relating to Young's second account to Sheriff Clark.
F. Severance
Young and Mock both contend that the district court erred by refusing to sever
their trial pursuant to Federal Rule of Criminal Procedure 14(a), which provides, "If
the joinder of . . . defendants . . . for trial appears to prejudice a defendant or the
government, the court may order separate trials of counts, sever the defendants' trials,
or provide any other relief that justice requires." Young's arguments stem from her
previous arguments, namely that none of Mock's statements to Keri and Thomas,
Mock's statements to Deputy Salsberry, or the note found in Young's possession at her
arrest would have been admitted against her had their trials been severed. Mock rests
her objection on three arguments: (1) Young and Mock had mutually antagonistic
defenses that substantially impaired their rights to a fair trial; (2) the district court's
exclusion of Young's second, conflicting account of the night of the murder would
have been admitted except for Young's presence at the trial; and (3) introduction of
evidence involving Young's "sordid" sexual exploits prejudicially tainted Mock before
the jury. The government counters that the district court was well within its discretion
to allow the joint trial of coconspirators and that no clear prejudice resulted. This court
will not reverse a denial of a motion to sever absent abuse of discretion and clear
prejudice. United States v. Sandstrom, 594 F.3d 634, 642 (8th Cir. 2010).
Three of Young's and Mock's contentions have no merit. First, Young contends
that the district court would not have admitted Mock's statements to Keri and Thomas
except that the district court erred in admitting them as coconspirator statements. She
also contends that her Confrontation Clause rights were violated when the government
introduced Mock's statements through Deputy Salsberry. As previously addressed,
Young's arguments fail because the district court properly admitted Keri's and
Thomas's testimonies under Rule 801(d)(2)(E) such that the statements were
admissible against Young. See Part II.B., supra. Additionally, the government's
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introduction of Deputy Salsberry's testimony did not violate Young's confrontation
rights because the statements were not offered to prove the truth of the matter asserted.
See Part II.C., supra. The government would likely have introduced these items of
evidence at a separate trial because they show that Young and Mock conspired
together. Thus, severance on these grounds would not assist Young.
Second, Mock contends that the district court should have granted the motion
to sever because Mock was unable to present Sheriff Clark's testimony regarding
Young's second contradictory account of the night of the murder. As previously
discussed, Mock failed to preserve her objection to the district court's exclusion of this
testimony, and the district court did not plainly err. See Part II. E., supra. Thus, Mock
cannot prevail on this argument. The remaining grounds for severance are that the
note found in Young's purse should not have been admitted at the joint trial, that
Young and Mock advanced mutually antagonistic defenses, and that the sexually
explicit testimony directed toward Young substantially tainted Mock in the eyes of the
jury.
"[W]here a defendant demonstrates that a joint trial will prejudice [her] right to
a fair trial, the court must sever the trials." United States v. Engleman, 648 F.2d 473,
480–81 (8th Cir. 1981) (citation omitted). The district court may sever trials if it
appears that compelling or severe prejudice will result to the defendant. United States
v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003). Prejudice is "some appreciable chance
that defendants would not have been convicted had the separate trial they wanted been
granted." Sandstrom, 594 F.3d at 644 (quotation and citation omitted). Defendants
may show real prejudice to their right to a fair trial by demonstrating that their defense
is irreconcilable with a codefendant's defense, or the jury will be unable to properly
compartmentalize the evidence as it relates to the separate defendants. United States
v. Mueller, 661 F.3d 338, 347–48 (8th Cir. 2011), cert. denied, 132 S. Ct. 1951
(2012). Thus, the defendant must demonstrate more than a higher probability of
acquittal had severance been granted. Zafiro v. United States, 506 U.S. 534, 540
-24-
(1993). Consequently the defendant carries a heavy burden in demonstrating that
severance is mandated. Sandstrom, 594 F.3d at 644. This is especially true when the
district court, like here, provides limiting instructions to the jury on the use of
evidence against only one defendant. See Zafiro, 506 U.S. at 539. Finally, severe
prejudice may occur when evidence against one defendant is admitted despite it not
being admissible had a defendant been tried alone. Id.
"Generally, persons charged in a conspiracy should be tried together, especially
when proof of the charges against the defendants is based upon the same evidence and
acts." Mueller, 661 F.3d at 347 (quotation and citation omitted). A joint trial is
preferable because it "gives the jury the best perspective on all of the evidence and,
therefore, increases the likelihood of a correct outcome." Pherigo, 327 F.3d at 693
(quotation and citation omitted). Finally, the decision to grant severance to a
defendant from a joint trial is within the district court's discretion. United States v.
Ortiz, 315 F.3d 873, 898 (8th Cir. 2002).
1. Authentication of the Note
Young contends that the note found in her purse at arrest would not have been
introduced at a severed trial. Young also argues that the district court erroneously
admitted the note because of a lack of authentication; however, as previously
discussed, Mock sufficiently authenticated this note. See Part II.D., supra. Young is
correct that the note likely would not have been introduced against her except that the
district court tried Young and Mock together. However, the jury apparently gave the
note little credence, if any, considering that it still found Mock guilty. In light of the
overwhelming evidence of her guilt, we conclude that Young has not shown severe
prejudice, and the district court did not abuse its discretion.
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2. Mutually Antagonistic Defenses
The Supreme Court has held that mutually antagonistic defenses are not
prejudicial per se. Zafiro, 506 U.S. at 538. Mutually antagonistic defenses necessitate
severance only when the jury may unjustifiably infer that the defendants' conflicting
defenses alone demonstrate that both are guilty. Sandstrom, 594 F.3d at 644. The
government may nonetheless offer sufficient evidence that both are guilty independent
of the parties' antagonism. Id. at 645. Severance is not required where one defendant
merely shifts blame to a codefendant. United States v. Bordeaux, 84 F.3d 1544, 1547
(8th Cir. 1996). Where codefendants blame each other as the sole actor, severance is
not required where the government does not ask the jury to decide which defendant
murdered the victim but rather that they murdered the victim together or conspired to
murder the victim. Ortiz, 315 F.3d at 898.
Mock contends that the parties' joint trial compromised their right to a fair trial
because they advanced mutually antagonistic defenses. Mock and Young essentially
accuse each other of killing Griesbauer alone. Here, like in Ortiz, two codefendants
accuse each other of committing a shooting alone. Id. In determining whether the law
required severance in that situation, we explained in Ortiz that "[w]hile only one man
committed that act, the government's theory of the case did not require the jury to
decide who shot [the victim]. The indictment charged defendants with crimes,
including conspiracy and aiding and abetting, that did not require jurors to choose a
particular defendant as the shooter." Id. The government's theories here are the same.
The government charged Young and Mock with conspiracy to commit murder-for-hire
and murder-for-hire under an aider and abetter theory. Thus, the jury was not required
to determine who pulled the trigger. We conclude that the district court did not abuse
its discretion in denying the defendants' motions to sever their trial.
3. Taint on Mock's Reputation
Mock additionally contends that she was severely prejudiced by the taint she
received when the government produced evidence of Young's "sordid" sexual exploits
-26-
to show Young's disdain for Griesbauer, as well as her motivation to save her farm by
collecting life insurance proceeds. We have affirmed rulings permitting evidence far
more inculpatory than Young's sexual misbehavior. For example, in United States v.
Kuenstler, this court determined that severance was not required despite introduction
of evidence involving a codefendant's criminal record, his greater involvement in the
crimes charged, his participation in other attempts and schemes to make
methamphetamine, and his threats to witnesses. 325 F.3d 1015, 1024 (8th Cir. 2003).
Furthermore, we have noted that proper limiting instructions can alleviate or minimize
any potential harm that codefendants contract from evidence that reflects poorly on
them. See United States v. Adams, 401 F.3d 886, 895 (8th Cir. 2005); United States
v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995).
Here, the court twice instructed the jury to consider the evidence in question
against Young only. Additionally, this court has determined that district courts did not
err by refusing to sever the trials of codefendants in situations where the "stain"
created by evidence used against one defendant was far more inculpatory than the
evidence presented here. See Kuenstler, 325 F.3d at 1024. As a result, we hold that
Mock has not shown that the testimony introduced against Young prejudiced her such
that reversal on severance grounds is warranted.
G. Batson Challenges
Young and Mock, both Caucasian,6 challenge the government's use of
peremptory strikes on certain potential African-American jurors. The government
contends that it had valid, non-discriminatory reasons for the strikes. This court
reviews a district court's denial of Batson challenges for clear error. United States v.
Hart, 544 F.3d 911, 914 (8th Cir. 2008).
6
One may lodge a Batson challenge despite a difference in the challenger's race
and the race of those against whom discriminatory strikes have been made. Powers
v. Ohio, 499 U.S. 400, 415–16 (1991).
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In Batson, the Supreme Court held that the prosecution's use of peremptory
strikes on qualified jurors for purely racial reasons violates the Equal Protection
Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 89 (1986).
Snyder v. Louisiana outlined the proper procedure for deciding a Batson challenge
based on race. 552 U.S. 472, 476–77 (2008). First, the challenger must make a prima
facie showing that the opponent exercised the peremptory challenge on the basis of
race. Id. at 476. Second, the opponent must provide a race-neutral reason for striking
the juror in question. Id. at 476–77. Third, the trial court must determine whether the
opponent purposely discriminated such that its race-neutral reasons were mere pretext
for discriminatory intent. Id. at 477. A Batson challenger may rely on "all relevant
circumstances to raise an inference of purposeful discrimination." Miller-El v. Dretke,
545 U.S. 231, 240 (2005) (quotation and citation omitted). These circumstances
include whether the government's race-neutral justifications also applied to similarly
situated jurors who belong to a race against whom the government did not allegedly
discriminate. Id. at 241. The characteristics of similarly situated jurors need not match
perfectly with the excluded jurors, for "potential jurors are not products of a set of
cookie cutters." Id. at 247 n.6. The district court's consideration of the persuasiveness
of the prosecutor's justification is important. Miller-El v. Cockrell, 537 U.S. 322,
328–29 (2003). Implausible or fantastic reasons demonstrate pretext. Id. at 329.
Trial courts thus play a critical role during a Batson challenge. Snyder, 552 U.S.
at 477. The trial court is responsible for viewing the jurors' demeanor, which can be
a race-neutral justification in the exercise of a peremptory challenge.7 Id. Thus, the
7
This court has upheld a variety of race-neutral justifications that are relevant
here. First, one's status as a renter can be a race-neutral reason for exercising a
peremptory strike because it demonstrates a lack of connection to the community.
United States v. Adams, 604 F.3d 596, 601 (8th Cir. 2010). Second, a juror's
employment may make the juror more sympathetic to a criminal defendant such that
the exercise of a peremptory strike would be race neutral. United States v. Maxwell,
473 F.3d 868, 872 (8th Cir. 2007). For example, a juror's job as a teacher or social
worker could make the juror more sympathetic to a criminal defendant. Id. (teacher);
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trial court must determine "whether the juror's demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror by the prosecutor." Snyder, 552
U.S. at 477. These determinations of demeanor and credibility are exclusively within
the province of the trial court. Id. Finally, in the absence of exceptional circumstances,
reviewing courts will defer to the trial court. Id. In order for a reviewing court to give
deference to the trial court on a demeanor question, the trial court must confirm in the
record that the juror's demeanor was a sufficient basis for the peremptory challenge.
Id. at 479.
Here, the government provided sufficient race-neutral justifications for each of
the challenged jurors. During jury selection, the government struck five African-
American jurors as well as one alternate via peremptory challenge. The defendants
challenged strikes to Panel Members 2, 12, 28, and alternate 35 after conceding their
challenges on two strikes. Mock and Young also struck three African-American
jurors, and five African-Americans sat on the resulting jury.
1. Juror #2
The defendants contend that the government's use of a peremptory strike on
Juror #2 violated Batson. The government offered several reasons for striking Juror
#2. First, Juror #2 rented her apartment for eleven years, indicating a potential lack of
connection to the community. Second, Juror #2 hardly spoke during voir dire. Finally,
United States v. Meza-Gonzalez, 394 F.3d 587, 593–94 (8th Cir. 2005) (social
worker). Third, body language and demeanor can be a sufficient reason to strike a
juror. Id. Fourth, this court has rejected the argument that the government should have
questioned a juror further during voir dire about race-neutral concerns when the
information later becomes known or is already known such that additional questions
are not needed. Adams, 604 F.3d at 601. Finally, this court has upheld strikes against
jurors who have close family members whose job indicates bias. United States v.
Atkins, 25 F.3d 1401, 1406 (8th Cir. 1994) (friends or relatives that worked for
government).
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Juror #2 worked at the St. Patrick's Center—a facility with a goal of rehabilitating
criminals following their release from prison.
The district court opined that the most significant reason for a strike was Juror
#2's silence. However, as the defendants correctly indicate, Juror #2 spoke more than
other similarly situated white jurors. Other white jurors also rented their residences
and were unemployed. However, none of the other similarly situated white jurors
worked to help rehabilitate criminals. Although the trial court concluded that Juror
#2's relative silence was the primary reason for allowing the strike, the government
never advanced Juror #2's silence as its main reason. In fact, the government stated
during voir dire that "the significant thing is that she worked at the St. Patrick's Center
for five years, which I would consider somebody that you might not want on a
criminal jury from the prosecution's standpoint." Juror #2's employment with the St.
Patrick's Center provides a race-neutral justification for the government's peremptory
challenge, so the district court did not clearly err by denying the defendants' Batson
challenge. Furthermore, the government need not have questioned Juror #2 further
when the government already possessed a race-neutral justification for striking Juror
#2. The government knew that the St. Patrick's Center rehabilitated criminals. We
conclude that the district court did not clearly err in rejecting the Batson challenge
despite the government's decision not to pose additional questions to Juror #2 about
her employment.
2. Juror #12
The government struck Juror #12 because of her unemployment and a story that
she related about a daughter who was attacked by three girls while walking to school.
Her daughter did not identify the attackers. The government contended that Juror
#12's hesitation in telling this story raised suspicions about her objectivity.
The defendants argue that Juror #12's unemployment was a pretextual reason
because other similarly situated white jurors were also unemployed. While this could
-30-
be true, Juror #12's hesitant description of the attack on her daughter provides a race-
neutral justification for striking her. Although the defendants argue that the mother of
a crime victim is more likely to align with the government, the district court observed:
I think [the Assistant United States Attorney] said in essence it was
unclear as to really where she stood on this crime victim question. Now
did she think her daughter should have done something else, was she
unhappy with the police about how they investigated, should her
daughter have been more detailed in the description or in her ability to
identify those who she alleged attacked her, or was she dissatisfied with
what her daughter did or didn't do or how her daughter may have
behaved. All those things were unclear by her response.
The district court's analysis of Juror #12's demeanor while she told the story,
coupled with the story itself, satisfies the Snyder requirement that the trial court
discuss juror demeanor when the juror's demeanor is a reason for the strike.
Furthermore, while Juror #12 might favor the government as the mother of a crime
victim, she also could disfavor the government because she felt the police poorly
investigated her daughter's attack. The government provided a sufficient race-neutral
justification to overcome any allegations of pretext.
3. Juror #28
The government contends that it struck Juror #28 because she was unemployed,
rented her residence, and appeared confused during voir dire. The defendants contend
that other similarly situated white jurors also rented and were unemployed; however,
the government and the district court noted on the record that Juror #28 appeared
confused while asking a question, providing a race-neutral justification for striking
her.
Juror #28 asked whether both defendants were charged with two crimes. As the
defendants point out, the trial transcript certainly indicates that Juror #28 posed a
-31-
thoughtful question. However, the trial transcript fails to disclose Juror #28's
demeanor while asking the question. As the Court noted in Snyder, the trial court has
the responsibility to evaluate a juror's demeanor and credibility and must comment on
the record about the juror before allowing the government's peremptory challenge.
Here, the district court properly addressed Juror #28's confused demeanor on the
record, stating:
The response that [the Assistant United States Attorney] gave in
explaining his peremptory challenge of her, that she appeared somewhat
confused and baffled about what the charges were and how many
charges there were as to each defendant, yes, on its face it seems to be an
intriguing and thoughtful question, but as you think about it and observe
her language, body language, and the expressions on her face when
asking the question, I think [the Assistant United States Attorney] has hit
it on the head in explaining his challenge for her. The way I would
describe [Juror #28] in her inquiry is the same thing I say about my son.
If you listen to him when he first makes statements to you that you might
have an issue about, it sounds like it's perfectly logical and makes sense.
But if you look a little deeper and think about the language and the body
language, you conclude that it doesn't make a lot of sense and there is
some difficulty there.
The district court properly fulfilled its Snyder duty to comment on a juror's
demeanor when the juror's demeanor is the primary reason for the strike. Judges, no
doubt, might differ in their evaluation of this juror for purposes of Batson. On appeal,
we cannot say that the district court erred in denying the defendants' Batson challenge
to the government's peremptory strike of Juror #28.
4. Alternate Juror #35
Young also contends that the government wrongfully struck Juror #35. Young's
argument fails because the government provided a sufficient race-neutral justification
for the strike. Juror #35's mother worked at a nonprofit organization that helped
transition people from prison to outside employment. The government argued that
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Juror #35 was relatively young and lived with her mother, making her susceptible to
potential bias from her mother's occupation. This reason is race neutral. We hold the
use of a peremptory strike for Alternate Juror #35 was not improper.
H. Sufficiency of the Evidence Regarding a Bargain-for Exchange
Finally, Young and Mock both contend that the district court erred by denying
their motion for judgment as a matter of law because, according to them, the evidence
failed to establish that either party received valuable consideration for commission of
the offense. This court reviews questions as to the sufficiency of the evidence de novo,
"viewing evidence in the light most favorable to the government, resolving conflicts
in the government's favor, and accepting all reasonable inferences that support the
verdict." United States v. Gray, 700 F.3d 377, 378 (8th Cir. 2012) (quotations and
citations omitted). This court will not weigh the evidence or witnesses' credibility, for
the jury alone resolves conflicts in the testimony. Gray, 700 F.3d at 378. "We reverse
only if no reasonable jury could have found guilt beyond a reasonable doubt." Id.
(quotation and citation omitted). The standard that this court applies "to determine the
sufficiency of the evidence is a strict one, and the finding of guilt should not be
overturned lightly." United States v. Hyles, 521 F.3d 946, 954 (8th Cir. 2008)
(quotation and citation omitted).
The defendants' crime of conviction provides,
Whoever . . . uses or causes another (including the intended victim) to
use the mail or any facility of interstate or foreign commerce, with intent
that a murder be committed in violation of the laws of any State or the
United States as consideration for the receipt of, or as consideration for
a promise or agreement to pay, anything of pecuniary value, or who
conspires to do so, shall be . . . imprisoned for not more than ten years
. . . and if death results, shall be punished by death or life imprisonment
....
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18 U.S.C. § 1958(a). The defendants challenge whether the government provided
sufficient proof that Young promised to pay Mock for her assistance in murdering
Griesbauer. The defendants do not challenge whether the government proved any
other elements of this crime.
The government must prove three elements to convict a defendant for violating
the substantive portion of 18 U.S.C. § 1958(a). These include that the defendant: "(1)
used or caused another to use the mail or a facility in interstate commerce, (2) with the
intent that murder is committed, (3) for hire." United States v. Mueller, 661 F.3d 338,
345 (8th Cir. 2011). The "for hire" element typically requires consideration or some
form of bargained-for exchange. A quid pro quo contractual arrangement can satisfy
the "for hire" element. United States v. Washington, 318 F.3d 845, 854 (8th Cir.
2003). Thus, the payment for the murder could consist, theoretically, of a promise to
give a peppercorn. See, e.g., United States v. Acierno, 579 F.3d 694, 701 (6th Cir.
2009) (holding that a promise of giving $100 is sufficient consideration).
The defendants cite United States v. Wicklund for the proposition that the "for
hire" element requires something more than a mere "expectation of receiving
pecuniary value," for the statute requires "consideration." 114 F.3d 151, 153–54 (10th
Cir. 1997). Thus, consideration under the statute means either payment of
consideration or a promise to pay it. Id. at 154. As a result, the defendants posit that
the jury must speculate that Young paid Mock or promised to pay Mock money as
consideration for Griesbauer's murder.
However, in evaluating the sufficiency of evidence to sustain a verdict,
circumstantial evidence must be treated no differently than direct evidence. United
States v. Lam, 338 F.3d 868, 871 (8th Cir. 2003). Here, the government provided
significant circumstantial evidence to support a jury verdict that Young promised to
pay Mock money in consideration for Griesbauer's murder. First, Keri's and Thomas's
testimony reveal that Mock solicited others to murder Griesbauer for money on
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Young's behalf. Second, Young insisted on receiving an extra $10,000 from her lender
above that needed to pay off her debts on the farm mere hours before Griesbauer's
death. Third, Young had previously solicited Newlin to murder an ex-husband for
exactly $10,000. Fourth, despite Mock's financial hardships, she informed Ballard that
she would soon be able to settle her debts with interest. Fifth, the defendants' presence
at the crime scene and overlapping alibis demonstrate the presence of a scheme to
murder Griesbauer. Consequently, when one considers the evidence in a light most
favorable to the jury verdict, this evidence leads to the reasonable inference that
Young promised to pay Mock $10,000 to murder Griesbauer. Thus, the defendants'
argument must fail.
III. Conclusion
Based on the foregoing, we affirm the judgment of the district court.
KELLY, Circuit Judge, concurring.
Young and Mock were charged with two federal crimes: (1) using facilities of
interstate commerce in the commission of a murder-for-hire (Count 2); and (2)
“conspir[ing] to do so” (Count 1), both in violation of 18 U.S.C. § 1958. While I
concur in the court’s judgment to affirm these convictions, I write separately because
I sense an increasing misunderstanding of the relevant statute at issue in this case.
“Section 1958(a) is not a murder statute; it is a carefully-drafted federal
criminal law of constitutionally limited scope.” United States v. Delpit, 94 F.3d 1134,
1150 (8th Cir. 1996). Section 1958 reads as follows:
Whoever travels in or causes another (including the intended victim) to
travel in interstate or foreign commerce, or uses or causes another
(including the intended victim) to use the mail or any facility of interstate
or foreign commerce, with intent that a murder be committed in violation
of the laws of any State or the United States as consideration for the
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receipt of, or as consideration for a promise or agreement to pay,
anything of pecuniary value, or who conspires to do so, shall be
[punished according to this statute].
18 U.S.C. § 1958(a). As we have previously explained:
This statute is relatively straightforward, both in what it prohibits and in
what it does not reach. It does not prohibit murder or attempted murder.
Instead, it outlaws using interstate-commerce facilities with the intent
that murder-for-hire be committed. Once the interstate-commerce
facility is used with the required intent the crime is complete. One who
travels or causes another to travel in interstate commerce with the
necessary murderous intent need not do anything else to violate the
statute. See [United States v. ]McGuire, 45 F.3d [1177,] 1186–87 [(8th
Cir. 1995)]. It is clear, moreover, that a defendant can violate § 1958(a)
without actually hurting or killing anyone, because the statute provides
for enhanced punishment when death or injury results from the
defendant’s violation of the statute. If there were any doubt, it would be
dispelled by the clear legislative history:
The gist of the offense is the travel in interstate commerce
or the use of the facilities of interstate commerce or of the
mails with the requisite intent and the offense is complete
whether or not the murder is carried out or even attempted.
Delpit, 94 F.3d at 1149–50 (quoting S. Rep. No. 225, 98th Cong., 2d Sess. 306 (1984),
reprinted in, 1984 U.S.C. Cong. & Admin. News 3182, 3485). Thus, the elements of
Count 2, as relevant to this case, are that a defendant (1) used a facility in interstate
commerce, or caused another to do so; (2) with the intent that a murder be committed;
(3) “as consideration for a promise or agreement to pay,” i.e., “for hire.” Id. at 1149.
In this case, the government started its closing argument by addressing the
elements of the offense. After listing a few examples of the use of a facility in
interstate commerce, including the use of a telephone or a debit card, the government
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argued to the jury: “So clearly interstate facilities have been used in furthering this
crime.” But Young and Mock were not charged with using a facility of interstate
commerce “in furtherance of” the crime of murder or murder-for-hire. Rather, they
were charged with using a facility of interstate commerce, with the requisite intent.8
To the extent some of our cases suggest otherwise, I respectfully submit that Delpit
provides the more accurate reading of the statute. Compare Delpit, 94 F.3d at
1149–51, with United States v. Basile, 109 F.3d 1304, 1310–13 (8th Cir. 1997), and
United States v. Mueller, 661 F.3d 338, 345–47 (8th Cir. 2011).9
______________________________
8
The government also argued that “every phone call to the insurance
companies” would be sufficient to establish the element of “use” beyond a reasonable
doubt. Any phone call made after the murder, however, cannot be the “use” that
amounts to the crime. Logically speaking, a person cannot “use” a facility of
interstate commerce with the requisite intent after the murder has occurred.
9
Similarly, the conspiracy charged in this case was not a simple conspiracy to
commit murder or even to commit a murder-for-hire, which happens to involve the use
of a facility of interstate commerce. “To prove a conspiracy, the government needed
to prove an agreement, between at least two people, the objective of which was to
violate federal law.” Delpit, 94 F.3d at 1151. Under § 1958, the object or illegal
purpose of the charged conspiracy is to use a facility of interstate commerce with the
intent to commit a murder-for-hire. See id. (reversing § 1958 conspiracy conviction
because “[t]he government presented no evidence suggesting that Lynn conspired to
cause [another person] to travel, or that she conspired with [another person] to
travel, with the intent that a murder-for-hire be committed” (emphasis added)).
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