Submitted September 26, 2013.
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Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For United States of America, Plaintiff - Appellee (12-2527, 12-2593): Thomas Dittmeier, Patrick T. Judge, Assistant U.S. Attorney, Michael A. Reilly, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Eastern District of Missouri, Saint Louis, MO.
For Elain Kay Young, Defendant - Appellant (12-2527): Michael J. Gorla, Saint Louis, MO; Jennifer Herndon, Florissant, MO.
Elain Kay Young, Defendant - Appellant (12-2527), Pro se, Aliceville, AL.
For Katherine A. Mock, Defendant - Appellant (12-2593): Kevin Christopher Curran, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Saint Louis, MO.
Katherine A. Mock, Defendant - Appellant (12-2593), Pro se, Fort Worth, TX.
Before WOLLMAN, SMITH, and KELLY, Circuit Judges. KELLY, Circuit Judge, concurring.
SMITH, Circuit Judge.
After a six-day trial, a jury convicted Elain " Kay" Young and Katherine " Kathy" Mock of conspiracy to commit murder-for-hire, resulting in death, in violation of 18 U.S.C. § 1958 and murder-for-hire, resulting in death, in violation of 18 U.S.C. § § 1958 and 2 based on the death of Young's husband. Young argues that the district court erroneously (1) admitted testimony of three witnesses regarding Young's prior bad acts that reflected a propensity to commit the crimes charged under Federal Rule of Evidence 404(b); (2) admitted into evidence coconspirator statements despite the lack of corroborating evidence as to the conspiracy's existence; (3) admitted Mock's out-of-court statements in violation of Young's confrontation rights; and (4) admitted into evidence a note found with Young despite the note's lack of authentication. Mock raises one issue unique to her, contending that the district court erroneously prohibited Mock from introducing Young's subsequent inconsistent statement involving Mock's whereabouts following the murder. Both Young and Mock argue that the district court erroneously (1) denied their motions to sever their joint trial; (2) overruled their Batson  challenges; and (3) overruled their motions for judgment as a matter of law because the government failed to prove an essential element of the offenses--the presence of a bargained-for exchange between the defendants. We review the facts in a light most favorable to the guilty verdict. United States v. McCauley, 715 F.3d 1119, 1121 (8th Cir. 2013). We affirm the convictions of both defendants.
Young married Melvin Griesbauer in 2004. They lived together on a farm in northern Missouri. The farm had been in Young's family for several years. Young bred dogs on the farm and befriended Mock through their common interest in the avocation.
Shortly after Young and Griesbauer married, the Missouri Army National Guard deployed Griesbauer to Iraq for
nearly one year, beginning in October 2004. Immediately before and during his deployment, Young purchased multiple life insurance policies on Griesbauer that listed Young as the primary beneficiary. Under the policies, Young stood to receive over $1.1 million in the event of Griesbauer's death.
By early 2006, Young began to experience financial difficulty. Young mortgaged the farm. To qualify for the loan, Young added Griesbauer to the farm's title. The loan proceeds enabled Young to pay off several farm debts. She also explicitly requested and received an additional $10,000 from the lender. Young and her lender finalized the loan less than twenty-four hours before Griesbauer's death.
Mock lived approximately three hundred miles away in southern Missouri. Mock had two sons, each of whom were experiencing problems, causing Mock significant stress. Mock also struggled financially. Keri Ponder (" Keri" ), Mock's former daughter-in-law, traveled from Massachusetts to Mock's home to assist Mock during this difficult time. Keri testified that Mock was " at the end of her rope." Approximately nine days before Griesbauer's death and in Keri's presence, Mock received a phone call from Young. After the call, Mock told Keri that Young was upset because Griesbauer purchased a life insurance policy on Young's life. According to Keri, Griesbauer told Young that he planned to buy items that he would not allow Young to enjoy. Keri testified that the phone call upset Mock. Mock then asked Keri if she knew anyone that would kill somebody. Keri responded that she did not, so Mock asked Keri if she would be willing to kill someone. Keri declined, but out of curiosity, Keri asked " how much a life went for." Mock told her, " They're willing to pay $6000."
The following day, Mock and her other daughter-in-law, Rita Lee Ponder (" Rita" ), traveled to Young's farm to visit Young and deliver dogs. Rita overheard Young tell Mock that Young was afraid of Griesbauer and intended on leaving him because he threatened to kill her. Mock agreed to help Young get away from Griesbauer. Two days later, Mock asked her son Thomas Ponder (" Thomas" ) if he knew anyone that could kill somebody. Mock told him that Young wanted someone killed and was willing to pay $10,000. Mock told Thomas that Griesbauer was abusing Young, causing Mock to fear for Young's safety. Thomas declined Young's solicitation because he did not take the conversation seriously. Five days later on March 22, 2006, Mock traveled back to Young's farm. Mock asked Thomas to drive her there, but he declined. Mock lied to Rita, saying she was simply going to get stress relief at a nearby hospital.
According to Young's initial statement to Adair County Sheriff Leonard Clark, on the night of Griesbauer's death, Young picked up Griesbauer from work just after 1:04 a.m. to bring him home. Mock had already arrived at Young's farm by this time. After arriving at home, Griesbauer went outside to the barn to check on some puppies. Young then heard a gunshot in the direction of the barn. Young awakened Mock so that Mock could accompany her to the barn to check on Griesbauer. Young noted that Griesbauer frequently carried the gun recklessly--loaded and cocked. Young and Mock located Griesbauer and discovered that he had been shot in the face and killed. They called 911.
Deputy Tracy Salsberry of the Adair County Sheriff's Office arrived first on scene. Mock led Deputy Salsberry to Griesbauer's body near the front of the barn. After verifying Griesbauer's recent death,
Deputy Salsberry examined the firearm at the death scene. It was Young's 30-30 caliber, lever-action rifle. Deputy Salsberry discovered that the rifle was cocked and had a live round in the chamber. Deputy Salsberry concluded that Griesbauer's death was not the result of an accident or suicide because a suicide shooter could not have reloaded the lever-action rifle. Deputies Salsberry and Brian Burns, who had just arrived on scene, swept the area but discovered no one else present. Sheriff Clark arrived shortly thereafter and separately interviewed both Young and Mock, who were the only individuals at the scene. Their initial accounts and alibis largely matched.
The police discovered other critical pieces of evidence at the crime scene. During the protective sweep, they found a 30-30 shell casing inside the doorway to the barn. The police also discovered shoe prints in a star pattern near the body that later matched Mock's shoes. Pursuant to a warrant, police searched the entire area and discovered a three-hole ski mask wrapped around a pair of used latex gloves away from the barn near the residence. The police later determined that Mock purchased the mask at a Wal-Mart en route to Young's home hours before Griesbauer's death. Mock signed the receipt for the mask when she purchased it with her credit card. Police found a copy of this receipt in Mock's purse. Mock's DNA was also present on the interior of the mask and the gloves. The gloves also contained detectable amounts of gunshot residue and a partially burnt particle of gunpowder, which matched gunpowder removed from the remaining live shells in the murder weapon.
The next day, Young presented a different account of the night's events to Sheriff Clark. Young told Sheriff Clark that, after hearing the gunshot outside, she searched for Mock but could not find her. She stated that she found Mock after three or four minutes sitting fully dressed in the bathroom and " flipping out." Young altered her account of events. Previously, she had told Sheriff Clark that she had awakened Mock from sleep and that they had proceeded outside together.
Mock left Young's farm the following morning and traveled to the home of a close friend named Jean Ballard. Mock asked Ballard for help because Mock had ingested several Vicodin pills that Young had provided to her. Mock alleges that Young told Mock to ingest over 100 pills so that " she would get thirty to sixty days in an insane asylum instead of penitentiary time." Mock, who owed Ballard approximately $2800, had recently told Ballard that Mock was going to pay everything back with interest, indicating that she expected to receive money soon.
While Ballard cared for Mock, Young called Ballard multiple times to check on Mock. Young instructed Ballard not to upset Mock and to tell Mock that Young loved her. Young did not mention Griesbauer's death to Ballard at that time. Mock later disclosed Griesbauer's death to Ballard. Ballard then transported Mock to a nearby hospital. En route, Ballard asked Mock if she murdered Griesbauer. Mock responded, " I think I shot him, but I don't remember it. Wouldn't I remember doing something like that?"
Approximately two years after Griesbauer's death, Missouri authorities arrested Young and charged her in state court with first-degree murder. Upon her arrest, Young feigned ignorance by asking, " Murder of who?" After performing a search incident to arrest, police discovered
a photocopied note located in the only purse in the truck where Young was driving alone. The note read in pertinent part, " Use her drugged state to convince her she shot him. Offered 10,000 to kill him. Was turned down. If I collaborate her story. Bucks." Mock was also arrested. State authorities eventually transferred Young and Mock into federal custody in October 2009.
While in custody, Young allegedly spoke with a jailhouse informant named Amanda Bax. The government called Bax to testify against Young. Bax testified that Young told her that she killed Griesbauer for insurance money because she was about to lose her farm. She also stated that Young told her she would " rather lose her husband than lose that farm." Bax further testified that Young told her, " [S]he was trying to get [Mock] to find somebody to commit the murder for her and that she was going to end up being the fall guy for her." Bax admitted that she was sentenced to prison for twelve years stemming from convictions related to writing bad checks and for stealing by deceit. She also admitted that she may benefit personally by testifying against Young. Additionally, one of Young's paramours, Kris Robbins, testified that Young proclaimed many times in relation to Griesbauer, " I would like to kill the son-of-a-bitch" and " I wish he was dead."
A joint, six-day jury trial commenced on March 12, 2012. The district court denied the defendants' multiple motions to sever the trial. The jury found Young and Mock guilty of both counts. The district court sentenced them both to two concurrent life sentences.
On appeal, Young argues that the district court erroneously (1) admitted testimony of three witnesses regarding Young's prior bad acts that reflected a propensity to commit the crimes charged under Federal Rule of Evidence 404(b); (2) admitted into evidence coconspirator statements despite the lack of corroborating evidence as to the conspiracy's existence; (3) admitted Mock's out-of-court statements in violation of Young's confrontation rights; and (4) admitted into evidence a note found with Young despite the note's lack of authentication. Mock raises one issue unique to her, contending that the district court erroneously prohibited Mock from introducing Young's subsequent inconsistent statement involving Mock's whereabouts following the murder. Both Young and Mock argue that the district court erroneously (1) denied their motions to sever their joint trial; (2) overruled their Batson challenges; and (3) overruled their motions for judgment as a matter of law because the government failed to prove an essential element of the offenses--the presence of a bargained-for exchange between the defendants. We affirm the convictions of both defendants.
A. Rule 404(b)
Young objected to the admission of testimony of three government witnesses: Norman Newlin, Tim Eschmann and Jim Goodwin. On appeal, Young contends that the district court erred by allowing the government to elicit testimony from these witnesses showing that Young had a propensity to commit murder-for-hire, in violation of Federal Rule of Evidence 404(b). We review a district court's decision to admit 404(b) evidence for an abuse of discretion and reverse " only when the evidence clearly had no bearing on the case and was introduced solely to show defendant's propensity to engage in criminal misconduct." United States v. Gant, 721 F.3d 505, 509 (8th Cir. 2013) (quotation and citation omitted).
Rule 404(b)(1) provides that " [e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." However, evidence may be admitted for another purpose like proving " motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). Thus, Rule 404(b) " generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case." Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). " The threshold inquiry . . . is whether that evidence is probative of a material issue other than character." Id. at 686. " Rule 404(b) is a rule of inclusion, prohibiting only evidence that tends solely to prove the defendant's criminal disposition." United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995). " [F]or evidence of prior bad acts to be admissible, the evidence must be: (1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in kind and close in time to the crime charged." United States v. Jourdain, 433 F.3d 652, 659 (8th Cir. 2006) (quotation and citation omitted). Before we reverse, we must conclude that the evidence " clearly ha[d] no bearing on any issue involved." Id. (quotation and citation omitted). Finally, when admitting evidence under Rule 404(b) to show the defendant's intent, the prior act need not duplicate the charged conduct but be similar enough to support an inference of criminal intent. United States v. Walker, 470 F.3d 1271, 1275 (8th Cir. 2006).
1. Norman Newlin
Newlin testified that, while living on Young's farm as a tenant in 2002, Young and Newlin discussed Young's problems with her then-husband David Crawford. Newlin testified that Young solicited him to murder Crawford. In exchange, Young would pay Newlin $10,000 and murder Newlin's wife by staging a horseback-riding accident. Young also instructed Newlin to purchase a life insurance policy on his wife's life because Young had a policy on Crawford. Young eschewed divorcing Crawford for fear that a court could award him the farm. Newlin testified that Young had several serious conversations with him about this arrangement. Newlin rejected her offer, and Crawford was never harmed.
Young asserts that the government introduced Newlin's testimony to demonstrate that Young has a propensity to solicit murder. Young argues primarily that her statements to Newlin about killing Crawford for $10,000 to protect her farm are not similar in kind or close in time to Griesbauer's murder. In support of her contention, Young cites United States v. Fawbush, where this court reversed a district court's decision to admit evidence that the defendant molested his daughters and impregnated one daughter eight years prior to the molestation charge at issue. 634 F.3d 420, 421-23 (8th Cir. 2011). The impregnated daughter was fifteen at the time, and the unrelated victim of Fawbush's charged offense was three. Id. at 421. This court determined that the district court abused its discretion in admitting the testimony because the prior acts were unrelated to the ...