United States v. Smith ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14902 OCTOBER 19, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cr-00158-S-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDMOND HUDMOND SMITH, IV,
a.k.a. Eddie Smith,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(October 19, 2011)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Edmond Smith, IV, appeals his convictions and 780-month sentence for two
counts of retaliation against federal officials by threat, in violation of 18 U.S.C. §
115(a)(1)(B), two counts of solicitation to commit murder, in violation of 18
U.S.C. § 373(a), and one count of making false statements to federal agents, in
violation of 18 U.S.C. § 1001. Smith contends that the district court abused its
discretion by admitting the testimony of two witnesses regarding their reactions
after hearing from federal agents about the threats that Smith had made against
them. Smith also contends that his sentence is procedurally and substantively
unreasonable.
I.
In March 2009 Smith was convicted after a jury trial of being a felon in
possession of ammunition. Assistant United States Attorney Gregory
Bordenkircher served as lead prosecutor for Smith’s case, and United States
District Judge William Steele presided over the trial.1 While in jail awaiting
sentencing for his conviction, Smith made multiple threats on the lives of Judge
Steele and AUSA Bordenkircher in the presence of his cellmate, Paul Albert.
1
Judge Steele had also presided over a 2007 civil case in which a default judgment was
entered against Smith for over $1 million.
2
Albert, who was scheduled to be released from prison about a week before
Smith’s sentence hearing, informed law enforcement authorities of the threats, and
the next day a federal agent equipped him with a recording device. That device
recorded two conversations between Albert and Smith in which Smith discussed in
detail his plans to hire a “hit man” through Albert to kill Judge Steele,
Bordenkircher, and a few other individuals who were involved in his case.2 For
example, in discussing how the murders were to be carried out Smith stated:
They need to never be able to fuckin’ find a hair, a splatter, or fuckin’
bullet in the wall, fuckin’ nothing. They need to be wiped off the face
of the earth. They need to go fuckin’ look in fuckin’ Kathmandu,
fucking kingdom fuckin’ come, where the fuck in Africa, Peru, Brazil,
the fuckin’ Himalayans, [sic] whereever [sic] they fuckin’ look, and
look, and look, and look, and look, and look, and look, they don’t find
any fuckin’, needs to be no fuckin’ heads. Needs to be no fuckin’ skulls.
No fuckin’ teeth. No bones. They need to be, we’re not payin’ for them
just to fuckin’ be killed. We’re paying for a perfect fuckin’ erasing.
The only one left is gonna be Curran. Understand?
When Albert questioned Smith about whether Smith would actually pay for
the hit, Smith replied: “Yeah. Positive. Absolutely one hundred and ten percent
sure. The only way, the only way that they’re not fuckin’ get [sic] paid is if I
fuckin’, it didn’t fuckin’ happen or I fuckin’ die.” And when Albert warned Smith
of the consequences of not paying, Smith said: “Yeah, I understand it’s my life. I
2
Smith also planned to have three others killed as part of his scheme—a local sheriff’s
deputy, a former business partner, and a newspaper reporter named Eddie Curran.
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understand. You don’t think I understand the seriousness of this? Come on now. .
. . I completely understand the seriousness . . . .” Smith also asked Albert if he
was wearing a wire to which Albert replied: “No. Are you crazy?”
Additionally, when Albert warned Smith of the breadth of the investigation
that would result from killing a federal judge and a federal prosecutor, Smith
replied: “I already knew that. That’s why I said fuckin’ Steele don’t need to be
killed. He needs to have a fuckin’ stroke. Bordenkircher needs to fuckin’
disappear . . . . And the only one they need to have a body for is fuckin’ Curran.”
When Albert asked Smith if he was sure he wanted Judge Steele and
Bordenkircher killed, Smith stated:
It’s got to be done perfect and we’re, we’re losin’ fuckin’ time. When
them motherfuckers sentence me on the fuckin’ seventeenth, fuckin’ that
judge denies all of my attorney’s fuckin’ motions and sends my ass to
fuckin’ federal prison, the game’s up. I’m, I’m left in the fuckin’ hands
of some motherfuckers in Atlanta that have got fuckin’ political
connections with these same son of a bitches here. Come on.
In addition to making those threats and several other similar threatening
statements, Smith discussed the assets he would use to pay for the murders, such
as a Rolex watch, a used car, and Pancho Villa’s sword, which Smith claimed were
valued at over $1 million and all of which were verified by federal agents as
existing assets Smith owned or had access to. Smith also discussed his plan to
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implicate Judge Steele, Bordenkircher, and the other individuals he planned to
have killed in a criminal conspiracy to frame him through several phony emails
and letters he had prepared. The emails were to be planted on the victims’
computers, and the letters, which Albert was going to sneak out of prison in his
cane, were to be placed at the murder scenes.
After his conversations with Albert, Smith met with an undercover police
officer posing as an associate of Albert and inquired about obtaining a cell phone,
which Smith needed to shore up the final details of his murderous plot and
successfully orchestrate it from jail. Smith was later interviewed by federal agents
and denied ever making “any comments about wanting to injure or harm Judge
Steele or . . . Bordenkircher.” Federal agents informed Judge Steele and
Bordenkircher of the threats, but it is not clear from the record what the federal
agents told them. After receiving that information, both Judge Steele and
Bordenkircher took additional security measures to protect themselves and their
families.
Smith was indicted on two counts of retaliation against federal officials by
threat, two counts of solicitation to commit murder, and one count of making false
statements to federal agents. At trial, the government introduced testimony from
federal agents and other law enforcement officials involved in the undercover
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investigation of Smith. The government also played for the jury the audio
recordings of Smith’s conversations with Albert and his conversation with the
undercover police officer posing as Albert’s associate. Over the objection of
Smith, the government also introduced testimony from Bordenkircher and Judge
Steele regarding the security measures they took after hearing from federal agents
about Smith’s threats. Smith also took the stand and testified that he did not
intend to follow through on his threats. He testified that he was merely going
along with Albert and putting on a show because he was fearful of Albert and his
ties to a Latin gang. After a two-and-a-half day trial, the jury found Smith guilty
on all five counts.
Smith’s guidelines range for all five counts was a combined adjusted
offense level of 44, which was adjusted down to a total offense level of 43. See
U.S.S.G. ch. 5, pt. A , cmt. n.2. With a criminal history category of V, the
advisory sentencing guidelines recommended a sentence of life imprisonment.
After hearing arguments from both sides and considering the 18 U.S.C. § 3553(a)
factors, the district court imposed consecutive statutory maximum sentences for
each count resulting in a total sentence of 780 months imprisonment.
Smith contends that the district court abused its discretion by admitting the
testimony of Judge Steele and Bordenkircher regarding their reactions after being
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informed of the threats Smith had made and that his sentence is procedurally and
substantively unreasonable.
II.
We review a district court’s evidentiary rulings only for an abuse of
discretion. United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011).
Errors in evidentiary rulings, however, “do not constitute grounds for reversal
unless there is a reasonable likelihood that they affected the defendant’s
substantial rights; where an error had no substantial influence on the outcome, and
sufficient evidence uninfected by error supports the verdict, reversal is not
warranted.” United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006)
(quotation marks and alterations omitted). In other words, we will not reverse a
conviction when the district court abuses its discretion in admitting evidence if we
determine that the error was harmless. See United States v. Phaknikone, 605 F.3d
1099, 1109–11 (11th Cir. 2011). For that determination, “we view the entire
record” and “[t]he government bears the burden of establishing that an error is
harmless.” Id. at 1109. “Overwhelming evidence of guilt is one factor that may
be considered in finding harmless error.” Id. (quotation omitted).
Smith’s alleged errors focus on the admission of the testimony regarding the
reactions of Judge Steele and Bordenkircher after federal officers informed them
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of Smith’s threat on their lives. But even if we assume that testimony should not
have been admitted, there is no reasonable likelihood that its admission, given the
other unchallenged evidence, had a substantial influence on the outcome. The
federal agent in charge of the investigation testified that she put a wire on Albert
after receiving information that Smith was threatening the lives of federal officials,
that she found the letters Smith had written to be planted on the murder victims
rolled up in Albert’s cane, and that she had verified the existence of the assets
Smith had said he would put up as payment for the murders.
The jury heard audio recordings of Smith’s conversations with Albert in
which he planned and prepared to have the judge and the prosecutor killed.
Additionally, Smith testified at trial that he had no intention of following through
with his murder-for-hire scheme. The jury by finding him guilty necessarily
disbelieved his testimony, and that disbelief may be considered as substantive
evidence against him. See United States v. Brown, 53 F.3d 312, 315 (11th Cir.
1995) (“[W]hen a defendant chooses to testify, he runs the risk that if disbelieved
the jury might conclude the opposite of his testimony is true.” (quotation marks
omitted)). There was ample unchallenged evidence for the jury to find Smith
guilty beyond a reasonable doubt, making the alleged evidentiary errors harmless.
III.
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Smith also contends that his sentence is procedurally and substantively
unreasonable. He argues that the district court’s explanation of his sentence was
inadequate, rendering the sentence procedurally unreasonable. Smith also argues
that his sentence was substantively unreasonable because the statutory minimum
sentence for his convictions—180 months imprisonment—would have been
adequate to deter him and protect the public from future harm.
We review the reasonableness of a sentence only for an abuse of discretion,
using a two-step process. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.
2010). First, we must “ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51,
128 S.Ct. 586, 597 (2007). When the district court “listen[s] to the evidence and
arguments and [is] aware of the various factors [a] defendant put forward for a
lesser sentence” while stating it has considered the § 3553(a) factors, it does not
procedurally err by failing to give a detailed explanation of the sentence. United
States v. Irey, 612 F.3d 1160, 1194–95 (11th Cir. 2010) (en banc).
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If we find the sentence to be procedurally sound, the second step is to
review the sentence’s substantive reasonableness, considering “the totality of the
facts and circumstances.” Irey, 612 F.3d at 1189. We will vacate a sentence for
substantive unreasonableness “if, but only if, we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” Id. at 1190 (quotation
marks omitted). “The party challenging the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors.” Tome, 611 F.3d at
1378.
The district court’s explanation for Smith’s sentence was adequate. The
court listened to extensive arguments from Smith’s counsel and from Smith
himself. The court also stated that it had reviewed the relevant portions of the
record, that it had considered the § 3553(a) factors and the advisory nature of the
sentencing guidelines, and that the sentence reflected “the seriousness of the
offense” and met the statutory goals of punishment and general and specific
deterrence. See Irey, 612 F.3d at 1194–95. Smith has not shown that his sentence
was procedurally unreasonable.
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He has also failed to show that his sentence was substantively unreasonable.
He argues that the statutory minimum of 180 months imprisonment would have
been adequate to deter him and to protect the public, even though the sentencing
guidelines recommended a sentence of life imprisonment. The district court
expressed concern about the seriousness of the offense and the need for just
punishment and deterrence. Given the guidelines recommendation, the
seriousness of the offense, the need to deter others from threatening the lives of
federal officials, and the district court’s careful weighing of those factors, Smith
has not left us with a definite and firm conviction that the court committed a clear
error of judgment by imposing a 780-month sentence.
AFFIRMED.
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