07-3061 - United States v. Tracy M. Smith, Appellant
U.S. Tenth Circuit Court of Appeals
(April 10, 2008)
Briefs
Briefs require requires Adobe Acrobat Reader.
- Appellant's Opening Brief (391 KB PDF)
- Brief of Appellee (143 KB PDF)
- Appellant's Reply Brief (87 KB PDF)
Case Summary (prepared at Washburn Law)
Nature of the Case
The Appellant, Tracy M. Smith, was tried by jury and appeals her multiple drug-related convictions that include: distribution of cocaine, conspiracy to distribute cocaine, maintaining a building for purpose of storing or distributing a controlled substance, using a telephone to facilitate a drug transaction, and distribution of methamphetamine. Smith also claims the District Court erred in sentencing her to an enhanced 324 months in prison.
Issue Statements
Smith raises nine issues on appeal including the Government's race-based peremptory strike of an African-American and failure to establish and maintain a chain of custody. However, due to length limitations, only three issues were briefed in full. Smith's brief focuses on her allegations that the Government introduced prejudicial and collateral evidence that indicates Smith ordered two murders, thus denying Smith a fair trial. She argues that the Government also failed to provide Brady and Giglio material that was exculpatory to Smith and further destroyed exculpatory evidence in bad faith.
Defendant/Appellant's Position
According to Smith, the Government introduced collateral evidence that Smith was the mastermind behind two murders and an aggravated battery. The Government is not required to prove an overt act for the crime of conspiracy. The District Court refused to enhance Smith's sentence because the Government had not shown by preponderance of the evidence that Smith ordered the murders. Yet, the District Court let the jury consider this evidence in its deliberations about the drug conspiracy. In addition, the District Court failed to properly instruct the jury on the appropriate use of this evidence when it refused to provide a specific overt act instruction. This evidence was highly prejudicial and was intentionally used to inflame the jury, due to the gory nature of the unnecessary photographs. Furthermore, Smith was not charged with any crimes related to these homicides or battery.
The Government also committed Brady and Giglio violations when it surprised Smith by having her former lawyer testify against her in its case-in-chief. This witness was exculpatory and material because he testified that the surviving victim of the alleged murders signed a sworn statement that Smith was not involved and further testified that he bought drugs from Smith on several occasions. The Government had access to this witness' information prior to the day of trial, but failed to search its own files along with the files of other investigative agencies aligned with the prosecution..
For her third issue, Smith was unable to rebut the Government's statement that drug dealers are rarely found to possess identical cash because of the quick turnaround of drug money. While executing a prior warrant, the police seized a large amount of cash from Smith. Then prior to trial, the Government, without the Court's permission or notice to Smith, turned over this cash to the Shawnee County Treasurer without taking photographs or recording the serial numbers. Having the actual cash or serial numbers would have aided Smith in comparing the dollar bills in order to refute the Government's argument. Thus, the Government failed to preserve and intentionally destroyed evidence favorable to Smith in bad faith..
Plaintiff/Appellee's Position
The Government argues that the District Court was correct in admitting the evidence of the double murders because this intrinsic evidence was being used to show the furtherance of the drug conspiracy. This evidence was highly probative and not unduly prejudicial and at the very least, any error was harmless because of the overwhelming evidence against Smith. Furthermore, the jury instruction was correct and did not misstate the law. The Government was not required to prove the double murders beyond a reasonable doubt, thus a specific overt act instruction was not necessary..
The Government did comply with constitutional standards in disclosing Brady and Giglio material for impeachment purposes during the trial, either before or following direct examination of the applicable witnesses. Smith was able to effectively cross-examine these witnesses and any earlier disclosure would not have helped. Although the Government did not timely disclose impeachment evidence against Smith's former lawyer, this material was unknown to Government at the time. Still, this evidence was not exculpatory for Smith and had very limited value for impeachment purposes, if any at all..
For the third claim, the Government did not destroy or fail to preserve any material evidence in bad faith. The Shawnee County sheriffs involved were following their department's policy in turning over the money to the asset forfeiture fund. Even so, Smith's ability to compare these dollar bills with other money seized would not have proved her innocence. As for some of Appellant's other claims raised on appeal, the Government believes she has waived these claims because she has failed to brief the issues and provide any supporting authority for her position.
