     Case: 16-30869      Document: 00514173432         Page: 1    Date Filed: 09/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 16-30869                                 FILED
                                  Summary Calendar                       September 27, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

YOLANDA SMITH,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:13-CR-198-5


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Yolanda Smith was indicted in September 2013 for conspiracy to import
methylone, conspiracy to possess with the intent to distribute methylone, and
possession with the intent to distribute methylone. A superseding indictment
was issued in May 2014 alleging the same criminal charges against Smith.
The superseding indictment was also issued against Smith’s husband, Jessie.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-30869

Smith was convicted by a jury on all counts and was sentenced to concurrent
terms of 33 months of imprisonment. She appeals.
      Smith first argues that the district court abused its discretion in denying
the motion to disclose the grand jury transcript from the proceeding conducted
on September 12, 2013, that led to the initial indictment. She asserts that the
transcript is needed to prove the prosecutor’s unprofessional remarks and that
one grand juror did not believe that there was sufficient evidence to indict.
      A district court’s denial of a motion for disclosure of grand jury
transcripts under Federal Rule of Criminal Procedure 6(e) is reviewed for an
abuse of discretion. United States v. Miramontez, 995 F.2d 56, 59 (5th Cir.
1993).    Rule 6(e)(3)(E) authorizes the disclosure of such information
“preliminarily to or in connection with a judicial proceeding” or “at the request
of a defendant who shows that a ground may exist to dismiss the indictment
because of a matter that occurred before the grand jury.”           FED. R. CRIM.
P. 6(e)(3)(E)(i), (ii). A request for disclosure that falls under one of the limited
circumstances specified in Rule 6(e)(3)(E) will be granted only if the moving
party shows that “a particularized need exists for the materials that outweighs
the policy of secrecy.” Miramontez, 995 F.2d at 59 (internal quotation marks
and citation omitted). To make such a showing, the party requesting the
materials must establish that “(1) the material he seeks is needed to avoid a
possible injustice in another judicial proceeding, (2) the need for disclosure is
greater than the need for continued secrecy, and (3) his request is structured
to cover only material so needed.” Id.
      The district court concluded that Smith failed to show that there was a
ground that existed to dismiss the indictment. Smith        was    tried   on   the
superseding indictment, and the original indictment was dismissed. Thus, any
challenge to the initial indictment based on alleged prosecutorial misconduct



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                                 No. 16-30869

is moot. Cf. United States v. Lee, 622 F.2d 787, 789 (5th Cir. 1980) (noting that
the filing of a second superseding indictment did not moot an appeal from the
dismissal a first superseding indictment when the first superseding indictment
was still pending); see also United States v. Rainey, 757 F.3d 234, 240 (5th Cir.
2014) (recognizing that two indictments may both be outstanding if jeopardy
has not attached). Additionally, her assertion that the material is needed to
avoid a possible injustice in another judicial proceeding is conclusory and
speculative.   She does not allege prosecutorial misconduct as to the
superseding indictment that served as the basis for the instant conviction.
Therefore, the district court did not abuse its discretion in denying her motion
for disclosure of the grand jury transcript. See Miramontez, 995 F.2d at 59.
      Smith also argues that the district court abused its discretion in denying
her motion for new trial. She contends that coconspirator Alvin Phillips’s
testimony at Jessie’s trial was inconsistent with his testimony at her trial. The
district court denied the motion, finding that the evidence was merely
impeaching.
      This court reviews the district court’s denial of a motion for a new trial
for an abuse of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir.
2011).   To receive a new trial under Rule 33 based on newly discovered
evidence, a defendant must show:
      (1) the evidence is newly discovered and was unknown to the
      defendant at the time of trial; (2) the failure to detect the evidence
      was not due to the defendant’s lack of diligence; (3) the evidence is
      not merely cumulative or impeaching; (4) the evidence is material;
      and (5) the evidence if introduced at a new trial would probably
      produce an acquittal.

Id. (footnote omitted). “If the defendant fails to demonstrate any one of these
factors, the motion for new trial should be denied.” United States v. Wall, 389
F.3d 457, 467 (5th Cir. 2004).


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                                  No. 16-30869

      Phillips’s testimony at Jessie’s trial does not exonerate Smith or cast into
doubt her knowledge or participation. At Smith’s trial, Phillips expressly
testified that Smith knew of the arrangement to use her address to receive
packages of methylone. Additionally, she accepted delivery of the package and
signed a false name when accepting the delivery.            Phillips’s testimony at
Jessie’s trial does not contradict this information. He testified at Jessie’s trial
that Smith knew about the conspiracy and that he conspired with her. The
testimony at Jessie’s trial that Phillips made the actual exchanges of packages
and drugs with Jessie is merely impeaching, at most. The district court did
not abuse its discretion in denying the motion for a new trial. Piazza, 647 F.3d
at 564.
      The judgment of the district court is AFFIRMED. Smith’s motion to
supplement the record on appeal is DENIED.




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