United States v. Smith-Bowman , 76 F.3d 634 ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-11023
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
GERMON M. SMITH-BOWMAN
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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February 14, 1996
Before JONES, STEWART, and PARKER, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Smith-Bowman was convicted of five counts of mail fraud for misusing the credit card
that she had received in connection with her position as Executive Director of the San Angelo,
Texas, chapter of the American Red Cross. She appeals, contending that the prosecution
committed reversible error in asking improper questions of one of her character witnesses, and
that the district court erred in denying her motion to transfer venue due to excessive and
prejudicial pretrial publicity. Finding no error, we AFFIRM.
BACKGROUND
Germon Smith-Bowman was charged with using her Red Cross Visa card for making
purely personal purchases, and then causing Red Cross funds to be used to pay off those balances.
In her motion to transfer venue, Smith-Bowman alleged that her case had received extensive
publicity since its inception. She alleged that both a local TV station and the local newspaper in
San Angelo ran numerous stories giving the impression that her guilt had already been
affirmatively established. Her motion asked for the opportunity to present the news stories to the
Court, along with testimony of people from the community who had been exposed to that
publicity, in order to establish its prejudicial nature. The district court denied this Fed. R. Cr. P.
21(a) venue-transfer motion without conducting an evidentiary hearing.
Subsequent to this denial, Smith-Bowman put on a defense consisting primarily of the
testimony of three character witnesses who testified to her reputation for honesty in the San
Angelo community. On cross-examination of one of those witnesses, the Government, over the
objections of Smith-Bowman’s attorney, asked:
Have you heard that this defendant took an American Red Cross
credit card and went to the La Quinta Inn and rented a room in the
name of Judy Walker so she could have a rendezvous with her
boyfriend?
Have you heard that this defendant took an American Red Cross
credit card and bought jewelry for herself?
The district court overruled Smith-Bowman’s objections to the questions at trial. The use
of the credit card to rent a room at the hotel was not specifically listed as one of the charges,
though the use of it to buy jewelry was. At closing, the prosecution further underscored these
specific allegations in several paragraphs:
If you want to talk about the defendant’s character, you need to be
with the defendant in the La Quinta Inn when she is checking in
using the Red Cross money so she can rendezvous with her
boyfriend and uses her secretary’s name on the sign-in sheet. That is
character. And it is the Character of a thief.
The jury found Smith-Bowman guilty on all but the charge of fraud in connection with an
access device, and the district court sentenced her to 15 months imprisonment, three years
supervised release, and ordered her to pay restitution in the amount of $19,844.83. She timely
perfected her appeal.
DISCUSSION
Error on Cross Examination
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Smith-Bowman contends that the Government’s questions to her character witness were
improper because the questions rested upon an assumption of guilt, and that this improper
questioning was reversible error.
This court reviews a district court’s decision to permit a certain line of cross-examination
for abuse of discretion. United States v. Candelaria-Gonzalez, 547 F.2d 291, 294 (5th Cir. 1977).
In accordance with 28 U.S.C. 2111, first it must be determined whether the Government’s
questions were improper, and if so, then whether the error was harmful because it affected Smith-
Bowman’s substantial rights.
The last sentence of Federal Rules of Evidence 405(a) authorizes “inquiry during cross-
examination” into “specific instances of conduct.” The cross-examination questions at issue here
brings forth such specific instances; nevertheless, in Candelaria-Gonzalez, this court found it
improper for the Government to ask a character witness if the defendant’s reputation would be
affected if the defendant were convicted of the alleged crime. Candelaria-Gonzalez, 547 F.2d at
294. This court held that control of the cross-examination of character witness is largely within a
trial court’s discretion, and that once a defendant places his reputation at issue, the prosecution
has wide latitude to pursue the reputation of the accused on cross-examination. Id. at 294.
Nevertheless, this court found that the questions at issue were improper because they were based
upon an assumption of guilt and therefore struck at the very heart of the presumption of
innocence. Id. at 294.
The questions posed to Eddie Nelson in the case at bar are distinguishable from those at
issue in Candelaria-Gonzalez because they do not clearly assume Smith-Bowman’s guilt. Asking
a character witness whether he has heard of some of the defendant’s alleged misbehavior is
arguably appropriate because if the witness has not heard of that behavior, then he may be
perceived by the jury as not attuned to the community and the defendant’s reputation, and his
effectiveness as a character witness is undermined. Moreover, Smith-Bowman did not contest the
allegations that she had committed these acts, instead she contended that the Executive
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Committee had full knowledge of her use of the account, and it was understood that if she had
used the Visa account as a card of convenience then she would reimburse personal expenditures.
Nevertheless, even assuming arguendo that the prosecutor’s line of questioning was
improper because it incorporated acts that were part of the indictment, that does not mean that
the error was harmful. 28 U.S.C. § 2111. The Government argues that this line of questioning
did not in and of itself amount to reversible error even in Candelaria-Gonzalez because the
reversal in that case was based on the judge’s misconduct as well as on the Government’s
improper cross-examination of the defendant’s character witnesses. While the judge’s misconduct
was at issue in Candelaria-Gonzalez, the Government’s argument that the reversal was not
primarily based on the improper questioning of the defense witnesses is inaccurate. This court
stated that “[t]he convictions . . . are due to be reversed for the court’s repeated allowance of
inherently prejudicial cross-examination by the prosecutor,” Candelaria-Gonzalez, 547 F.2d at
295. Thus, in Candelaria-Gonzalez, the repeated improper questioning was enough in and of
itself to justify reversal.
In Candelaria-Gonzalez, the defense was based wholly on the credibility of the character
witnesses, and the majority of those witnesses had been improperly questioned. Similarly, the
Tenth Circuit has found that where character witnesses are very important to the defense, and all
three are improperly questioned, the error was not harmless. United States v. Polsinelli, 649 F.2d
793, 798 (10th Cir. 1981). In contrast, where only two out of fourteen character witnesses have
been improperly questioned, the error is harmless. United States v. Siers, 873 F.2d 747, 750 (4th
Cir. 1989), cert. denied 113 S. Ct. 1064, 112 L. Ed. 2d 369 (1993). In the case before us, while
the only witnesses called by the defense were character witnesses, these witnesses did not
constitute the whole of Smith-Bowman’s defense. Indeed, her strategy that her use of the
American Red Cross credit card was entirely compatible with its issuance as a card of
convenience for employees was developed through cross-examination of the prosecution’s
witnesses. Moreover, the evidence as a whole before the jury was sufficiently convincing of guilt
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as to overcome any error committed by the government during its cross-examination of this one
defense witness. Taking all the factors into consideration, we are not persuaded that any
improper questioning of one character witness coupled with the complained of comments of the
prosecutor made during closing argument amount to reversible error.
Denial of motion to transfer venue
Smith-Bowman also contends that the district court erred in denying her motion to
transfer venue on the basis of prejudicial pretrial publicity, and erred in denying her motion
without holding an evidentiary hearing. Reviewed for abuse of discretion, a defendant’s motion
alleges sufficient facts to warrant an evidentiary hearing when it is “sufficiently definite, specific,
detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.”
United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). Moreover, “[g]eneral or
conclusory assertions, founded upon mere suspicion or conjecture, will not suffice.” Harrelson,
705 F.2d at 737. In order for a defendant to justify a motion to transfer on the basis of
prejudicial publicity, he must establish that prejudicial, inflammatory publicity “so saturated the
community jury pool as to render it virtually impossible to obtain an impartial jury.” United
States v. Parker, 877 F.2d 327 (5th Cir.), cert. denied 493 U.S. 871, 110 S. Ct. 199, 107 L. Ed.
153 (1989).
Smith-Bowman did not allege with specificity that the San Angelo community had been
saturated with negative media coverage of the charges against her. She did not include with her
motion any copies of, or excerpts from, specific newspaper stories or television reports that
focused on her, the charges against her, or the pending trial. Moreover, the district court
questioned the prospective jurors during voir dire about their pretrial knowledge of the case, and
of the ten members of the panel who had heard about the case, each said that they could base a
verdict solely on the evidence presented in court, and none of them indicated that he had already
formed an opinion concerning Smith-Bowman’s guilt or innocence. Therefore, Smith-Bowman
had not demonstrated that prejudicial publicity about her case rendered it virtually impossible to
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obtain an impartial jury, and the district court did not abuse its discretion in denying the motion to
transfer venue. Finding no error with regard to either the venue transfer motion or the
questioning on cross-examination, we AFFIRM the lower court’s decisions.
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