                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2005

USA v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4152




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                                                                   NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 03-4152
                                      ____________

                             UNITED STATES OF AMERICA

                                              v.

                                     LARRY SMITH,

                                            Appellant
                                      ____________

                      Appeal from the United States District Court
                           For the Eastern District of Delaware
                                 D.C. No.: 03-cr-00356-1
                     District Judge: Honorable Eduardo C. Robreno
                                      ____________

                Submitted on Motion Under Third Circuit LAR 34.1(a)
                                   July 12, 2005

              Before: SLOVITER, McKEE, and ROSENN, Circuit Judges.

                                  (Filed: July 20, 2005)

                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

       Larry Smith was tried to a jury in the U.S. District Court for the Eastern District

of Pennsylvania and convicted of one count of robbery in violation of the Hobbs Act, 18
U.S.C. § 1951, one count of attempted carjacking in violation of 18 U.S.C. § 2119, and

two counts of brandishing a firearm during and in relation to a crime of violence under 18

U.S.C. § 924(c). Smith moved for a new trial pursuant to Fed. R. Crim. P. 33, alleging

prosecutorial and juror misconduct. After an evidentiary hearing, the District Court

denied Smith’s Rule 33 motion. The District Court imposed on Smith a $400 assessment

and $1,000 fine, and sentenced him to a total of 472 months’ imprisonment,1 to be

followed by 5 years’ supervised release.

        On appeal, Smith argues that the District Court abused its discretion in denying

his Rule 33 motion for a new trial. Smith also raises sentencing claims under United

States v. Booker, 543 U.S. ----, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). For the reasons

stated below, we affirm Smith’s conviction, but vacate his sentence and remand for

resentencing in accordance with Booker. Because we write primarily for the parties, their

counsel, and the District Court, we briefly set forth only the salient facts leading to

Smith’s conviction and sentence.

                                              I.

        Smith’s allegations of juror and prosecutorial misconduct stem from an

extrajudicial interaction between one of the jurors in his case and an Assistant United

  1
       The District Court sentenced Smith to 88 months’ imprisonment on count one
(Hobbs Act robbery) and on count three (attempted carjacking), to run concurrently. On
count two (brandishing a firearm), the District Court sentenced Smith to 84 months’
imprisonment, to run consecutively with his sentence on counts one and three. On count
four (brandishing a firearm), the District Court sentenced Smith to 300 months’
imprisonment, to run consecutively with his sentence on counts one, two, and three.

                                              2
States Attorney for the Eastern District of Pennsylvania, Robert Zauzmer (“AUSA

Zauzmer”), who was not involved in the prosecution of his case.2 This juror and AUSA

Zauzmer were acquaintances of ten years who had both belonged to, and regularly

attended services at, the same synagogue.

       The first day of jury deliberations in Smith’s case occurred on a Friday. That

evening, the juror and AUSA Zauzmer were attending services at their synagogue. The

juror approached AUSA Zauzmer and told him that he was sitting on a federal jury in a

criminal case before Judge Robreno. The juror identified the prosecutor, AUSA

Fitzgerald, and mentioned that the jury was deliberating. Immediately, AUSA Zauzmer

demanded that the juror “get away” from him, and ended the conversation. Later that

evening, the juror approached AUSA Zauzmer’s wife, conveyed the same information to

her about his jury service, and jokingly remarked that Zauzmer had been “mean to [him],”

by refusing to speak with him. AUSA Zauzmer’s wife advised the juror that he “better

not talk” with her husband, and he did not.

       AUSA Zauzmer did not advise the District Court, Smith’s defense counsel, or the

prosecutor about this interaction. On the following Monday, Smith’s jury resumed

deliberations and reached a verdict, finding Smith guilty on all counts, but acquitting his

co-defendant brother on all counts. After the trial, as AUSA Fitzgerald was leaving the

courthouse, the juror approached her and began to make “small talk” about the trial.

  2
      AUSA Zauzmer briefly discussed a legal issue pertaining to Smith’s case with the
prosecuting attorney, prior to the trial. AUSA Zauzmer never appeared in Smith’s case.

                                              3
Eventually, counsel for Smith’s co-defendant joined in the conversation, after which point

the juror mentioned that he had met AUSA Zauzmer on the preceding Friday evening and

had told Zauzmer that he was serving on a jury in a federal criminal trial.

        Smith moved for a new trial under Rule 33, alleging prosecutorial and juror

misconduct. Smith argued that AUSA Zauzmer engaged in misconduct by failing to

bring his interaction with the juror to the District Court’s attention, and that the juror

flagrantly disregarded the Court’s repeated instructions that jurors not discuss the case.

The District Court held an evidentiary hearing, during which the juror, AUSA Zauzmer,

and AUSA Fitzgerald testified. The juror testified that he had no intention of discussing

the case with AUSA Zauzmer, and that he was simply engaging in “social chitchat” by

mentioning that he was currently serving on a jury. The juror also testified that his

feelings were “slightly hurt” when AUSA Zauzmer refused to speak with him, but that he

was not influenced by this interaction.

        In a careful opinion, the District Court concluded that the brief interaction

between the juror and AUSA Zauzmer involved no misconduct. Further, assuming

arguendo that the juror had violated the Court’s order not to discuss the case with anyone,

the Court found that Smith had suffered no prejudice. The Court found credible the

juror’s testimony that he remained impartial throughout the deliberations. The Court also

determined that “a hypothetical average juror” would not have been influenced by this

limited extrajudicial contact with AUSA Zauzmer.



                                               4
        We review the District Court’s denial of Smith’s Rule 33 motion for an abuse of

discretion. See United States v. Jasin, 280 F.3d 355, 360 (3d Cir. 2002). The discretion

that federal trial courts exercise in addressing allegations of juror and prosecutorial

misconduct “extends to the determination of whether prejudice has been demonstrated.”

United States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993).

        Although the juror’s attempt to engage AUSA Zauzmer in conversation was

imprudent, AUSA Zauzmer responded appropriately by terminating it immediately.

There is no basis for rejecting the District Court’s finding that the juror remained

impartial, and that Smith suffered no prejudice as a result of this fleeting interaction

between the juror and AUSA Zauzmer. Smith’s theory that the juror, after having been

rebuffed by AUSA Zauzmer, attempted to curry favor with the prosecution by helping the

jury return a guilty verdict, is undermined by the jury’s acquittal of Smith’s co-defendant.

For this and other reasons discussed by the District Court in its opinion, it is apparent that

Smith suffered no prejudice. Thus, we conclude that the District Court did not abuse its

discretion in denying Smith’s Rule 33 motion for a new trial.

                                              II.

        Smith challenges his sentence under United States v. Booker, 543 U.S. ----, 125 S.

Ct. 738, 160 L. Ed.2d 621 (2005). He argues that the District Court impermissibly

enhanced his sentence based on findings relating to his prior convictions and the value of

the vehicle that he attempted to carjack. We see no error with the District Court’s



                                              5
sentencing enhancement based on Smith’s prior convictions. See United States v. Ordaz,

398 F.3d 236, 240-41 (3d Cir. 2005). Not only has the Supreme Court “specifically

exempted prior convictions from its holding” in Apprendi v. New Jersey, 530 U.S. 466

(2000), see Ordaz, 398 F.3d at 240, but judicial notice of a final prior conviction does not

require the taking of any evidence or testimony for admission to a jury.

        As for Smith’s challenge to the enhancement based on the vehicle’s value, we

think this sentencing issue will best be determined in the first instance by the District

Court upon our remand for resentencing under Booker.

        Smith’s sentence is herewith vacated and his case is remanded for resentencing in

accordance with Booker.




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