* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10650

_____________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant Cross-Appellee

v.

JANET MITCHELL ELI,

 Defendant-Appellee Cross-Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas 

(3:94-CR-433-T)

_________________________________________________________________

August 22, 1996

Before KING, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Janet Mitchell Eli was indicted on counts charging her with

threatening federal law enforcement officers and a witness in a

federal criminal trial and making false statements to a federal

court. Following a jury verdict of guilty on all counts, the

district court granted Eli’s motion for acquittal on the false

statement counts and for a new trial on the threat counts. The
2

Government appeals the order granting the motion for a new trial. 

We vacate the order granting a new trial and remand for further

consideration by the district court. 

I. BACKGROUND

A. Facts

During late February 1992, Eli and other individuals,

including Shenna Fisher, stole U.S. Treasury checks from the

mails. Eli and some of her co-conspirators forged and cashed the

stolen checks. In May 1992, Fisher gave a sworn statement to

Postal Inspector David McDermott in which she admitted

participating in the thefts and forgeries and identified Eli as

the mastermind of the scheme. Fisher was convicted of offenses

related to this scheme and sentenced to three years probation. 

She violated this probation in late 1993 and was sentenced to

twelve months imprisonment. She commenced serving this sentence

in January 1994 at a federal prison for women in Bryan, Texas.

In August 1993, Eli was convicted of possession of stolen

mail and forgery of U.S. Treasury checks. At this trial, Judge

Sidney Fitzwater presided, Joseph Revesz was the prosecutor,

McDermott was the case agent, and Fisher was a witness for the

Government. Eli was sentenced to a prison term and began serving

this sentence at the Bryan prison in April 1994, approximately

two months after Fisher had been sent there.
3

In May 1994, Judge Fitzwater, Judge Joe Kendall, and Eli’s

defense counsel received letters signed by Fisher in which she

recanted her trial testimony against Eli and alleged that Revesz

and McDermott had instructed her to lie about Eli and had

otherwise coerced her cooperation. Also in May, Fisher signed an

affidavit making the same allegations found in the letters; this

affidavit was notarized. On May 31, Eli herself sent a letter to

Judge Fitzwater, stating that Fisher had admitted committing

perjury at Eli’s trial.

In July 1994, Postal Inspector R.T. Welborn interviewed

Fisher at the Bryan prison. Fisher told Welborn that Eli had

prepared or directed the preparation of all of the letters and

the affidavit, that Eli had threatened her with bodily harm if

she did not cooperate, and that Eli had told her she would

receive home confinement if she signed the letters. In addition,

Fisher told Welborn that her trial testimony was true and that

the contents of the letters were false. Later, Welborn

interviewed Bryan inmate Lindy Lovett. Lovett told Welborn that

Eli had tricked Fisher into signing letters and an affidavit. 

Lovett also stated that Fisher was afraid of Eli and feared that

she would have been harmed if she had not cooperated with Eli.

Following Welborn’s investigation, Eli was transferred from

the Bryan prison. In late 1994, Eli was incarcerated in the

Dallas County Jail. Tanya Nicosia, a Dallas County inmate,

notified Revesz that Eli was making threats against Revesz,
 

118 U.S.C. § 115(a)(1)(B) states in pertinent part:

 Whoever . . . threatens to assault, kidnap, or

murder, a United States official . . . [or] a Federal

law enforcement officer . . . with intent to . . .

retaliate against such official . . . or law

enforcement officer on account of the performance of

official duties, shall be punished . . . .

 

218 U.S.C. § 1513(a)(1) states in pertinent part:

 Whoever . . . attempts to kill another person with

intent to retaliate against any person for--

 (A) the attendance of a witness . . . at an

official proceeding, or any testimony given .

. . in an official proceeding; or

4

McDermott, and Fisher. Nicosia also stated that Eli’s father had

spoken with Eli on the phone about offering contracts to kill

certain individuals and that Eli’s father came to Dallas in

October 1994 for the purpose of executing contracts to kill

Revesz, McDermott, and Fisher. Nicosia prepared a statement in

which she recounted these allegations in detail and also reported

that Eli had told her about coercing Fisher to recant her trial

testimony.

B. Procedural History

In December 1994, Eli was indicted by a grand jury. Counts

1-3 alleged that Eli had threatened Revesz, McDermott, and Fisher

on October 30, 1994, while Eli was incarcerated in the Dallas

County Jail, in violation of 18 U.S.C. § 115(a)(1)(B)1 and 18

U.S.C. § 1513(a)(1).2 Counts 4-8 charged that Eli had caused
 (B) providing to a law enforcement officer

any information relating to the commission or

possible commission of a Federal offense . .

.

shall be punished . . . .

5

Fisher to make false statements to United States District Court

judges and that she herself had also made false statements, in

violation of 18 U.S.C. § 1001. Eli pled not guilty and was tried

before a jury.

For its case in chief, the Government introduced the

following witnesses: Nicosia, Revesz, McDermott, Fisher,

Welborn, Lovett, Postal Inspector Jack McDonough (who was

involved in the original investigation of the stolen checks),

Danette Williams (another Bryan inmate), Raymona Galloway (a coconspirator in the stolen check scheme), a typewriter expert, and

three government officials who had previously used Nicosia as an

informant. Nicosia testified that Eli had made threats against

Revesz, McDermott, and Fisher while she was incarcerated in the

Dallas County Jail and that she had made arrangements with her

father to have those individuals killed. The government

officials who had previously used Nicosia as an informant

testified as character witnesses on her behalf. Fisher testified

that Eli coerced her to sign the letters and the affidavit

recanting her trial testimony, while threatening her, her mother,

and her children; she also testified that Eli threatened to

“knock off” Revesz and McDermott. The Government offered
6

testimony from Lovett, Williams, and Welborn to corroborate

Fisher’s version of the events at the Bryan prison. The

typewriter expert verified that the letters and the affidavit had

been typed in the Bryan prison. Revesz, McDermott, and McDonough

gave testimony regarding their involvement in the investigation

and prosecution of the stolen check case. Finally, Galloway

testified that, after their arrest, Eli threatened to “get” the

person who started the investigation. 

The jury found Eli guilty on all counts. Eli filed a motion

for a judgment of acquittal or for a new trial. The court denied

the motion on May 17, 1995. On May 15, 1995, the Supreme Court

decided Hubbard v. United States, 115 S. Ct. 1754 (1995), which

held that 18 U.S.C. § 1001 does not apply to the making of false

statements in judicial proceedings. As a result, Eli filed a

motion for reconsideration of the court’s denial of her motion

for acquittal or new trial. Specifically, Eli moved for a

judgment of acquittal on Counts 4-8, the false statement counts,

and a new trial on Counts 1-3, the threat counts. In response,

the Government conceded that, in light of Hubbard, the

convictions on Counts 4-8 could not stand; however, the

Government asserted that the convictions on Counts 1-3 were not

affected by the infirm counts.

The district court entered a judgment of acquittal on Counts

4-8 and granted Eli’s motion for a new trial on Counts 1-3. The
7

court concluded that: (1) the evidence on the invalidated counts

prejudicially spilled over such that the jury probably used that

evidence in reaching a verdict on the remaining counts, and (2)

the Government had failed to establish that the evidence admitted

on the invalidated counts would be admissible in a trial on the

remaining counts alone. The Government timely appealed. 

II. DISCUSSION

A. Standard of Review

We review a district court’s order granting a new trial in a

criminal case for abuse of discretion. United States v. Logan,

861 F.2d 859, 863 (5th Cir. 1988); United States v. Arroyo, 805

F.2d 589, 597 (5th Cir. 1986).

 

B. Arguments 

 The Government contends that the district court abused its

discretion in granting Eli’s motion for a new trial, asserting

that the evidence admitted on the false statement counts would

have been admissible in a trial on the threat counts alone. 

First, the Government argues that the evidence offered on the

false statement counts was inextricably intertwined with the

evidence on the threat counts, and therefore was admissible

intrinsic evidence. Alternatively, if the evidence on the false

statement counts was extrinsic with respect to the threat counts,
8

the Government argues that it was admissible extrinsic evidence

under FED. R. EVID. 404(b). In this regard, the Government

contends that this evidence would have been admissible to show: 

(1) an overall plan of retaliation to cause death or bodily harm

to those responsible for Eli’s conviction and to get her

conviction overturned; (2) Eli’s motive for making the threats;

or (3) Eli’s specific intent to retaliate.

C. Analysis

Rule 33 of the Federal Rules of Criminal Procedure provides

the general standard to be applied by district courts in granting

new trials: “The court on motion of a defendant may grant a new

trial to that defendant if required in the interest of justice.” 

FED. R. CRIM. P. 33. Further, “in acting on new trials generally,

the harmless error rule is usually appropriate.” United States

v. Logan, 861 F.2d 859, 864 n.3 (5th Cir. 1988).

Of course, application of the harmless error standard

presumes the existence of error. Accordingly, the district court

must first determine whether there has been an error at all. 

Here, the alleged error is that the evidence presented to support

the invalidated false statements counts would not have been

admissible in a trial on the threat counts alone. Therefore, the

district court in this case was required to determine whether the
9

evidence introduced in support of the false statement counts

would have been admissible in the absence of those counts. 

If some of the evidence presented on the false statement

counts would not have been otherwise admissible, the district

court was then required to determine whether the error in this

regard was harmless. “In determining whether an erroneous

admission of evidence is harmless error, the court . . . must

decide whether the inadmissible evidence actually contributed to

the jury’s verdict; . . . the evidence [must have] had a

substantial impact on the verdict.” United States v. Campbell,

73 F.3d 44, 47 (5th Cir. 1996); see also United States v.

Gadison, 8 F.3d 186, 192 (5th Cir. 1993). Considerations

relevant to this inquiry include the strength of the Government’s

case without the inadmissible evidence, the manner in which the

inadmissible evidence was presented to the jury, and whether the

impact of the inadmissible evidence was minimized by a curative

jury instruction. See Gadison, 8 F.3d at 192 (holding that

admission of evidence of a prior conviction would be harmless

error where the evidence added little to the Government’s case,

the details of the conviction were not explained to the jury, and

the court minimized any prejudice through a jury instruction);

see also United States v. El-Zoubi, 993 F.2d 442, 446-47 (5th

Cir. 1993) (holding erroneous admission of evidence harmless
10

based on strength of remaining evidence); United States v. Evans,

950 F.2d 187, 191 (5th Cir. 1991) (same). 

In granting Eli’s motion for a new trial, the district court

applied a test enunciated in an analogous Second Circuit

decision, United States v. Rooney, 37 F.3d 847 (2d Cir. 1994),

that echoes somewhat the harmless error standard. The court of

appeals in Rooney reversed one count of a multicount conviction. 

Id. at 854. The court then described its next task as being to

“determine if prejudicial spillover from evidence introduced in

support of the reversed count requires the remaining convictions

to be upset.” Id. at 855. To make this determination, the court

analyzed three factors:

(1) whether the evidence on the reversed counts would 

have tended to incite or arouse the jury on the 

remaining counts;

(2) whether the evidence introduced on the invalidated 

 counts would have been inadmissible on the 

 remaining counts and was presented in a way that 

 tends to indicate that the jury probably used it 

 in reaching a verdict on the remaining counts;

(3) whether the government had a strong case on the 

 remaining counts.

Id. at 855-56.

Here, the district court did not discuss whether there was

any evidence on the reversed counts that would tend to incite or

arouse the jury on the remaining counts. With respect to the

second Rooney factor, the court stated that “the [G]overnment has

failed to establish that all evidence admitted on the invalidated
11

counts would have been admissible on the remaining counts” and

that the Government “repeatedly requested the jury to consider

evidence on the invalidated counts in assessing the evidence on

the remaining counts.” Finally, with respect to the strength of

the Government’s case on the remaining counts, the court noted

that the Government primarily relied on one witness to establish

that Eli threatened Revesz, McDermott, and Fisher on October 30,

1994, while Eli was incarcerated in the Dallas County Jail --

Nicosia. The court questioned Nicosia’s credibility, apparently

alluding to the fact that Nicosia was a career criminal, with

multiple convictions for theft and fraud, and that there were

inconsistencies in her testimony. Based on these factors, the

court determined that there was a prejudicial spillover of

evidence that warranted a new trial.

If we realign the district court’s reasoning into the

harmless error procedural framework outlined above, it is clear

that the court explained in some detail its conclusion that any

error in this case was not harmless. Specifically, the court

discussed the strength of the Government’s case on the threat

counts and the manner in which the evidence offered in support of

the other counts was presented to the jury. However, with

respect to the threshold inquiry -- whether there was error at

all -- the court offered no reasons for its determination that

not all of the evidence would have been admissible in a trial on

the threat counts alone. The court failed to explain which
 

3Also, the district court may have misallocated the burden

of proof on this issue. The court indicated that the Government

had failed to establish that all of the evidence would have been

admissible in a trial on the threat counts alone. As Eli

concedes, however, the movant bears at least the initial burden

in this regard.

 

4That is not to say that we would necessarily refrain from

deciding such evidentiary issues in another case.

12

evidence would not have been admissible. Further, the court did

not discuss why the unspecified evidence was not intrinsic

evidence or admissible extrinsic evidence under FED. R. EVID.

404(b).3

Given this sparse analysis by the district court, we

conclude that we are unable to review the court’s decision for an

abuse of discretion. We could resolve the evidentiary issues

ourselves and then determine whether the district court’s grant

of a new trial constituted an abuse of discretion; however,

because the admissibility of evidence is itself a matter within

the trial court’s discretion, we would be ill-advised to decide

these evidentiary issues in the first instance.4 Accordingly, we

think it advisable to vacate the grant of a new trial and to

remand with instructions that the district court reconsider the

motion under the harmless error standard and set forth with

specificity the reasons for its decision. While we appreciate

the district court’s hesitation to discuss in detail the

admissibility of evidence that the Government may proffer later
13

if the case is retried, it is an inquiry that the court cannot

avoid under these circumstances. 

 

III. CONCLUSION

For the foregoing reasons, we VACATE the district court’s

order granting Eli’s motion for a new trial on Counts 1-3 of the

indictment and REMAND for further consideration of the motion

consistent with this opinion.