USA v. Theresa Tolliver

Filing

UNPUBLISHED OPINION FILED. [10-50239 Affirmed ] Judge: CDK , Judge: WG , Judge: WED Mandate pull date is 11/22/2010 for Appellant Theresa Ann Tolliver [10-50239]

USA v. Theresa Tolliverse: 10-50239 Ca

Document: 00511280824 Page: 1 Date Filed: 11/01/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 1, 2010 N o . 10-50239 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff ­ Appellee v. T H E R E S A ANN TOLLIVER, D e fe n d a n t ­ Appellant

A p p e a l from the United States District Court for the Western District of Texas N o . 5:08-CR-614

B e fo r e KING, GARWOOD and DAVIS, Circuit Judges. P E R CURIAM:* T h e r e s a Tolliver was charged with and convicted of conspiring to commit in t e r s t a t e murder-for-hire in relation to the death of her estranged husband, D e r r ic k Tolliver. She appeals, attacking her conviction on six different bases. For the following reasons, we AFFIRM her conviction. I . FACTUAL AND PROCEDURAL BACKGROUND A. F a c t u a l Background

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 10-50239 Document: 00511280824 Page: 2 Date Filed: 11/01/2010

No. 10-50239 D e fe n d a n t Theresa Tolliver and victim Derrick Tolliver were married in 1 9 8 3 .1 Derrick was an active-duty member of the Air Force and stationed in San A n t o n io , Texas. In October 1998, Theresa and Derrick separated, and Theresa p e t it io n e d for divorce a few months later. The court issued a temporary

r e s t r a in in g order, which, among other things, prevented either of the parties fr o m entering the other's home without permission, prevented either party from c h a n g in g the beneficiary on his or her life insurance policy, and granted primary p la c e m e n t of the couple's two minor children, Donald and Derrick Jr., to Derrick. This order was to remain in effect during the pendency of the divorce p r o c e e d in g s . In the fall of 2000, Theresa and Derrick agreed to a divorce

s e t t le m e n t , and in November 2000, they were awaiting court approval of the s e t t le m e n t before the divorce could become final. Around the time she initiated divorce proceedings, Theresa began dating E m a n u e l Fonzie, who was approximately 18 years her junior. According to the e v id e n c e presented at trial, in the fall of 2000, Theresa and Fonzie hatched a p la n to have Derrick murdered before the court approved the divorce settlement a n d Theresa was no longer the beneficiary of Derrick's life insurance policies. The two planned to hire Fonzie's friend, Jeremy Farr, who lived in Arkansas, to c o m m it the murder. Sometime in late October or early November 2000, Fonzie called Farr in A r k a n s a s , telling Farr that he had a "lick," or a job, for him. The two had s e v e r a l phone conversations wherein Fonzie agreed to pay Farr $50,000 to travel t o San Antonio and murder Derrick. Fonzie then sent Farr a bus ticket to travel fr o m Arkansas to San Antonio. F a r r arrived in San Antonio on November 17, 2000. After Farr arrived, F o n z ie again offered to pay him to murder Derrick before Theresa and Derrick's
1

For the sake of clarity throughout this section, we refer to the defendant as Theresa and the victim as Derrick.

2

Case: 10-50239 Document: 00511280824 Page: 3 Date Filed: 11/01/2010

No. 10-50239 d iv o r c e was finalized. Fonzie promised Farr that he would be paid "when the c h e c k come in," meaning (according to Farr) when Theresa collected the proceeds fr o m Derrick's life insurance policies. Farr also met with Theresa, who

c o n fir m e d that she wanted Farr to kill Derrick. D u r in g the afternoon of November 20, 2000, Theresa brought Fonzie and F a r r to Derrick's house under the pretense of retrieving extra clothes for Donald a n d Derrick Jr. Derrick was not at home, and Derrick Jr. testified that he had t o use a butter knife to open the door. During the visit, Theresa showed Fonzie a n d Farr where they could safely wait for Derrick to arrive home, showed them h o w to enter and exit the yard, unlocked a window for them, and directed them w h e r e to park the car during the murder. Theresa then brought the group to R a n d o lp h Air Force Base, where Derrick worked, and pointed out Derrick's car t o Fonzie and Farr. T h a t evening, Fonzie and Farr went to Derrick's house to wait for him to a r r iv e home. They parked in a vacant driveway across the street, and Fonzie h a n d e d Farr a .380 handgun. The two then entered the yard through a hole in t h e privacy fence. Farr removed the screen from the window that Theresa had u n lo c k e d , and the two entered the house where they waited for Derrick. While t h e y waited, they ransacked the house to make it appear as though the house h a d been burglarized. When Derrick entered the house, Farr fired two shots into h is head, killing him instantly. Farr and Fonzie then fled the scene. T h e day after the murder, detectives questioned Theresa, Fonzie, and Farr a b o u t the murder. Each gave a written statement, and all denied any

in v o l v e m e n t in Derrick's death. On November 22, 2000, as Derrick's widow, T h e r e s a received a "death gratuity" from the Air Force. This payment is meant t o cover immediate funeral and burial expenses of active-duty service members. F a r r stayed in San Antonio for several days before returning to Arkansas. Before he left, Theresa purchased a sweater, a pair of jeans, and a CD for him 3

Case: 10-50239 Document: 00511280824 Page: 4 Date Filed: 11/01/2010

No. 10-50239 u s in g the money she received from the Air Force. Fonzie also gave Farr between $ 2 0 0 and $500 in cash. F o llo w in g Derrick's death, Theresa made efforts to claim benefits under t w o separate life insurance policies. The first had a face value of approximately $ 1 5 0 ,0 0 0 . Unbeknownst to Theresa, Derrick had changed the beneficiary from T h e r e s a to her daughter, Hazel Tolliver, in July 2000. Hazel received the p r o c e e d s from that policy in February 2001. After Hazel received the money, she c h a r g e d Theresa with making distributions to various family members. Theresa m a d e some of the distributions, but spent approximately $75,000 of the money w it h o u t Hazel's permission. During the summer of 2001, Theresa used some of t h e money to travel to Arkansas, Georgia, and Florida. While in Arkansas, T h e r e s a made several ATM withdrawals, totaling approximately $2,800. A c c o r d in g to Farr, Theresa paid him "a couple thousand" in cash during her v is it . T h e second policy had a face value of approximately $200,000. Theresa, s t ill the named beneficiary at the time of Derrick's death, collected the proceeds fr o m this policy in February 2002. After she received the life insurance

p r o c e e d s , Theresa purchased several vehicles, including a Dodge Durango, a B M W , and a Lincoln LS. She did not pay Farr any more money. B. P r o c e d u r a l Background T h e murder case was cold for several years because detectives were never a b le to conclusively link Theresa, Fonzie, or Farr to Derrick's murder. In 2004, F a r r was charged with murder in Texas state court when police received a tip fr o m his friend. After a jury found him guilty, but prior to sentencing, Farr o f fe r e d to cooperate with investigators in exchange for a lower sentence r e c o m m e n d a tio n . Based on the information supplied by Farr, Fonzie and Theresa were c h a r g e d with murder in Texas state court. Fonzie was found guilty, but the 4

Case: 10-50239 Document: 00511280824 Page: 5 Date Filed: 11/01/2010

No. 10-50239 s t a t e charges against Theresa were dropped. The federal government then in d ic t e d Theresa for conspiring to commit interstate murder-for-hire in violation o f 18 U.S.C. § 1958(a).2 T h e r e s a pleaded not guilty. Farr testified against her at trial, but Fonzie d id not. Following a three-day jury trial, the jury rendered a guilty verdict. The d is t r ic t court sentenced Theresa to life in prison and ordered her to pay r e s t it u t io n in the amount of $524,200.73. She now appeals her conviction, r a is in g six separate issues on appeal. I I . DISCUSSION A. R u le 404(b) Objections T h e defendant first challenges two evidentiary rulings made by the district c o u r t, arguing that the evidence was admitted in violation of Federal Rule of E v id e n c e 404(b). We review a district court's decision to admit or exclude e v id e n c e for abuse of discretion. United States v. Yi, 460 F.3d 623, 631 (5th Cir. 2 0 0 6 ). R u le 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not a d m is s ib le to prove the character of a person in order to show action in c o n fo r m it y therewith." "Other act" evidence is admissible only if (1) the evidence is "relevant to an issue other than the defendant's character," and (2) the ev id e n c e 's probative value is not substantially outweighed by its undue prejudice t o the defendant. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978).

2

The murder-for-hire statute provides:

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 receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned . . . . 18 U.S.C. § 1958(a).

5

Case: 10-50239 Document: 00511280824 Page: 6 Date Filed: 11/01/2010

No. 10-50239 R u le 404(b) is not implicated, however, where the other act evidence is in t r in s ic to the crime charged. United States v. Garcia, 27 F.3d 1009, 1014 (5th C ir . 1994). " `Other act' evidence is intrinsic when the evidence of the other act a n d the evidence of the crime charged are inextricably intertwined or both acts a r e part of a single criminal episode or the other acts were necessary p r e lim in a r ie s to the crime charged." United States v. Williams, 900 F.2d 823, 8 2 5 (5th Cir. 1990) (citations omitted). "Intrinsic evidence is admissible to c o m p le t e the story of the crime by proving the immediate context of events in t im e and place, and to evaluate all of the circumstances under which the d e f e n d a n t acted." United States v. Rice, 607 F.3d 133, 141 (5th Cir. 2010) (in t e r n a l citations and quotations omitted). 1. L ife Insurance Proceeds

A t trial the government presented evidence that the defendant misused life insurance proceeds belonging to her daughter, Hazel Tolliver. Derrick

T o lliv e r changed the beneficiary on one of his life insurance policies from the d e fe n d a n t to Hazel in July 2000, just over three months before the murder and w it h o u t the defendant's knowledge. Hazel was in prison at the time, and she c h a r g e d her attorney and the defendant with distributing funds from the policy. Hazel asked that various family members receive a portion of the money, $5,000 b e put in her commissary account, and the rest placed in a mutual fund for her o w n benefit. After making some of the requested distributions, the defendant p l a c e d only $1,200 in Hazel's commissary account and proceeded to spend the rest. The district court did not abuse its discretion in admitting this evidence b e c a u s e the evidence was intrinsic to the crime charged. See Williams, 900 F.2d a t 825. To prove that the defendant conspired to commit murder-for-hire, the g o v e r n m e n t must demonstrate that the murder be committed in exchange for s o m e t h in g of pecuniary value. Farr testified that the defendant gave him "a 6

Case: 10-50239 Document: 00511280824 Page: 7 Date Filed: 11/01/2010

No. 10-50239 c o u p le thousand" dollars in cash during her stay in Arkansas the summer f o l l o w in g the murder--money that the government showed came from an a c c o u n t containing the life insurance proceeds that belonged to Hazel. The e v id e n c e that the defendant took the money out of the life insurance proceeds h e lp e d the government establish the source of the funds used to pay Farr. 2. T e m p o r a r y Restraining Order

T h e district court also admitted evidence regarding a temporary r e s t r a in in g order (TRO) issued by the court in which the defendant's divorce p r o c e e d in g was pending. The victim's divorce attorney testified that the TRO w a s a standard order typical of those entered in most, if not all, divorce cases. The TRO prohibited each party to the divorce from entering the other's home w it h o u t permission. The defendant admits that she entered the victim's house o n the afternoon of the murder with Fonzie and Farr, but she contends that the fa c t that she violated the TRO by entering the house is irrelevant "other act" e v id e n c e under Rule 404(b). We disagree. T h e government presented evidence that the defendant went to the v ic t im 's house to pick up Donald and Derrick Jr. for visitation numerous times w h ile the TRO was in place. Fonzie often accompanied the defendant, and n e ith e r of them would enter the victim's house. Instead, they abided by the TRO a n d waited outside. Farr testified at trial that on the day of the murder, the d e fe n d a n t took him and Fonzie to the victim's house to help them plan the crime, s h o w in g them how to enter and exit the yard, where to wait for the victim, and w h e r e to park the car. The defendant contends that the visit to the house was a n innocent errand to retrieve clothing for the children; but it was no

c o in c id e n c e that the one day the defendant chose to violate the TRO was the s a m e day that the victim was murdered. Therefore, the evidence was arguably in trin s ic .

7

Case: 10-50239 Document: 00511280824 Page: 8 Date Filed: 11/01/2010

No. 10-50239 E v e n applying Rule 404(b), though, the district court did not err in a d m it t in g the evidence. Farr testified that the reason for the group's visit to the v ic t im 's house was for the defendant to help plan the murder. The evidence is t h e r e fo r e relevant to the defendant's preparation and plan for the murder, an a llo w a b le purpose under Rule 404(b). And given that the TRO was a standard ord er issued in most divorce proceedings, the evidence was not overly prejudicial. B. A d m i s s i o n of Fonzie's Out-of-Court Statements D u r in g trial, the government offered several out-of-court statements made b y Fonzie through two witnesses. The government presented Farr, who testified r e g a r d in g conversations he had had with Fonzie over the telephone and in p e r s o n in the days leading up to the murder. The government also presented Detective Arturo Cervantes, who had interviewed Fonzie the day following the m u r d e r . The defendant contends that the district court erred in admitting these s t a t e m e n t s under Federal Rule of Evidence 801(d)(2)(E) and that they were fu r t h e r inadmissible under the Confrontation Clause of the Sixth Amendment. "We review the admission of evidence under Rule 801(d)(2)(E) for abuse o f discretion." United States v. Delgado, 401 F.3d 290, 298 (5th Cir. 2005). We r e v ie w alleged violations of the Confrontation Clause de novo. Id. at 299. We a d d r e s s the statements offered through each witness in turn. 1. F a rr

T h e government questioned Farr regarding statements Fonzie had made t o him in the days leading up to the murder. Specifically, Farr testified that F o n z ie called Farr in Arkansas, telling Farr that he had a "lick" for him and that h e would pay Farr $50,000 to murder the victim. Farr also testified that he s p o k e with Fonzie after arriving in San Antonio and that Fonzie stated that the m u r d e r needed to happen before the divorce was final. Fonzie promised Farr t h a t he would receive the money when the defendant received the proceeds of the life insurance policies. 8

Case: 10-50239 Document: 00511280824 Page: 9 Date Filed: 11/01/2010

No. 10-50239 T h e district court allowed Farr to testify regarding Fonzie's out-of-court s t a t e m e n t s , reasoning that they were co-conspirator statements admissible u n d e r Rule 801(d)(2)(E).3 To admit evidence under Rule 801(d)(2)(E), "[t]he g o v e r n m e n t must prove by a preponderance of the evidence (1) the existence of a conspiracy, (2) the statement was made by a co-conspirator of the party, (3) the s t a t e m e n t was made during the course of the conspiracy, and (4) the statement w a s made in furtherance of the conspiracy." Delgado, 401 F.3d at 298. T h e defendant incorrectly argues that the government presented no e v id e n c e apart from the statements themselves to show that she conspired with F o n z ie to have the victim murdered. We find that the government presented a m p le evidence to establish the conspiracy and establish the defendant's p a r tic ip a t io n in the conspiracy. The government presented telephone records to c o r r o b o r a t e Fonzie's calls to Farr. Further, Farr testified that he spoke with the d e fe n d a n t herself, who confirmed Fonzie's statements about killing the victim. He also testified that the defendant showed Fonzie and Farr how to carry out the m u r d e r while they were in the victim's home. Finally, the government presented e v id e n c e that Farr received cash payments from the defendant and Fonzie when t h e y were traveling through Arkansas the summer after the murder. T h e defendant also argues, illogically, that Fonzie's statements to Farr w e r e not made in the course of or in furtherance of the conspiracy. The offered o u t-o f-c o u r t statements were Fonzie's statements to Farr that he had a job for F a r r and that Farr would be paid to kill the victim. Fonzie's out-of-court

3

Rule 801(d)(2)(E) provides:

A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish . . . the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.

9

Case: 10-50239 Document: 00511280824 Page: 10 Date Filed: 11/01/2010

No. 10-50239 s t a t e m e n t s go to the heart of the conspiracy. Therefore, the district court did not e r r in admitting the statements under Rule 801(d)(2)(E). N o r are Fonzie's statements to Farr barred by the Confrontation Clause o f the Sixth Amendment. The Confrontation Clause bars only testimonial

s t a t e m e n t s . Crawford v. Washington, 541 U.S. 36, 68 (2004); United States v. H o lm e s , 406 F.3d 337, 348 (5th Cir. 2005). Fonzie's statements to Farr were " m a d e casually to a partner-in-crime" and were therefore not "testimonial" under t h e Confrontation Clause. Holmes, 406 F.3d at 349; see also Crawford, 541 U.S. a t 51 ("A person who makes a casual remark to an acquaintance" does not " b e a r [] testimony."). Non-testimonial statements are governed by the rules of e v id e n c e , which, as noted above, allow admission of Fonzie's statements to Farr. See Crawford, 541 U.S. at 68. 2. D e te c tiv e Cervantes

T h e government questioned Detective Cervantes regarding the statement h e had taken from Fonzie the morning after the murder and admitted the s t a tem en t itself into evidence. Specifically, Fonzie told Detective Cervantes that h e and Farr had been playing basketball at the time of the murder, that he had a c c o m p a n ie d the defendant to the victim's house and to Randolph Air Force Base o n the afternoon of the murder, and that he had accompanied the defendant to t h e police station the morning after the murder. The defendant challenges the a d m is s io n of Fonzie's statement under the Confrontation Clause. U n d e r Crawford, testimonial statements offered for their truth are subject t o the Confrontation Clause, which requires "unavailability and a prior o p p o r t u n it y for cross examination." 541 U.S. at 68. Statements not offered for t h e ir truth, even if testimonial in nature, are not subject to these protections. Holmes, 406 F.3d at 349 (allowing admission of prior deposition testimony b e c a u s e it was offered for its falsity, rather than its truth). Here, much of F o n z ie 's statement to Detective Cervantes was not offered for its truth. Rather, 10

Case: 10-50239 Document: 00511280824 Page: 11 Date Filed: 11/01/2010

No. 10-50239 it was offered to show that Fonzie gave a false alibi (the same one given by Farr) w h e n questioned regarding his whereabouts during the murder. Fonzie's

s t a t e m e n t s offered for their falsity were therefore properly admissible. See id. a t 350. I t is unclear whether the Confrontation Clause protects against admission o f the remainder of the statement that was offered for its truth. In Crawford, t h e Court stated that "[s]tatements taken by police officers in the course of in t e r r o g a t io n s are . . . testimonial under even a narrow standard." Id. at 52. But the government argues that statements made by co-conspirators during the c o u r s e and in furtherance of a conspiracy can never be testimonial, even when m a d e in response to police questioning. See id. at 59 n.9; see also Giles v. C a lifo r n ia , -- U.S. --, 128 S. Ct. 2678, 2691­92 n.1 (2008) ("[A]n incriminating s t a t e m e n t in furtherance of [a] conspiracy would probably never be t e s t im o n ia l." ) . W e need not decide whether the remainder of the statement falls within t h e protections of the Confrontation Clause because any error in admitting the s t a t e m e n t was harmless. See United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2 0 0 7 ) (evidence improperly admitted under Crawford "is subject to the doctrine o f harmless error"). Improper admission under Crawford is harmless when " t h e r e is no reasonable probability that the improperly admitted evidence might h a v e contributed to the conviction," United States v. Tirado­Tirado, 563 F.3d 1 1 7 , 126 (5th Cir. 2009), for instance, when the evidence is "merely cumulative o f other evidence offered without objection," Hall, 500 F.3d at 444. M u c h of the remainder of the statement was "merely cumulative" of other e v id e n c e . In his statement, Fonzie recounted that he, Farr, and the defendant w e n t to the victim's house and to Randolph Air Force Base on the afternoon of t h e murder. Both the defendant and Farr, in their statements to investigators, w h ic h were admitted at trial, discussed the events on the afternoon of the 11

Case: 10-50239 Document: 00511280824 Page: 12 Date Filed: 11/01/2010

No. 10-50239 m u r d e r . Further, the defendant's son, Derrick Jr., testified on her behalf about t h e events that afternoon. T h e only portion of Fonzie's statement that was not presented by any other w it n e s s was Fonzie's account of the morning after the murder wherein he stated t h a t the defendant received a telephone call from detectives and that he a c c o m p a n ie d the defendant to the police station. To the extent that this small p o r t io n of Fonzie's statement was not presented by other government witnesses, a n y error in admission was harmless because it was not inculpatory and could n o t have contributed to the defendant's conviction. C. P r o s e c u t o r i a l Comments T h e defendant argues that she is entitled to a new trial because the p r o s e c u t o r made improper comments during his rebuttal closing argument. The p r o s e c u t o r made the following remarks: N o w , how can I deal with Farr? How can I explain what I h a v e done with Farr? It is hard. I have to ­ I have to talk to the p o lic e officers who chipped away on the guilty and made sure she e n d e d up in this courtroom. And I have to look them in the eye and e x p la in to them: Yes, I have to work with Farr, but by God, I will do it. I have to look at the picture, I have to look at the picture of t h a t skull with the bullet hole in it. That's what I had to do y e s t e r d a y , and I have to go home at night too, and I have to look at m y s e lf and ask: Have I done the right thing? A t that point, defense counsel objected, and the district court sustained the o b je c t io n , directing the jury to disregard the statement. The district court then d e n ie d the defendant's motion for a mistrial. On appeal, the defendant argues t h a t the prosecutor's comments were improper in two ways: The prosecutor im p r o p e r ly bolstered Farr's credibility, and the prosecutor implied that he would n o t have brought the case if the defendant were not guilty.

12

Case: 10-50239 Document: 00511280824 Page: 13 Date Filed: 11/01/2010

No. 10-50239 W e review the propriety of a prosecutor's comments during trial in two s t e p s . United States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010). First, we r e v i e w the comments de novo to determine whether the comments were im p r o p e r . Id. If we find that a comment was improper, we then determine w h e t h e r the remark "affected the substantial rights of the defendant." Id. In t h e second step, we review for abuse of discretion, and we give "considerable w e ig h t " to the district court's "assessment of the prejudicial effect." Id. (quoting U n ite d States v. Munoz, 150 F.3d 401, 414­15 (5th Cir. 1998)). A prosecutor is not permitted to express his or her personal opinion r e g a r d i n g the credibility of a witness. McCann, 613 F.3d at 495. Doing so in v o k e s "the imprimatur of the Government, and may induce the jury to trust t h e Government's judgment rather than its own view of the evidence." United S ta te s v. Ramirez­Velasquez, 322 F.3d 868, 874 (5th Cir. 2003) (quoting United S ta te s v. Young, 470 U.S. 1, 18­19 (1985)). Nor may a prosecutor "imply that the g o v e r n m e n t would not have brought the case unless the defendant were guilty." United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978). "By giving his o p in io n , an attorney may increase the apparent probative force of his evidence b y virtue of his personal influence, his presumably superior knowledge of the fa c t s and background of the case, and the influence of his official position." Id. We examine the remarks in context to determine their propriety. McCann, 613 F.3d at 495. In his closing argument, defense counsel repeatedly a t t a c k e d Farr's character and highlighted the fact that Farr would be receiving a lower sentence in exchange for his cooperation. Below are just a few examples: J e r e m y Farr's testimony from the witness stand lacked so m u c h credibility that there is absolutely no way you could be c o n v in c e d beyond a reasonable doubt that Theresa had anything to d o with this case at all. ...

13

Case: 10-50239 Document: 00511280824 Page: 14 Date Filed: 11/01/2010

No. 10-50239 F o n z ie and Farr, these two criminals are the kind of folks we c o u ld n 't begin to fathom what is going through their feverish little m in d s when they decide to do something. ... [Farr] is a cold, remorseless killer. ... [Farr] is lying to you all and trying to get as many years and d e c a d e s shaved off of his sentence as he can. W h e n a prosecutor's remarks are "invited" by remarks from defense c o u n s e l, the prosecutor is permitted to respond in order to "right the scale." Id. (q u o tin g Young, 470 U.S. at 12­13); see also United States v. Thomas, 12 F.3d 1 3 5 0 , 1367­68 (5th Cir. 1994) (finding no error in prosecutor's comments that r e s p o n d e d to defense counsel's attacks on witnesses who testified pursuant to p le a agreements). The prosecutor's comments as they relate to Farr's credibility a r e best interpreted as an acknowledgment that many of defense counsel's r e m a r k s were correct and an attempt to explain why the government put Farr, a confessed murderer, on the stand. Furthermore, the prosecutor did not

s p e c ific a lly tell the jury that he personally believed Farr's testimony or that Farr w a s a credible witness. At most, the prosecutor implied that he had overcome h is own reservations about putting Farr on the stand. T h e prosecutor's comments related to the defendant's guilt are more t r o u b le s o m e . By his comments, the prosecutor implied that he and the police o ffic e r s he worked with had already made up their minds that the defendant was g u ilt y . The prosecutor also implied he personally believed he had done the right t h in g in bringing the defendant to trial. E v e n assuming the prosecutor's comments rise to the level of impropriety, t h e y did not affect the defendant's substantial rights. To determine whether the d e fe n d a n t 's substantial rights were affected, we are guided by "(1) the m a g n i t u d e of the statement's prejudice, (2) the effect of any cautionary 14

Case: 10-50239 Document: 00511280824 Page: 15 Date Filed: 11/01/2010

No. 10-50239 in s t r u c t io n s given, and (3) the strength of the evidence of the defendant's guilt." McCann, 613 F.3d at 496 (quoting United States v. Gallardo­Trapero, 185 F.3d 3 0 7 , 320 (5th Cir. 1999)). "The determinative question is whether the

p r o s e c u t o r 's remark casts serious doubt on the correctness of the jury's verdict." United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004) (quoting United S ta te s v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989)). T h e prosecutor's comments cast no doubt on the verdict. The comments w e r e short and embedded in the prosecutor's response to defense counsel's a t t a c k s on Farr's credibility. Further, the district court instructed the jury to d is r e g a r d the comments, and prior to closing argument the district court in s t r u c t e d the jury that they were "the sole judges of the credibility or b e lie v a b ilit y of each witness" and that "any statements, objections, or arguments m a d e by the lawyers are not evidence." Finally, the evidence of the defendant's g u ilt is substantial. Farr testified that the defendant asked him to murder the v ic t im , showed him how to enter and leave the victim's house, and paid him in c a s h and clothing; and the government presented evidence to corroborate Farr's t e s t im o n y , including phone and bank records and the defendant's own sta tem en ts. G iv e n the low level of possible prejudice and the "considerable weight" we a r e required to give to the district court's assessment that the comments did not r e q u ir e a mistrial, the prosecutor's comments did not have the necessary p r e ju d ic ia l effect to warrant reversal of the defendant's conviction. D. J u r y Instructions T h e defendant argues that the district court improperly instructed the jury r e g a r d in g the elements of conspiracy to commit murder-for-hire such that the ju r y was permitted to find the defendant guilty without finding beyond a r e a s o n a b le doubt that she acted with intent that a murder be committed. T h e district court instructed the jury as follows: 15

Case: 10-50239 Document: 00511280824 Page: 16 Date Filed: 11/01/2010

No. 10-50239 I n order for the defendant to be found guilty of conspiring to c o m m it murder-for-hire in violation of Section 1958(a), the g o v e r n m e n t must prove each of the following elements beyond a r e a s o n a b le doubt: F ir s t , that on or about the dates charged in the indictment, t h e defendant and at least one other person made an agreement to c o m m it the crime of interstate murder-for-hire as charged in the in d ictm e n t; S e c o n d , that the defendant knew the unlawful purpose of the a g r e e m e n t and joined in it willfully, that is, with the intent to fu r t h e r that unlawful purpose; T h ir d , that one of the conspirators during the existence of the c o n s p ir a c y knowingly traveled or caused another to travel from A r k a n s a s to Texas for the purpose of carrying out or carrying fo r w a r d the agreement; and Fourth, that the death of Derrick Tolliver resulted. F o llo w in g some general instructions regarding conspiracies, the district c o u r t further instructed the jury regarding the first element of conspiracy to c o m m it murder-for-hire: T o assist you in determining whether there was an agreement o r understanding to commit murder-for-hire as charged in the i n d ic t m e n t , you are advised that the elements of the offense of m u r d e r -fo r -h ir e are: O n e , traveling or causing another to travel in interstate com m erce; T w o , with the intent that a murder be committed in violation o f the laws of the State of Texas; and T h r e e , that a thing of pecuniary value, such as a sum of m o n e y , was received or promised or agreed to be paid as c o n s id e r a t io n for the murder. W e review a properly objected-to jury instruction for abuse of discretion. United States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005). "District courts e n jo y substantial latitude in formulating a jury charge." W e b s te r , 162 F.3d 308, 321 (5th Cir. 1998). 16 United States v.

"We consider whether the

Case: 10-50239 Document: 00511280824 Page: 17 Date Filed: 11/01/2010

No. 10-50239 in s t r u c t io n , taken as a whole, `is a correct statement of the law and whether it c le a r ly instructs the jurors as to the principles of law applicable to the factual is s u e s confronting them.' " Freeman, 434 F.3d at 377 (quoting United States v. D a n ie ls , 281 F.3d 168, 183 (5th Cir. 2002)). T h e defendant was charged with conspiracy to commit murder-for-hire u n d e r 18 U.S.C. § 1958(a). "The elements of conspiracy to commit federal

m u r d e r -fo r -h ir e under § 1958 are `(1) an agreement by two or more persons to a c h ie v e the unlawful purpose of [interstate] murder-for-hire; (2) the defendant's k n o w in g and voluntary participation in the agreement; and (3) an overt act c o m m it t e d by any one of the conspirators in furtherance of the conspiratorial o b je c t .' " United States v. Blackthorne, 378 F.3d 449, 453 (5th Cir. 2004) (quoting U n ite d States v. Hernandez, 141 F.3d 1042, 1053 (11th Cir. 1998)) (alteration in o r ig in a l). The government must also prove beyond a reasonable doubt that the d efen d a n t intended all of the elements of the underlying murder-for-hire offense. United States v. Barnett, 197 F.3d 138, 146 (5th Cir. 1999). T h e district court's instructions stated the law correctly. The district court p r o p e r ly explained all of the elements of both conspiracy to commit interstate m u r d e r -fo r -h ir e and the underlying interstate murder-for-hire offense. The c o u r t instructed the jury that it had to find the elements of conspiracy beyond a reasonable doubt, after which it instructed the jury regarding the elements of t h e underlying offense. The jury likely did not, and indeed probably could not, fin d beyond a reasonable doubt that the defendant intended to enter into an a g r e e m e n t to commit interstate murder-for-hire without also finding beyond a r e a s o n a b le doubt that she intended all of the elements of the underlying offense. We therefore find no error in the instruction. E. S u f f i c i e n c y of the Evidence F in a lly , the defendant challenges the sufficiency of the evidence s u p p o r t in g her conviction. In reviewing a sufficiency of the evidence claim, we 17

Case: 10-50239 Document: 00511280824 Page: 18 Date Filed: 11/01/2010

No. 10-50239 c o n s id e r whether "a rational trier of fact could have found that the evidence e s t a b lis h e d the essential elements of the offense beyond a reasonable doubt." United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). Our review is "highly d e fe r e n t i a l to the verdict," and we consider the evidence "in the light most fa v o r a b le to the government with all reasonable inferences and credibility c h o ic e s made in support of a conviction." United States v. Najera Jimenez, 593 F .3 d 391, 397 (5th Cir. 2010) (citation omitted). T h e defendant contends that the government presented insufficient e v id e n c e to prove beyond a reasonable doubt that she was aware that Farr was p r o m is e d payment in return for murdering the victim because the government d id not prove that she was present for any of the conversations during which F o n z ie agreed to pay Farr. We disagree. T o convict the defendant of murder-for-hire, the government must have p r e s e n t e d evidence from which the jury could conclude that the defendant knew t h a t a payment or promise of payment was part of the agreement. See United S ta te s v. Ritter, 989 F.2d 318, 321 (9th Cir. 1993). Here, the government

p r e s e n t e d considerable evidence from which the jury could have concluded that t h e defendant knew Fonzie had promised to pay Farr. Farr testified that Fonzie t o ld him the defendant was present when Fonzie placed the initial call to Farr. Farr also testified that he personally had a conversation with the defendant d u r in g which she confirmed that she wanted Farr to murder the victim. Farr fu r t h e r testified that he asked the defendant and Fonzie about the money after t h e murder and they told him that "the big money won't come in for awhile." In a d d it io n , the government presented evidence that the defendant purchased s e v e r a l items for Farr before he left San Antonio and that she gave Farr a large a m o u n t of cash while she was in Arkansas a year later. I n support of her contention, the defendant argues that Farr was c o m p le t e ly unreliable and unbelievable when he testified that she was involved 18

Case: 10-50239 Document: 00511280824 Page: 19 Date Filed: 11/01/2010

No. 10-50239 in the scheme and that she knew about the payment. But "[t]he jury is the final a r b i t e r of the credibility of a witness." United States v. Razo­Leora, 961 F.2d 1 1 4 0 , 1145 (5th Cir. 1992). The jury could have easily credited Farr's testimony t h a t the defendant was involved and disregarded her assertions that Farr was u n r e lia b le and not believable. The defendant does not contest the government's proof regarding the other e le m e n t s of murder-for-hire, and the government presented sufficient evidence o f the defendant's guilt with respect to the remaining elements. Therefore, we c o n c lu d e that the government presented sufficient evidence to sustain the c o n v ic tio n . I I I . CONCLUSION F o r the foregoing reasons, we AFFIRM the defendant's conviction.

19