United States v. George David Salum, III ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 4, 2007
No. 07-10944 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00137-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE DAVID SALUM, III.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(December 4, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
George David Salum, III, (“Salum”) appeals his convictions for obstruction
of justice and computer fraud in violation of what is known as the “omnibus
clause” of 18 U.S.C. § 1503 and 18 U.S.C. §§ 1030 (a)(2)(B) and (c)(2)(B),
respectively. For the reasons discussed below, we affirm.
I. Background
Salum, a former police officer with the Montgomery Police Department
(“MPD”) was convicted of obstruction of justice and computer fraud for his role in
connection with the release of personnel records of former officer Raymond
DeJohn.
DeJohn was a member of the Drug Enforcement Agency’s (“DEA”) task
force investigating Leon Carmichael and formerly served as an officer in the MPD.
Carmichael was charged with conspiracy to possess with intent to distribute 3,000
kilograms of marijuana. As part of his defense, Carmichael operated a website that
posted names and pictures of informants, witnesses, and agents that assisted with
the Carmichael case.1 In the Spring of 2004, the website showed photographs of
several potential witnesses, but stated “picture coming” next to DeJohn’s name.
By late August, 2004 DeJohn’s picture was on the website. The photograph was
DeJohn’s MPD photograph.
The alleged purpose of the website was to gain information on the people
1
The district court denied a motion to order it removed from the internet. The propriety
of this order or the First Amendment concerns are not at issue in this appeal.
2
listed on the site. A disclaimer on the website indicated that it was not intended to
intimidate witnesses. But DEA Agent Boreland testified at Salum’s trial that more
than one witness telephoned and expressed concern for their safety as a result of
the website, and the DEA installed an electronic surveillance system at DeJohn’s
residence because of the website. The website was very controversial and was
covered in the media.
Exactly how the MPD photograph and other information got into the hands
of Carmichael is the foundation of the case against Salum. Carmichael’s defense
attorney, Stephen R. Glassroth, hired a private investigator, Johnny White, to
obtain DeJohn’s photograph and his police personnel file. White was also
instructed to obtain criminal histories of other government witnesses that were
expected to testify against Carmichael.
Salum was a lieutenant with the MPD at the time of these events and knew
White. The MPD had access to the National Crime Information Center (NCIC)
and the Alabama Criminal Justice Information Service (ACJIS) databases. The
NCIC is run by the FBI. MPD rules and regulations limited the release of
NCIC/ACJIS and personnel files to only those authorized to have such
information. All officers received copies of these rules and regulations. In
addition, employees with access to NCIC/ACJIS databases had to undergo training
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and certification, which included information on the proper use of the system and
the proper dissemination of information. The system could be used for criminal
justice agency use only in the conduct of official business, which did not include
private investigations. Salum received training and certification.
Johnny White had previous law enforcement experience but had not been in
law enforcement for several years at the time of the alleged offenses. Testimony at
trial suggests that this was widely known, although Salum denied he knew this.
White recruited Salum to obtain DeJohn’s files from the MPD. White was
friendly with Salum and thought he could trust Salum to keep the request quiet.
Salum testified that White did not tell Salum why he needed the information, but
White testified that he told Salum it was for Carmichael’s case. Salum agreed to
help and when he did so, he did not ask for payment in return. According to
White, however, when Salum gave the information to White he asked for money
and asked White to remove Salum’s name from the top of the files.
As far as compensation went—according to White—when Salum produced
the documents, White asked what he owed Salum and he replied with the figure of
$1,000 to divide between two other officers who helped him get the information.
Officer Jay King had copied the 244-page personnel file and Officer Shannon
Youngblood obtained DeJohn’s picture for Salum. (Significantly, Salum asked
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Youngblood if DeJohn was a DEA Agent when he asked for the picture. Further,
several other officers testified to helping Salum obtain the documents.) According
to Salum, he did not ask for money; instead White just gave it to him. Salum
testified that White gave him $400, of which Salum gave $200 to King and stated
that he intended to give $200 to Youngblood but did not have an opportunity to do
so.
Salum testified that he did not know about the website nor did he know why
White wanted the information on DeJohn. The prosecutor asked White, “What did
Mr. Carmichael tell you he wanted to do to Raymond DeJohn?” White responded
that Carmichael wanted to obtain information to discredit DeJohn. Defense
counsel objected on hearsay grounds and because Carmichael could not be
cross-examined, but the court overruled the objection and permitted the testimony
to show motive and intent.
The jury began deliberations at roughly 3 p.m. on the last day of the trial.
During the afternoon, the jury issued several questions to the court. First, it asked
for clarification on specific intent necessary for obstruction of justice. The court
referred the jury to the written instructions. Shortly before 7 p.m., the jury sent a
note to the court as follows: “We have made a decision on one of the counts but we
have not arrived at a unanimous decision on the other count. We feel that due to
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some very strong commitments to strong opposing views we do not see a
unanimous verdict forthcoming. Please advise. Jurors have stated that their minds
will not be changed.” Defense counsel requested a mistrial on the deadlocked
count. The court determined that an Allen charge would be proper.
The court issued the following charge:
Ladies and Gentlemen, I am going to ask that you continue your
deliberation in an effort to reach agreement upon a verdict and dispose
of this case. And I have a few additional comments I would like for
you to consider as you do so. This is an important case. The trial has
been expensive in time, effort, money and emotional strain to both the
defense and to the government. If you should fail to agree upon a
verdict the case will be left open and may have to be tried again.
Obviously another trial would only serve to increase the cost to both
sides and there’s no reason to believe that the case can be tried again
by either side any better or more exhaustively than it has been tried by
you. Any future jury must be selected in the same manner and from
the same source as you were chosen and there’s no reason to believe
that the case could ever be submitted to 12 men and women more
conscientious, more impartial or more competent to decide it, or that
more or clearer evidence could be produced. If a substantial majority
of number are in favor of a conviction, those of you who disagree
should reconsider whether your doubt is a reasonable one since it
appears to make no effective impression on the minds of the others.
On the other hand, if a majority or even a lesser number of you are in
favor of an acquittal, the rest of you should ask yourselves again and
most thoughtfully whether you should accept the weight and
sufficiency of the evidence which fails to convince your fellow jurors
beyond a reasonable doubt. Remember at all times that no juror is
expected to give up an honest belief he or she may have as to the
weight or effect of the evidence. But after full deliberation and
consideration of the evidence in this case, it is your duty to agree upon
a verdict if you can do so. You must also remember that if the
evidence in the case fails to establish guilt beyond a reasonable doubt,
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the Defendant should have your unanimous verdict of not guilty. You
may be as leisurely in your deliberation as occasion may require and
you should take all of the time which you may feel is necessary.
Defense counsel again requested a mistrial, which the court denied. During
further deliberations, the jury again questioned the specific intent necessary for the
obstruction of justice offense. The court referred the jury to the written
instructions, and then asked whether they wished to continue deliberations that
evening or the following workday, or if they remained deadlocked. The jury
responded that it would continue deliberations that evening. At 9 p.m., the jury
returned a verdict of guilty on both counts. Salum was sentenced to 30 months
imprisonment.
Salum now appeals on three grounds: He argues that (1) there was
insufficient evidence to establish the offenses of obstruction of justice (count 1)
and computer fraud (count 2); (2) the denial of the motion for mistrial for giving
the Allen charge was error; and (3) the district court erred by admitting testimonial
hearsay barred by the Confrontation Clause.
II. Standard of Review
We review sufficiency of the evidence claims de novo. We “resolve all
reasonable inferences in favor of the jury’s verdict.” United States v. Eckhardt, 466
F.3d 938, 944 (11th Cir. 2006), cert. denied, 127 S.Ct. 1305 (2007). “The relevant
7
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (quotation omitted); see also United States
v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). Credibility of a witness is within
the province of the jury. United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir.
1990). “[W]hen a defendant chooses to testify, [s]he runs the risk that if
disbelieved the jury might conclude the opposite of [her] testimony is true.”
United States v. Turner, 474 F.3d 1265, 1280 (11th Cir. 2007). “[A] statement by
a defendant, if disbelieved by the jury, may be considered as substantive evidence
of the defendant's guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir.
1995). “Where some corroborative evidence of guilt exists for the charged offense .
. . and the defendant takes the stand . . . the Defendant's testimony, denying guilt,
may establish, by itself, elements of the offense.” Id. at 315. “This rule applies
with special force where the elements to be proved for a conviction include highly
subjective elements: for example, the defendant's intent or knowledge.” Id.Review of a district court’s decision to give an Allen charge is limited to
evaluating the coercive impact of the charge. The question this court addresses is
whether under the circumstances and language of the Allen charge the jury was
unduly coerced into reaching a verdict. United States v. Elkins, 885 F.2d 775, 783
8
(11th Cir. 1989).
Determinations of the admissibility of evidence are in the discretion of the
trial judge and will not be reversed by an appellate court unless it finds an abuse of
discretion. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002).
III. Discussion
a. Insufficient Evidence
Count 1
To prove obstruction of justice under the omnibus clause, the government
must show that the defendant (1) endeavored; (2) to influence , obstruct, or impede
the due administration of justice; (3) in a corrupt manner or by threats. United
States v. Barfield, 999 F.2d 1520, 1522 (11th Cir. 1993).
“All the government has to establish [to prove the first element] is that the
defendant should have reasonably foreseen that the natural and probable
consequence of the success of his scheme would [obstruct the due administration
of justice].” United States v. Fields, 838 F.2d 1571, 1573 (11th Cir. 1988). The
second element is broad and has been interpreted to be such. United States v.
London, 714 F.2d 1558, 1566-1567 (11th Cir. 1983). It was “drafted with an eye
to ‘the variety of corrupt methods by which the proper administration of justice
may be impeded or thwarted, a variety limited only by the imagination of the
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criminally inclined.’” Id. Gathering information to assist a criminal defendant in
creating a website for the purpose of intimidating witnesses certainly falls within
this broad scope. The term “corrupt” has been interpreted to describe the specific
intent of the crime—that the defendant acted willfully. Barfield, 999 F.2d at 1524-
1525.
At trial, White testified that he told Salum that he was working on the
Carmichael case and asked Salum to “look into the people on the website [to see] if
they had any criminal history with the city or if there was anything in DeJohn’s
personnel file that could have been negative to the defense as far as any police
misconduct or stuff like that.” Testimony at trial also established that the website
was well publicized in the Montgomery area. And Youngblood testified that
Salum asked Youngblood if DeJohn was a DEA agent. From these facts, it was
possible for the jury to conclude that Salum knew why he was researching these
individuals and providing the information to White.
The jury also heard testimony that the individuals on the website feared for
their safety, and the jury could have inferred that at least one of the purposes (if not
the sole purpose) of the website was to intimidate the witnesses. Also damaging to
Salum is the fact that he testified and denied that he knew the purpose of the
investigation. By choosing to testify Salum ran the risk that the jury would
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disbelieve his statements, and his testimony was substantive evidence of his intent
and his guilt. See Brown, 53 F.3d at 315.
A jury could have concluded from this evidence, therefore, that Salum knew
the purpose of his investigation, corruptly conducted the investigation, and could
reasonably foresee that the natural and probable consequence of the success of his
scheme would obstruct justice. Thus, sufficient evidence existed to convict Salum
of obstruction of justice.
Count 2
To prove computer fraud in violation of Sections 1030(a)(2)(B) and
(c)(2)(B), the government must prove that the defendant (1) intentionally accessed
a computer without authorization or in excess of his authorization, (2) thereby
obtaining information from a federal department or agency, (3) for the purpose of
commercial advantage or private financial gain or in furtherance of any criminal or
tortuous act in violation of the Constitution or laws of the United States or of any
State.
Here, the evidence was sufficient to establish Salum’s guilt. The NCIC is
operated by the FBI and Salum did not dispute that he obtained information from a
department or agency of the United States. Testimony established that it was well
known that White was no longer in law enforcement. Salum admitted that he knew
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White worked as a private investigator and the jury could infer from Salum’s
testimony that he knew White was not a law enforcement officer. And although
Salum may have had authority to access the NCIC database, there was sufficient
evidence to establish that he knew White was working for Carmichael and that by
providing information from the NCIC database, Salum exceeded his authority by
accessing it for an improper purpose.
A jury also could have reasonably concluded from the evidence that Salum
gave White the information for either Salum’s financial gain or in violation of the
law. First, the evidence established that White gave Salum money. White testified
that Salum demanded $1,000 to pay the two police officers that helped him—King
and Youngblood. But Salum testified that he received only $400 from White, that
he gave $200 to King, and that he was going to give the other $200 to Youngblood
but did not have a chance. King denied receiving any money from Salum. From
the inconsistency of the testimony, the jury could have inferred that Salum
intended to financially gain from providing the information to White. Moreover,
the jury could have inferred from Salum’s testimony the opposite of what he said.
Second, the jury could have also concluded that Salum gave the information
to White in furtherance of a criminal act, namely, to interfere with the judicial
proceedings against Carmichael.
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For the above reasons, we conclude that sufficient evidence existed for the
jury to find Salum guilty of computer fraud.
b. Allen Charge
Salum next argues that the court erred by denying his motion for a mistrial
because the court’s Allen charge was coercive in light of the length of the
deliberations and considering the totality of the circumstances.
The question the court addresses in reviewing a district court’s rendering of
an Allen charge is whether under the circumstances and language of the Allen
charge the jury was unduly coerced into reaching a verdict. United States v.
Elkins, 885 F.2d 775, 783 (11th Cir. 1989). When the district court does not poll
the jury prior to reading the Allen charge, we will reverse only if we conclude
under the totality of the circumstances that the charge was inherently coercive.
United States v. Chigbo, 38 F.3d 543, 545 (11th Cir. 1994); see also United States
v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). In United States v. Scruggs, 583
F.2d 238, 240-41 (5th Cir. 1978)2, the former Fifth Circuit held that an Allen
charge given after four and a half hours of deliberations and which was read forty-
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
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eight minutes before the jury returned a verdict was not coercive. In Brooks v. Bay
State Abrasive Products, Inc., 516 F.2d 1003 (5th Cir. 1975), the jury deliberated
for three and a half hours and returned a verdict less than thirty minutes after
hearing the Allen charge. And in Chigbo, this court concluded
that thirty minutes between the charge and the verdict was not enough to find the
charge coercive.
Here, we conclude that the charge was not inherently coercive. This court
repeatedly has upheld this pattern Allen charge. See Dickerson, 248 F.3d at 1050;
Trujillo, 146 F.3d at 846-47; Chigbo, 38 F.3d at 545-56. Moreover, the context in
which the charge was given does not appear to be coercive. The judge urged the
jurors to reconsider and gave them the choice of continuing deliberations that
evening, continuing the following day, or ceasing deliberations if the jury was
hopelessly deadlocked. The jurors had deliberated for roughly four hours before
the charge was given and they returned a verdict about two hours later. Given this
court’s precedent, we cannot find error with the Allen charge.
c. Hearsay and Confrontation Clause
Finally, Salum argues that the district court erred by admitting testimony
that he claims is hearsay and violates the Confrontation Clause. At trial, the
prosecutor asked White “What did Carmichael tell you he wanted to do to
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Raymond DeJohn?” Salum’s counsel objected on both hearsay and confrontation
clause grounds, but the court admitted the statement “to show motive or intent.”3
The court did not err by allowing White to testify. First, the statement was
not offered for the truth of the matter asserted. The judge admitted the statement
only for the purpose of showing White’s motive or intent. It does not matter
whether Carmichael really did want to discredit DeJohn. What matters is what
Carmichael told White. Therefore, the district court did not err by admitting the
statement. Further, even if this was error, it was harmless as White’s intent is
completely irrelevant to determine Salum’s intent because White testified that he
never told Salum why he wanted DeJohn’s information.
Second, in order to violate the Confrontation Clause, a statement must be
testimonial and must be offered for the truth of the matter asserted. See Crawford
v. Washington, 541 U.S. 36, 59 n.9 (2004). Because White’s statement was
neither, there is no Confrontation Clause issue here.
IV. Conclusion
For the reasons above, we AFFIRM.
3
The parties dispute whether Salum properly objected on Confrontation Clause grounds
and, thus, disagree as to the proper standard of review. We do not need to address this matter
because the district court did not err under either plain error or abuse of discretion standard.
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