United States v. Elain Young

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2527

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Elain Kay Young

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 12-2593

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Katherine A. Mock

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

____________

Submitted: September 26, 2013

Filed: May 23, 2014

____________

Before WOLLMAN, SMITH, and KELLY, Circuit Judges.

____________

SMITH, Circuit Judge.

After a six-day trial, a jury convicted Elain "Kay" Young and Katherine

"Kathy" Mock of conspiracy to commit murder-for-hire, resulting in death, in

violation of 18 U.S.C. § 1958 and murder-for-hire, resulting in death, in violation of

18 U.S.C. §§ 1958 and 2 based on the death of Young's husband. Young argues that

the district court1 erroneously (1) admitted testimony of three witnesses regarding

Young's prior bad acts that reflected a propensity to commit the crimes charged under

Federal Rule of Evidence 404(b); (2) admitted into evidence coconspirator statements

despite the lack of corroborating evidence as to the conspiracy's existence; (3)

admitted Mock's out-of-court statements in violation of Young's confrontation rights;

and (4) admitted into evidence a note found with Young despite the note's lack of

authentication. Mock raises one issue unique to her, contending that the district court

erroneously prohibited Mock from introducing Young's subsequent inconsistent

statement involving Mock's whereabouts following the murder. Both Young and

Mock argue that the district court erroneously (1) denied their motions to sever their

joint trial; (2) overruled their Batson2 challenges; and (3) overruled their motions for

judgment as a matter of law because the government failed to prove an essential

element of the offenses—the presence of a bargained-for exchange between the

defendants. We review the facts in a light most favorable to the guilty verdict. United

1

The Honorable Henry E. Autrey, United States District Judge for the Eastern

District of Missouri.

2

Batson v. Kentucky, 476 U.S. 79 (1986).

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States v. McCauley, 715 F.3d 1119, 1121 (8th Cir. 2013). We affirm the convictions

of both defendants.

I. Background

Young married Melvin Griesbauer in 2004. They lived together on a farm in

northern Missouri. The farm had been in Young's family for several years. Young

bred dogs on the farm and befriended Mock through their common interest in the

avocation.

Shortly after Young and Griesbauer married, the Missouri Army National

Guard deployed Griesbauer to Iraq for nearly one year, beginning in October 2004.

Immediately before and during his deployment, Young purchased multiple life

insurance policies on Griesbauer that listed Young as the primary beneficiary. Under

the policies, Young stood to receive over $1.1 million in the event of Griesbauer's

death.

By early 2006, Young began to experience financial difficulty. Young

mortgaged the farm. To qualify for the loan, Young added Griesbauer to the farm's

title. The loan proceeds enabled Young to pay off several farm debts. She also

explicitly requested and received an additional $10,000 from the lender. Young and

her lender finalized the loan less than twenty-four hours before Griesbauer's death.

Mock lived approximately three hundred miles away in southern Missouri.

Mock had two sons, each of whom were experiencing problems, causing Mock

significant stress. Mock also struggled financially. Keri Ponder ("Keri"), Mock's

former daughter-in-law, traveled from Massachusetts to Mock's home to assist Mock

during this difficult time. Keri testified that Mock was "at the end of her rope."

Approximately nine days before Griesbauer's death and in Keri's presence, Mock

received a phone call from Young. After the call, Mock told Keri that Young was

upset because Griesbauer purchased a life insurance policy on Young's life. According

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to Keri, Griesbauer told Young that he planned to buy items that he would not allow

Young to enjoy. Keri testified that the phone call upset Mock. Mock then asked Keri

if she knew anyone that would kill somebody. Keri responded that she did not, so

Mock asked Keri if she would be willing to kill someone. Keri declined, but out of

curiosity, Keri asked "how much a life went for." Mock told her, "They're willing to

pay $6000."

The following day, Mock and her other daughter-in-law, Rita Lee Ponder

("Rita"), traveled to Young's farm to visit Young and deliver dogs. Rita overheard

Young tell Mock that Young was afraid of Griesbauer and intended on leaving him

because he threatened to kill her. Mock agreed to help Young get away from

Griesbauer. Two days later, Mock asked her son Thomas Ponder ("Thomas") if he

knew anyone that could kill somebody. Mock told him that Young wanted someone

killed and was willing to pay $10,000. Mock told Thomas that Griesbauer was abusing

Young, causing Mock to fear for Young's safety. Thomas declined Young's

solicitation because he did not take the conversation seriously. Five days later on

March 22, 2006, Mock traveled back to Young's farm. Mock asked Thomas to drive

her there, but he declined. Mock lied to Rita, saying she was simply going to get stress

relief at a nearby hospital.

According to Young's initial statement to Adair County Sheriff Leonard Clark,

on the night of Griesbauer's death, Young picked up Griesbauer from work just after

1:04 a.m. to bring him home. Mock had already arrived at Young's farm by this time.

After arriving at home, Griesbauer went outside to the barn to check on some puppies.

Young then heard a gunshot in the direction of the barn. Young awakened Mock so

that Mock could accompany her to the barn to check on Griesbauer. Young noted that

Griesbauer frequently carried the gun recklessly—loaded and cocked. Young and

Mock located Griesbauer and discovered that he had been shot in the face and killed.

They called 911.

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Deputy Tracy Salsberry of the Adair County Sheriff's Office arrived first on

scene. Mock led Deputy Salsberry to Griesbauer's body near the front of the barn.

After verifying Griesbauer's recent death, Deputy Salsberry examined the firearm at

the death scene. It was Young's 30-30 caliber, lever-action rifle. Deputy Salsberry

discovered that the rifle was cocked and had a live round in the chamber. Deputy

Salsberry concluded that Griesbauer's death was not the result of an accident or

suicide because a suicide shooter could not have reloaded the lever-action rifle.

Deputies Salsberry and Brian Burns, who had just arrived on scene, swept the area but

discovered no one else present. Sheriff Clark arrived shortly thereafter and separately

interviewed both Young and Mock, who were the only individuals at the scene. Their

initial accounts and alibis largely matched.

The police discovered other critical pieces of evidence at the crime scene.

During the protective sweep, they found a 30-30 shell casing inside the doorway to

the barn. The police also discovered shoe prints in a star pattern near the body that

later matched Mock's shoes. Pursuant to a warrant, police searched the entire area and

discovered a three-hole ski mask wrapped around a pair of used latex gloves away

from the barn near the residence. The police later determined that Mock purchased the

mask at a Wal-Mart en route to Young's home hours before Griesbauer's death. Mock

signed the receipt for the mask when she purchased it with her credit card. Police

found a copy of this receipt in Mock's purse. Mock's DNA was also present on the

interior of the mask and the gloves. The gloves also contained detectable amounts of

gunshot residue and a partially burnt particle of gunpowder, which matched

gunpowder removed from the remaining live shells in the murder weapon.

The next day, Young presented a different account of the night's events to

Sheriff Clark. Young told Sheriff Clark that, after hearing the gunshot outside, she

searched for Mock but could not find her. She stated that she found Mock after three

or four minutes sitting fully dressed in the bathroom and "flipping out." Young altered

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her account of events. Previously, she had told Sheriff Clark that she had awakened

Mock from sleep and that they had proceeded outside together.

Mock left Young's farm the following morning and traveled to the home of a

close friend named Jean Ballard. Mock asked Ballard for help because Mock had

ingested several Vicodin pills that Young had provided to her.3 Mock alleges that

Young told Mock to ingest over 100 pills so that "she would get thirty to sixty days

in an insane asylum instead of penitentiary time." Mock, who owed Ballard

approximately $2800, had recently told Ballard that Mock was going to pay

everything back with interest, indicating that she expected to receive money soon.

While Ballard cared for Mock, Young called Ballard multiple times to check

on Mock. Young instructed Ballard not to upset Mock and to tell Mock that Young

loved her. Young did not mention Griesbauer's death to Ballard at that time. Mock

later disclosed Griesbauer's death to Ballard. Ballard then transported Mock to a

nearby hospital. En route, Ballard asked Mock if she murdered Griesbauer. Mock

responded, "I think I shot him, but I don't remember it. Wouldn't I remember doing

something like that?"

Approximately two years after Griesbauer's death, Missouri authorities arrested

Young and charged her in state court with first-degree murder. Upon her arrest, Young

feigned ignorance by asking, "Murder of who?" After performing a search incident to

arrest, police discovered a photocopied note located in the only purse in the truck

where Young was driving alone. The note read in pertinent part, "Use her drugged

state to convince her she shot him. Offered 10,000 to kill him. Was turned down. If

I collaborate her story. Bucks." Mock was also arrested. State authorities eventually

transferred Young and Mock into federal custody in October 2009.

3

Young was a nurse, and according to one witness, she was a "walking

pharmacy."

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While in custody, Young allegedly spoke with a jailhouse informant named

Amanda Bax. The government called Bax to testify against Young. Bax testified that

Young told her that she killed Griesbauer for insurance money because she was about

to lose her farm. She also stated that Young told her she would "rather lose her

husband than lose that farm." Bax further testified that Young told her, "[S]he was

trying to get [Mock] to find somebody to commit the murder for her and that she was

going to end up being the fall guy for her." Bax admitted that she was sentenced to

prison for twelve years stemming from convictions related to writing bad checks and

for stealing by deceit. She also admitted that she may benefit personally by testifying

against Young. Additionally, one of Young's paramours, Kris Robbins, testified that

Young proclaimed many times in relation to Griesbauer, "I would like to kill the son-

of-a-bitch" and "I wish he was dead."

A joint, six-day jury trial commenced on March 12, 2012. The district court

denied the defendants' multiple motions to sever the trial. The jury found Young and

Mock guilty of both counts. The district court sentenced them both to two concurrent

life sentences.

II. Discussion

On appeal, Young argues that the district court erroneously (1) admitted

testimony of three witnesses regarding Young's prior bad acts that reflected a

propensity to commit the crimes charged under Federal Rule of Evidence 404(b); (2)

admitted into evidence coconspirator statements despite the lack of corroborating

evidence as to the conspiracy's existence; (3) admitted Mock's out-of-court statements

in violation of Young's confrontation rights; and (4) admitted into evidence a note

found with Young despite the note's lack of authentication. Mock raises one issue

unique to her, contending that the district court erroneously prohibited Mock from

introducing Young's subsequent inconsistent statement involving Mock's whereabouts

following the murder. Both Young and Mock argue that the district court erroneously

(1) denied their motions to sever their joint trial; (2) overruled their Batson challenges;

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and (3) overruled their motions for judgment as a matter of law because the

government failed to prove an essential element of the offenses—the presence of a

bargained-for exchange between the defendants. We affirm the convictions of both

defendants.

A. Rule 404(b)

Young objected to the admission of testimony of three government witnesses:

Norman Newlin, Tim Eschmann and Jim Goodwin. On appeal, Young contends that

the district court erred by allowing the government to elicit testimony from these

witnesses showing that Young had a propensity to commit murder-for-hire, in

violation of Federal Rule of Evidence 404(b). We review a district court's decision to

admit 404(b) evidence for an abuse of discretion and reverse "only when the evidence

clearly had no bearing on the case and was introduced solely to show defendant's

propensity to engage in criminal misconduct." United States v. Gant, 721 F.3d 505,

509 (8th Cir. 2013) (quotation and citation omitted).

Rule 404(b)(1) provides that "[e]vidence of a crime, wrong, or other act is not

admissible to prove a person's character in order to show that on a particular occasion

the person acted in accordance with the character." However, evidence may be

admitted for another purpose like proving "motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid.

404(b)(2). Thus, Rule 404(b) "generally prohibits the introduction of evidence of

extrinsic acts that might adversely reflect on the actor's character, unless that evidence

bears upon a relevant issue in the case." Huddleston v. United States, 485 U.S. 681,

685 (1988). "The threshold inquiry . . . is whether that evidence is probative of a

material issue other than character." Id. at 686. "Rule 404(b) is a rule of inclusion,

prohibiting only evidence that tends solely to prove the defendant's criminal

disposition." United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995). "[F]or

evidence of prior bad acts to be admissible, the evidence must be: (1) relevant to a

material issue; (2) proved by a preponderance of the evidence; (3) higher in probative

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value than in prejudicial effect; and (4) similar in kind and close in time to the crime

charged." United States v. Jourdain, 433 F.3d 652, 659 (8th Cir. 2006) (quotation and

citation omitted). Before we reverse, we must conclude that the evidence "clearly

ha[d] no bearing on any issue involved." Id. (quotation and citation omitted). Finally,

when admitting evidence under Rule 404(b) to show the defendant's intent, the prior

act need not duplicate the charged conduct but be similar enough to support an

inference of criminal intent. United States v. Walker, 470 F.3d 1271, 1275 (8th Cir.

2006).

1. Norman Newlin

Newlin testified that, while living on Young's farm as a tenant in 2002, Young

and Newlin discussed Young's problems with her then-husband David Crawford.

Newlin testified that Young solicited him to murder Crawford. In exchange, Young

would pay Newlin $10,000 and murder Newlin's wife by staging a horseback-riding

accident. Young also instructed Newlin to purchase a life insurance policy on his

wife's life because Young had a policy on Crawford. Young eschewed divorcing

Crawford for fear that a court could award him the farm. Newlin testified that Young

had several serious conversations with him about this arrangement. Newlin rejected

her offer, and Crawford was never harmed.

Young asserts that the government introduced Newlin's testimony to

demonstrate that Young has a propensity to solicit murder. Young argues primarily

that her statements to Newlin about killing Crawford for $10,000 to protect her farm

are not similar in kind or close in time to Griesbauer's murder. In support of her

contention, Young cites United States v. Fawbush, where this court reversed a district

court's decision to admit evidence that the defendant molested his daughters and

impregnated one daughter eight years prior to the molestation charge at issue. 634

F.3d 420, 421–23 (8th Cir. 2011). The impregnated daughter was fifteen at the time,

and the unrelated victim of Fawbush's charged offense was three. Id. at 421. This court

determined that the district court abused its discretion in admitting the testimony

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because the prior acts were unrelated to the charged acts. Id. at 422. Additionally, the

sexual abuse did not show any unique methods, motive, intent, plan, or knowledge.

Id. Furthermore, the district court violated Federal Rule of Evidence 403 because the

testimony was so inflammatory that its resulting unfair prejudice outweighed its

probative value. Id. at 423.

"[W]e apply a reasonableness standard, considering the facts and circumstances

of each case," to determine whether the prior bad act is too remote in time. Walker,

470 F.3d at 1275. Generally, we are reluctant to allow evidence of prior bad acts that

"occurr[ed] more than 13 years prior to the charged offense." Id. However, we have

upheld admission of a prior bad act that occurred twenty years earlier. Id. (citing

United States v. Williams, 308 F.3d 833, 836–37 (8th Cir. 2002)). Young's solicitation

of Newlin occurred only three years prior to the charged crime. Considering that it

involved a different husband, the lapse of three years is quite short.

Here, unlike Fawbush, Newlin's testimony helped the jury understand Young's

intent, motive, knowledge, and plan for Griesbauer's death. Therefore, Newlin's

testimony demonstrates more than Young's propensity to commit murders for hire.

The circumstances surrounding Young's solicitation of Newlin are strikingly similar

to the circumstances surrounding the charged offense. In both instances, Young

solicited another to murder her husband for $10,000 because she feared losing the

family farm. They both involved the same crime, a similarly-situated victim, a threat

to the farm, and the promise of a life insurance payout. Newlin's testimony helped the

jury understand that Young knowingly and intentionally hired Mock to murder

Griesbauer for the purposes of saving her farm and collecting life insurance proceeds.

Newlin's testimony demonstrated how Young's desire to protect her farm motivated

her to kill. The prior bad act demonstrated a particular plan of action.

In addition, the district court instructed the jury not to consider Newlin's

testimony for propensity purposes. See United States v. Strong, 415 F.3d 902, 906 (8th

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Cir. 2005) ("[T]he presence of a limiting instruction diminishes the danger of any

unfair prejudice arising from the admission of other acts." (quotation and citation

omitted)). Newlin's testimony is therefore sufficiently close in time and similar in kind

under Rule 404(b) such that the district court did not abuse its discretion in admitting

it.

Because Newlin's testimony demonstrated Young's intent, motive, knowledge,

and plan for Griesbauer's death, the district court's 404(b) instruction was proper

where the district court instructed that Young was "on trial only for the crimes

charged, and you may consider the evidence of prior acts only on the issue of motive,

intent, knowledge, or plan."

Additionally, we hold that the district court did not abuse its discretion by

allowing the testimony under Rule 403.

2. Tim Eschmann and Jim Goodwin

Eschmann testified that he met Young through Young's online-dating profile

on the internet website "Adult Friend Finder" in the fall of 2005. Eschmann testified

that Young discussed divorcing Griesbauer. He dated Young on the evening before

Griesbauer's murder, and Young gave him a birthday present. Additionally, he

testified that Young had asked for his advice on how to best invest life insurance

proceeds that she would soon receive.

Goodwin testified to meeting Young one month after Griesbauer's death. He

noted how they developed a sexual relationship, often spending weekends together.

He also loaned her money, and he testified that Young requested that he list her as a

beneficiary of a life insurance policy. Goodwin ended his relationship with Young

after he discovered an email conversation between Young and Robbins that occurred

after Griesbauer's murder where Robbins promised not to alert police to Griesbauer's

death in return for sexual favors.

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Young argues that the government introduced the testimony of these men to

paint her in a bad light. She contends that the testimony was merely extrinsic evidence

of Young's promiscuous character with other men during and immediately after her

marriage to Griesbauer. The government argued at trial that the testimony is instead

intrinsic because Young's dating profile and dating habits prove her discontent with

Griesbauer and pursuit of companionship with other men. Furthermore, she discussed

life insurance with each of them, further showing her motivation for killing

Griesbauer.

Rule 404(b) applies only to extrinsic, not intrinsic, evidence. United States v.

Johnson, 463 F.3d 803, 808 (8th Cir. 2006). "Evidence of other wrongful conduct is

considered intrinsic when it is offered for the purpose of providing the context in

which the charged crime occurred." Id. "Such evidence is admitted because the other

crime evidence 'completes the story' or provides a 'total picture' of the charged crime."

Id. (citation omitted). Evidence may be intrinsic if "it 'explain[s] the circumstances of'

[a] charged murder conspiracy." United States v. Hall, 604 F.3d 539, 544 (8th Cir.

2010) (quoting United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir. 1995)).

Intrinsic evidence may help to fill the gaps in the jury's understanding of the crime

charged. See Hall, 604 F.3d at 543–44.

We have also determined that intrinsic evidence is "inextricably intertwined as

an integral part of the immediate context of the crime charged." United States v.

Rolett, 151 F.3d 787, 790 (8th Cir. 1998) (quotation and citation omitted). Young

argues that this language implies that intrinsic evidence must be necessary to an

understanding of the current crime; without that evidence, the jury could not make

sense of the crime charged. The government argues that intrinsic evidence need not

be necessary to the jury's understanding of the issues, only that the evidence

contribute to the narrative of the story. We agree with the government. Young seeks

a standard that is incongruent with the more-inclusive standard articulated in Johnson

and Hall. Consequently, intrinsic evidence includes both evidence that is inextricably

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intertwined with the crime charged as well as evidence that merely "completes the

story" or provides context to the charged crime. See Johnson, 463 F.3d at 808; Hall,

604 F.3d at 543–44.

The government properly supported introduction of Eschmann's and Goodwin's

testimonies. First, their testimonies show that Young actively sought another male

companion although Griesbauer was still alive, indicating his disposability. Second,

their testimonies demonstrate her preoccupation with realizing a financial return on

her husbands' deaths with life insurance proceeds. Although their testimonies reflect

poorly on Young, their testimonies nonetheless carry sufficient probative value

relating to Young's motives for hiring Mock to murder Griesbauer. As a result, their

testimonies are intrinsic because they complete the story surrounding the murders and

go beyond mere propensity evidence.

Consequently, the district court did not err in admitting Eschmann's and

Goodwin's testimonies over Young's 404(b) objections because their testimonies

provided intrinsic evidence of Young's offense.

B. Evidence of Conspiracy

Young contends that the district court erred in admitting Keri's and Thomas's

statements against Young that Mock solicited their help in finding someone to murder

Griesbauer for Young. Young contends that these statements should have been

admitted against only Mock; however, the district court admitted these non-hearsay

statements pursuant to Federal Rule of Evidence 801(d)(2)(E) as coconspirator

statements. Specifically, Young argues that the government failed to provide

corroborating evidence that Young and Mock entered into a conspiracy. In response

to Young's objection, the government told the district court that it was "in the process

of proving up the conspiracy" and that the conspiracy would be proven as they

proceeded. The court overruled Young's objection and allowed the government to

elicit the testimony. "We review the district court's interpretation of Federal Rule of

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Evidence 801(d)(2)(E) de novo . . . ." United States v. Cazares, 521 F.3d 991, 998 (8th

Cir. 2008). However, we "review the district court's admission of the out-of-court

statements as coconspirator statements made during and in furtherance of the

conspiracy under Rule 801(d)(2)(E) for an abuse of discretion, 'keeping in mind that

its discretion is particularly broad in a conspiracy trial.'" Id. (quoting United States v.

Davis, 457 F.3d 817, 824–25 (8th Cir. 2006)).

Federal Rule of Evidence 801(d)(2)(E) provides that a coconspirator's out-of-

court statement is not hearsay if the statement was made "during and in furtherance

of the conspiracy." A party may admit evidence pursuant to this Rule only if the party

demonstrates a conspiracy between the declarant and the defendant. Bourjaily v.

United States, 483 U.S. 171, 175 (1987). The district court must also find by a

preponderance of the evidence that the declarant made the statement "in the course of

and in furtherance of the conspiracy." United States v. Spotted Elk, 548 F.3d 641, 661

(8th Cir. 2008) (citing Bourjaily, 483 U.S. at 175). A court may conditionally admit

a coconspirator statement subject to later proof of the conspiracy to satisfy the

coconspirator rule and defer a final ruling on its admissibility until after hearing all

evidence. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). Additionally,

although courts may consider the contents of the statements, the government must

produce independent evidence outside of the statements themselves to establish the

existence of the conspiracy. United States v. Ragland, 555 F.3d 706, 713 (8th Cir.

2009). Finally, independent evidence of a conspiracy or illicit association may be

completely circumstantial. United States v. Martin, 866 F.2d 972, 980 (8th Cir. 1989)

(citing United States v. Scholle, 553 F.2d 1109, 1117 (8th Cir. 1977)).

We conclude that the government provided substantial evidence of Young and

Mock's conspiracy outside of the statements themselves. This evidence includes their

joint 911 call, their common alibi, their presence at the murder scene at the exclusion

of all others, the clear lack of suicide or accident, the ski mask that Mock purchased

that was found at the murder scene, Young's disdain for Griesbauer, the note found

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in Young's vehicle at her arrest, the life insurance policies, their financial distress, the

additional $10,000 Young requested when she refinanced the farm, Mock's belief that

she would receive money soon, and Bax's testimony relating to Young's jailhouse

statements. Furthermore, although some of the government's evidence related to

events that occurred after the events comprising Keri's and Thomas's testimonies, they

nonetheless indicate the presence of a conspiracy at the time Mock solicited their help

to kill Griesbauer. The government provided ample evidence of a conspiracy.

C. Confrontation Clause

Young argues that the admission of Deputy Salsberry's testimony stating

Mock's alibi violated Young's confrontation rights under the Sixth Amendment

because Young never had the opportunity to cross-examine Mock. The government

counters that the Confrontation Clause does not apply because Deputy Salsberry's

statements were not offered to prove the truth of Mock's assertion. Instead, the

statements showed that Young and Mock purposely matched their accounts to police.

"We review a district court's evidentiary rulings for clear abuse of discretion . . . ."

United States v. Watson, 650 F.3d 1084, 1088 (8th Cir. 2011). But "[w]e review

Confrontation Clause objections to the admission of evidence de novo." United States

v. Watson, 650 F.3d 1084, 1088 (8th Cir. 2011). Id.

After Deputy Salsberry arrived at the crime scene, he interviewed both Mock

and Young regarding Griesbauer's death. Mock and Young told Deputy Salsberry the

same story, essentially that Young heard a gunshot, hurried upstairs to wake Mock,

and the two ran outside to check on Griesbauer only to find him dead. The

government elicited Deputy Salsberry's statements about his conversations with

Young and Mock to illustrate that they had developed a common alibi.

The Sixth Amendment's Confrontation Clause provides that an accused in a

criminal case shall enjoy the right to confront witnesses who testify against him.

Crawford v. Washington, 541 U.S. 36, 42 (2004). In Crawford, the Court held that the

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Confrontation Clause bars testimonial out-of-court statements against a defendant who

has no opportunity to cross-examine the declarant. Id. at 68–69. Thus, a statement may

be admissible under the Rules of Evidence but be inadmissible under the

Confrontation Clause. Statements that police officers take pursuant to an interrogation

are testimonial. Id. at 52.

Crawford's reach has been limited in one key respect. The Crawford Court

indicated that the Confrontation Clause "does not bar the use of testimonial statements

for purposes other than establishing the truth of the matter asserted." Id. at 59, n.9.

Federal Rule of Evidence 801(c) defines hearsay as "a statement that: (1) the declarant

does not make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement." Accordingly, some

courts have determined that the Confrontation Clause does not apply to out-of-court

statements that are non-hearsay. See, e.g., United States v. Woods, 301 F.3d 556, 561

(7th Cir. 2002) ("If statements are admissible because they are non-hearsay, there is

no confrontation clause problem.").

Most notably, this court has also acknowledged that non-hearsay out-of-court

statements do not implicate the Confrontation Clause. United States v. Yielding, 657

F.3d 688, 700 (8th Cir. 2011). In Yielding, we noted, "Statements are not hearsay

when 'the point of the prosecutor's introducing those statements was simply to prove

that the statements were made so as to establish a foundation for later showing,

through other admissible evidence, that they were false.'" Id. (quoting Anderson v.

United States, 417 U.S. 211, 219–20 (1974)). Furthermore, we concluded in Yielding

that "[b]ecause the statement [at issue] was not used to establish the truth of the matter

asserted, the evidence was not hearsay, and its admission also did not violate the

Confrontation Clause." Id.

Deputy Salsberry interviewed Mock after Deputy Salsberry knew that a

homicide occurred. Thus, he elicited testimonial statements from Mock during this

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interview. However, the government did not introduce these statements to prove the

truth of the matter asserted; rather, the government introduced these statements to

show that Young and Mock had a common alibi, scheme, or conspiracy. In fact,

Mock's statements to Deputy Salsberry are valuable to the government because they

are false. Therefore, the Confrontation Clause does not bar Deputy Salsberry’s

testimony.

D. Authentication of the Note

Young contends that the district court erred by allowing Mock to admit into

evidence a photocopied note that Young supposedly wrote. Police found the note

during a search incident to Young's arrest in a purse located in the passenger seat of

Young's truck.4 The note read, in relevant part, "Use her drugged state to convince her

she shot him. Offered 10,000 to kill him. Was turned down. If I collaborate her story.

Bucks. Sheriff here 3:30 p.m." Young specifically avers that Mock never properly

authenticated the note. The government did not attempt to introduce the note into

evidence because it could not "identify" the note. We review whether the district court

erred by admitting improperly authenticated evidence for an abuse of discretion and

disregard errors that do not affect a substantial right of a party. Kaplan v. Mayo Clinic,

653 F.3d 720, 725 (8th Cir. 2011).

Federal Rule of Evidence 901(a) provides that, to authenticate an item of

evidence, "the proponent must produce evidence sufficient to support a finding that

the item is what the proponent claims it is." Proponents of evidence may authenticate

an item through several methods including, "[t]he appearance, contents, substance,

internal patterns, or other distinctive characteristics of the item, taken together with

all the circumstances." Fed. R. Evid. 901(b)(4). A proponent of evidence may use

4

Young contends that neither the government nor Mock established that the

purse belonged to Young. However, Young was the only person in the truck at her

arrest. Furthermore, the purse sat atop the passenger seat within her reach. Thus, it is

reasonable to infer that the purse belonged to her.

-17-

circumstantial evidence to satisfy this standard. Kaplan, 653 F.3d at 725–26. Once the

proponent satisfies this burden, the jury determines any further questions as to the

evidence's authenticity. Id. at 726. The contents of the writing may be considered to

authenticate it. United States v. Helmel, 769 F.2d 1306, 1312 (8th Cir. 1985). Notes

and other documents may be admitted despite the author's anonymity, especially when

the writings demonstrate the author's intimate familiarity with the events in question.

See id.

Young cites a Fifth Circuit case where the government failed to authenticate a

drug ledger when the government could not connect it to the crime at issue. United

States v. Jackson, 636 F.3d 687, 693–94 (5th Cir. 2011). Jackson is distinguishable.

First, the proponent in Jackson attempted to introduce the ledger under the business-

records exception to the hearsay rule, which requires establishment of a different

foundation before admission. Id. at 693. Based on this different foundation, the

Jackson court noted that it could not decipher "whether the ledgers were prepared by

someone with knowledge of the transactions they supposedly record, or whether they

record transactions at all." Id. Second, the codefendant produced the ledgers

voluntarily seeking a lighter sentence. Id. The ledgers were not found on the defendant

or in an item belonging to the defendant. Id. Third, the contents of the writing

contained numbers that could not be connected to the conspiracy by any conspirators.

Id. at 693–94. The subject matter of the ledger was therefore unclear. Id.

Here, on the other hand, the contents of the writing connect the writing to the

defendant. First, the writing was found in Young's purse. Second, the contents of the

note refer to drugging someone to get them to accept responsibility for a murder as

well as mentioning a $10,000 offer for killing someone and obtaining "bucks." The

writing did not contain mere numbers but a description, albeit brief, of a unique,

factual scenario to which the defendant was involved. Finally, Mock did not introduce

the writing under the business-record exception, which contains additional

foundational requirements. For these reasons, Jackson does not apply.

-18-

Additionally, the contents of the writing and the presence of the writing in

Young's purse satisfy the low threshold requiring the government to show that the

evidence is what it claims. The note was not admitted as a confession but merely as

a note in Young's possession that corroborated Mock's defense that Mock was

Young's intended "fall guy" for Griesbauer's murder. Mock therefore demonstrated

that this note is what she claimed it is by showing that the note's contents and

surrounding circumstances tied the note to Griesbauer's murder. The jury then decided

the weight to give this evidence and any additional questions of authenticity.

Furthermore, assuming that the district court erred, this court will disregard a

district court's error in admitting evidence if the error does not affect a party’s

substantial rights. See Kaplan, 653 F.3d at 725. In other words, we will not reverse the

district court's decision if the note's admission was harmless. Here, admission of the

note was harmless. First, while Mock introduced the note into evidence, the note was

never discussed or highlighted to the jury until Mock referenced the note briefly

during closing arguments. Second, abundant evidence supported the finding of

conspiracy without consideration of the note; in fact, the government had already

rested its case-in-chief without admitting the note. Instead, Mock introduced the note

after the government had already presented its case against Young.

E. Young's Second Account to Sheriff Clark

Mock sought to elicit testimony from Sheriff Clark that would inform the jury

of Young's second, conflicting account of the events that occurred on the night of

Griesbauer's death. Mock hoped that presentation of Young's conflicting accounts to

Sheriff Clark would provide evidence of Young's guilty conscience as well as

corroborate Mock's theory that Young set Mock up to be the "fall guy" for

Griesbauer's murder. The district court forbade the questions to Sheriff Clark at that

time, stating,

-19-

[T]he most salient part of the discussion I think is the last thing that [the

Assistant United States Attorney] alluded to, which is that the statement

is in large part self-serving at this point in time. Now looking down the

road though, it's clear to me that more likely than not at some point in

time, we will be revisiting this statement, and more likely than not if

circumstances are right, it's probably going to come in. There is also an

incidental problem to the use of the statement now. That is a timing

issue. There are some things that most likely need to be brought out or

established before the statement can come in because it's just kind of

there and hanging there now. So having said that, I guess I'm sustaining

the Government's objection at this point in time.

Mock never again sought to introduce this testimony at trial; however, Mock now

challenges on appeal the district court's decision to exclude this testimony. We hold

that Mock failed to preserve this issue for appellate review.

Mock avers that the district court's ruling as to her objection was definitive

because the district court stated that it was "sustaining" the government's objection.

Federal Rule of Evidence 103(b) was amended in 2000 to provide, "Once the court

rules definitively on the record—either before or at trial—a party need not renew an

objection or offer of proof to preserve a claim of error for appeal." (emphasis added.)

The rule focuses on the definitiveness of the district court's ruling because renewed

objections to a district court's definitive decisions are an unnecessary formalism. Fed.

R. Evid. 103 advisory committee's note to 2000 Amendment. However, when the

district court reserves its ruling or otherwise indicates that the ruling is provisional,

then the proponent should reintroduce the court to the issue at the appropriate time.

Id. "The amendment imposes the obligation on counsel to clarify whether an in limine

or other evidentiary ruling is definitive when there is doubt on that point." Id.

This court has never defined precisely the bounds of a "definitive" ruling. We

have determined that a party failed to preserve an issue for appeal when the district

court made a tentative pretrial ruling and expressly invited the party to raise the issue

-20-

during trial where it could better assess the issue's relevance in the case. United States

v. Echols, 346 F.3d 818, 820 (8th Cir. 2003). The district court in Echols refused to

rule as to the relevance of the defendant's illegal-immigrant status, requiring instead

that the government approach the bench before eliciting this testimony. Id. The district

court never stated that it was "overruling" or "sustaining" any objection; however, by

reserving its ruling, the district court effectively excluded the evidence until the

parties presented additional facts that would make immigration status relevant. We

have reiterated the Echols holding where the district court expressly postpones ruling

on an evidentiary matter until the parties develop the factual context at trial. See

United States v. Morales, 684 F.3d 749, 755 (8th Cir. 2012).

We have also indicated that definitive rulings do not invite reconsideration. In

Sprynczynatyk v. General Motors Corp., we stated, "In the instant case the district

court made a definitive pre-trial ruling that affected the entire course of the trial. The

district court's denial of the motion was not made conditionally or with the suggestion

that the matter would be reconsidered." 771 F.2d 1112, 1118 (8th Cir. 1985)

(emphasis added).

Therefore, a district court's invitation to re-raise evidentiary challenges renders

its ruling non-definitive. The inquiry does not focus on magic words like "sustained"

or "overruled" but on the overall context of the ruling. When that context includes a

district court's invitation to re-raise the issue later at trial, then the ruling is not

definitive. As the advisory committee note to the 2000 amendment suggests, counsel

bears the burden of obtaining clarification as to whether a district court's ruling is

definitive. Here, the district court's invitation to re-raise the issue of whether it should

allow introduction of Young's conflicting account prevented its ruling from being

definitive. As a result, Mock failed to preserve this issue for normal appellate review.

-21-

Assuming, without deciding, that plain-error review is appropriate, Mock fails

to satisfy that standard.5 To prevail under plain-error review, the appellant must show

"(1) there was an error that was not affirmatively waived, (2) the error was . . . clear

and obvious, (3) the error affects . . . substantial rights, and (4) the error seriously

affects the fairness, integrity or public reputation of judicial proceedings." Lindsey,

702 F.3d at 1100 (alterations in original) (quoting United States v. Johnson, 688 F.3d

494, 504 (8th Cir. 2012)). Assuming, without deciding, that plain error occurred in

this case, the error did not affect Mock's substantial rights because the evidence

supporting her conviction was overwhelming. See Lindsey, 702 F.3d at 1100–01

(noting that a party's substantial rights are not violated where overwhelming evidence

of guilt supports verdict). This evidence includes Mock's presence at the crime scene,

her purchase of the ski mask, the presence of her DNA on the ski mask and latex

gloves, the gunpowder and gunshot residue on the gloves, her solicitations of Keri and

Thomas to kill Griesbauer, her financial struggles, and her statements to Ballard the

day after Griesbauer's death. Furthermore, introduction of Sheriff Clark's testimony

would be of little probative value considering that one of the primary purposes for its

introduction was to demonstrate Young's guilty conscience. The jury apparently did

not need additional evidence of Young's guilty conscience because the admitted

evidence was sufficient to convince the jury of Young's guilt. As a result, the district

5

Our cases are unclear as to the next step in the analysis following a

determination that the appellant failed to preserve an issue under Rule 103(b). We

have taken at least three positions. First, we have determined that a party's failure to

seek a final ruling waives the issue such that the appellate court undertakes no review.

Morales, 684 F.3d at 755; Echols, 346 F.3d at 821. Second, we have determined that

a party's failure to seek a final, definitive ruling allows us to review for plain error.

United States v. Lindsey, 702 F.3d 1092, 1100 (8th Cir.), cert. denied, 133 S.Ct. 2842

(2013). Finally, we have determined that we will conduct plain-error review when the

appellant fails to obtain a definitive ruling as a matter of oversight rather than from

a tactical decision not to object. United States v. Frokjer, 415 F.3d 865, 871 (8th Cir.

2005). This court will not review a district court's non-definitive ruling where the

appellant makes the tactical decision to refrain from further objections. Id.

-22-

court did not adversely affect Mock's substantial rights by excluding testimony

relating to Young's second account to Sheriff Clark.

F. Severance

Young and Mock both contend that the district court erred by refusing to sever

their trial pursuant to Federal Rule of Criminal Procedure 14(a), which provides, "If

the joinder of . . . defendants . . . for trial appears to prejudice a defendant or the

government, the court may order separate trials of counts, sever the defendants' trials,

or provide any other relief that justice requires." Young's arguments stem from her

previous arguments, namely that none of Mock's statements to Keri and Thomas,

Mock's statements to Deputy Salsberry, or the note found in Young's possession at her

arrest would have been admitted against her had their trials been severed. Mock rests

her objection on three arguments: (1) Young and Mock had mutually antagonistic

defenses that substantially impaired their rights to a fair trial; (2) the district court's

exclusion of Young's second, conflicting account of the night of the murder would

have been admitted except for Young's presence at the trial; and (3) introduction of

evidence involving Young's "sordid" sexual exploits prejudicially tainted Mock before

the jury. The government counters that the district court was well within its discretion

to allow the joint trial of coconspirators and that no clear prejudice resulted. This court

will not reverse a denial of a motion to sever absent abuse of discretion and clear

prejudice. United States v. Sandstrom, 594 F.3d 634, 642 (8th Cir. 2010).

Three of Young's and Mock's contentions have no merit. First, Young contends

that the district court would not have admitted Mock's statements to Keri and Thomas

except that the district court erred in admitting them as coconspirator statements. She

also contends that her Confrontation Clause rights were violated when the government

introduced Mock's statements through Deputy Salsberry. As previously addressed,

Young's arguments fail because the district court properly admitted Keri's and

Thomas's testimonies under Rule 801(d)(2)(E) such that the statements were

admissible against Young. See Part II.B., supra. Additionally, the government's

-23-

introduction of Deputy Salsberry's testimony did not violate Young's confrontation

rights because the statements were not offered to prove the truth of the matter asserted.

See Part II.C., supra. The government would likely have introduced these items of

evidence at a separate trial because they show that Young and Mock conspired

together. Thus, severance on these grounds would not assist Young.

Second, Mock contends that the district court should have granted the motion

to sever because Mock was unable to present Sheriff Clark's testimony regarding

Young's second contradictory account of the night of the murder. As previously

discussed, Mock failed to preserve her objection to the district court's exclusion of this

testimony, and the district court did not plainly err. See Part II. E., supra. Thus, Mock

cannot prevail on this argument. The remaining grounds for severance are that the

note found in Young's purse should not have been admitted at the joint trial, that

Young and Mock advanced mutually antagonistic defenses, and that the sexually

explicit testimony directed toward Young substantially tainted Mock in the eyes of the

jury.

"[W]here a defendant demonstrates that a joint trial will prejudice [her] right to

a fair trial, the court must sever the trials." United States v. Engleman, 648 F.2d 473,

480–81 (8th Cir. 1981) (citation omitted). The district court may sever trials if it

appears that compelling or severe prejudice will result to the defendant. United States

v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003). Prejudice is "some appreciable chance

that defendants would not have been convicted had the separate trial they wanted been

granted." Sandstrom, 594 F.3d at 644 (quotation and citation omitted). Defendants

may show real prejudice to their right to a fair trial by demonstrating that their defense

is irreconcilable with a codefendant's defense, or the jury will be unable to properly

compartmentalize the evidence as it relates to the separate defendants. United States

v. Mueller, 661 F.3d 338, 347–48 (8th Cir. 2011), cert. denied, 132 S. Ct. 1951

(2012). Thus, the defendant must demonstrate more than a higher probability of

acquittal had severance been granted. Zafiro v. United States, 506 U.S. 534, 540

-24-

(1993). Consequently the defendant carries a heavy burden in demonstrating that

severance is mandated. Sandstrom, 594 F.3d at 644. This is especially true when the

district court, like here, provides limiting instructions to the jury on the use of

evidence against only one defendant. See Zafiro, 506 U.S. at 539. Finally, severe

prejudice may occur when evidence against one defendant is admitted despite it not

being admissible had a defendant been tried alone. Id.

"Generally, persons charged in a conspiracy should be tried together, especially

when proof of the charges against the defendants is based upon the same evidence and

acts." Mueller, 661 F.3d at 347 (quotation and citation omitted). A joint trial is

preferable because it "gives the jury the best perspective on all of the evidence and,

therefore, increases the likelihood of a correct outcome." Pherigo, 327 F.3d at 693

(quotation and citation omitted). Finally, the decision to grant severance to a

defendant from a joint trial is within the district court's discretion. United States v.

Ortiz, 315 F.3d 873, 898 (8th Cir. 2002).

1. Authentication of the Note

Young contends that the note found in her purse at arrest would not have been

introduced at a severed trial. Young also argues that the district court erroneously

admitted the note because of a lack of authentication; however, as previously

discussed, Mock sufficiently authenticated this note. See Part II.D., supra. Young is

correct that the note likely would not have been introduced against her except that the

district court tried Young and Mock together. However, the jury apparently gave the

note little credence, if any, considering that it still found Mock guilty. In light of the

overwhelming evidence of her guilt, we conclude that Young has not shown severe

prejudice, and the district court did not abuse its discretion.

-25-

2. Mutually Antagonistic Defenses

The Supreme Court has held that mutually antagonistic defenses are not

prejudicial per se. Zafiro, 506 U.S. at 538. Mutually antagonistic defenses necessitate

severance only when the jury may unjustifiably infer that the defendants' conflicting

defenses alone demonstrate that both are guilty. Sandstrom, 594 F.3d at 644. The

government may nonetheless offer sufficient evidence that both are guilty independent

of the parties' antagonism. Id. at 645. Severance is not required where one defendant

merely shifts blame to a codefendant. United States v. Bordeaux, 84 F.3d 1544, 1547

(8th Cir. 1996). Where codefendants blame each other as the sole actor, severance is

not required where the government does not ask the jury to decide which defendant

murdered the victim but rather that they murdered the victim together or conspired to

murder the victim. Ortiz, 315 F.3d at 898.

Mock contends that the parties' joint trial compromised their right to a fair trial

because they advanced mutually antagonistic defenses. Mock and Young essentially

accuse each other of killing Griesbauer alone. Here, like in Ortiz, two codefendants

accuse each other of committing a shooting alone. Id. In determining whether the law

required severance in that situation, we explained in Ortiz that "[w]hile only one man

committed that act, the government's theory of the case did not require the jury to

decide who shot [the victim]. The indictment charged defendants with crimes,

including conspiracy and aiding and abetting, that did not require jurors to choose a

particular defendant as the shooter." Id. The government's theories here are the same.

The government charged Young and Mock with conspiracy to commit murder-for-hire

and murder-for-hire under an aider and abetter theory. Thus, the jury was not required

to determine who pulled the trigger. We conclude that the district court did not abuse

its discretion in denying the defendants' motions to sever their trial.

3. Taint on Mock's Reputation

Mock additionally contends that she was severely prejudiced by the taint she

received when the government produced evidence of Young's "sordid" sexual exploits

-26-

to show Young's disdain for Griesbauer, as well as her motivation to save her farm by

collecting life insurance proceeds. We have affirmed rulings permitting evidence far

more inculpatory than Young's sexual misbehavior. For example, in United States v.

Kuenstler, this court determined that severance was not required despite introduction

of evidence involving a codefendant's criminal record, his greater involvement in the

crimes charged, his participation in other attempts and schemes to make

methamphetamine, and his threats to witnesses. 325 F.3d 1015, 1024 (8th Cir. 2003).

Furthermore, we have noted that proper limiting instructions can alleviate or minimize

any potential harm that codefendants contract from evidence that reflects poorly on

them. See United States v. Adams, 401 F.3d 886, 895 (8th Cir. 2005); United States

v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995).

Here, the court twice instructed the jury to consider the evidence in question

against Young only. Additionally, this court has determined that district courts did not

err by refusing to sever the trials of codefendants in situations where the "stain"

created by evidence used against one defendant was far more inculpatory than the

evidence presented here. See Kuenstler, 325 F.3d at 1024. As a result, we hold that

Mock has not shown that the testimony introduced against Young prejudiced her such

that reversal on severance grounds is warranted.

G. Batson Challenges

Young and Mock, both Caucasian,6 challenge the government's use of

peremptory strikes on certain potential African-American jurors. The government

contends that it had valid, non-discriminatory reasons for the strikes. This court

reviews a district court's denial of Batson challenges for clear error. United States v.

Hart, 544 F.3d 911, 914 (8th Cir. 2008).

6

One may lodge a Batson challenge despite a difference in the challenger's race

and the race of those against whom discriminatory strikes have been made. Powers

v. Ohio, 499 U.S. 400, 415–16 (1991).

-27-

In Batson, the Supreme Court held that the prosecution's use of peremptory

strikes on qualified jurors for purely racial reasons violates the Equal Protection

Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 89 (1986).

Snyder v. Louisiana outlined the proper procedure for deciding a Batson challenge

based on race. 552 U.S. 472, 476–77 (2008). First, the challenger must make a prima

facie showing that the opponent exercised the peremptory challenge on the basis of

race. Id. at 476. Second, the opponent must provide a race-neutral reason for striking

the juror in question. Id. at 476–77. Third, the trial court must determine whether the

opponent purposely discriminated such that its race-neutral reasons were mere pretext

for discriminatory intent. Id. at 477. A Batson challenger may rely on "all relevant

circumstances to raise an inference of purposeful discrimination." Miller-El v. Dretke,

545 U.S. 231, 240 (2005) (quotation and citation omitted). These circumstances

include whether the government's race-neutral justifications also applied to similarly

situated jurors who belong to a race against whom the government did not allegedly

discriminate. Id. at 241. The characteristics of similarly situated jurors need not match

perfectly with the excluded jurors, for "potential jurors are not products of a set of

cookie cutters." Id. at 247 n.6. The district court's consideration of the persuasiveness

of the prosecutor's justification is important. Miller-El v. Cockrell, 537 U.S. 322,

328–29 (2003). Implausible or fantastic reasons demonstrate pretext. Id. at 329.

Trial courts thus play a critical role during a Batson challenge. Snyder, 552 U.S.

at 477. The trial court is responsible for viewing the jurors' demeanor, which can be

a race-neutral justification in the exercise of a peremptory challenge.7 Id. Thus, the

7

This court has upheld a variety of race-neutral justifications that are relevant

here. First, one's status as a renter can be a race-neutral reason for exercising a

peremptory strike because it demonstrates a lack of connection to the community.

United States v. Adams, 604 F.3d 596, 601 (8th Cir. 2010). Second, a juror's

employment may make the juror more sympathetic to a criminal defendant such that

the exercise of a peremptory strike would be race neutral. United States v. Maxwell,

473 F.3d 868, 872 (8th Cir. 2007). For example, a juror's job as a teacher or social

worker could make the juror more sympathetic to a criminal defendant. Id. (teacher);

-28-

trial court must determine "whether the juror's demeanor can credibly be said to have

exhibited the basis for the strike attributed to the juror by the prosecutor." Snyder, 552

U.S. at 477. These determinations of demeanor and credibility are exclusively within

the province of the trial court. Id. Finally, in the absence of exceptional circumstances,

reviewing courts will defer to the trial court. Id. In order for a reviewing court to give

deference to the trial court on a demeanor question, the trial court must confirm in the

record that the juror's demeanor was a sufficient basis for the peremptory challenge.

Id. at 479.

Here, the government provided sufficient race-neutral justifications for each of

the challenged jurors. During jury selection, the government struck five African-

American jurors as well as one alternate via peremptory challenge. The defendants

challenged strikes to Panel Members 2, 12, 28, and alternate 35 after conceding their

challenges on two strikes. Mock and Young also struck three African-American

jurors, and five African-Americans sat on the resulting jury.

1. Juror #2

The defendants contend that the government's use of a peremptory strike on

Juror #2 violated Batson. The government offered several reasons for striking Juror

#2. First, Juror #2 rented her apartment for eleven years, indicating a potential lack of

connection to the community. Second, Juror #2 hardly spoke during voir dire. Finally,

United States v. Meza-Gonzalez, 394 F.3d 587, 593–94 (8th Cir. 2005) (social

worker). Third, body language and demeanor can be a sufficient reason to strike a

juror. Id. Fourth, this court has rejected the argument that the government should have

questioned a juror further during voir dire about race-neutral concerns when the

information later becomes known or is already known such that additional questions

are not needed. Adams, 604 F.3d at 601. Finally, this court has upheld strikes against

jurors who have close family members whose job indicates bias. United States v.

Atkins, 25 F.3d 1401, 1406 (8th Cir. 1994) (friends or relatives that worked for

government).

-29-

Juror #2 worked at the St. Patrick's Center—a facility with a goal of rehabilitating

criminals following their release from prison.

The district court opined that the most significant reason for a strike was Juror

#2's silence. However, as the defendants correctly indicate, Juror #2 spoke more than

other similarly situated white jurors. Other white jurors also rented their residences

and were unemployed. However, none of the other similarly situated white jurors

worked to help rehabilitate criminals. Although the trial court concluded that Juror

#2's relative silence was the primary reason for allowing the strike, the government

never advanced Juror #2's silence as its main reason. In fact, the government stated

during voir dire that "the significant thing is that she worked at the St. Patrick's Center

for five years, which I would consider somebody that you might not want on a

criminal jury from the prosecution's standpoint." Juror #2's employment with the St.

Patrick's Center provides a race-neutral justification for the government's peremptory

challenge, so the district court did not clearly err by denying the defendants' Batson

challenge. Furthermore, the government need not have questioned Juror #2 further

when the government already possessed a race-neutral justification for striking Juror

#2. The government knew that the St. Patrick's Center rehabilitated criminals. We

conclude that the district court did not clearly err in rejecting the Batson challenge

despite the government's decision not to pose additional questions to Juror #2 about

her employment.

2. Juror #12

The government struck Juror #12 because of her unemployment and a story that

she related about a daughter who was attacked by three girls while walking to school.

Her daughter did not identify the attackers. The government contended that Juror

#12's hesitation in telling this story raised suspicions about her objectivity.

The defendants argue that Juror #12's unemployment was a pretextual reason

because other similarly situated white jurors were also unemployed. While this could

-30-

be true, Juror #12's hesitant description of the attack on her daughter provides a race-

neutral justification for striking her. Although the defendants argue that the mother of

a crime victim is more likely to align with the government, the district court observed:

I think [the Assistant United States Attorney] said in essence it was

unclear as to really where she stood on this crime victim question. Now

did she think her daughter should have done something else, was she

unhappy with the police about how they investigated, should her

daughter have been more detailed in the description or in her ability to

identify those who she alleged attacked her, or was she dissatisfied with

what her daughter did or didn't do or how her daughter may have

behaved. All those things were unclear by her response.

The district court's analysis of Juror #12's demeanor while she told the story,

coupled with the story itself, satisfies the Snyder requirement that the trial court

discuss juror demeanor when the juror's demeanor is a reason for the strike.

Furthermore, while Juror #12 might favor the government as the mother of a crime

victim, she also could disfavor the government because she felt the police poorly

investigated her daughter's attack. The government provided a sufficient race-neutral

justification to overcome any allegations of pretext.

3. Juror #28

The government contends that it struck Juror #28 because she was unemployed,

rented her residence, and appeared confused during voir dire. The defendants contend

that other similarly situated white jurors also rented and were unemployed; however,

the government and the district court noted on the record that Juror #28 appeared

confused while asking a question, providing a race-neutral justification for striking

her.

Juror #28 asked whether both defendants were charged with two crimes. As the

defendants point out, the trial transcript certainly indicates that Juror #28 posed a

-31-

thoughtful question. However, the trial transcript fails to disclose Juror #28's

demeanor while asking the question. As the Court noted in Snyder, the trial court has

the responsibility to evaluate a juror's demeanor and credibility and must comment on

the record about the juror before allowing the government's peremptory challenge.

Here, the district court properly addressed Juror #28's confused demeanor on the

record, stating:

The response that [the Assistant United States Attorney] gave in

explaining his peremptory challenge of her, that she appeared somewhat

confused and baffled about what the charges were and how many

charges there were as to each defendant, yes, on its face it seems to be an

intriguing and thoughtful question, but as you think about it and observe

her language, body language, and the expressions on her face when

asking the question, I think [the Assistant United States Attorney] has hit

it on the head in explaining his challenge for her. The way I would

describe [Juror #28] in her inquiry is the same thing I say about my son.

If you listen to him when he first makes statements to you that you might

have an issue about, it sounds like it's perfectly logical and makes sense.

But if you look a little deeper and think about the language and the body

language, you conclude that it doesn't make a lot of sense and there is

some difficulty there.

The district court properly fulfilled its Snyder duty to comment on a juror's

demeanor when the juror's demeanor is the primary reason for the strike. Judges, no

doubt, might differ in their evaluation of this juror for purposes of Batson. On appeal,

we cannot say that the district court erred in denying the defendants' Batson challenge

to the government's peremptory strike of Juror #28.

4. Alternate Juror #35

Young also contends that the government wrongfully struck Juror #35. Young's

argument fails because the government provided a sufficient race-neutral justification

for the strike. Juror #35's mother worked at a nonprofit organization that helped

transition people from prison to outside employment. The government argued that

-32-

Juror #35 was relatively young and lived with her mother, making her susceptible to

potential bias from her mother's occupation. This reason is race neutral. We hold the

use of a peremptory strike for Alternate Juror #35 was not improper.

H. Sufficiency of the Evidence Regarding a Bargain-for Exchange

Finally, Young and Mock both contend that the district court erred by denying

their motion for judgment as a matter of law because, according to them, the evidence

failed to establish that either party received valuable consideration for commission of

the offense. This court reviews questions as to the sufficiency of the evidence de novo,

"viewing evidence 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. Gray, 700 F.3d 377, 378 (8th Cir. 2012) (quotations and

citations omitted). This court will not weigh the evidence or witnesses' credibility, for

the jury alone resolves conflicts in the testimony. Gray, 700 F.3d at 378. "We reverse

only if no reasonable jury could have found guilt beyond a reasonable doubt." Id.

(quotation and citation omitted). The standard that this court applies "to determine the

sufficiency of the evidence is a strict one, and the finding of guilt should not be

overturned lightly." United States v. Hyles, 521 F.3d 946, 954 (8th Cir. 2008)

(quotation and citation omitted).

The defendants' crime of conviction provides,

Whoever . . . uses or causes another (including the intended victim) to

use the mail or any facility of interstate or foreign commerce, with intent

that a murder be committed in violation of the laws of any State or the

United States as consideration for the receipt of, or as consideration for

a promise or agreement to pay, anything of pecuniary value, or who

conspires to do so, shall be . . . imprisoned for not more than ten years

. . . and if death results, shall be punished by death or life imprisonment

....

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18 U.S.C. § 1958(a). The defendants challenge whether the government provided

sufficient proof that Young promised to pay Mock for her assistance in murdering

Griesbauer. The defendants do not challenge whether the government proved any

other elements of this crime.

The government must prove three elements to convict a defendant for violating

the substantive portion of 18 U.S.C. § 1958(a). These include that the defendant: "(1)

used or caused another to use the mail or a facility in interstate commerce, (2) with the

intent that murder is committed, (3) for hire." United States v. Mueller, 661 F.3d 338,

345 (8th Cir. 2011). The "for hire" element typically requires consideration or some

form of bargained-for exchange. A quid pro quo contractual arrangement can satisfy

the "for hire" element. United States v. Washington, 318 F.3d 845, 854 (8th Cir.

2003). Thus, the payment for the murder could consist, theoretically, of a promise to

give a peppercorn. See, e.g., United States v. Acierno, 579 F.3d 694, 701 (6th Cir.

2009) (holding that a promise of giving $100 is sufficient consideration).

The defendants cite United States v. Wicklund for the proposition that the "for

hire" element requires something more than a mere "expectation of receiving

pecuniary value," for the statute requires "consideration." 114 F.3d 151, 153–54 (10th

Cir. 1997). Thus, consideration under the statute means either payment of

consideration or a promise to pay it. Id. at 154. As a result, the defendants posit that

the jury must speculate that Young paid Mock or promised to pay Mock money as

consideration for Griesbauer's murder.

However, in evaluating the sufficiency of evidence to sustain a verdict,

circumstantial evidence must be treated no differently than direct evidence. United

States v. Lam, 338 F.3d 868, 871 (8th Cir. 2003). Here, the government provided

significant circumstantial evidence to support a jury verdict that Young promised to

pay Mock money in consideration for Griesbauer's murder. First, Keri's and Thomas's

testimony reveal that Mock solicited others to murder Griesbauer for money on

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Young's behalf. Second, Young insisted on receiving an extra $10,000 from her lender

above that needed to pay off her debts on the farm mere hours before Griesbauer's

death. Third, Young had previously solicited Newlin to murder an ex-husband for

exactly $10,000. Fourth, despite Mock's financial hardships, she informed Ballard that

she would soon be able to settle her debts with interest. Fifth, the defendants' presence

at the crime scene and overlapping alibis demonstrate the presence of a scheme to

murder Griesbauer. Consequently, when one considers the evidence in a light most

favorable to the jury verdict, this evidence leads to the reasonable inference that

Young promised to pay Mock $10,000 to murder Griesbauer. Thus, the defendants'

argument must fail.

III. Conclusion

Based on the foregoing, we affirm the judgment of the district court.

KELLY, Circuit Judge, concurring.

Young and Mock were charged with two federal crimes: (1) using facilities of

interstate commerce in the commission of a murder-for-hire (Count 2); and (2)

“conspir[ing] to do so” (Count 1), both in violation of 18 U.S.C. § 1958. While I

concur in the court’s judgment to affirm these convictions, I write separately because

I sense an increasing misunderstanding of the relevant statute at issue in this case.

“Section 1958(a) is not a murder statute; it is a carefully-drafted federal

criminal law of constitutionally limited scope.” United States v. Delpit, 94 F.3d 1134,

1150 (8th Cir. 1996). Section 1958 reads as follows:

Whoever travels in or causes another (including the intended victim) to

travel in interstate or foreign commerce, or uses or causes another

(including the intended victim) to use the mail or any facility of interstate

or foreign commerce, with intent that a murder be committed in violation

of the laws of any State or the United States as consideration for the

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receipt of, or as consideration for a promise or agreement to pay,

anything of pecuniary value, or who conspires to do so, shall be

[punished according to this statute].

18 U.S.C. § 1958(a). As we have previously explained:

This statute is relatively straightforward, both in what it prohibits and in

what it does not reach. It does not prohibit murder or attempted murder.

Instead, it outlaws using interstate-commerce facilities with the intent

that murder-for-hire be committed. Once the interstate-commerce

facility is used with the required intent the crime is complete. One who

travels or causes another to travel in interstate commerce with the

necessary murderous intent need not do anything else to violate the

statute. See [United States v. ]McGuire, 45 F.3d [1177,] 1186–87 [(8th

Cir. 1995)]. It is clear, moreover, that a defendant can violate § 1958(a)

without actually hurting or killing anyone, because the statute provides

for enhanced punishment when death or injury results from the

defendant’s violation of the statute. If there were any doubt, it would be

dispelled by the clear legislative history:

The gist of the offense is the travel in interstate commerce

or the use of the facilities of interstate commerce or of the

mails with the requisite intent and the offense is complete

whether or not the murder is carried out or even attempted.

Delpit, 94 F.3d at 1149–50 (quoting S. Rep. No. 225, 98th Cong., 2d Sess. 306 (1984),

reprinted in, 1984 U.S.C. Cong. & Admin. News 3182, 3485). Thus, the elements of

Count 2, as relevant to this case, are that a defendant (1) used a facility in interstate

commerce, or caused another to do so; (2) with the intent that a murder be committed;

(3) “as consideration for a promise or agreement to pay,” i.e., “for hire.” Id. at 1149.

In this case, the government started its closing argument by addressing the

elements of the offense. After listing a few examples of the use of a facility in

interstate commerce, including the use of a telephone or a debit card, the government

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argued to the jury: “So clearly interstate facilities have been used in furthering this

crime.” But Young and Mock were not charged with using a facility of interstate

commerce “in furtherance of” the crime of murder or murder-for-hire. Rather, they

were charged with using a facility of interstate commerce, with the requisite intent.8

To the extent some of our cases suggest otherwise, I respectfully submit that Delpit

provides the more accurate reading of the statute. Compare Delpit, 94 F.3d at

1149–51, with United States v. Basile, 109 F.3d 1304, 1310–13 (8th Cir. 1997), and

United States v. Mueller, 661 F.3d 338, 345–47 (8th Cir. 2011).9

______________________________

8

The government also argued that “every phone call to the insurance

companies” would be sufficient to establish the element of “use” beyond a reasonable

doubt. Any phone call made after the murder, however, cannot be the “use” that

amounts to the crime. Logically speaking, a person cannot “use” a facility of

interstate commerce with the requisite intent after the murder has occurred.

9

Similarly, the conspiracy charged in this case was not a simple conspiracy to

commit murder or even to commit a murder-for-hire, which happens to involve the use

of a facility of interstate commerce. “To prove a conspiracy, the government needed

to prove an agreement, between at least two people, the objective of which was to

violate federal law.” Delpit, 94 F.3d at 1151. Under § 1958, the object or illegal

purpose of the charged conspiracy is to use a facility of interstate commerce with the

intent to commit a murder-for-hire. See id. (reversing § 1958 conspiracy conviction

because “[t]he government presented no evidence suggesting that Lynn conspired to

cause [another person] to travel, or that she conspired with [another person] to

travel, with the intent that a murder-for-hire be committed” (emphasis added)).

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