UNITED STATES COURT OF APPEALS
For the Fifth Circuit
UNITED STATES OF AMERICA,
RANDALL L. GARRETT,
Appeal from the United States District Court
For the Southern District of Texas
November 1, 2000
Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, U.S.
Court of International Trade.
W. EUGENE DAVIS, Circuit Judge:*
In May of 1998, Randall Garrett ("Garrett") and Bryan Sims
("Sims") were indicted on multiple charges of mail fraud, wire
fraud, money laundering, and conspiracy, in violation of 18 U.S.C.
§§ 371, 1341, 1343, 1956(h), 1956(a)(1)(A)(i), 1956(a)(1)(B)(i),
1956(a)(2)(A), and 1956 (a)(2)(B)(i). Sims entered a guilty plea
and testified for the government. Garrett was tried and convicted
on all counts. He now appeals. For the reasons that follow, we
AFFIRM the judgment of the trial court.
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Viewing the facts in a light favorable to the verdict, the
jury was entitled to find the following: Garrett and Sims met in
January of 1996 at a business conference. Garrett told Sims that
he had engaged in a trade program, could not get investors' money
back, and needed money fast. Sims agreed to furnish this money to
Garrett on condition that Garrett participate with Sims in a scam
with investors. Sims' Test., R. Vol. 6-875-881, 6-899. Garrett
and Sims agreed to the following arrangement: Garrett would induce
investors to participate in a "trade program" by promising them a
240% return on their investment in one year. Garrett would then
send the investors' money on to Sims. After deducting his share of
the proceeds, Sims would send the money back to Garrett. Sims'
Test., R. Vol. 6-879.
Garrett's principal argument on appeal is that the evidence at
trial was insufficient to show that Garrett knew the "trade
program" was not an actual investment. Garrett contends that Sims
"fooled everyone" about the legitimacy of the investment, including
Sims' testimony is the primary focus of Garrett's
insufficiency argument; he contends not only that Sims' testimony
was not credible, but also that it was incredible as a matter of
law. The primary basis for this argument is that Sims had
difficulty explaining the exact nature of the illegal agreement he
had with Garrett. However, this Court has held that a witness'
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testimony does not rise to the level of being incredible simply
because it is confused and conflicting. Rather, conflicts within
a witness' testimony are to be resolved by the jury. United States
v. Saenz, 747 F. 2d 930, 936 (5th Cir. 1984). This Court does not
weigh the evidence and recognizes the jury's freedom to pick and
choose among reasonable constructions of the evidence. United
States v. Brown, 217 F. 3d 247, 254, n. 4 (5th Cir. 2000). The jury
here had ample opportunity to evaluate the credibility of both Sims
and Garrett at trial, and was entitled to reject Garrett's
contention that he had no knowledge of an illegal scheme. Sims'
"confused" testimony does not rise to the level of being incredible
as a matter of law.
In addition to Sims' testimony, the government presented a
strong case in support of its contention that Garrett was fully
aware of the illegal scheme. The bank records produced at trial
corroborated Sims' testimony about the Ponzi scheme. These records
established that Garrett deposited the investors' funds and wired
them to Sims. Most of the funds were then wired back to Garrett a
few days later. In all, Garrett received back almost $13,000,000
of the $17,500,000 that he sent to Sims. Additionally, the
testimony of the victims of the scam established numerous false
promises and representations Garrett made to keep victims "off his
back" and in the program. For instance, Garrett refused to provide
certain information about the "trade program", claiming that it was
"proprietary information". He falsely informed one investor that
he had actually met the nonexistent "traders" in England. Garrett
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told one investor that the "minimum investment" was $50,000, told
another it was $100,000, and told still another that it was
$1,000,000. Based on the documentary evidence and the testimony of
the investors -- which fully corroborated Sims' testimony -- a
reasonable jury could have found that Garrett knew that the "trade
program" did not exist and that he and Sims were engaged in a
classic Ponzi scheme. We therefore reject Garrett's argument that
the evidence presented at trial was insufficient to support his
Garrett next argues that the district court erred in
permitting Special Agent Vanessa Walther of the FBI, a specialist
in white collar crime, to testify about summaries she prepared from
voluminous bank records admitted into evidence. We review the
decision to permit such testimony for abuse of discretion. United
States v. Duncan, 919 F. 2d 981, 988 (5th Cir. 1990).
The essence of Garrett's argument is that the district court
improperly allowed expert accounting testimony from a lay witness.
Walther was not qualified as an expert, and Garrett therefore
contends that she should not have been permitted to give opinions.
However, the record reveals the fundamental flaw in this argument:
Walther gave no expert opinions. She merely added up figures from
bank statements and followed deposits and withdrawals from bank
account to bank account. Therefore, the district court did not
abuse its discretion in allowing Walther's testimony.
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Finally, Garrett argues that the district court erred in
denying his motion for new trial based upon extrinsic evidence
tainting the jury's verdict. Denial of such a motion is reviewed
for abuse of discretion. United States v. Freeman, 77 F. 3d 812,
815 (5th Cir. 1996).
In support of his motion for new trial, Garrett presented the
affidavit of juror Mary Adams, who stated under oath that three
jurors were strongly biased against Garrett simply because he had
worked for the A.L. Williams Insurance Company. All three jurors
had a bad experience with the insurance company and told their
fellow jurors about these experiences. Garrett argues that the
jurors' introduction of this unfavorable information to the rest of
the jury tainted the jury's deliberations and the district court
erred in refusing to grant him a new trial.
To overcome the presumption of juror impartiality, Garrett
must first demonstrate that an "extrinsic factual matter" tainted
the jury's deliberations. United States v. O'Keefe, 722 F. 2d
1175, 1179 (5th Cir. 1983). He has failed to do so here. An
"outside influence" such as a "statement made by a bailiff to the
jury, the introduction of a prejudicial newspaper account into the
jury room, or a threat to the safety of a member of the jury's
family" may taint the jury's deliberations and require a new trial.
Peveto v. Sears, Roebuck & Co., 807 F. 2d 486, 489 (5th Cir. 1987).
However, juror discussion of personal past experience is not
"extrinsic" evidence that requires a new trial. See, e.g., Fed. R.
Evid. 606(b); Peterson v. Wilson, 141 F. 3d 573, 577-78 (5th Cir.
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1998). The district court did not abuse its discretion in denying
For the reasons stated above, we AFFIRM the judgment of the
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