United States of America v. Jonathan Woods; United States of America v. Randell G. Shelton
No. 18-3057
No. 18-3058
United States Court of Appeals For the Eighth Circuit
October 16, 2020
National Association of Criminal Defense Lawyers, Amicus on Behalf of Appellant(s)
Appeals from United States District Court for the Western District of Arkansas - Fayetteville
Submitted: January 16, 2020
Filed: October 16, 2020
Before KELLY, MELLOY, and KOBES, Circuit Judges.
A jury convicted defendants Jonathan Woods and Randell Shelton of several crimes involving bribes and kickbacks using public funds. Woods and Shelton appeal the district court‘s1 denial of their motions to dismiss their indictments alleging due process violations based on government misconduct—an FBI agent‘s undisputedly wrongful destruction of data on a laptop computer. They also appeal the district court‘s grant of a government motion in limine excluding evidence of the agent‘s misconduct pursuant to
I. Background
A. The Conspiracy, Generally
The underlying conspiracy at issue in this case was possible because of a provision of Arkansas law under which certain state revenues were set aside in a General Improvement Fund (GIF) and earmarked for distribution essеntially at the direction of individual elected representatives. This relatively unchecked power led to abuses. Exercise of this power, however, created a substantial paper trail as to who sought funds, which elected officials
Woods was a state senator and Oren Paris III was the president of a small college in northwest Arkansas, Ecclesia College. Shelton was a friend of Woods. Micah Neal, a state representative, also participated in the conspiracy. Ultimately, Ecclesia College received over $600,000 between 2013 and early 2015 at Woods‘s and Neal‘s direction in exchange for kickbacks to Woods and Neal funneled through a consulting firm, Paradigm Solutions, created by Shelton. In addition, Paris caused Ecclesia College to hire a specific employee at Woods‘s request at the outset of the conspiracy.
Evidence of the conspiracy was overwhelming and included: emаil communications directing applications for funds; the applications themselves; records of public fund distributions; banking records tracing payments to and from Shelton‘s firm; the timing of the creation of Shelton‘s firm; Shelton‘s repeated withdrawals of cash from his firm‘s account; contemporaneous cash payments to other conspirators; and large cash purchases by Neal and Woods contemporaneous with Shelton‘s cash withdrawals. For example, banking records from September 2013 showed Ecclesia College paying Shelton $50,000 shortly after receiving $200,000 in public funds as per Woods‘s instruction. Banking records then showed Shelton depositing the money in his own account and quickly transferring $40,000 to Woods‘s account. On another occasion, during December 2014 and
B. Investigation, Discovery, and the Destruction of Data
Upon discovery of the scheme, Neal and Woods cooperated with investigators. Woods cooperated between November 2015 and March 2016, ceasing his cooperation long before indictment. Neal began cooperating in January 2016, and in March 2016, he began using a pen-style recording device to make secret recordings of conversations with several co-conspirators, including Woods. Although he did not make the recordings at the government‘s instruction, he made the government aware of the recordings. Neal‘s attorney had purchased the pen recorder, and Neal periodically took the pen recorder to his attorney‘s office where a paralegal downloaded its contents to her computer, cleared its memory, and returned it to Neal for further use.
Eventually, government attorneys told investigators to obtain the recordings. At Neal‘s attorney‘s instruction, the paralegal made the recordings available to the government. In early November 2016, she placed files containing the recordings from her computer on Dropbox, an online-file-and-storage-sharing service. She also provided notice of the Dropbox account to the government‘s lead investigator, FBI Agent Cessario. Agent Cessario accessed the Dropbox account in early November 2016. In late November 2016, however, the paralegal discovered she had failed to upload all of the digital recordings to Dropbox, and she added the files she initially had missed. According to the paralegal, she did not expressly notify Agent Cessario that she uploaded additional files, but she believed he would have received an automatic notice of her activity directly from Dropbox.
In early 2017, Neal pleaded guilty to one count of conspiring to commit honest services mail and wire fraud. In March 2017, the government indicted Woods, Paris, and Shelton. In April 2017, the government turned over copies of Neal‘s recordings to defense counsel. Trial was scheduled for May 2017, but Woods moved successfully to continue the trial until December 2017.
In fall 2017, as trial approached, defense attorneys received copies of text messages between Neal‘s attorney and Agent Cessario that seemingly referenced recordings the defense attorneys had not received. This fact gave rise to suspicions of discovery abuses and allegations the government was concealing recordings. Ultimately, as explained below, neither the defense attorneys nor the government had received the second batch of recordings the paralegal uploaded to Dropbox—the files she uploaded in late November 2016. In addition, by November 2017, Shelton and Paris had filed motions to dismiss their indictments for reasons unrelated to Neal‘s recordings, but the district court had not yet ruled on those motions. To sort through the various arguments being raised, and to address the burgeoning discovery dispute, the district court scheduled an evidentiary hearing and, again, continued the trial, this time until April 2018.
In preparation for the hearing, prosecutors instructed Agent Cessario to deliver
After learning of Agent Cessario‘s actions, Woods, Paris, and Shelton filed additional motions to dismiss alleging Cessario‘s destruction of data amounted to government misconduct rising to the level of a Fifth Amendment due process violation. With these motions, the evidentiary hearing expanded to address not only the question of what files the government had obtained and when it obtained them, but also to address the question of what data Agent Cessario destroyed and how his actions might relate to the pending cases. The district court heard testimony from thirteen witnesses over the course of several days. Witnesses included Agent Cessario, Agent Cessario‘s supervisor, Neal, Neal‘s attorney, that attorney‘s paralegal, a Dropbox employee, and forensics examiners. The government introduced records of activity within the Dropbox account and a metadata analysis of the files from the Dropbox account.
The district court found that Agent Cessario accessed the Dropbox account shortly after the paralegal uploaded the initial batch of files (in early November 2016), but did not access the account again until November 2017 when it came to light that additional files existed that the government had not turned over in April 2017. Testimony from Neal, Neal‘s attorney, and the paralegal showed they had not shared recordings with Cessario prior to November 2016.2 The district court ultimately determined that, like the defense attorneys, the government had not accessed the second batch of recordings until November 2017. Metadata analysis showed that the recordings had not been changed between the time they were created and the time they were shared with defense counsel—neither Agent Cessario nor
anyone else added, deleted, or modified the Dropbox files. Because defense counsel ultimately received the files uploaded to Dropbox, the district court determined defendants had obtained the files that Neal provided to his attorney‘s office and that were made available to the government.
The district court then addressed the question of Agent Cessario‘s misconduct. The court expressly found that Agent Cessario had not only lied to his superiors, but lied to the court during his testimony. Agent Cessario testified that he had not lied to his superiors when he initially claimed to have erased his hard drive at an earlier date because he simply misunderstood the difference between erasing a hard drive and taking lesser actions with a computer such as clearing the cache of an internet browser. The district court found
The court then addressed suggestiоns and arguments as to what might have been on the laptop and how it might relate to the case. The court first noted that there was nothing to suggest destroyed data might have been case related. The court explained that the personal risk to Agent Cessario in the act of destruction far outweighed any agent‘s or prosecutor‘s interest in the prosecution of a particular case.
The court also noted that defense counsel already had received the Neal recordings from Dropbox. The court acknowledged the theoretical possibility that something else case related might have been destroyed. The court was unable, however, to come up with any plausible scenarios that might explain how defendants could be prejudiced. The court emphasized that [s]urely [Agent Cessario] was not falsifying the financial and legislative records on which the Government will rely at trial, given that the parties will simply subpoena the undoctored originals from the institutions that maintain them. The court rejected defense suggestions that the laptop might have contained additional Neal recordings because the existence of any such recordings and their presence on Cessario‘s laptop would necessarily presume Neal had gone behind his own attorney‘s back, not merely behind the government‘s back, to create such recordings, get them to Agent Cessario, and conceal them from his attorney. Finally, the court emphasized that (1) it previously had ruled that creation of recordings was legal in that Neal acted of his own accord, and (2) the recordings that the defendants actually received included statements from Woods denying wrongdoing. As such, the court rejected the speculation that additional recordings existed that defendants did not otherwise receive and that might have been exculpatory.
Ultimately, the district court found a Fifth Amendment Due Process violation based on Agent Cessario‘s bad faith destruction of potentially useful evidence in that the laptop contained information . . . about the Dropbox account that the parties had sought in reference to the discovery dispute. However, the court concluded there is no evidence in the record to show and no good reason to believe, that [Agent Cessario] destroyed any information that is material to the charges and defenses in this case but not already in the Defendants’ possession. As such, the court found dismissal of the indictment unwarranted and not proportional to the harm, in that the defendants were able to obtain by other means a record of Dropbox files and activities. As a lesser sanction, the court precluded the government from introducing in its case-in-chief any testimony from Agent Cessario or recordings made by Neal. The district court did not preclude
C. Motion in Limine and Motion to Continue
In a separate ruling, the district court granted a government motion in limine to exclude evidence of Agent Cessario‘s destruction of data as evidence whose probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues . . . [or] wasting time.
In granting the motion, the district court distinguished the issue of Neal‘s credibility from the issue of Agent Cessario‘s bad acts. The district court emphasized that the government was not seeking to preclude cross examination of Neal or exploration of Neal‘s motives for testifying. The district court noted that defendants were free to ask Neal about: recordings he had made; his interactions with Agent Cessario; who he gave his recordings to and when; and his motives for testifying. In fact, the district court did not completely close the door on the possibility of allowing the jury to hear about Agent Cessario‘s bad acts. Specifically, the district court stated: [P]erhaps Mr. Neal‘s responses to those questions will lay some presently unforeseeable foundation to connect his testimony with Agent Cessario‘s decision to wipe the laptop. But on the record presently before the Court, the two simply do not appear to have anything to do with each other. Turning to the
Then, five days prior to trial, Paris pleaded guilty. Woods moved for another continuance, asserting that Paris‘s last minute plea disrupted trial planning and preparation. In particular, Woods told the district court that he had planned a team defense and was relying on Paris‘s counsel to present certain witnesses. According to Woods, Paris had denied, until pleading guilty, that he was involved in any conspiracy. The district court denied the motion, emphasizing the lengthy delays that had already occurred and noting the general foreseeability of a co-defendant‘s decision to plead guilty. Acknowledging Woods‘s concerns about witnesses and evidence,
D. Trial: Jury Instructions, Questions, and Responses
Trial lasted nineteen days. As referenced at the outset of this opinion, evidence was overwhelming, and testimony buttressed and explained extensive financial records, public records, and electronic communications. Neal testified as to his role in the scheme. Paris asserted his Fifth Amendment rights and did not testify. Shelton asserted he served as a fund-raiser for Ecclesia College and received legitimate payments for his work. He also asserted his payments to Woods were loans between friends rather than kickbacks and bribes. Regarding Neal‘s recordings and Agent Cessario, Defendants identify nothing from trial to suggest they laid a foundation as to Neal‘s interactions with Agent Cessario that might have opened the door to revisiting the district court‘s exclusion of evidence concerning Agent Cessario‘s misconduct.
After submission of the case to the jury, the jury sent several notes to the court, some of which were merely administrative. One note, however was substantive in that it involved a jury instruction. Woods argues this note resulted in a prejudicial and impermissible ex parte communication from the court to the jury. Shelton goes further, arguing this same interaction served to constructively amend the indictment (or permit conviction on evidence that varied from the indictment).
The jury instruction in question, Jury Instruction 7, set forth the elements of Honest Services Wire Fraud.3 The first element of the offense, as set forth in the
instruction, required the jury to find the defendant voluntarily and intentionally devised or participated in a scheme to defraud the public. The instruction then described the scheme as discussed throughout this opinion: Woods and Neal using their positions to direct GIF monies to Ecclesia College in exchange for kickbacks through Shelton. The Definitions and Explanations section of that same
One, the defendant voluntarily and intentionally devised or participated in a scheme to defraud the public of its right to the honest services of a public official through bribery, which scheme to defraud is described as follows:
Mr. Woods, and later Micah Neal, agreed to use their official positions as Arkansas legislators to direct GIF monies to Ecclesia College in exchange for bribes paid by Oren Paris III through Ecclesia College, consisting of employment for Mr. Woods‘s friend Elizabeth Newlun and/or payments to Mr. Woods and Mr. Neal through Mr. Shelton‘s company Paradigm Strategic Consulting LLC;
Two, the defendant did so with the intent to defraud;
Three, the scheme to defraud involved a material false representation or concealment of fact; and
Four, the defendant used, or caused to be used, an interstate wire facility in furtherance of, or in an attempt to carry out, some essential step in the scheme.
During deliberations, the jury sent the district court a note specifically asking a question about Element One of Jury Instruction 7. The jury asked:
When considering possible illegal activity:
- Do monies have to flow to Ecclesia College and
- Do payments have to be made to
- Mr. Woods and
- Mr. Neal
Is the paragraph in Element One a general descriptiоn or specific criteria that needs to be met?
In response to this question, the district court convened counsel for a hearing. The court presented counsel with a proposed response, to which the government acquiesced and to which Woods and Shelton objected. The proposed response stated in material part that the jury did not have to find that money flowed to Ecclesia College, Neal, or Woods and that the instruction‘s detailed description of the scheme was not itself a part of the elements that had to be proven. The response provided, instead, that the narrative section of the instruction was merely a general description of the scheme at issue.4
Woods and Shelton argued the jury needed to find the exchange of money with Ecclesia College as an element of the offense. The district court concluded the hearing by telling the attorneys it would arrive at final language and simultaneously submit the language to the jury and notify counsel of the final language. Neither party objected to this proposed procеdure. The court then sent an answer to the jury and copied the attorneys via email, using the language as presented to counsel at the hearing (as set forth supra note 4) in all respects other than the substitution of the word summary for the phrase general description and the word summarized for the phrase generally described.
The jury returned its guilty verdicts two hours later. It found Woods guilty of: one count of conspiring to commit honest services mail and wire fraud; twelve counts of aiding and abetting honest services wire fraud; one count of aiding and abetting honest services mail fraud; and one count of money laundering. The jury found Shelton guilty of: one count of conspiring to
Finally, Woods had moved for the district court judge to recuse himself from the case in a pre-trial motion filed in January 2018. The district court denied the
motion in March 2018, prior to trial. We discuss additional facts concerning the recusal issue in our analysis below.
II. Discussion
Shelton and Woods appeal the district court‘s orders relating to Agent Cessario including the denial of their motion to dismiss and the exclusion of evidence under
A. Motion to Dismiss
We review the decision denying dismissal of the indictment de novo and the underlying factual findings for clear error. Paris, 954 F.3d at 1071. We review the district court‘s fashioning of a remedy short of dismissal, such as the partial exclusion of evidence or witnesses, for abuse of discretion, giving due deference to the district court‘s role in managing trials and discovery in criminal prosecutions. Cf. United States v. Davis, 244 F.3d 666, 670 (8th Cir. 2001) (identifying government bad faith and the degree of prejudice as factors to consider in determining a remedy for government discovery abuse).
In Paris‘s separate appeal, we addressed the district court‘s denial of the motion to dismiss the indictment based on Agent Cessario‘s misconduct. See Paris, 954 F.3d at 1073–75. To the extent Woods and Shelton present the same arguments, we rejеct their arguments for the reasons stated in Paris, supra. As described in Id., our circuit precedent may, as a general rule, require dismissal of an indictment on due process grounds if, prior to bad faith destruction of evidence, that evidence has apparent exculpatory value and that evidence cannot be obtained by other means. See Id. at 1074 (applying United States v. LeBeau, 867 F.3d 960, 976–77 (8th Cir. 2017)). We also noted that our circuit has applied these same requirements where destroyed evidence was potentially useful. Id. (describing United States v. Webster, 625 F.3d 439, 446 (8th Cir. 2010)). Applying this general rule, we agreed with the district court that Agent Cessario‘s reprehensible conduct satisfied the bad faith requirement. But we rejected Paris‘s arguments on both remaining grounds—lack of apparent exculpatory value and availability of the evidence by other means. We concluded: (1) there was nothing to suggest Agent Cessario destroyed anything material to Paris‘s guilt or innocence; (2) strong evidence adduced at an extensive hearing demonstrated the defendants had access to the Neal recordings and there was no reason to suspect Agent Cessario had access to additional recordings not in the defendants’ possession; (3) the case against Paris was built primarily on financial and other records held by others and not subject to meaningful impeachment by the agent‘s wiping of a laptop he had used to access information the defendants already possessed; (4) the entire issue of the recordings, Agent Cessario‘s access to the recordings, and his destruction of computer data was an issue tangential to the case; and (5) there was nothing to suggest the motivation for Agent Cessario‘s act of destruction was related to the case at hand or a desire to gain a tactical
To a limited extent, Woods and Shelton present slightly different arguments than Paris. At the end of the day, however, any differences in their arguments can best be characterized as slight variations in their challenges to the district court‘s underlying factual findings regarding the lack of apparent exculpatory value or the availability of evidence by other means.
For example, Woods and Shelton place particular emphasis on evidence from the evidentiary hearing tending to show a suspicious pattern of computer crashes, lost pen recorders, possible meetings between Agent Cessario and Neal that were not memorialized with official debriefing reports, and conflicting testimony as to how many recordings might have been made. Based on this evidence, they assert the district court committed error in its determination that the defendants, via Dropbox, received all of the recordings Neal had made available to Agent Cessario. This same evidence, however, was presented to the district court, and the district court weighed this evidence alongside the testimony from Neal, Neal‘s attorney, the paralegal, the Dropbox employees, and forensic experts in reaching the conclusion that Agent Cessario had not destroyed recordings other than what the defendants actually received. Looking at all of the evidence, we find no clear error. United States v. Boswell, 270 F.3d 1200, 1206 (8th Cir. 2001) (We defer to the district court‘s factual findings with regard to the destruction of evidence.).
By way of further example, Shelton in particular argues Neal‘s testimony was the lynchpin of the government‘s case. According to Shelton, without testimony from Neal, the government would have been unable to show that Shelton paid Neal or that payments Shelton made to Woods were, in fact, kickbacks or bribes. Shelton had characterized the payments to Woods as personal loans between friends unrelated to the alleged scheme and unrelated to the contemporaneous receipt of public funds. Shelton, therefore, characterizes evidence concerning Neal and Agent Cessario as having apparent exculpatory value in that Shelton believes it would have aided him in impugning Neal‘s credibility.
We reject this argument, again, as failing to demonstrate clear error in the district court‘s factual assessment. As an initial matter, Shelton‘s emphasis on the importance of Neal‘s trial testimony appears somewhat misplaced givеn the jury‘s ability to invoke common sense in reaching conclusions. See S.M. v. Lincoln Cnty., 874 F.3d 581, 588 (8th Cir. 2017) (finding evidence sufficient to support verdict where the evidence gave the jury a common-sense basis for resolving an issue). It is somewhat doubtful that the jury required Neal‘s testimony as a roadmap to reach its conclusions. Regardless, even assuming Neal‘s testimony—and therefore his credibility—were critically important, the district court reasonably and expressly determined that Neal had not made additional recordings behind his attorney‘s back for secret delivery to Agent Cessario. The district court also permissibly determined, in the context of the case as a whole, that Agent Cessario‘s unknown motivations for destroying unknown computer data did not materially impugn Neal‘s credibility. Given the nature of the allegations in these cases, and the public and financial records on which the prosecution built its case, we find no clear error in the district court‘s assessment.
Woods and Shelton also argue that, even if the district court did not err in denying their motions to dismiss, the remedy imposed was inadequate and, if anything, favored the government. To recap, the district court precluded the government from calling Agent Cessario or introducing any Neal recordings as part of its case in chief. The district court did not preclude the defense from calling Agent Cessario or introducing Neal‘s recordings. According to Woods and Shelton, the government had no intention of using the recordings or calling Agent Cessario such that the remedy imposed was no remedy at all.
Woods and Shelton‘s argument concerning the particular remedy imposed is a little confusing. At the end of the day, they do not clearly identify what other remedy the district court should have imposed, other than a complete dismissal of their indictments, and they do not claim to have suggested a lesser sanction to the court below. In choosing a remedy, the district court cited a case from a different context for the general proposition that the remedy imposed for a rights violation must be commensurate in scope with the violation and must recognize not only the defendant‘s rights, but also the public‘s interest in pursuing convictions. See United States v. Blue, 384 U.S. 251, 255 (1966) (holding in the context of a presumed violation of the right against self-incrimination that the proper remedy would be the exclusion of evidence rather than the barring of prosecution because numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether, and that [s]o drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book).
Here, we accept the district court‘s finding that the evidence destroyed was potentially useful in that it related to a discovery dispute. As we repeatedly emphasized in Paris, and as the district court found below, however, there is simply nothing to connect the dots between Agent Cessario‘s destruction of his computer data and the undеrlying cases against Woods, Shelton, Paris, and Neal, as proven largely through records held by third-party custodians unrelated to and unaffected by Agent Cessario. Given the tangential nature of the entire Agent Cessario debacle in these prosecutions and given the independent nature of the actual evidence of the underlying offenses, we find no abuse of discretion in the district court‘s chosen remedy.
B. Exclusion of Evidence Pursuant to Federal Rule of Evidence 403
We review a trial court‘s evidentiary rulings under an abuse of discretion standard, giving substantial deference to a trial court‘s exclusion of evidence under
In granting the government‘s motion to exclude evidence of Cessаrio‘s bad acts, the district court made clear that it was not limiting the defendants’ ability to question Neal as to his recordings, his motivations to testify, or his interactions with Agent Cessario. And, as stated above, the district court did not completely close the door on introduction of Agent Cessario‘s bad acts assuming the defense could lay a sufficient foundation for such evidence through Neal‘s testimony. The defendants did not do so. We find this meaningful in terms of whether the district court abused its discretion among the range of choices available to it when crafting a ruling on the government‘s motion.
For all the reasons stated above, primarily due to the tangential nature of Agent Cessario‘s acts when viewed against the evidence in the case, we find no abuse of discretion. We find no error in the district court‘s assessment of potential prejudice, confusion of issues, wasting of time, or in the balancing of these issues. The district court fully explained the risk of prejudice, labeling as obvious the risk that the jury would seek to punish Agent Cessario rather than fairly judge the evidence presented at trial. Given the length of the evidentiary hearing that preceded trial, the length and complexity of trial, and the possible confusion arising from potential expansion of the trial into issues concerning Agent Cessario, the district court permissibly found exclusion appropriate. To the extent the defendants continue to assert that Agent Cessario‘s bad acts reflect upon Neal‘s credibility, we emphasize that
C. Denial of Motion for a Continuance
We review the denial of the motion for a continuance for a prejudicial abuse of discretion. See United States v. Thurman, 368 F.3d 848, 851 (8th Cir. 2004). Woods received a continuance of over seven months. The district court then continued the case an additional four months due to the discovery dispute and Agent Cessario issues. When Paris ultimately pleaded guilty, Woods offered the district court little in the way of specific facts to explain why a codefendant‘s plea on the eve of trial required another continuance. And, as noted above, the district court kept Paris‘s witnesses under subpoena, allowed Woods to use Paris‘s exhibits and witnesses, and invited Woods to renew his motion if and when he could offer more specific support.
Even assuming Woods did not waive this issue by failing to reassert his motion with additional support, as invited by the district court, we conclude the district court did not abuse its substantial discretion. First, a co-defendant‘s last-minute decision to plead guilty generally is foreseeable. Second, the underlying facts in this case primarily came from 2013 through early 2015. When Woods sought an additional delay in April 2018, he had already received a substantial continuance followed by the additional delay brought on by the discovery dispute and the need to investigate Agent Cessario‘s actions. Notwithstanding ample time to prepare for trial, and ample time to provide facts and details as to how denial of the continuance might have prejudiced his defense, Woods
D. Jury Question Responses
We understand the arguments as to jury instructions to encompass three inter-related issues. We address them in turn.
First, to the extent Woods and Shelton argue Instruction 7 as originally given, or as amended, misstated the law, we reject their argument. The offense of honest services wire fraud does not require proof of payment or otherwise require proof of consummation of the scheme. See, e.g., United States v. Jain, 93 F.3d 436, 441 (8th Cir. 1996) (Essential to a scheme to defraud is fraudulent intent. . . . The scheme to defraud need not have been successful or complete. Therefore, the victims of the scheme need not have been injured. However, the government must show that some actual harm or injury was contemplated by the schemer. (alteration in original) (emphasis omitted)). Underlying all arguments as to Instruction 7, then, is the simple fact that it was a proper instruction.
Second, to the extent Woods and Shelton argue the district court violated their Sixth Amendment rights by engaging in ex parte communication with the jury, we reject their argument due to a lack of prejudice. [C]ommunications between the judge and jury, absent counsel, violate the Sixth Amendment and are presumptively prejudicial, but that presumption can be overcome by a lack of prejudice. Shelton v. Purkett, 563 F.3d 404, 408 (8th Cir. 2009); Stewart v. Nix, 972 F.2d 967, 971 (8th Cir. 1992) (Such presumption may be overcome, however, by a clear indication of lack of prejudice.). At the end of the day, the only ex parte component of the court‘s communication with the jury concerning Instruction 7 was the final delivery of the amended instruction to the jury. The amended instruction was identical to the proposed amended instruction as discussed with counsel during the hearing other than the substitution of the words summary and summarized for the phrases general description and generally described, respectively. In all other respects, the trial court . . . provide[d] the defense attorney with notice and a meaningful opрortunity to object before responding to [the] question asked by the jury. Stewart, 972 F.2d at 971. At the hearing the district court informed the parties that it intended to finalize language and deliver the instruction to the jury with simultaneous emails to counsel. Neither party objected to the proposed procedure as described in advance by the court. The government characterizes the final, ex parte changes to the instruction as de minimis and lacking any substance capable of prejudicing the defendants. Woods and Shelton, in contrast, argue the jury‘s quick return of a verdict after receiving the instruction proves prejudice. We agree with the government in this instance. We are unable to imagine how the de minimis substitution of phrases altered the instruction in any material respect, much less prejudicially altered the instruction.
Third, and finally, Shelton argues that, because evidence at trial included at least one and possibly two other schemes,
Based on the details of what Shelton alleges concerning other potential schemes, we reject his arguments. First, he identifies a scheme as alleged in a separate count against Woods but not against Shelton in which Woods directed GIF funds to an organization named Ameriworks in exchange for kickbacks from a man named Cranford. Shelton was not alleged to have been involved in that scheme, which was separately charged and was addressed in a separate jury instruction. Further, the district court expressly and repeatedly informed the jury that evidence of that separate scheme was to be considered only as to Woods. Finally, although Instruction 7 as to Shelton did not require the jury to find consummation of the scheme involving Paris and Ecclesia College, the instruction unambiguously identified the scheme involving Paris and Ecclesia College as the scheme at issue in the charges against Shelton. Instruction 7, as amended, therefore, reinforced for the jury that the charges against Shelton focused on the Ecclesia College GIF scheme. We find no constructive amendment and no potential for conviction based on a variance as to unrelated facts addressing the separately charged scheme involving Woods and Cranford.
Second, Shelton points to evidence involving medical marijuana legislation that Woods and Paris discussed, and which Woods proрosed. The legislative efforts at issue, had they been pursued, would have led to a multi-year process resulting in a voter referendum to amend the Arkansas Constitution. The connection between Woods and Paris as to this legislation addressed the possible generation of tax receipts for distribution to institutions such as Ecclesia College. Over objection, the district court allowed this evidence of uncharged acts or transactions because it tended to show Woods working to promote Ecclesia College. See United States v. Maxwell, 643 F.3d 1096, 1100–01 (8th Cir. 2011) (noting government‘s broad leeway in admitting evidence tending to prove the other conspirators were working in concert).
Shelton‘s argument as to this evidence is less than clear. Even assuming this evidence somehow could be construed as a distinct scheme rather than merely evidence of cooperation among co-conspirators, the government did not urge conviction of Shelton based upon any such scheme. Rather, as just noted, amended Instruction 7—the focus of Shelton‘s argument—specifically identified the GIF scheme and did not reference any connection to medical marijuana. At the end of the day, Shelton presents a confusing,
E. Recusal
We review the denial of a motion for recusal for abuse of discretion. In re Steward, 828 F.3d 672, 681 (8th Cir. 2016). Any . . . judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
A few additional facts are necessary for discussion of this issue. Woods moved for recusal in January 2018 alleging an appearance of bias based on several comments the district court directed towards Woods‘s attorney, several adverse rulings, and revelation of the fact that the district court had viewed Woods‘s counsel‘s website. Woods raised additional arguments in his motion but does not renew them on appeal. On appeal, however, Woods expands his arguments, describing as improper the fact that the district court conducted independent legal research into other cases in which Woods‘s counsel had been sanctioned. Woods also identifies instances from trial he characterizes as further demonstrating bias. In particular, he alleges the district court improperly made an objection for the government during defense counsel‘s questioning of a witness. In addition, he renews his challenges to the Agent Cessario-related rulings and identifies those rulings as evincing bias.
As an initial matter, we note that Woods‘s arguments as to this issue focus largely upon the district court‘s comments as directed towards Woods‘s counsel. Undeniably, but in our view understandably, counsel had gotten under the district court‘s skin to a limited degree through repeatedly interrupting the district court, using salty language, and pushing—often aggressively—for rulings the district court perceived as being aimed more at delay than at productive litigation of the case. In ruling on the motion to dismiss, the district court issued a lengthy order, identifying
Woods appears to place particular emphasis on the fact that the district court admitted (1) conducting research and identifying a prior case in which Woods‘s counsel was sanctioned and (2) viewing Woods‘s counsel‘s website. The former, while technically information not arising in the context of the present case, can hardly be characterized as information from an extrajudicial source. Judges are free to—are expected to—conduct legal research as they believe to be necessary in carrying out their duties. And the latter is in no manner objectionable. Judges, as human beings are necessarily interested in knowing who is practicing in their courtrooms. It is no more objectionable for a judge to view a firm‘s website than for a county seat lawyer to be personally acquainted with a presiding judge. We have emphasized that [r]ules against bias and partiality can never mean to require the total absence of preconception, predispositions and other mental habits. Ali, 799 F.3d at 1017 (alteration in original) (quoting United States v. Burnette, 518 F.3d 942, 945 (8th Cir. 2008)). Similarly we will not find bias in the natural and human curiosity that would lead a judge to look at publicly available information as to an attorney‘s experience or manner of holding himself out to the public.
The final point meriting сomment is Woods‘s assertion that the district court improperly imposed an objection on the government‘s behalf. Woods‘s argument in this regard begins with the incorrect assumption that any such objection by the court itself must be improper. That is not the law, in general, nor would we be inclined to view one such objection as evincing bias during a nineteen-day trial even if such an objection were inherently improper. See
In any event, the record in the present case belies Woods‘s assertion. The official trial transcript shows that, at the point in
We affirm the judgments of the district court.
Notes
It is a crime to use bribery or kickbacks in a fraud scheme that deprives the public of its right to the honest services of a public official. Counts 2, 3, and 5 through 15 of the Second Superseding Indictment charge Mr. Woods and Mr. Shelton with committing such a crime in the form of Honest Services Wire Fraud. This crime has four elements, which are:
The paragraph of Element One that describes the alleged scheme to defraud is a general description of the alleged scheme. In order for you to find that the Government has proved Element One beyond a reasonable doubt with respect to the particular Defendant and Count you are considering, it is not necessary for you to find that payments were actually made to any particular person or entity, and it is not necessary for you to find that monies actually flowed to Ecclesia College. With respect to Element One, you are simply being asked to determine whether the Government has proved beyond a reasonable doubt that the
particular Defendant you are considering voluntarily and intentionally devised or participated in a scheme to defraud the public of its right to the honest services of a public official, which scheme is generally described in the paragraph you referenced. When determining whether Element One has been proved beyond a reasonable doubt, bear in mind the definition of the phrase scheme to defraud that appears in the first paragraph of the Definitions and Explanations section of Final Instruction No. 7, as well as the definition of official action or official act that appears in Final Instruction No. 13.