933 F. 2d 1019 - United States v. Wood

Defendants Floyd Lee Wood and Bobby F. Henning, Jr. appeal their convictions, and Wood appeals his sentence, for conspiracy to commit mail fraud, in violation of 18 U.S.C. Sec. 371. Henning was convicted of additional counts arising out of separate mailings made in connection with the same scheme. Both defendants contend on appeal that the district court erred in granting the jury's request to have the testimony of prosecution witness Kimberly Hill read to it after the jury had begun deliberating on the case. Wood also contends that the court erred in finding that he obstructed justice, making a two level upward adjustment in his offense level.

The indictment charged, and the jury found, that defendants entered a conspiracy to acquire a house and property in Oklahoma, to obtain insurance on the house and its contents, to cause the house to be destroyed by fire, and to submit insurance claims based on destruction of the house with the proceeds and benefits therefrom to be distributed to Henning, Wood, and Wood's son, Rocky Dean Wood. Rocky Dean Wood became a cooperating witness for the government and testified as to the details of the scheme and how it was carried out. His testimony was corroborated by Kimberly Hill, who asserted that she was present at some of the conversations. Defendants Floyd Wood and Henning both testified in a manner that contradicted the testimony of Rocky Wood and Kimberly Hill.

After the jury began its deliberation, it asked the court to hear Hill's testimony again. The court advised the jury, in writing, that there was no transcript of her testimony and the only way the jury could hear it would be for the reporter to read it back from her notes. Thereafter the jury sent out another note asking to have the court reporter read back the Hill testimony. Over objection by defendants, the court had Ms. Hill's testimony read to the jury in its entirety.

On appeal we review for abuse of discretion. See, e.g., United States v. Keys, 899 F.2d 983, 988 (10th Cir.), cert. denied, 111 S.Ct. 160 (1990). Defendants contend that the reading placed undue emphasis on Hill's testimony. They recite a general rule that reading of testimony after a jury commences its deliberations is disfavored, although they acknowledge that in cases such as Keys we have held that a court did not abuse its discretion in permitting witnesses' testimony to be read to a jury after it had begun its deliberations. Defendants attempt to distinguish Keys and other cases relied upon by the government.

The government argues that there are several reasons why the jury may have wanted the evidence repeated, including the very soft voice in which Hill allegedly testified. The government points out that the court had the entire testimony read, which did not unduly emphasize only a portion of it. The government also notes the court's cautious approach to the jury's request; the court stated that the reporter could not give the voice inflections and demeanor and that the jury should not overemphasize the testimony of only one witness. Defendants agree that the court took the precautions noted by the government, but they argue that these precautions are not enough.

On review of the record and analysis of the cases relied upon by the parties, we cannot find that the court abused its discretion in permitting the testimony to be read, and we cannot find that either of the defendants was unduly prejudiced by the court acceding to the jury's request.

With respect to defendant Wood's challenge of the trial court's assessment of a two level increase for obstruction of justice, we have previously considered cases very like the one at issue here, in which a defendant took the stand and told a story contrary to that of the government witnesses, and one which the jury and the judge obviously disbelieved. See Keys, 899 F.2d at 988-89; United States v. Beaulieu, 900 F.2d 1537 (10th Cir.), cert. denied, 110 S.Ct. 3352 (1990). We cannot meaningfully distinguish those cases, and hence we uphold the district court's action as being within the letter and spirit of the sentencing guidelines.

AFFIRMED.