                   Case: 12-12429          Date Filed: 12/21/2012    Page: 1 of 10

                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                             No. 12-12429
                                         Non-Argument Calendar
                                       ________________________

                              D.C. Docket No. 1:07-cr-20186-MGC-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllll                          llll    Plaintiff-Appellee,

                                                 versus

SHYNITA TOWNSEND,
a.k.a. Shynita Townsend-Ponton,
a.k.a. La Negra,

llllllllllllllllllllllllllllllllllllllll                              Defendant-Appellant.

                                       ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (December 21, 2012)

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

PER CURIAM:
              Case: 12-12429    Date Filed: 12/21/2012    Page: 2 of 10

      Shynita Townsend, proceeding pro se, appeals the district court’s denial of

her motion for a new trial based on newly discovered evidence under

Fed.R.Crim.P. 33. On appeal, Townsend argues that the district court abused its

discretion in denying her motion without holding an evidentiary hearing after she

presented evidence of “extrinsic contact” between a juror and a witness. For the

reasons set forth below, we affirm the denial of Townsend’s motion for a new trial.

                                          I.

      A federal grand jury issued a four-count superceding indictment, charging

Townsend with (1) knowingly and corruptly accepting a thing of value, as an

agent of a local government in violation of 18 U.S.C. § 666(a)(1)(B); (2) acting as

an accessory after the fact, knowing that a crime against the United States had

been committed in violation of 18 U.S.C. § 3; (3) obstruction of justice in

violation of 18 U.S.C. § 1512(c)(1); and (4) obstruction of justice in violation of

18 U.S.C. § 1512(c)(2). Prior to her indictment, Townsend was a corrections

officer in Miami-Dade County, and her charges arose out of her supervision of an

individual who was on pretrial release.

      After a jury trial, on November 24, 2008, Townsend was convicted of all

counts, and on May 19, 2009, the district court sentenced her to concurrent 45-




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month terms on each count.1 On December 24, 2008, through counsel, Townsend

filed a motion for a judgment of acquittal, or alternatively, for a new trial,

challenging the sufficiency of the evidence to support her convictions. The

district court denied the motion. She appealed her convictions, again challenging,

among other things, the sufficiency of the evidence to support her convictions, and

on January 13, 2011, we affirmed her convictions. See United States v. Townsend,

630 F.3d 1003, 1009-15 (11th Cir.), cert. denied., 131 S.Ct. 2472 (2011).

       On September 7, 2011, Townsend filed the instant pro se “Motion for New

Trial[,] Motion for Appointment of Counsel[,] Motion for Evidentiary Hearing[,]

Motion for Post-Trial Juror Contact and Subpoena of Juror.” Her motion was

based on “newly discovered evidence of juror misconduct/jury tampering” in

violation of her right to an impartial jury. Specifically, after the guilty verdict,

DeAngelus Gibson, a defense witness, admitted to “having discussed the case with

a juror during deliberations.” Specifically, Gibson told Townsend:

       I thought for sure you would be found innocent because I talked with
       one of the jurors about the case—the elderly black man. We were in
       the bathroom at the same time and he [the juror] said, ‘Those white
       folks know that lady is innocent, but just want to find a black person
       guilty. We are kinda bored and tired and don’t feel like arguing with
       them. We are trying to get home to prepare for Thanksgiving.’


       1
          On October 26, 2012, Townsend completed her sentence and was released from
incarceration.

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Gibson did not indicate how this conversation was initiated or provide information

regarding any statements that Gibson made during the encounter.

      Townsend argued that an evidentiary hearing was required to establish “the

totality of the circumstances” before the district court. Further, the extrajudicial

contact between a witness and a juror, during deliberations, denied Townsend a

fair and impartial verdict. Specifically, the witness and the juror had an improper

discussion about the case, which shows “juror misconduct” because the juror

violated a court order by deliberating with a non-juror. Additionally, Gibson may

have tried to influence the jury verdict to Townsend’s detriment. The juror’s

statements to Gibson also raised the issue of racial prejudice of other jurors, and

showed that the other jurors were considering “the outside influence of a holiday

to bring about a speedy verdict.” Gibson, as Townsend’s “friend,” may have

“advocated on []behalf of [Townsend] and caused her to be found guilty.”

      In support of her motion, Townsend submitted a signed affidavit,

reasserting her claims and restating the juror’s alleged statements to Gibson.

      The district court denied Townsend’s motion for a new trial as well as her

requests for appointment of counsel, an evidentiary hearing, and a subpoena of the

juror. The district court found that Townsend’s affidavit clearly indicated that she

knew of the alleged juror misconduct for almost three years before seeking a new

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trial. Thus, Townsend was unable to establish that the information in her motion

was “new or newly discovered.” According to Townsend’s affidavit, she learned

of the alleged misconduct “around November 2008,” but she failed to mention the

misconduct in her December 2008 motion for a new trial or in her direct appeal.

Instead, Townsend waited almost three years to file a motion for a new trial based

on evidence that was “not new or newly discovered.” Finally, although Townsend

alleged juror misconduct, she did not submit an affidavit from any witness to

support her claim.

                                        II.

      We review for abuse of discretion the district court’s denial of a motion for

a new trial based on juror misconduct and the denial of an evidentiary hearing.

United States v. Siegelman, 640 F.3d 1159, 1181 (11th Cir. 2011), cert. denied

132 S.Ct. 2711 (2012); United States v. Massey, 89 F.3d 1433, 1443 (11th

Cir.1996). A motion for new trial based on juror misconduct is a form of a motion

for new trial based on newly discovered evidence. United States v. Calderon, 127

F.3d 1314, 1351 (11th Cir. 1997). We may affirm the district court’s decision on

any ground supported by the record. United States v. Chitwood, 676 F.3d 971,

975 (11th Cir. 2012), cert. denied, (U.S. Oct. 1, 2012) (No. 12-5074).

      Rule 33 provides that “the court may vacate any judgment and grant a new

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trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). A motion for a

new trial grounded on newly discovered evidence must be filed within three years

after the verdict or finding of guilt. Fed.R.Crim.P. 33(b)(1). However,

“[m]otions for a new trial based on newly discovered evidence are highly

disfavored in the Eleventh Circuit and should be granted only with great caution.

Indeed, the defendant bears the burden of justifying a new trial.” United States v.

Campa, 459 F.3d 1121, 1151 (11th Cir.2006) (en banc ) (citation omitted).

      With respect to new-trial motions based on juror misconduct during

deliberations, the Supreme Court has recognized “a near-universal and firmly

established common-law rule flatly prohibiting the use of juror testimony to

impeach a verdict.” Siegelman, 640 F.3d at 1185. Federal Rule of Evidence

606(b) codifies this long-standing common law rule. Tanner v. United States, 483

U.S. 107, 121, 107 S.Ct. 2793, 2748, 97 L.Ed.2d 90 (1987). In its codified form,

the rule generally provides that:

      During an inquiry into the validity of a verdict or indictment, a juror
      may not testify about any statement made or incident that occurred
      during the jury’s deliberations; the effect of anything on that juror’s
      or another juror’s vote; or any juror’s mental processes concerning
      the verdict or indictment. The court may not receive a juror’s affidavit
      or evidence of a juror’s statement on these matters.

Fed.R.Evid. 606(b)(1). However, Rule 606(b)(2) provides exceptions to this rule,



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stating that a juror may testify about whether: (1) extraneous prejudicial

information was improperly brought to the jury’s attention; (2) an outside

influence was improperly brought to bear on any juror; or (3) a mistake was made

on the verdict form. Fed.R.Evid. 606(b)(2).

      Further, the district court has the discretion to decide a motion for a new

trial without a hearing. United States v. Schlei, 122 F.3d 944, 994 (11th Cir.1997)

(“[T]he acumen gained by a trial judge over the course of the proceedings” makes

the same judge “well qualified” to rule on a motion for a new trial based on new

evidence without an evidentiary hearing.). In United States v. Slocum, 708 F.2d

587 (11th Cir.1983), we stated:

      [W]e find ourselves in agreement with the decision on the merits of
      the new trial motion and where the defendants failed to file even an
      affidavit by [ ] the person whose post-trial statement clearly came the
      closest to requiring a new trial, we hold that the trial court did not
      abuse its discretion in denying the motion without an evidentiary
      hearing.

Id. at 600. “No per se rule requires the trial court to investigate the internal

workings of the jury” after an allegation of juror misconduct, and the “more

speculative or unsubstantiated the allegation of misconduct, the less the burden to

investigate.” United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990).

      As an initial matter, although Townsend requests counsel in her appeal



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brief, she did not file a separate motion for appointment of appellate counsel and

her brief does not provide any supporting arguments to justify appointment of

counsel. As such, she appears to have abandoned her request for counsel. See

United States v. Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012) (holding that

an issue was abandoned where the appellant failed to develop any argument on the

issue in the initial appeal brief). Regardless, because Townsend suggests that

counsel is necessary to investigate an “ineffective assistance” claim, her request

for counsel does not appear to be relevant to the instant appeal of the denial of her

motion for a new trial.

      In light of the “highly disfavored” nature of new-trial motions based on

newly discovered evidence, see Campa, 459 F.3d at 1151, the district court did not

abuse its discretion in denying Townsend’s Rule 33 motion. As noted by the

district court, Townsend’s affidavit suggests that she discovered the allegedly new

evidence—the juror’s statements to Gibson—immediately after the jury verdict

was issued in November 2008. However, she waited nearly three years until

September 2011 to file the instant Rule 33 motion, and she provides no

explanation for why she did not assert her juror misconduct claim in her December

2008 motion for a new trial or on direct appeal. Nevertheless, her instant motion

was timely filed within three years of the jury verdict, and her motion was based

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on information that she claimed to have discovered after the conclusion of trial.

See Fed.R.Crim.P. 33(b)(1).

      Regardless, we may affirm on any basis supported by the record, see

Chitwood, 676 F.3d at 975, and here, the record established that Townsend’s

motion for a new trial was meritless. Specifically, Townsend did not substantiate

her claims in the district court by submitting an affidavit from Gibson. Further,

although she sought to subpoena the juror involved, the juror’s testimony

regarding internal jury deliberations or the potential “mental processes” and

motivations of other jurors would have been inadmissable to impeach the verdict

under Rule 606(b)(1). See Siegelman, 640 F.3d at 1185; Fed.R.Crim.P. 606(b)(1).

Moreover, no exception to the general rule prohibiting juror testimony applied to

Townsend’s accusations because she did not identify any evidence suggesting that

the jury was exposed to extraneous prejudicial information or that an improper

outside influence impacted the jury’s verdict. See Fed.R.Evid. 606(b)(2). Instead,

according to Townsend, the juror’s statements to Gibson related to racial bias of

other jurors, and the impact of fatigue and an upcoming holiday on jury

deliberations.

      On appeal, Townsend suggests that Gibson may have influenced the jury’s

verdict through his contact with the juror, and that Townsend had established a

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case of “jury tampering.” However, in her motion for a new trial, Townsend

conceded that Gibson did not specify how the conversation between Gibson and

the juror was initiated, and Gibson did not claim to have made any statements that

could have influenced the juror. Notably, Gibson was a defense witness and

Townsend’s “friend,” which suggests that Gibson would have been unlikely to

make statements to a juror that prejudiced Townsend. In sum, Townsend’s claim

that Gibson’s “extrinsic contact” with a juror may have improperly influenced the

verdict or prejudiced Townsend was speculative and unsupported by any evidence,

and as such, Townsend failed to meet her burden of justifying a new trial. See

Campa, 459 F.3d at 1151.

      Finally, the district court did not abuse its discretion in denying Townsend’s

Rule 33 motion without a hearing because she did not submit an affidavit from

Gibson, whose post-trial statements provided the basis for her motion. See

Slocum, 708 F.2d at 600. Moreover, because the same judge presided over both

Townsend’s trial and her Rule 33 motion, the district court was “well qualified” to

rule on the motion without a hearing. See Schlei, 122 F.3d at 994.

      For the foregoing reasons, we affirm the district court’s denial of

Townsend’s motion for a new trial.

      AFFIRMED.

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