United States v. Phillip Brumfield

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2613
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Sara Jarrett, *
*
Appellant. *
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Submitted: March 16, 2012
Filed: July 17, 2012
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Before RILEY, Chief Judge, SMITH, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
A jury convicted Sara Jarrett of conspiracy to distribute marijuana, in violation
of 21 U.S.C. § 846 and 18 U.S.C. § 2 ("Count I"), and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h) and 18 U.S.C. § 2 ("Count II"). Jarrett
appeals her convictions, arguing that the jury instructions constructively amended
Count II of the superseding indictment and that the district court1 plainly erred by
trying her with her pro se codefendant. We affirm.
1The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

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I. Background
A two-count superseding indictment charged Shannon Williams, DeShawn
Hernandez, and Jarrett with conspiring to distribute 1,000 kilograms or more of
marijuana and conspiring to commit money laundering. The superseding indictment
stated, in relevant part:
Defendants herein, knowingly and intentionally combined, conspired,
confederated and agreed with other persons known and unknown to the
Grand Jury to commit the following offense against the United States of
America: opening bank accounts, withdrawing funds from those
accounts, and/or depositing funds into those bank accounts to launder
money . . . with the intent to promote the carrying on of the [conspiracy
to distribute marijuana], and knowing that the transaction was designed
. . . to conceal and disguise . . . [the conspiracy] . . . .
(Emphasis added.)
Prior to trial, Williams, who was pro se, filed a motion for a continuance. Jarrett
objected to the motion and alternatively asked the court to sever the cases "if the Court
sees fit to continue the main action." The district court denied Williams's motion for
a continuance and Jarrett's request for a severance.
At trial, the government put on evidence that Jarrett used money obtained
through the marijuana conspiracy to purchase plane tickets and rent hotel rooms.
Jarrett's counsel moved to exclude the admission of documents describing activities
besides "what's been charged as a crime in Count II of the [superseding] indictment."
Specifically, Jarrett's counsel objected to evidence of "expenditures for cars, hotel
rooms, Disneyland, or anything like that because that's not what money laundering is."
The court overruled the objection, finding the evidence relevant to the conspiracy. The
court noted that "[w]hen it gets to money laundering, . . . the instructions of the Court
will have to indicate to the jury what the money—money laundering count is."
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In closing instructions, over Jarrett's objection, the district court gave the Eighth
Circuit model instruction for conspiracy and advised the jury of the elements of
money laundering "[t]o assist [them] in determining whether there was an agreement
or understanding to launder money." The "financial transaction[s]" listed in the
instruction were "the depositing of money into bank accounts, the purchase of real
estate, the purchase of airline tickets, the renting of automobiles, and the renting of
hotel rooms." The jury found all three defendants guilty on both counts. After the trial,
Jarrett filed a motion for an acquittal of the conviction of conspiracy to commit money
laundering. The district court denied the motion.
II. Discussion
On appeal, Jarrett argues that her conviction under Count II should be
overturned because the district court constructively amended the superseding
indictment. She contends that the court amended the indictment by instructing the jury
that she could be convicted of money laundering for activities beyond those described
in Count II of the superseding indictment. Jarrett also argues that her convictions
under Counts I and II should be overturned because the district court did not sever her
case from that of her pro se codefendant Williams.
A. Constructive Amendment
Jarrett argues that the jury convicted her of conspiracy to commit money
laundering based on a constructive amendment to the superseding indictment.
A constructive amendment occurs when the essential elements of the
offense as charged in the indictment are altered in such a manner—often
through the evidence introduced at trial or the jury instruction—that the
jury is allowed to convict the defendant of an offense different from
. . . the offenses charged in the indictment.
United States v. Renner, 648 F.3d 680, 685 (8th Cir. 2011) (quotation and citations
omitted). Essentially, "a constructive amendment changes the charge" and "affects the
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defendant's Fifth Amendment right to indictment by a grand jury." Id. (quotations and
citations omitted). A constructive amendment "constitutes reversible error per se." Id.
(quotations and citations omitted).
Jarrett argues that "the record shows a change of the charge (from money
laundering to spending money gained illicitly) while the evidence remained the same."
In fact, the charge in the superseding indictment was not money laundering at all, but
conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) and 18
U.S.C. § 2. "A conspiracy conviction requires proof that the defendant knowingly
joined a conspiracy to launder money and that one of the conspirators committed an
overt act in furtherance of that conspiracy." United States v. Delgado, 653 F.3d 729,
737 (8th Cir. 2011) (quotation and citation omitted); see also United States v. Evans,
272 F.3d 1069, 1082 (8th Cir. 2001) (finding evidence that a third party gave
prostitution earnings to defendant, which he used to buy a car and pay for travel
expenses, sufficient to support a conviction under 18 U.S.C. § 1956(h)).
Jarrett emphasizes that the government "did not claim Sara Jarrett committed
money laundering," the government's expert witness "did not claim that Sara Jarrett
had engaged in money laundering," and one of the government's main fact witnesses
"did not claim that Sara Jarrett committed money laundering." But Jarrett did not have
to commit money laundering to be found guilty as a coconspirator. As the jury
instructions indicated, the "three essential elements" of conspiracy to launder money
are (1) "an agreement . . . to launder money"; (2) the defendant's voluntary joinder of
the agreement; and (3) the defendant's knowing joinder of the agreement.
In a similar Fifth Circuit case, the court considered whether "jury instructions
for money laundering constructively amended the . . . superseding indictment," which
charged the defendant with money laundering and with conspiracy to commit money
laundering. United States v. Threadgill, 172 F.3d 357, 370 (5th Cir. 1999). With
respect to the conspiracy conviction, the Fifth Circuit stated:
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[W]e do not see what legal relevance [the alleged constructive
amendment] has to [the defendant's] conspiracy conviction. As noted, the
elements for proving the crime of conspiracy are separate and distinct
from the elements needed to establish the substantive offense of money
laundering. Therefore, while the purported amendment may have
impermissibly broadened the money laundering counts in the
superseding indictment . . . , that specific amendment could not have
broadened the conspiracy charge, which has an entirely different set of
elements.
Id. at 370–71 (internal citation omitted). Likewise, in this case, the jury instruction on
money laundering did not constructively amend the superseding indictment. The
instruction did not alter the "essential elements of the offense," Renner, 648 F.3d at
685, which was conspiracy to commit money laundering—not money laundering
itself. Cf. United States v. Hynes, 467 F.3d 951, 964 (6th Cir. 2006) (finding that
evidence of a third "overt act" in support of the conspiracy to commit money
laundering, which was presented at trial but not included in the indictment, did not
constructively amend the indictment since the additional transaction fell within the
time period specified in the indictment and since the government did not have to prove
that the defendant committed the overt act). 2
2Jarrett does not argue on appeal that the evidence presented at trial constituted
a variance. See Renner, 648 F.3d at 685 ("[A] variance changes the evidence, while
the charge remains the same. . . . [A] variance implicates the defendant's Sixth
Amendment right to notice of the nature of the charge and is subject to harmless error
analysis." (quotations and citations omitted)). Nor has she has shown that any possible
variance between the superseding indictment and the evidence presented at trial
"infringed [her] substantial rights." United States v. McGilberry, 620 F.3d 880, 885
(8th Cir. 2010) (quotation and citation omitted); see also Hynes, 467 F.3d at 964–65
(finding that evidence presented at trial of a third "overt act" not listed in the
indictment did not warrant reversal because the defendant had ample opportunity to
rebut the evidence and the inclusion of the transaction raised no possibility that the
defendant could be prosecuted for the same conspiracy offense in the future, since it
occurred during the time period alleged in the indictment).
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B. Severance
Jarrett also argues that her convictions on Counts I and II should be overturned
because the district court tried her with Williams, who represented himself pro se.
"[Jarrett] did not seek relief under [Federal Rule of Criminal Procedure] 14 before or
during trial, however, so our review is for plain error." United States v. Brown, 560
F.3d 754, 766 (8th Cir. 2009).3 "[Jarrett] must show not only that there was a Rule 14
violation affecting [her] substantial rights, but also that there is some extraordinary
reason for us to reverse for such error despite [her] failure to raise the issue in the trial
court." Id. (quotation and citation omitted).
"Ordinarily, indicted coconspirators should be tried together, especially where
the proof of conspiracy overlaps." United States v. Pou, 953 F.2d 363, 368 (8th Cir.
1992). And "[t]he mere fact that a codefendant is proceeding pro se is not in itself a
ground for severance." United States v. Tracy, 12 F.3d 1186, 1194 (2d Cir. 1993).
Jarrett argues that she was entitled to a severance because "Williams tried the patience
of every person in that courtroom" by making the trial last "four long, seemingly
interminable weeks." She also cites to a portion of the trial transcript that shows "the
ghastly performance of Mr. Williams as his own lawyer." Williams's pro se
representation, which made the trial last longer and tried the jury's patience, does not
establish that Jarrett suffered unfair prejudice. Moreover, Jarrett could have
anticipated the effects of Williams's pro se representation prior to trial and asked for
a severance on that ground. She did not. Thus, "the [district] court did not commit
plain error in failing to sever [her] trial[] on this ground." United States v. Mathison,
3Before trial, Jarrett filed an "objection to continuance of trial date and motion
for separate trial" in response to Williams's motion for a continuance. Jarrett
"object[ed] to any continuation of the trial . . . . Additionally, Defendant Jarrett
move[d] for a separate trial of her case . . . ." In her brief in support of her motion,
however, Jarrett conditioned the motion for a separate trial on the district court's grant
of Williams's motion for a continuance, which the district court denied. On appeal,
Jarrett concedes that plain error review applies.
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157 F.3d 541, 547 (8th Cir. 1998) (finding that a defendant's "pro se representation
was prejudicial to no one other than himself").
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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