United States v. Samuel Sherman ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2044
___________________________
United States of America
Plaintiff - Appellee
v.
Samuel Sherman, also known as Big Hitt
Defendant - Appellant
___________________________
No. 22-2063
___________________________
United States of America
Plaintiff - Appellee
v.
Donald Bill Smith
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: June 14, 2023
Filed: August 30, 2023
____________
Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
____________
GRUENDER, Circuit Judge.
A jury found Samuel Sherman and Donald Smith guilty of conspiracy to
commit witness tampering resulting in death. See 18 U.S.C. § 1512(a)(1)(A), (k).
The jury also found Smith guilty of witness tampering resulting in death, see id.§ 1512(a)(1)(A), conspiracy to possess with intent to distribute methamphetamine,
see 21 U.S.C. §§ 841(a)(1), 846, and aiding and abetting the use of a firearm in
relation to a drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A), (j). After denying
Sherman’s and Smith’s motions for judgment of acquittal on those counts, the
district court 1 sentenced both men to life imprisonment. They appeal their
convictions, and we affirm.
I.
We begin by recounting the evidence presented at trial in the light most
favorable to the jury’s verdict. See United States v. Shavers, 955 F.3d 685, 688 n.2
(8th Cir. 2020).
A.
Sherman and Smith are cousins who dealt drugs. While serving a term of
supervised release in another federal case, Sherman sold methamphetamine five
times to Susan Cooper, a confidential informant working with law enforcement.
Based in part on these sales, the Government filed a petition to revoke Sherman’s
supervised release and began considering new federal drug-distribution charges
against him. The Government and Sherman’s counsel discussed resolving the
pending revocation proceeding and potential criminal charges with a guilty plea.
1
The Honorable D. Price Marshall, Jr., Chief Judge, United States District
Court for the Eastern District of Arkansas.
-2-
The parties negotiated, but no agreement was reached. Cooper would have been the
key witness had the revocation hearing gone forward as planned. She also would
have been a witness in the potential federal charges arising from Sherman’s sale of
drugs.
Sherman and Smith suspected that Cooper was working as a confidential
informant. Sherman once confronted her with a pistol and asked if she was working
for law enforcement. Another time, after Cooper had conducted a controlled buy of
methamphetamine from Sherman and turned over the drugs to law enforcement,
Sherman called her and asked for a photograph of the drugs he had just sold to her.
Sherman and Smith also once tried to kidnap her. After several unsuccessful
attempts to “get” Susan Cooper, Sherman and Smith enlisted the help of Racheal
Cooper, Susan’s sister-in-law.
At Smith’s behest, Racheal made plans to meet with Susan to facilitate a drug
deal a few days before the scheduled revocation hearing. Smith told Racheal to bring
Susan to meet him at a vacant house. Racheal and Susan went to the house, sat on
the tailgate of a truck, and waited for Smith. After a while, Racheal decided to leave
and began walking toward the driver’s-side door when Smith appeared and shot
Susan. Susan ran to the truck’s passenger seat and pleaded to Racheal, “[w]ill you
please get me out of here?” Smith came to the passenger door, shot Susan several
more times, and pulled her out of the truck as Racheal drove away. Susan died.
B.
A grand jury indicted Sherman and Smith on five counts. The first count
alleged that Sherman and Smith conspired to commit witness tampering resulting in
death, see 18 U.S.C. § 1512(a)(1)(A), (k), and the second count alleged that Smith
committed the witness tampering resulting in the death, see id. § 1512(a)(1)(A). The
third count alleged that Sherman and Smith conspired together and with others to
possess with intent to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846.
The fourth and fifth counts alleged that Sherman and Smith conspired together and
-3-
with others to use a firearm in relation to a drug-trafficking crime and that they aided
and abetted one another in using a firearm in relation to a drug-trafficking crime.
See 18 U.S.C. § 924(c)(1)(A), (j). Sherman and Smith pleaded not guilty.
Sherman moved to sever his trial from Smith’s. The district court denied the
motion. At trial, Sherman renewed his motion several times, but the district court
repeatedly denied it. At the close of the Government’s case-in-chief, Sherman and
Smith moved for judgment of acquittal. The district court denied Smith’s motion
and most of Sherman’s, though the court did acquit Sherman of the drug and firearms
offenses. The next day, the district court dismissed count four on the Government’s
motion. After Sherman and Smith presented their defenses, the court denied their
renewed motions for judgment of acquittal on the remaining counts and submitted
the case to the jury. Sherman and Smith were found guilty on count one and Smith
was found guilty on counts two, three, and five. The district court sentenced
Sherman and Smith to life imprisonment, and they now appeal their convictions.
II.
We first consider whether the district court erred in denying Sherman’s
repeated requests to be tried separately from Smith. Federal Rule of Criminal
Procedure 14(a) permits severance when “the joinder of offenses or defendants in an
indictment . . . appears to prejudice a defendant.” “[A] district court should grant a
severance under Rule 14 only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506
U.S. 534, 539 (1993). We review the denial of Sherman’s severance motions for an
abuse of discretion, and we will not reverse unless Sherman shows prejudice that is
both “clear[]” and “actual[].” United States v. Garcia, 785 F.2d 214, 220 (8th Cir.
1986).
The Government charged Sherman and Smith as co-conspirators. “The
general rule is that persons charged in a conspiracy should be tried together.” United
-4-
States v. Lee, 743 F.2d 1240, 1248 (8th Cir. 1984). Indeed, “it will be the rare case,
if ever, where a district court should sever the trial of alleged coconspirators.”
United States v. Spotted Elk, 548 F.3d 641, 658 (8th Cir. 2008).
This is not such a case. Sherman argues that he was prejudiced by portions of
the testimony of three witnesses that were admissible only against Smith. At various
points, these witnesses testified that Smith told them that Susan was killed “for
snitching” on Smith and Sherman’s drug dealing. This testimony did not clearly and
actually prejudice Sherman. To the contrary, it explains Smith’s motivation for
killing Susan without implicating Sherman. Moreover, the district court went to
great lengths to instruct the jury that the challenged testimony was to be considered
only against Smith. We are convinced that the district court’s repeated limiting
instructions sufficiently cured whatever risk of prejudice existed. See Zafiro, 506
U.S. at 539 (“[L]imiting instructions[] often will suffice to cure any risk of
prejudice.”); Spotted Elk, 548 F.3d at 658. And we likewise reject Sherman’s
assertion that asking jurors to consider small portions of three witnesses’ testimony
against Smith but not Sherman “asks too much of human nature,” given the
presumption that jurors follow the court’s instructions. See Jones v. United States,
527 U.S. 373, 400 n.14 (1999). The district court did not abuse its discretion in
denying the motions to sever.2
III.
We next consider Sherman and Smith’s sufficiency-of-the-evidence
arguments. “We review the sufficiency of the evidence de novo, viewing evidence
2
We note, too, that the district court’s denial did not violate Sherman’s rights
under the Confrontation Clause. See U.S. Const. amend. VI. The Confrontation
Clause applies only to testimonial hearsay, like statements made in the course of a
police interrogation. Davis v. Washington, 547 U.S. 813, 822-24 (2006); Crawford
v. Washington, 541 U.S. 36, 53-54 (2004). Sherman does not claim that the
challenged statements were testimonial, and his lawyer acknowledged at oral
argument that they were “not Crawford stuff,” that is, not testimonial hearsay. We
agree.
-5-
in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the
verdict.” United States v. Conway, 754 F.3d 580, 587 (8th Cir. 2014). We will
reverse only if no reasonable jury could have found all the elements of the offense
proved beyond a reasonable doubt. United States v. Bailey, 54 F.4th 1037, 1039 (8th
Cir. 2022).
A.
Sherman and Smith claim that the evidence was insufficient to support their
witness-tampering convictions on counts one and two. The statute of conviction
criminalizes killing another person with intent to “prevent the attendance or
testimony of any person in an official proceeding,” or conspiring to do so. 18 U.S.C.
§ 1512(a)(1)(A), (k). An “official proceeding” is “a proceeding before a judge or
court of the United States, a United States magistrate judge, . . . or a Federal grand
jury.” Id. § 1515(a)(1)(A). But the “official proceeding need not be pending or
about to be instituted at the time of the offense.” Id. § 1512(f)(1). The parties do
not dispute, and we assume, that to sustain the witness-tampering convictions the
evidence must be sufficient to show some nexus between the defendants’ conduct
and a particular, foreseeable official proceeding. See id. § 1512(a)(1)(A)
(criminalizing killing a person “with intent to prevent the attendance or testimony of
any person in an official proceeding” (emphasis added)); see also Arthur Anderson
LLP v. United States, 544 U.S. 696, 707-08 (2005); United States v. Tyler, 732 F.3d
241, 249-50 (3d Cir. 2013).
Sherman and Smith argue that the Government failed to establish a nexus
between their conduct and an official proceeding. At the time Susan was murdered,
the Government had petitioned to revoke Sherman’s supervised release based on her
work as a confidential informant. Sherman contends that he had already decided to
admit the violations alleged in the petition and that Susan would not have been a
witness at his upcoming revocation hearing. Thus, Sherman and Smith say that there
could have been no official proceeding with which the two could have interfered.
-6-
We disagree. Sufficient evidence demonstrates a nexus between Susan’s
murder and the upcoming revocation hearing, as well as a potential future federal
prosecution for distributing drugs. The jury heard from the prosecutor in the
revocation matter and from Sherman’s defense attorney that, while plea negotiations
had taken place, those negotiations had resolved neither the pending revocation
matter nor the potential additional charges. The jury also heard from the prosecutor
that Susan would have been a key witness in the revocation hearing and in the
potential future prosecution. We conclude that the evidence was sufficient for a
reasonable jury to find a nexus between Sherman’s and Smith’s conduct and the
pending revocation proceeding, as well as the potential future prosecution. 3
B.
Smith also claims that the evidence was insufficient to support his conviction
for conspiracy to possess with intent to distribute methamphetamine and the related
firearms charge. He contends that the evidence shows nothing more than a buyer-
seller relationship between him and his alleged co-conspirators. Relatedly, he argues
that, if there was insufficient evidence on the drug-distribution-conspiracy count,
then the firearms charge predicated on that drug-trafficking crime must also fail.
To sustain Smith’s conviction, the evidence must be sufficient for a
reasonable jury to conclude beyond a reasonable doubt “(1) that there was a
conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of
the conspiracy; and (3) that the defendant intentionally joined the conspiracy.”
3
Besides the nexus issue, Sherman argues (in a mere two sentences) that the
evidence was generally insufficient to prove that he conspired to murder Susan. As
best we can tell, Sherman claims that the evidence was merely “circumstantial.” But
a “conspiracy may be proven through circumstantial evidence and by inferences
based on the actions of the parties.” See Bailey, 54 F.4th at 1040. Here, the jury
heard that Susan was a key witness in Sherman’s drug prosecution, that Sherman
and Smith had a “hit” out on her, and that they had threatened her. Cell-site data
indicated that Sherman and Smith were in close contact immediately before and after
Smith shot Susan. This was sufficient.
-7-
United States v. Keys, 721 F.3d 512, 519 (8th Cir. 2013). In this context, “an express
agreement is unnecessary—a conspiracy may consist of simply a tacit
understanding.” United States v. Herra-Herra, 860 F.3d 1128, 1132 (8th Cir. 2017).
In drug-distribution cases, we distinguish between conspiracy and a mere “buyer-
seller” relationship. United States v. Rodriguez, 984 F.3d 704, 708-09 (8th Cir.
2021). Evidence of a single transaction involving a small quantity of drugs
consistent with personal use is consistent with a mere buyer-seller relationship. Id.
at 709. “However, evidence of multiple transactions is evidence of a conspiracy.”
Id.; see Conway, 754 F.3d at 591.
Sherman and Smith were charged with conspiring with each other and “with
other persons known and unknown” to possess with intent to distribute
methamphetamine. The district court acquitted Sherman of this charge and the
related firearms charges, and the Government does not argue that the evidence was
sufficient to convict Smith of conspiring with Sherman. Cf. United States v. Morton,
412 F.3d 901, 904 (8th Cir. 2005) (holding that acquittal of only alleged co-
conspirator does not require reversal of defendant’s conspiracy conviction).
However, the evidence presented at trial was nevertheless sufficient for the jury to
find that Smith conspired with Racheal to possess with intent to distribute
methamphetamine. See United States v. Jones, 880 F.2d 55, 65 n.12 (8th Cir. 1989)
(“The superseding indictment alleges and the evidence establishes, however, that
unindicted individuals known and unknown to the grand jury also were involved in
the [drug] trafficking. In such circumstances a defendant’s conviction for conspiracy
may stand notwithstanding the acquittal of his co-defendants.”).
Racheal testified that she bought methamphetamine from Smith and that she
did so two to three times a week. She further testified that she routinely obtained
the drugs from Smith before selling to third parties. And at one point, Racheal
agreed that she could “get the meth [from Smith] before [she] ha[d] the money or
the drugs to exchange it.” From this answer, a jury could infer a conspiracy, as it
suggests that she could only pay in full once she sold some of the methamphetamine
to others. Thus, the evidence shows more than a mere buyer/seller relationship
-8-
between Smith and Racheal and suffices to support Smith’s convictions for
conspiracy to possess with intent to distribute methamphetamine. See Rodriquez,
984 F.3d at 709-10; Conway, 754 F.3d at 591; cf. United States v. Stevenson, 979
F.3d 618, 622 (8th Cir. 2020) (“We have repeatedly upheld jury verdicts based solely
on the testimony of co-conspirators and cooperating witnesses.”). Because Smith’s
challenge to his conviction on the firearms offense rests entirely on his argument
that the evidence was not sufficient to prove a drug-distribution conspiracy, we find
the evidence sufficient to prove Smith’s guilt on the firearms offense as well.
IV.
Lastly, we consider Smith’s argument that the district court erred by admitting
into evidence text messages sent by Smith to his girlfriend, as well as testimony by
one of Smith’s acquaintances that he knew Smith because they dealt drugs together.
We review the district court’s evidentiary rulings for an abuse of discretion. United
States v. Walker, 68 F.4th 387, 391-392 (8th Cir. 2023).
To be admissible, evidence must be relevant. Fed. R. Evid. 402. Evidence is
relevant if “(a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining the
action.” Fed. R. Evid. 401. This threshold is “quite minimal.” Walker, 68 F.4th at
392. Under Rule 403, relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” We afford “great deference” to a district court’s determination of
admissibility under Rules 402 and 403. See Walker, 68 F.4th at 392.
Smith argues that his threatening and profane text messages to his girlfriend
were inadmissible because they were irrelevant, unfairly prejudicial, and
impermissible bad-character evidence. We disagree. The text messages were
relevant because they revealed that Smith was aware that he was being investigated
and that he threatened his girlfriend for upsetting another woman who could
-9-
implicate him in Susan’s murder. The fact that Smith’s text messages were
aggressive and profanity-laden does not render the evidence “unfairly prejudicial,”
where the evidence was otherwise admissible “to show consciousness of guilt of the
crime charged.” United States v. Skarda, 845 F.3d 370, 377-78 (8th Cir. 2016). And
contrary to Smith’s argument, the Government did not use the text messages as bad-
character evidence, but rather to show consciousness of guilt. See id. Thus, the
district court did not abuse its discretion by admitting the text messages.
Smith also contends that his acquaintance’s testimony that he had sold drugs
with Smith was irrelevant and therefore inadmissible because their joint drug dealing
ended before the period charged in the indictment. However, the Government
elicited the testimony not to show that Smith sold drugs but to establish the trusting
relationship between the acquaintance and Smith and to explain why Smith would
be willing to discuss Susan’s murder with him. The district court gave a limiting
instruction explicitly confining that portion of the testimony to this purpose.
Because the testimony showed the basis of Smith’s trust of his acquaintance and
bolstered the acquaintance’s credibility, we discern no abuse of discretion. See
United States v. Geer, 923 F.2d 892, 896 (1st Cir. 1991).
V.
For the foregoing reasons, we affirm the convictions.
______________________________
-10-