USA v. Shynita Townsend

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12429
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20186-MGC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllll llll Plaintiff-Appellee,
versus
SHYNITA TOWNSEND,
a.k.a. Shynita Townsend-Ponton,
a.k.a. La Negra,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(December 21, 2012)
Before TJOFLAT, PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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Shynita Townsend, proceeding pro se, appeals the district court’s denial of
her motion for a new trial based on newly discovered evidence under
Fed.R.Crim.P. 33. On appeal, Townsend argues that the district court abused its
discretion in denying her motion without holding an evidentiary hearing after she
presented evidence of “extrinsic contact” between a juror and a witness. For the
reasons set forth below, we affirm the denial of Townsend’s motion for a new trial.
I.
A federal grand jury issued a four-count superceding indictment, charging
Townsend with (1) knowingly and corruptly accepting a thing of value, as an
agent of a local government in violation of 18 U.S.C. § 666(a)(1)(B); (2) acting as
an accessory after the fact, knowing that a crime against the United States had
been committed in violation of 18 U.S.C. § 3; (3) obstruction of justice in
violation of 18 U.S.C. § 1512(c)(1); and (4) obstruction of justice in violation of
18 U.S.C. § 1512(c)(2). Prior to her indictment, Townsend was a corrections
officer in Miami-Dade County, and her charges arose out of her supervision of an
individual who was on pretrial release.
After a jury trial, on November 24, 2008, Townsend was convicted of all
counts, and on May 19, 2009, the district court sentenced her to concurrent 45-
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month terms on each count. On December 24, 2008, through counsel, Townsend1
filed a motion for a judgment of acquittal, or alternatively, for a new trial,
challenging the sufficiency of the evidence to support her convictions. The
district court denied the motion. She appealed her convictions, again challenging,
among other things, the sufficiency of the evidence to support her convictions, and
on January 13, 2011, we affirmed her convictions. See United States v. Townsend,
630 F.3d 1003, 1009-15 (11th Cir.), cert. denied., 131 S.Ct. 2472 (2011).
On September 7, 2011, Townsend filed the instant pro se “Motion for New
Trial[,] Motion for Appointment of Counsel[,] Motion for Evidentiary Hearing[,]
Motion for Post-Trial Juror Contact and Subpoena of Juror.” Her motion was
based on “newly discovered evidence of juror misconduct/jury tampering” in
violation of her right to an impartial jury. Specifically, after the guilty verdict,
DeAngelus Gibson, a defense witness, admitted to “having discussed the case with
a juror during deliberations.” Specifically, Gibson told Townsend:
I thought for sure you would be found innocent because I talked with
one of the jurors about the case—the elderly black man. We were in
the bathroom at the same time and he [the juror] said, ‘Those white
folks know that lady is innocent, but just want to find a black person
guilty. We are kinda bored and tired and don’t feel like arguing with
them. We are trying to get home to prepare for Thanksgiving.’
On October 26, 2012, Townsend completed her sentence and was released from1
incarceration.
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Gibson did not indicate how this conversation was initiated or provide information
regarding any statements that Gibson made during the encounter.
Townsend argued that an evidentiary hearing was required to establish “the
totality of the circumstances” before the district court. Further, the extrajudicial
contact between a witness and a juror, during deliberations, denied Townsend a
fair and impartial verdict. Specifically, the witness and the juror had an improper
discussion about the case, which shows “juror misconduct” because the juror
violated a court order by deliberating with a non-juror. Additionally, Gibson may
have tried to influence the jury verdict to Townsend’s detriment. The juror’s
statements to Gibson also raised the issue of racial prejudice of other jurors, and
showed that the other jurors were considering “the outside influence of a holiday
to bring about a speedy verdict.” Gibson, as Townsend’s “friend,” may have
“advocated on []behalf of [Townsend] and caused her to be found guilty.”
In support of her motion, Townsend submitted a signed affidavit,
reasserting her claims and restating the juror’s alleged statements to Gibson.
The district court denied Townsend’s motion for a new trial as well as her
requests for appointment of counsel, an evidentiary hearing, and a subpoena of the
juror. The district court found that Townsend’s affidavit clearly indicated that she
knew of the alleged juror misconduct for almost three years before seeking a new
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trial. Thus, Townsend was unable to establish that the information in her motion
was “new or newly discovered.” According to Townsend’s affidavit, she learned
of the alleged misconduct “around November 2008,” but she failed to mention the
misconduct in her December 2008 motion for a new trial or in her direct appeal.
Instead, Townsend waited almost three years to file a motion for a new trial based
on evidence that was “not new or newly discovered.” Finally, although Townsend
alleged juror misconduct, she did not submit an affidavit from any witness to
support her claim.
II.
We review for abuse of discretion the district court’s denial of a motion for
a new trial based on juror misconduct and the denial of an evidentiary hearing.
United States v. Siegelman, 640 F.3d 1159, 1181 (11th Cir. 2011), cert. denied
132 S.Ct. 2711 (2012); United States v. Massey, 89 F.3d 1433, 1443 (11th
Cir.1996). A motion for new trial based on juror misconduct is a form of a motion
for new trial based on newly discovered evidence. United States v. Calderon, 127
F.3d 1314, 1351 (11th Cir. 1997). We may affirm the district court’s decision on
any ground supported by the record. United States v. Chitwood, 676 F.3d 971,
975 (11th Cir. 2012), cert. denied, (U.S. Oct. 1, 2012) (No. 12-5074).
Rule 33 provides that “the court may vacate any judgment and grant a new
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trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). A motion for a
new trial grounded on newly discovered evidence must be filed within three years
after the verdict or finding of guilt. Fed.R.Crim.P. 33(b)(1). However,
“[m]otions for a new trial based on newly discovered evidence are highly
disfavored in the Eleventh Circuit and should be granted only with great caution.
Indeed, the defendant bears the burden of justifying a new trial.” United States v.
Campa, 459 F.3d 1121, 1151 (11th Cir.2006) (en banc ) (citation omitted).
With respect to new-trial motions based on juror misconduct during
deliberations, the Supreme Court has recognized “a near-universal and firmly
established common-law rule flatly prohibiting the use of juror testimony to
impeach a verdict.” Siegelman, 640 F.3d at 1185. Federal Rule of Evidence
606(b) codifies this long-standing common law rule. Tanner v. United States, 483
U.S. 107, 121, 107 S.Ct. 2793, 2748, 97 L.Ed.2d 90 (1987). In its codified form,
the rule generally provides that:
During an inquiry into the validity of a verdict or indictment, a juror
may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s
or another juror’s vote; or any juror’s mental processes concerning
the verdict or indictment. The court may not receive a juror’s affidavit
or evidence of a juror’s statement on these matters.
Fed.R.Evid. 606(b)(1). However, Rule 606(b)(2) provides exceptions to this rule,
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stating that a juror may testify about whether: (1) extraneous prejudicial
information was improperly brought to the jury’s attention; (2) an outside
influence was improperly brought to bear on any juror; or (3) a mistake was made
on the verdict form. Fed.R.Evid. 606(b)(2).
Further, the district court has the discretion to decide a motion for a new
trial without a hearing. United States v. Schlei, 122 F.3d 944, 994 (11th Cir.1997)
(“[T]he acumen gained by a trial judge over the course of the proceedings” makes
the same judge “well qualified” to rule on a motion for a new trial based on new
evidence without an evidentiary hearing.). In United States v. Slocum, 708 F.2d
587 (11th Cir.1983), we stated:
[W]e find ourselves in agreement with the decision on the merits of
the new trial motion and where the defendants failed to file even an
affidavit by [ ] the person whose post-trial statement clearly came the
closest to requiring a new trial, we hold that the trial court did not
abuse its discretion in denying the motion without an evidentiary
hearing.
Id. at 600. “No per se rule requires the trial court to investigate the internal
workings of the jury” after an allegation of juror misconduct, and the “more
speculative or unsubstantiated the allegation of misconduct, the less the burden to
investigate.” United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990).
As an initial matter, although Townsend requests counsel in her appeal
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brief, she did not file a separate motion for appointment of appellate counsel and
her brief does not provide any supporting arguments to justify appointment of
counsel. As such, she appears to have abandoned her request for counsel. See
United States v. Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012) (holding that
an issue was abandoned where the appellant failed to develop any argument on the
issue in the initial appeal brief). Regardless, because Townsend suggests that
counsel is necessary to investigate an “ineffective assistance” claim, her request
for counsel does not appear to be relevant to the instant appeal of the denial of her
motion for a new trial.
In light of the “highly disfavored” nature of new-trial motions based on
newly discovered evidence, see Campa, 459 F.3d at 1151, the district court did not
abuse its discretion in denying Townsend’s Rule 33 motion. As noted by the
district court, Townsend’s affidavit suggests that she discovered the allegedly new
evidence—the juror’s statements to Gibson—immediately after the jury verdict
was issued in November 2008. However, she waited nearly three years until
September 2011 to file the instant Rule 33 motion, and she provides no
explanation for why she did not assert her juror misconduct claim in her December
2008 motion for a new trial or on direct appeal. Nevertheless, her instant motion
was timely filed within three years of the jury verdict, and her motion was based
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on information that she claimed to have discovered after the conclusion of trial.
See Fed.R.Crim.P. 33(b)(1).
Regardless, we may affirm on any basis supported by the record, see
Chitwood, 676 F.3d at 975, and here, the record established that Townsend’s
motion for a new trial was meritless. Specifically, Townsend did not substantiate
her claims in the district court by submitting an affidavit from Gibson. Further,
although she sought to subpoena the juror involved, the juror’s testimony
regarding internal jury deliberations or the potential “mental processes” and
motivations of other jurors would have been inadmissable to impeach the verdict
under Rule 606(b)(1). See Siegelman, 640 F.3d at 1185; Fed.R.Crim.P. 606(b)(1).
Moreover, no exception to the general rule prohibiting juror testimony applied to
Townsend’s accusations because she did not identify any evidence suggesting that
the jury was exposed to extraneous prejudicial information or that an improper
outside influence impacted the jury’s verdict. See Fed.R.Evid. 606(b)(2). Instead,
according to Townsend, the juror’s statements to Gibson related to racial bias of
other jurors, and the impact of fatigue and an upcoming holiday on jury
deliberations.
On appeal, Townsend suggests that Gibson may have influenced the jury’s
verdict through his contact with the juror, and that Townsend had established a
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case of “jury tampering.” However, in her motion for a new trial, Townsend
conceded that Gibson did not specify how the conversation between Gibson and
the juror was initiated, and Gibson did not claim to have made any statements that
could have influenced the juror. Notably, Gibson was a defense witness and
Townsend’s “friend,” which suggests that Gibson would have been unlikely to
make statements to a juror that prejudiced Townsend. In sum, Townsend’s claim
that Gibson’s “extrinsic contact” with a juror may have improperly influenced the
verdict or prejudiced Townsend was speculative and unsupported by any evidence,
and as such, Townsend failed to meet her burden of justifying a new trial. See
Campa, 459 F.3d at 1151.
Finally, the district court did not abuse its discretion in denying Townsend’s
Rule 33 motion without a hearing because she did not submit an affidavit from
Gibson, whose post-trial statements provided the basis for her motion. See
Slocum, 708 F.2d at 600. Moreover, because the same judge presided over both
Townsend’s trial and her Rule 33 motion, the district court was “well qualified” to
rule on the motion without a hearing. See Schlei, 122 F.3d at 994.
For the foregoing reasons, we affirm the district court’s denial of
Townsend’s motion for a new trial.
AFFIRMED.
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