United States v. Young

753 F.3d 757

UNITED STATES of America, Plaintiff–Appellee

v.Elain Kay YOUNG, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Katherine A. Mock, Defendant–Appellant.

Nos. 12–2527, 12–2593.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 26, 2013.

Filed: May 23, 2014.

Rehearing and Rehearing En Banc Denied July 15, 2014.

Counsel who presented argument on behalf of the appellant Young was Jennifer Herndon, of Florissant, MO. Counsel who presented argument on behalf of the appellant Mock was Kevin Christopher Curran of St. Louis, MO. The following attorney(s) appeared on the appellant Young's brief; Jennifer Herndon, of Florissant, MO and Michael J. Gorla, of St. Louis, MO. The following attorney(s) appeared on the appellant Mock's brief; Kevin Christopher Curran of St. Louis, MO.

Counsel who presented argument on behalf of the appellee was Thomas Dittmeier, AUSA, of Saint Louis, MO. In addition to Mr. Dittmeier, the following attorney(s) appeared on the appellee's brief; Patrick T. Judge, AUSA, of Saint Louis, MO., and Michael A. Reilly, AUSA, of Saint Louis, MO.

Before WOLLMAN, SMITH, and KELLY, Circuit Judges.

SMITH, Circuit Judge.

After a six-day trial, a jury convicted Elain “Kay” Young and Katherine “Kathy” Mock of conspiracy to commit murder-for-hire, resulting in death, in violation of 18 U.S.C. § 1958 and murder-for-hire, resulting in death, in violation of 18 U.S.C. §§ 1958 and 2 based on the death of Young's husband. Young argues that the district court ¹ erroneously (1) admitted testimony of three witnesses regarding Young's prior bad acts that reflected a propensity to commit the crimes charged under Federal Rule of Evidence 404(b); (2) admitted into evidence coconspirator statements despite the lack of corroborating evidence as to the conspiracy's existence; (3) admitted Mock's out-of-court statements in violation of Young's confrontation rights; and (4) admitted into evidence a note found with Young despite the note's lack of authentication. Mock raises one issue unique to her, contending that the district court erroneously prohibited Mock from introducing Young's subsequent inconsistent statement involving Mock's whereabouts following the murder. Both Young and Mock argue that the district court erroneously (1) denied their motions to sever their joint trial; (2) overruled their Batson² challenges; and (3) overruled their motions for judgment as a matter of law because the government failed to prove an essential element of the offenses—the presence of a bargained—for exchange between the defendants. We review the facts in a light most favorable to the guilty verdict. United States v. McCauley, 715 F.3d 1119, 1121 (8th Cir.2013). We affirm the convictions of both defendants.

I. Background

Young married Melvin Griesbauer in 2004. They lived together on a farm in northern Missouri. The farm had been in Young's family for several years. Young bred dogs on the farm and befriended Mock through their common interest in the avocation.

Shortly after Young and Griesbauer married, the Missouri Army National Guard deployed Griesbauer to Iraq for nearly one year, beginning in October 2004. Immediately before and during his deployment, Young purchased multiple life insurance policies on Griesbauer that listed Young as the primary beneficiary. Under the policies, Young stood to receive over $1.1 million in the event of Griesbauer's death.

By early 2006, Young began to experience financial difficulty. Young mortgaged the farm. To qualify for the loan, Young added Griesbauer to the farm's title. The loan proceeds enabled Young to pay off several farm debts. She also explicitly requested and received an additional $10,000 from the lender. Young and her lender finalized the loan less than twenty-four hours before Griesbauer's death.

Mock lived approximately three hundred miles away in southern Missouri. Mock had two sons, each of whom were experiencing problems, causing Mock significant stress. Mock also struggled financially. Keri Ponder (“Keri”), Mock's former daughter-in-law, traveled from Massachusetts to Mock's home to assist Mock during this difficult time. Keri testified that Mock was “at the end of her rope.” Approximately nine days before Griesbauer's death and in Keri's presence, Mock received a phone call from Young. After the call, Mock told Keri that Young was upset because Griesbauer purchased a life insurance policy on Young's life. According to Keri, Griesbauer told Young that he planned to buy items that he would not allow Young to enjoy. Keri testified that the phone call upset Mock. Mock then asked Keri if she knew anyone that would kill somebody. Keri responded that she did not, so Mock asked Keri if she would be willing to kill someone. Keri declined, but out of curiosity, Keri asked “how much a life went for.” Mock told her, “They're willing to pay $6000.”

The following day, Mock and her other daughter-in-law, Rita Lee Ponder (“Rita”), traveled to Young's farm to visit Young and deliver dogs. Rita overheard Young tell Mock that Young was afraid of Griesbauer and intended on leaving him because he threatened to kill her. Mock agreed to help Young get away from Griesbauer. Two days later, Mock asked her son Thomas Ponder (“Thomas”) if he knew anyone that could kill somebody. Mock told him that Young wanted someone killed and was willing to pay $10,000. Mock told Thomas that Griesbauer was abusing Young, causing Mock to fear for Young's safety. Thomas declined Young's solicitation because he did not take the conversation seriously. Five days later on March 22, 2006, Mock traveled back to Young's farm. Mock asked Thomas to drive her there, but he declined. Mock lied to Rita, saying she was simply going to get stress relief at a nearby hospital.

According to Young's initial statement to Adair County Sheriff Leonard Clark, on the night of Griesbauer's death, Young picked up Griesbauer from work just after 1:04 a.m. to bring him home. Mock had already arrived at Young's farm by this time. After arriving at home, Griesbauer went outside to the barn to check on some puppies. Young then heard a gunshot in the direction of the barn. Young awakened Mock so that Mock could accompany her to the barn to check on Griesbauer. Young noted that Griesbauer frequently carried the gun recklessly—loaded and cocked. Young and Mock located Griesbauer and discovered that he had been shot in the face and killed. They called 911.

Deputy Tracy Salsberry of the Adair County Sheriff's Office arrived first on scene. Mock led Deputy Salsberry to Griesbauer's body near the front of the barn. After verifying Griesbauer's recent death, Deputy Salsberry examined the firearm at the death scene. It was Young's 30–30 caliber, lever-action rifle. Deputy Salsberry discovered that the rifle was cocked and had a live round in the chamber. Deputy Salsberry concluded that Griesbauer's death was not the result of an accident or suicide because a suicide shooter could not have reloaded the lever-action rifle. Deputies Salsberry and Brian Burns, who had just arrived on scene, swept the area but discovered no one else present. Sheriff Clark arrived shortly thereafter and separately interviewed both Young and Mock, who were the only individuals at the scene. Their initial accounts and alibis largely matched.

The police discovered other critical pieces of evidence at the crime scene. During the protective sweep, they found a 30–30 shell casing inside the doorway to the barn. The police also discovered shoe prints in a star pattern near the body that later matched Mock's shoes. Pursuant to a warrant, police searched the entire area and discovered a three-hole ski mask wrapped around a pair of used latex gloves away from the barn near the residence. The police later determined that Mock purchased the mask at a Wal–Mart en route to Young's home hours before Griesbauer's death. Mock signed the receipt for the mask when she purchased it with her credit card. Police found a copy of this receipt in Mock's purse. Mock's DNA was also present on the interior of the mask and the gloves. The gloves also contained detectable amounts of gunshot residue and a partially burnt particle of gunpowder, which matched gunpowder removed from the remaining live shells in the murder weapon.

The next day, Young presented a different account of the night's events to Sheriff Clark. Young told Sheriff Clark that, after hearing the gunshot outside, she searched for Mock but could not find her. She stated that she found Mock after three or four minutes sitting fully dressed in the bathroom and “flipping out.” Young altered her account of events. Previously, she had told Sheriff Clark that she had awakened Mock from sleep and that they had proceeded outside together.

Mock left Young's farm the following morning and traveled to the home of a close friend named Jean Ballard. Mock asked Ballard for help because Mock had ingested several Vicodin pills that Young had provided to her.³ Mock alleges that Young told Mock to ingest over 100 pills so that “she would get thirty to sixty days in an insane asylum instead of penitentiary time.” Mock, who owed Ballard approximately $2800, had recently told Ballard that Mock was going to pay everything back with interest, indicating that she expected to receive money soon.

While Ballard cared for Mock, Young called Ballard multiple times to check on Mock. Young instructed Ballard not to upset Mock and to tell Mock that Young loved her. Young did not mention Griesbauer's death to Ballard at that time. Mock later disclosed Griesbauer's death to Ballard. Ballard then transported Mock to a nearby hospital. En route, Ballard asked Mock if she murdered Griesbauer. Mock responded, “I think I shot him, but I don't remember it. Wouldn't I remember doing something like that?”

Approximately two years after Griesbauer's death, Missouri authorities arrested Young and charged her in state court with...