                                                                          F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                       PUBLISH
                                                                         January 23, 2007
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
                                  T E N T H C IR C U IT



 U N ITED STA TES O F A M ER ICA ,

        Plaintiff - Appellee ,
                                                           No. 05-7020
 v.

 KATHERINE M ELADIE
 R OBER TSO N ,

        Defendant - Appellant .



         A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
             FO R T H E E A ST ER N D IST R IC T O F O K L A H O M A
                         (D .C . N o. C R -04-094-01-W H )


Barry L. Derryberry, Research and Writing Specialist (and Paul D. Brunton,
Federal Public Defender, Office of the Federal Public Defender, with him on the
briefs), Tulsa, Oklahoma, for Defendant - Appellant.

Dennis A. Fries , Assistant United States Attorney (and Sheldon J. Sperling,
United States A ttorney, with him on the brief), M uskogee, Oklahoma, for
Plaintiff - Appellee.




Before K E L L Y , M U R PH Y , and H O L M E S , Circuit Judges.


K E L L Y , Circuit Judge.
      Defendant-Appellant Katherine M eladie Robertson appeals from her

conviction for conspiracy to use an interstate commerce facility in the commission

of a murder-for-hire, in violation of 18 U.S.C. § 1958(a). Following her

conviction, M s. Robertson was sentenced to 120 months’ imprisonment followed

by 24 months’ supervised release. On appeal, she argues that the district court (1)

improperly instructed the jury as to an element of the offense, and (2) abused its

discretion in failing to hold an evidentiary hearing to determine w hether a

conversation between a state-court deputy clerk (“deputy clerk”) and a juror was

improper. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




                                    Background

      M s. Robertson was charged in a five count indictment. Count 1 alleged

that M s. Robertson conspired with Hugh Alan M eans, her former employer with

whom she had an extramarital affair, to use an interstate commerce facility— a

telephone— in the commission of a murder-for-hire in violation of 18 U.S.C. §

1958(a). I R. Doc. 5. The object of the conspiracy was to hire a “professional”

or “hit man” to murder her husband, Brett Robertson. Counts 2 through 5 alleged

substantive violations of § 1958(a) based on various telephone calls by M s.

Robertson.

      Following a jury trial, M s. Robertson was convicted on all five counts. The

                                         -2-
district court then granted a judgment of acquittal on counts 2 through 5, based on

its finding that no evidence supported the consideration element of § 1958(a). I

R. Doc. 46; VI R. at 791-95; see United States v. W icklund, 114 F.3d 151, 154

(10th Cir. 1997).

      Ten days later, M s. Robertson filed a motion for new trial based, in part, on

allegedly improper juror contact. See I R. Doc. 47. In connection with that

motion, M s. Robertson also requested a hearing. See I R. Doc. 48 at 3. M s.

Robertson claimed that, during trial, her attorneys w itnessed a state court deputy

clerk speaking with a juror on the steps of the federal courthouse. After the jury

returned its guilty verdict, one of her attorneys learned that the same deputy clerk

had allegedly made disparaging remarks regarding M s. Robertson to his

cow orkers.

      In response to M s. Robertson’s motion, the government submitted an FBI

report concerning an FBI interview of the deputy clerk. See I. R. Doc. 52 Ex. 1 at

1. The interview tended to show that: (1) the deputy clerk was hailed by the juror

when the deputy clerk was leaving the federal courthouse; (2) the deputy clerk

was unaware that the juror was serving as a juror; (3) the deputy clerk recognized

the juror from livestock shows where the juror’s daughter also shows cattle; (4)

the juror inquired how the deputy clerk’s nephew was doing; (5) the entire

conversation lasted one minute; and (6) neither the deputy clerk nor the juror



                                         -3-
made any comments about M s. Robertson or the trial. Id. at 1-2. Having

reviewed the evidence, the district court denied both the motion for new trial and

the request for an evidentiary hearing. I R. Doc. 53 at 4.




                                        Discussion

I.     Jury Instructions

       M s. Robertson argues that the district court failed to include an element of

the offense, a specific intent that a murder be committed, in its instructions as to

the crime of conspiracy to violate § 1958(a). She also argues that the district

court should have defined murder as the unlawful killing of another with malice

aforethought. In pertinent part, § 1958(a) provides: “W hoever . . . uses or causes

another . . . to use . . . any facility of interstate . . . commerce, with intent that a

murder be committed in violation of the laws of any State or the United States . . .

as consideration for a promise or agreement to pay, anything of pecuniary value,

or w ho conspires to do so . . .” shall be subject to imprisonment and/or fine.

18 U.S.C. § 1958(a) (2004).

       Given a proper objection, the omission of an element from an instruction is

subject to harmless error review. Neder v. United States, 527 U.S. 1, 8-10 (1999).

Both parties agree, however, that M s. Robinson failed to object to the jury



                                            -4-
instructions at trial, and thus we review this issue for plain error. See United

States v. LaV allee, 439 F.3d 670, 684 (10th Cir. 2006); Fed. R. Crim. P. 30(d) &

52(b). Plain error exists only where (1) there was error, (2) that is plain, (3) that

affects substantial rights, and (4) that seriously affects the fairness, integrity or

public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725,

732 (1993); see also Fed. R. Crim P. 52(b).

      The district court below instructed the jury as to count 1 as follow s:

             Title 18 United States Code Section 1958(a) provides in
      pertinent part that whoever travels in or causes another to travel in
      interstate commerce or uses or causes another to use the mail or any
      facility in interstate or foreign comm erce with the intent that a murder
      be committed 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 is guilty of an offense against the laws of the
      United States.
             To find the defendant guilty of this crime you must be
      convinced that the government has proved each of the following
      beyond a reasonable doubt:

      First, the defendant agreed with at least one other person to violate
      the law ;

      [S]econd, one of the conspirators engaged in at least one overt act
      furthering the conspiracy’s objective;

      [T]hird, the defendant knew the essential objective of the conspiracy
      was to use an interstate facility in a murder for hire;

      [F]ourth, the defendant knowingly and voluntarily participated;

      [F]ifth, there was interdependence among the members of the
      conspiracy. That is the members in some way or manner intended to
      act together for their shared mutual benefit within the scope of the

                                          -5-
      conspiracy charged.

VI R. at 770-71. As M s. Robinson correctly asserts, the instruction did not

include “intent that a murder be committed” as an element of the offense. The

district court did, however, read the allegations in count 1 of the indictment to the

jury, including M s. Robertson’s alleged overt acts and the fact that she was

alleged to have intended that a murder be committed. VI R. 768-71.

      “A conspiracy is a partnership in crime[,]” and “has ingredients, as well as

implications, distinct from the completion of the unlawful project.” Pinkerton v.

United States, 328 U.S. 640, 644 (1946) (internal citations omitted). “[T]he

essence of any conspiracy is ‘the agreement or confederation to commit a crime.’”

United States v. Hanson, 41 F.3d 580, 582 (10th Cir. 1994) (quoting United States

v. Bayer, 331 U.S. 532, 542 (1947)); see also United States v. Bicaksiz, 194 F.3d

390, 398 (2d Cir. 1999) (noting, with regard to a conviction for conspiracy to

violate 18 U.S.C. § 1958, that “[a]n essential element of the crime of conspiracy

is an agreement”). M oreover, “[c]onspiracy to commit a particular substantive

offense cannot exist without at least the degree of criminal intent necessary for

the substantive offense itself.” Ingram v. United States, 360 U.S. 672, 678

(1959).

      Turning to the elements of the substantive offense, § 1958(a) requires the

government to prove that the defendant: (1) used or caused another to use any



                                         -6-
facility of interstate or foreign commerce; (2) with the intent that a murder be

comm itted; (3) as consideration for a promise or agreement to pay anything of

pecuniary value. See 18 U.S.C. § 1958(a); see also United States v. Ritter, 989

F.2d 318, 321 (9th Cir. 1993) (setting out similar elements as to the “travel” mode

portion of § 1958(a)).

      W e tend to agree with M s. Robertson that the district court’s jury

instructions on the required elements of conspiracy to violate § 1958(a) should

have included intent that a murder be committed. 1 This element must be proven

in order to obtain a conviction on the substantive offense of using an interstate

comm erce facility in the commission of a murder-for-hire. See United States v.

W inters, 33 F.3d 720, 721 (6th Cir. 1994) (“Congress did include an element of

intent . . . in [§ 1958(a)]— a defendant must act ‘with intent’ to murder.”).

Consequently, that intent must also be proven in any conspiracy conviction. Cf.



      1
          As a result, the district court’s instructions on the elements of the
conspiracy offense, at the very least, should have been as follows: (1) the
defendant agreed with at least one other person to violate the law; (2) the
defendant knew the essential objective of the conspiracy was to use an interstate
facility in a murder for hire; (3) the defendant, at the time the conspiracy was
entered into, intended that a murder be committed; (4) the defendant knowingly
and voluntarily participated; and (5) there was interdependence among the
members of the conspiracy. Also, because the indictment in this case charged an
overt act as to the § 1958(a) conspiracy count, the district court properly
instructed the jury that it had to find that “one of the conspirators engaged in at
least one overt act furthering the conspiracy’s objective.” W e need not, and do
not, decide in this case, however, whether an overt act is always required for a §
1958(a) conspiracy conviction.

                                         -7-
Ingram, 360 U.S. at 678 (explaining that the criminal offense of conspiracy to

willfully evade federal taxes “obviously cannot be committed in the absence of

knowledge of willfulness”).

      Despite the foregoing, we are of the opinion that M s. Robertson has not

shown that her substantial rights were affected— in other words, she was not

prejudiced. 2 See Olano, 507 U.S. at 734 (explaining that “to affect substantial

rights” “means that the error must have been prejudicial”). To begin, the district

court’s instructions, as a whole, contained a consistent theme: the use of an

interstate commerce facility with the intent that a murder be committed. The

district court informed the jury as to count 1 that it had to find that M s. Robertson

“knew the essential objective of the conspiracy was to use an interstate facility in

a murder for hire,” id., and it is difficult to see how the jury could find (w hich it

did) that M s. Robertson entered an agreement knowing one objective of the

conspiracy was a murder-for-hire without also finding that she intended that a

murder be committed. M oreover, when instructing the jury on the substantive

counts 2 through 5, the district court repeated § 1958(a)’s language and instructed

that the second element of the offense was the “use of an interstate facility . . .

with the intent that a murder be committed . . . .” VI R. at 772. Also, the district



      2
         Because M s. Robertson has failed to show that her substantial rights were
affected, we need not decide whether the district court comm itted error or, if so,
whether that error w as plain.

                                          -8-
court instructed that “[t]he government must prove that the use of an interstate

facility was done with the intent to further or facilitate the commission of the

murder. You are thus being asked to look into the defendant’s mind and ask what

was the defendant’s purpose in using interstate facilities.” Id. at 773. The

instructions, therefore, made it clear that a conviction pursuant to § 1958(a) could

not occur in the absence of an intent that a murder be committed. And, given the

nature of the evidence and the guilty verdicts on counts 2 through 5, we think that

the jury necessarily found the existence of that intent.

      Further, there was overwhelming evidence presented to the jury at trial

from which it could have found that the alleged agreement between M s.

Robertson and M r. M eans was entered into with the intent that a murder be

comm itted. 3 See W ashington v. Recuenco, 126 S. Ct. 2546, 2552 (2006)



      3
        M s. Robertson telephoned a former boyfriend and arranged a meeting
with him. Suggestive of her intent, the former boyfriend testified that at the
meeting, M s. Robertson explained that she wanted her husband gone.

      A. . . . and I asked her, I said what do you mean gone, you mean gone
      out of your life or gone out of your marriage or gone six feet under?
      ...
      Q. W hat did she say?

      A. She said she w anted him six feet under.

      Q. Did you continue discussing this?

      A. W e did. She asked me if I knew of anybody that she could get in
      contact with to have – have it done, have her husband disposed of, I

                                         -9-
(explaining that the trial court’s failure to instruct the jury on an element of the

offense is subject to harmless error analysis and that we must “ask[] whether the

jury would have returned the same verdict absent the error”). The judgment of

acquittal on counts 2 through 5 does not alter that conclusion because the

acquittal was based on the district court’s legal interpretation of what a different

element (consideration) requires, not on the strength of the government’s

evidence. Accordingly, even if we w ere to decide that the district court’s

omission satisfied the first two elements of the Olano standard, which we do not,

the omission was harmless, and thus M s. Robertson’s substantial rights were not

affected.

      M s. Robertson additionally contends that the jury should have been

instructed that murder is defined as the killing of another human being with

malice aforethought. See 18 U.S.C. § 1111(a) (2006); Okla. Stat. Ann. tit. 21 §

701.7(A) (2006). W e disagree. In enacting § 1958(a), Congress criminalized one

specific type of murder— namely, murder-for-hire using interstate commerce

facilities. An instruction on malice aforethought would have been superfluous




      guess. . . .

IV R. (2 Tr.) at 350-51 (testimony of Heath Shofner). The former boyfriend
explained it might cost “upwards of $100,000” which was more than the $25,000
M s. Robertson had reserved for the task. Id.


                                         - 10 -
because premeditation is implicit in the hiring of a third party to kill another

human being. In other words, there is no need to instruct the jury that murder

requires a finding of malice aforethought when the instructions state that the

underlying crime requires a finding of one specific type of premeditation— here,

the murder of another in exchange for something of pecuniary value. And if one

enters into an agreement calling for the death of another in exchange for

something of pecuniary value, then malice aforethought necessarily exists.

II.   Hearing Regarding Improper Juror Contact

      M s. Robertson contends that the district court abused its discretion in

denying her request for an evidentiary hearing regarding the conversation between

a state-court deputy clerk and a juror. M s. Robertson seems to suggest that an

evidentiary hearing is required whenever a juror has a conversation with an

individual and it is known that the individual has previously made disparaging

remarks about the defendant to others. The government responds by pointing out

that there is no evidence that the juror and the deputy clerk ever discussed M s.

Robertson or her pending trial.

      W e review a district court’s denial of a motion for new trial and evidentiary

hearing based upon alleged juror bias for an abuse of discretion. United States v.

Easter, 981 F.2d 1549, 1552-53 (10th Cir. 1992). “W hen confronted with a claim

of juror bias, the trial court has wide discretion in deciding how to proceed.” Id.



                                         - 11 -
at 1553. For example, “on rare occasions it is within the district court’s

discretion to refuse to hold a hearing when it can clearly be established that a

hearing would not be useful or necessary.” United States v. M cVeigh, 153 F.3d

1166, 1186 (10th Cir. 1998) abrogated on other grounds by Apprendi v. New

Jersey, 530 U.S. 466 (2000).

      “In a criminal case, any private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending before

the jury is, for obvious reasons, deemed presumptively prejudicial . . . .” Remmer

v. United States, 347 U.S. 227, 229 (1954). W e have previously qualified this

presumption of prejudice, however, by requiring a showing by the defendant that

the communication or contact was “about the matter pending before the jury.”

See United States v. Brooks, 161 F.3d 1240, 1246 (10th Cir. 1998). The

defendant must also demonstrate “that an unauthorized contact created actual

juror bias; courts should not presume that a contact was prejudicial.” United

States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997). Otherwise, a Remmer hearing

would be required “based on each of the multiple ordinary incidental contacts

between non-sequestered jurors and virtually any other person during the course

of a trial.” Brooks, 161 F.3d at 1246.

      Here, there is no evidence that the conversation at issue was about the

matter pending before the jury. Rather, M s. Robertson would have us infer that



                                         - 12 -
the conversation touched on the matter pending before the jury simply because the

deputy clerk had made disparaging remarks about M s. Robertson on prior

occasions. W e decline to do so. The government made a showing that the

conversation at issue was initiated by the juror, extremely short in duration, and

never concerned M s. Robertson or her trial. M s. Robertson has brought forth no

evidence, other than innuendo, to indicate that the conversation was anything

other than friendly banter. W e will not require a Remmer hearing based on

innuendo alone. W e also note that the district court admonished the jury at the

beginning of trial that “during this trial you’re not to discuss this case with

anyone or permit anyone to discuss it with you.” III R. (1 Tr.) at 19. Despite M s.

Robertson’s urging, we will not easily assume that a juror disregarded this

instruction. See United States v. Carter, 973 F.2d 1509, 1513 (10th Cir. 1992)

(“W e presume jurors will remain true to their oath and conscientiously follow the

trial court’s instructions.”). In sum, there was insufficient evidence to give rise to

the Remmer presumption and, accordingly, the district court did not err in

denying both the request for an evidentiary hearing and the motion for new trial.

      A FFIR ME D.




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