United States v. Stiger

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 30, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 03-5043

KENNETH WAYNE STIGER,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D. Ct. No. 00-CR-126-C)

Before TACHA, Chief Circuit Judge, EBEL and HARTZ, Circuit Judges.

Susan G. James, Law Office of Susan G. James & Associates, Montgomery, AL,
appearing for Appellant.

Kevin C. Danielson, Assistant United States Attorney (David E. O'Meilia, United
States Attorney, with him on the brief), Office of the United States Attorney,
Tulsa, OK, appearing for Appellee.

TACHA , Chief Circuit Judge.

This is an opinion on a petition for rehearing, which raised several issues

for our reconsideration. We granted the petition only with respect to alleged
sentencing errors under United States v. Booker, 543 U.S. —, 125 S. Ct. 738

(2005), which was decided after our initial opinion. We therefore withdraw our

earlier opinion, United States v. Stiger, 371 F.3d 732 (10th Cir. 2004) (“Stiger

I”), and substitute this opinion.

A jury found Defendant-Appellant Kenneth Wayne Stiger guilty of

numerous counts of conspiring to possess and distribute narcotics. On appeal, he

alleges seven grounds for us to find reversible error: (1) use of defective verdict

forms; (2) a violation of Apprendi v. New Jersey , 530 U.S. 466 (2000), as well as

Blakely v. Washington , 542 U.S. —, 124 S. Ct. 2531 (2004), and Booker ; (3)

insufficiency of the evidence; (4) improper denial of his mistrial motion; (5)

refusal to try him separately from his codefendants; (6) admission of summary

testimony and exhibits; and (7) a violation of the Speedy Trial Act, 18 U.S.C. §

3161 et seq. We take jurisdiction pursuant to 28 U.S.C. § 1291, AFFIRM in part,

REVERSE in part, and REMAND.

I. BACKGROUND

This appeal represents the culmination of the government’s investigation

and prosecution of an extensive drug conspiracy. As the government proved at

trial, the central player in the conspiracy was Darrell Bellamy of Phoenix,

Arizona. From Phoenix, Mr. Bellamy coordinated shipments of powder cocaine,

crack cocaine, and marijuana to various cities, including Tulsa, Oklahoma;

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Wichita, Kansas; and Detroit, Michigan.

At trial, several witnesses testified to Mr. Stiger’s involvement in the

conspiracy. Specifically, these witnesses testified to seeing Mr. Stiger prepare

marijuana for shipping, arrange for and assist in the transportation of marijuana

and cocaine, and transfer and instruct others to transfer large amounts of money

to Mr. Bellamy.

In addition to these general activities, Jennifer Natale testified that Mr.

Stiger assisted three others in torturing her. Specifically, she testified that, in

response to a dispute over the proceeds from a drug sale, Mr. Bellamy, two men

identified only as Marvin and Dash, and another identified only as “Crazy Will,”

forced her to remove her clothes below the waist and burned her repeatedly with a

hot iron and with boiling grease. They also threatened to pour grease on her lap

and face and to take her to the desert and shoot her. While the others tortured

Ms. Natale, Mr. Stiger “held a gun at [her] head and he pushed it in [her] nose

and he told [her] he was going to make it hurt.” 1

A federal grand jury indicted Mr. Stiger for conspiring to possess and

distribute cocaine, crack cocaine, and marijuana in violation of 21 U.S.C. § 846;

conspiring to launder money in violation of 18 U.S.C. § 1956(h); and one count of

1
Although not entirely clear, Mr. Stiger appears to concede these facts in
his appellate brief.

-3-
forfeiture pursuant to 18 U.S.C. §§ 982 and 1956(h). After a twenty-three-day

trial involving over fifty witnesses, a jury convicted Mr. Stiger on all counts. The

District Court sentenced Mr. Stiger to life in prison to be followed by ten years’

supervised release and imposed $25,200 in fines and assessments. Mr. Stiger

filed timely notice of appeal, raising seven issues. We address each below.

II. DISCUSSION

A. Verdict Forms

1. Standard of Review

Mr. Stiger first argues that the verdict forms used at trial were defective.

We review verdict forms under the same “abuse of discretion standard we apply

to jury instructions.” United States v. Jackson , 213 F.3d 1269, 1285 (10th Cir.),

rev’d on other grounds , 531 U.S. 1033 (2000). “A district court does not abuse

its discretion so long as the charge as a whole adequately states the law.” United

States v. Starnes , 109 F.3d 648, 651 (10th Cir. 1997) (internal quotations

omitted). To make this latter determination, we review de novo whether the

charge as a whole “accurately informed the jury of the governing law.” United

States v. Cerrato-Reyes , 176 F.3d 1253, 1262 (10th Cir. 1999).

Even if we conclude that the District Court erred, we must also determine

whether the error is “harmless error.” Fed. R. Crim. P. 52(a). The government

bears the burden to show that a nonconstitutional error is harmless by a

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preponderance of the evidence. United States v. Wittgenstein , 163 F.3d 1164,

1169 (10th Cir. 1998). An error “is harmless unless it had a ‘substantial

influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such

effect.” United States v. Cestnik , 36 F.3d 904, 910 (10th Cir. 1994).

2. Merits

Mr. Stiger contends that the verdict forms are defective because they did

not require the jury to find him guilty of participating in the conspiracy before it

decided his guilt as to the objects of the conspiracy. Because the forms used by

the District Court only required a finding as to the objects of the conspiracy, Mr.

Stiger argues, “[i]n the case at bar we do not even have a conviction on the

conspiracy count.” He therefore urges that the fundamental nature of this error

mandates a new trial.

In response, the government claims that the verdict forms sufficiently

informed the jury of the need to find Mr. Stiger guilty of the overarching

conspiracy not just its objects. Noting that the jury “was given detailed

instructions on the elements of the conspiracy charge and what it had to find in

order to determine whether or not each defendant was guilty of conspiracy,” the

government contends that we should interpret the verdict form in light of the

instructions given. Understood in this light, the government argues, the verdict

forms accurately informed the jury of the law.

-5-
 Despite the government’s protestations, we agree with Mr. Stiger that the

verdict forms never required the jury specifically to find him guilty of the

overarching conspiracy. 2
Like Mr. Stiger, we read the verdict forms to require a

2
The pertinent forms read:

VERDICT FORM -I
KENNETH WAYNE STIGER
COUNT I

Count 1 -charges a drug conspiracy in violation of Title 21, United
States Codes[s] [sic], Section 846. We, the Jury, in the above
styled and numbered case do upon our oaths, unanimously find
the defendant Kenneth Wayne Stiger as to Count 1, as
follows:

Object 1 - Knowingly and intentionally distribute and possess
with intent to distribute a mixture or substance containing a
detectable amount of cocaine in violation of 21 U.S.C. §
841(a)(1):

______ Not Guilty ___X__Guilty

Object 2 - Knowingly and intentionally distribute and possess
with intent to distribute a mixture or substance containing a
detectable amount of marijuana in violation of 21 U.S.C. §
841(a)(1):

______ Not Guilty ___X__Guilty

Object 3 - Knowingly and intentionally distribute and possess
with intent to distribute a mixture or substance containing a
detectable amount of cocaine base (crack cocaine) in violation
of 21 U.S.C. § 84l(a)(l):

______ Not Guilty ___X__Guilty
(continued...)

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finding only as to objects of the conspiracy.

Although we harbor grave doubts about the propriety of the use of these

verdict forms, we need not decide whether their use constitutes error or whether

the jury instructions cured any possible error because, even if we found error, the

use of the verdict forms did not substantially influence the outcome of the trial.

See United States v. Magleby , 241 F.3d 1306, 1318 (10th Cir. 2001)

(“Notwithstanding our doubts regarding the relevance of this testimony, we need

not decide whether the district court abused its discretion in admitting it because

we find that it was harmless error.”).

The government carries its burden to establish harmlessness by pointing to

the testimony of at least fourteen witnesses who offered testimony against Mr.

Stiger. Several witnesses testified at length to his involvement in packaging and

coordinating shipments of drugs for the conspiracy and in sending large amounts

2
(...continued)
VERDICT FORM -6
COUNT 1- DRUG CONSPIRACY
QUANTITY OF CONTROLLED SUBSTANCE

As previously instructed, only if you find one or more of the
defendants now on trial “guilty” of Count 1, will you proceed to
make a determination regarding the amount of controlled substance
attributed to each object of the conspiracy charged in the Second
Superseding Indictment. If, on the other hand, you find all of the
defendants now on trial “not guilty” of Count 1, then you need not
consider Verdict Form- 6.

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of money to Mr. Bellamy. We are especially persuaded by Ms. Natale’s extensive

and gruesome testimony regarding Mr. Stiger’s involvement in her torture. As

she made clear in her testimony, this torture was directly related to a dispute

about the proceeds from a drug sale for the conspiracy. In light of this testimony,

we find that the alleged verdict-form error did not substantially impact the

outcome of the trial. 3

B. Sentencing

1. Standard of Review

Mr. Stiger next argues that the District Court violated his Sixth Amendment

rights by not requiring the jury to make a specific finding as to the amount of

drugs for which he was personally responsible. Because Mr. Stiger made this

constitutional argument at sentencing, we review the issue de novo. United States

v. Lampley , 127 F.3d 1231, 1237 (10th Cir. 1997).

2. Merits

Below, the Government, in accordance with 21 U.S.C. § 851(a), notified

Mr. Stiger that it would seek the application of 21 U.S.C. § 841(b)(1)(A).

“Section 841(b)(1)(A) requires imposition of a ‘mandatory term of life

To be clear, we do not approve of the District Court’s use of the verdict
3

forms at issue. The District Court should have employed forms that required a
finding as to guilt for the conspiracy. Rather, we hold only that any resulting
error did not affect the outcome of the trial as required by Rule 52(a) of the
Federal Rules of Criminal Procedure.

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imprisonment without release’ if (1) a defendant is convicted of violating

§ 841(a), (2) that conviction involved a certain requisite amount of drugs, and (3)

the crime was committed ‘after two or more prior convictions for a felony drug

offense have become final.’” United States v. Harris , 369 F.3d 1157, 1167 (10th

Cir. 2004). In this case, the jury found that the conspiracy as a whole violated 21

U.S.C. § 841(a)(1) by trafficking 5 or more kilograms of a substance containing

cocaine, 1000 or more kilograms of a substance containing marijuana, and 50

grams of a substance containing crack cocaine. In addition, the amounts and

types of drugs that the jury found attributable to the conspiracy as a whole are

sufficient to satisfy the second prong of the § 841(b)(1)(A) mandatory life

sentence requirement.

At sentencing, Mr. Stiger objected to the jury’s finding as to drug type and

amount for the entire conspiracy, arguing that Apprendi and now, Booker, require

the jury also to make specific findings as to the amount and type of drug

attributable to him individually. 4 The District Court concluded that Apprendi

does not require the jury in a conspiracy case to make individual findings as to

each member of the conspiracy, determined Mr. Stiger was integral to the

4
Had this occurred, Mr. Stiger appears to contend, he would not have been
subject to the ten-year or life mandatory minimum because § 841(b)(1)(B)
provides for a mandatory minimum of only five years’ imprisonment for
trafficking in lesser quantities of controlled substances and only ten years if there
is a prior felony drug conviction.

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conspiracy and could be sentenced as though he were responsible for the full

drug types and quantities, found that Mr. Stiger had two previous felony drug

convictions, and therefore sentenced him to life imprisonment. See 21 U.S.C.

§ 841(b)(1)(A). On appeal, Mr. Stiger raises two objections to the application of

§ 841(b)(1)(A).

First, Mr. Stiger argues that Apprendi and Booker require the jury, rather

than the judge, to determine whether he had two prior felony drug convictions.

In essence, he asserts that Booker overrules Almendarez-Torres v. United States,

523 U.S. 224 (1998), which holds that the fact of a prior conviction may be found

by a sentencing judge. We have previously dismissed this argument. United

States v. Gonzalez-Huerta , 403 F.3d 727, 731 n.1 (10th Cir. 2005) (en banc);

United States v. Moore , 401 F.3d 1220, 1223–24 (10th Cir. 2005). Thus, the fact

that the District Court found that Mr. Stiger had two prior felony drug convictions

does not render his sentence under § 841(b)(1)(A) constitutionally infirm.

The second issue Mr. Stiger raises—whether a jury, after Apprendi and

Booker, must determine the amount and type of drug attributable to individual

coconspirators rather than simply attributable to the entire conspiracy—is one of

first impression before this Court. Prior to Booker, however, at least five other

circuits addressed it; each held that Apprendi only requires the jury to make a

finding, beyond a reasonable doubt, as to the amount of drugs for which the

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entire conspiracy is liable. See United States v. Phillips, 349 F.3d 138, 141–43

(3d Cir. 2003), vacated on other grounds, Barbour v. United States, 125 S. Ct.

992 (2005); United States v. Knight, 342 F.3d 697, 709–12 (7th Cir. 2003);

United States v. Allen, 65 Fed. Appx. 476, 480–81 (4th Cir. 2003) (Table);

United States v. Turner, 319 F.3d 716, 722–23 (5th Cir. 2003); Derman v. United

States, 298 F.3d 34, 42–43 (1st Cir. 2002).

The reasoning of these courts is simple. First, Apprendi held that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Second, in the

conspiracy context, a finding of drug amounts for the conspiracy as a whole sets

the maximum sentence that each coconspirator could be given. Derman, 298

F.3d at 42 (discussing Edwards v. United States, 523 U.S. 511 (1998)). Because

the subsequent attribution of drug amounts to individual coconspirators cannot

increase their maximum sentence, “the judge lawfully may determine the drug

quantity attributable to that defendant and sentence him accordingly (so long as

the sentence falls within the statutory maximum made applicable by the jury's

conspiracy-wide drug quantity determination).” Id. at 43.

We agree with the reasoning of our sister circuits that Apprendi requires

the jury only to set the “maximum sentence ([i.e., the] ceiling)” under which each

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coconspirator’s sentence must fall. See Knight, 342 F.3d at 711. The judge,

however, may determine the “floor” by finding the precise drug quantity

attributable to each coconspirator. See id. The jury is not required to make

individualized findings as to each coconspirator because “[t]he sentencing

judge’s findings do not, because they cannot, have the effect of increasing an

individual defendant’s exposure beyond the statutory maximum justified by the

jury’s guilty verdict.” Id.

We also conclude that Booker does not call this practice into question. The

primary innovation that the Court introduced in Booker was to clarify what the

term “statutory maximum” means for Apprendi purposes. “Our precedents . . .

make clear that the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant.” Booker , 125 S.Ct. at 749. Thus, under

Booker , the “statutory maximum” is the sentence prescribed by any applicable

mandatory sentencing regime, including the United States Code, when that

sentence is calculated solely upon jury-found facts, admitted facts, or the fact of

prior convictions. See id. at 756. In addition, Booker does not alter the well-

established rule that a finding of drug type and quantity for the conspiracy as a

whole sets the maximum sentence that each coconspirator can constitutionally be

given. See Derman, 298 F.3d at 42; see also 21 U.S.C. § 846 (“Any person who

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attempts or conspires to commit any offense defined in this subchapter shall be

subject to the same penalties as those prescribed for the offense.”). Therefore,

the practice outlined above is entirely consistent with Apprendi and Booker

because the jury sets the applicable “statutory maximum” by determining the type

and quantity of drugs attributed to the conspiracy as a whole while the judge’s

findings have the effect only of potentially decreasing an individual defendant’s

sentence.

Our analysis of the constitutionality of Mr. Stiger’s sentence might be

different if the District Court had relied upon judge-found facts and the U.S.

Sentencing Guidelines, instead of § 841(b)(1)(A), to sentence Mr. Stiger to life

imprisonment. Here, the record is not clear whether the District Court sentenced

under the Guidelines, and thus relied upon judge-found facts in the context of a

mandatory sentencing regime, or § 841(b)(1)(A). See R. Vol. XXXVIII at 26

(sentencing Mr. Stiger “under the law and the guidelines”). Nonetheless, even if

we assume the District Court erroneously found facts and mandatorily applied the

Guidelines, see Gonzalez-Huerta , 403 F.3d at 731–32, such an error would be

rendered harmless beyond a reasonable doubt by the presence of the mandatory

sentence outlined in § 841(b)(1)(A). See Fed. R. Crim. P. 52(a); Chapman v.

California , 386 U.S. 18, 24 (1967). As such, we affirm the District Court’s

sentence.

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C. Sufficiency of the Evidence

1. Standard of Review

Following the presentation of the government’s case, Mr. Stiger moved for

a judgment of acquittal pursuant to Fed. R. Crim. P. 29, alleging insufficient

evidence. “We review the sufficiency of the evidence de novo.” United States v.

Overholt , 307 F.3d 1231, 1249 (10th Cir. 2002). In so doing, “we ask only

whether taking the evidence—both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom—in the light most favorable to the

government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.” United States v. McKissick , 204 F.3d 1282, 1289 (10th Cir.

2000) (internal quotations omitted). “We rely on the jury, as the fact finder, to

resolve conflicting testimony, weigh the evidence, and draw inferences from the

facts presented.” United States v. Radcliff , 331 F.3d 1153, 1157 (10th Cir. 2003)

(internal quotations omitted).

2. Merits

Mr. Stiger contends that the District Court erred in denying that motion

because the government introduced insufficient evidence to prove that he was a

member of the alleged drug conspiracy. Although conceding that the drug

conspiracy existed, he argues that the government failed to prove that he “had a

specific intent to join the Darrell Bellamy conspiracy.” To this end, he asserts

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that the government failed to introduce evidence that he was a member of the

Bellamy conspiracy and that, at most, it only “proved that [he] was involved in

drug distribution and that he and [Mr.] Bellamy had overlapping drug

involvement.” Inexplicably—and seemingly in conflict with his recitation of

facts—he also concludes that he “was never involved with the Jennifer Natale

torture episode.”

The record wholly belies Mr. Stiger’s assertions that insufficient evidence

exists to prove his membership in the Bellamy conspiracy. See infra pp. 2-3. As

the government illustrates in its brief, and we confirmed upon our independent

review of the record, substantial evidence was presented showing that Mr. Stiger

“knew the objective of the conspiracy was to profit from the distribution of illegal

drugs, that he voluntarily participated, . . . that he acted to further the objectives

of the conspiracy,” and that he “took essential and integral steps to help the

organization profit from the sale of illegal drugs.” We therefore affirm the

District Court’s decision to deny Mr. Stiger’s motion for judgment of acquittal.

D. Mistrial

1. Standard of Review

Mr. Stiger moved for a mistrial below. In determining whether to grant a

mistrial, a district judge must first determine whether an error has occurred and, if

so, whether that error impaired the “defendant’s right to a fair and impartial trial.”

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United States v. Meridyth , 364 F.3d 1181, 1183 (10th Cir. 2004). “We review a

district court’s refusal to grant a mistrial for abuse of discretion.” Id. “In

reviewing a court’s determination for abuse of discretion, we will not disturb the

determination absent a distinct showing it was based on a clearly erroneous

finding of fact or an erroneous conclusion of law or manifests a clear error of

judgment.” United States v. Mitchell , 113 F.3d 1528, 1531 (10th Cir. 1997).

2. Merits

Well into the trial, Mr. Stiger’s counsel moved for a mistrial based on the

fact that attorney Robert Burton visited with him on several occasions about

representing him in this case. The visits were unfruitful for Mr. Burton, as the

District Court ultimately appointed another attorney to represent Mr. Stiger. The

District Court, however, appointed Mr. Burton and his law partner to represent

Richard Taylor, one of Mr. Stiger’s codefendant’s. Mr. Taylor entered a guilty

plea prior to Mr. Stiger’s arraignment and became a witness for the government at

Mr. Stiger’s trial. Mr. Burton continued to represent Mr. Taylor throughout the

course of this testimony.

Mr. Stiger’s trial counsel claims that he was not initially aware of Mr.

Burton’s conversations with Mr. Stiger. Upon learning of these conversations,

however, trial counsel moved for a mistrial based upon a conflict of interest.

Trial counsel stated that Mr. Burton “visited [his] client three times before th[e]

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trial started” and that the two spoke “several times about the case,” although he

could not say with certainty whether those conversations would prejudice his

client. Counsel sought an evidentiary hearing to determine whether an attorney-

client relationship existed between Messrs. Stiger and Barton. The District Court

denied the mistrial motion without conducting an evidentiary hearing.

On appeal, Mr. Stiger argues that the District Court should have conducted

this evidentiary hearing before dismissing his conflict-of-interest claim. He

asserts that the summary dismissal of his mistrial request based on the asserted

conflict without hearing or further inquiry violated his rights to due process,

confrontation of witnesses, and conflict free counsel. As such, Mr. Stiger asks us

to reverse his conviction.

In response, the government asserts that Mr. Burton never represented Mr.

Stiger and that a new trial would gain Mr. Stiger nothing because his remedy

would be a new trial in which co-defendant Taylor would again testify. 5

Two sources inform whether a district court should disqualify an attorney.

“First, attorneys are bound by the local rules of the court in which they appear. . .

. Second, because motions to disqualify counsel in federal proceedings are

5
On appeal, the government has not argued that Mr. Stiger’s claim is
essentially an untimely motion to disqualify, which we would review for plain
error. Thus, we assume for purposes of this appeal that Mr. Stiger timely raised
this issue in the context of a mistrial motion during trial.

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substantive motions affecting the rights of the parties, they are decided by

applying standards developed under federal law.” Cole v. Ruidoso Mun. Schools ,

43 F.3d 1373, 1383 (10th Cir. 1994).

The United States District Court for the Northern District of Oklahoma has

adopted the Oklahoma Rules of Professional Conduct. 6
Here, Oklahoma Rule of

Professional Conduct Rule 1.9 provides the relevant rule. 7
Oklahoma Rule 1.9

6
See N.D. Okla. R. 83.2 (“Attorneys practicing in this court are expected to
conduct themselves in accordance with the Oklahoma Rules of Professional
Conduct, as adopted by the Oklahoma Supreme Court, as the standard of conduct
of all members of the Oklahoma Bar Association.”); see also N.D. Okla. R. 83.4
(oath requiring an attorney to “solemnly swear” to “be bound by the Oklahoma
Rules of Professional Conduct and [to] conduct [himself] in compliance therewith
at all times.”).
7
This rule reads:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which
that person’s interests are materially adverse to the interests of the former client
unless the former client consents after consultation.

(b) A lawyer shall not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was associated had
previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by
Rules 1.6 and 1.9(c) that is material to the matter; unless the former
client consents after consultation.

(c) A lawyer who has formerly represented a client in a matter or whose present
or former firm has formerly represented a client in a matter shall not thereafter:
(continued...)

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tracks exactly the text of Rule 1.9 of the ABA Model Rules of Professional

Conduct, which “we believe reflect[s] the national standard to be used in ruling

on disqualification motions.” Cole , 43 F.3d at 1383.

Under Rule 1.9, a party seeking to disqualify opposing counsel must

establish that “(1) an actual attorney-client relationship existed between the

moving party and the opposing counsel; (2) the present litigation involves a

matter that is ‘substantially related’ to the subject of the movant’s prior

representation; and (3) the interests of the opposing counsel’s present client are

materially adverse to the movant.” Cole, 43 F.3d at 1383 (citing ABA Model

Rule 1.9(a) & (c)). If the movant establishes the first two prongs, an irrebuttable

“presumption arises that a client has indeed revealed facts to the attorney that

require his disqualification.” Smith v. Whatcott , 757 F.2d 1098, 1100 (10th Cir.

1985). 8

7
(...continued)

(1) use information relating to the representation to the disadvantage
of the former client except as Rule 1.6 or Rule 3.3 would permit or
require with respect to a client, or when the information has been
generally known; or

(2) reveal information relating to the representation except as Rule
1.6 or Rule 3.3 would permit or require with respect to a client.
8
Although we have subsequently modified Smith as it applies to imputing a
conflict to an entire firm, see SLC Ltd. v. Bradford Group West, Inc., 999 F.2d
464, 467-68 (10th Cir. 1993), we have not retreated from its holding as to
(continued...)

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 To show that an attorney-client relationship existed, Mr. Stiger need not

show that “the parties . . . executed a formal contract” or that he paid fees. Cole ,

43 F.3d at 1384. Mr. Stiger need only “show that (1) [he] submitted confidential

information to a lawyer and (2) [he] did so with the reasonable belief that the

lawyer was acting as [his] attorney.” Id. In Cole , we cited approvingly

Westinghouse Electric Corp. v. Kerr-McGee Corp. , 580 F.2d 1311, 1319 (7th Cir.

1978), which held that an “implied professional relation” can exist in the context

of the “preliminary consultation by a prospective client with a view to retention of

the lawyer,” even though “actual employment does not result.” Id. In addition,

“the party moving for disqualification need not reveal the substance of its

communication to the lawyer” and “[u]sually, a showing of the circumstances and

subject of the consultation will be enough to demonstrate whether the information

was confidential.” Cole , 43 F.3d at 1384 n.8.

In applying the second prong—the “substantial relation” test—we look to

whether “the factual contexts of the two representations are similar or related.”

Smith , 757 F.2d at 1100 (quotation omitted). “The underlying question is whether

the lawyer was so involved in the matter that the subsequent representation can be

justly regarded as a changing of sides in the matter in question.” Model Rules of

(...continued)
8

individual lawyers.

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Prof’l Conduct R. 1.9 cmt.

Here, Mr. Stiger made a non-frivolous allegation before the District Court

that Mr. Barton and he had an attorney-client relationship in a substantially

related matter. We find that the District Court abused its discretion by failing to

investigate this allegation further through an evidentiary hearing. Because we

lack essential factual predicates to conduct a disqualification analysis, we cannot

pass on the merits of Mr. Stiger’s claim on appeal. As such, we remand this issue

to the District Court with instructions to hold an evidentiary hearing in accord

with this opinion. If, following this hearing, the District Court concludes that an

attorney-client relationship existed between Messrs. Burton and Stiger, it should

then determine whether the representation affected Mr. Stiger’s “right to a fair

and impartial trial.” Meridyth , 364 F.3d at 1183.

E. Severance

1. Standard of Review

Mr. Stiger next argues that the District Court erred in refusing to sever his

trial from those of his alleged coconspirators because the government sought to

introduce highly prejudicial evidence of codefendant Marlin Mack’s alleged

murdering of two people. In United States v. Evans , we held that:

The decision whether to grant a severance is within the sound
discretion of the trial court. We will not disturb the trial court’s
decision absent an affirmative showing of abuse of discretion and a
strong showing of prejudice . To establish abuse of discretion more is

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 required than that separate trials might have offered a better chance
for acquittal of one or more of the accused. 970 F.2d 663, 676 (10th
Cir. 1992) (internal citations and quotations omitted) (emphasis
added).

Furthermore, Mr. Stiger must overcome the presumption that “in a conspiracy

trial it is preferred that persons charged together be tried together.” United States

v. Scott , 37 F.3d 1564, 1579 (10th Cir. 1994), cert. denied , 513 U.S. 1100 (1995).

2. Merits

Pointing to a list of evidence, Mr. Stiger concludes that the “cumulative

and prejudicial impact” of that testimony requires severance. Noting the strong

preference for joint trials of coconspirators, the government argues that, as a

member of the conspiracy, Mr. Stiger was liable for its violent acts. Moreover,

the government asserts that Mr. Stiger was himself heavily involved in the violent

torture of Ms. Natale. Further, the government contends that he suffered no

prejudice from the denial of severance.

Mr. Stiger cannot establish reversible error. Even if he could show that the

District Court abused its discretion in denying his motion to sever, he cannot

make “a strong showing of prejudice.” Evans , 970 F.2d at 676. “Prejudice

occurs when there is a serious risk that a joint trial will compromise a specific

trial right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” United States v. Edwards , 69 F.3d 419, 434

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(10th Cir. 1995) (internal quotations omitted). As noted above, see supra pp. 2-3,

the government introduced extensive evidence at trial proving Mr. Stiger’s

involvement in the conspiracy. In light of this evidence, Mr. Stiger has failed to

make a strong showing of prejudice, and we affirm the decision of the District

Court.

F. Summary Witness Testimony

1. Standard of Review

Mr. Stiger next argues that the District Court erred in allowing Officer

Harold Adair to present summary testimony and exhibits. “We review a district

court’s evidentiary rulings for abuse of discretion.” United States v. Curtis , 344

F.3d 1057, 1067 (10th Cir. 2003). “In reviewing a court’s determination for

abuse of discretion, we will not disturb the determination absent a distinct

showing it was based on a clearly erroneous finding of fact or an erroneous

conclusion of law or manifests a clear error of judgment.” United States v.

Mitchell , 113 F.3d 1528, 1531 (10th Cir. 1997). Even if we find that the District

Court erred, we must also determine whether the error “affect[ed] substantial

rights,” i.e., whether it is “harmless error.” Fed. R. Crim. P. 52(a). 9

Mr. Stiger, for the first time on appeal, also argues that the admission of
9

the summary testimony violated his Sixth Amendment right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI. Because he never raised
that objection before the District Court, we review it for plain error. United
(continued...)

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 2. Merits

Mr. Stiger challenges the admission of five exhibits and the accompanying

testimony. First, Mr. Stiger objects to a chart offered by Officer Adair that

purported to detail the organizational structure of the conspiracy. Officer Adair

testified that he constructed this chart both from trial testimony and from

interviews conducted during the investigation. On appeal, Mr. Stiger reasserts his

contention that Officer Adair gleaned much of his testimony from sources not

admitted at trial. As such, he urges that the summary testimony and charts were

inadmissable hearsay. In response, the government claims that the District Court

properly admitted the testimony and charts as expert testimony pursuant to Fed. R.

Evid. 702. The government also notes that many courts have allowed summary

testimony and charts pursuant to Fed. R. Evid. 611(a), finding them to be helpful

to the jury.

As this Court has noted, a party may only admit summary testimony under

Fed. R. Evid. 611(a) if the District Court previously admitted at trial the evidence

9
(...continued)
States v. LaHue , 261 F.3d 993, 1009 (10th Cir. 2001) (“Where a Confrontation
Clause objection is not explicitly made below we will not address the
constitutional issue in the absence of a conclusion that it was plain error for the
district court to fail to raise the constitutional issue sua sponte.”) (alteration and
internal quotations marks omitted). Seeing that there is “overwhelming and
essentially uncontroverted” evidence of his guilt as to the charged or a closely
linked crime, see United States v. Gonzalez Edeza , 359 F.3d 1246, 1251 (10th Cir.
2004), he cannot satisfy that standard.

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that forms the basis of the summary. See United States v. Ray , 370 F.3d 1039

(10th Cir. 2004), vacated on other grounds by 125 S. Ct. 995 (Jan. 24, 2005).

Because Officer Adair’s own testimony indicates that he constructed the

organizational chart from non-trial sources, the District Court could not have

properly admitted it pursuant to Fed. R. Evid. 611(a). We need not decide,

however, whether it fell within the ambit of some other evidentiary rule because

any possible error did not substantially influence the outcome of the trial. See

Magleby , 241 F.3d at 1318; see also supra pp. 2-3.

Second, Officer Adair offered a time line illustrating the trips taken by the

members of the conspiracy and the specific drugs transported on those trips.

Officer Adair testified that he prepared the time line solely from evidence

admitted at trial. Mr. Stiger did not object to the admission of the time line, but

did object to a portion of Officer Adair’s accompanying testimony as going

beyond the evidence admitted at trial. The District Court sustained that objection,

re-instructed the government that “[t]his is a summary of the evidence, not a

summary of the investigation,” and redacted the objected-to evidence. Because

the District Court sustained Mr. Stiger’s objection at trial, there is no error to

correct on appeal.

Third, Officer Adair offered a chart of the total drug amounts testified to at

trial. He testified that the chart was based exclusively on evidence admitted at

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trial. Mr. Stiger lodged an ambiguous objection against the chart. Reviewing the

record evidence, we find that the District Court properly admitted the chart

pursuant to Fed. R. Evid. 611(a) because it was undoubtedly helpful to the jury in

this particularly complex case, the District Court offered extensive limiting

instructions, and the chart was based exclusively on previously admitted evidence.

See Ray , 370 F.3d at 1046–48.

Finally, Officer Adair offered two other charts, one detailing the specific

drug amounts attributable to each defendant and another illustrating the drug

prices charged by the conspiracy in various transactions. He testified that both

charts were based exclusively on previously admitted evidence. Mr. Stiger did

not object to the introduction of either chart nor to the accompanying testimony at

trial. “We review the district court’s ruling admitting evidence . . . if no

objection is made, for plain error.” United States v. Castorena-Jaime , 285 F.3d

916, 931 (10th Cir. 2002). Mr. Stiger cannot satisfy that standard. See United

States v. Gonzalez Edeza , 359 F.3d 1246, 1251 (10th Cir. 2004) (holding that

when “overwhelming and essentially uncontroverted” evidence of guilt exists as

to the charged or a closely linked crime, the plain error standard is not met); see

also supra pp. 2-3.

G. Speedy Trial Act

1. Standard of Review

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 Finally, Mr. Stiger argues that the District Court erred in concluding that

the Speedy Trial Act, 18 U.S.C. § 3161 et seq., does not apply to an information

filed pursuant to 21 U.S.C. § 851(a)(1). We review the District Court’s

interpretation of this statute de novo. United States v. Alahmad , 211 F.3d 538,

541 (10th Cir. 2000).

2. Merits

On April 30, 2002, the government filed an information pursuant to §

851(a)(1), notifying Mr. Stiger of its intent to use his prior felony convictions to

enhance any sentence resulting from the current prosecution. On July 11, 2002,

Mr. Stiger filed a motion to dismiss this information, claiming that the Speedy

Trial Act required the government to commence trial against him on the

§ 851(a)(1) information within seventy days of its filing. The District Court

denied his motion, finding that the “plain language” of the “Speedy Trial Act only

applies to informations and indictments which charge ‘the commission of an

offense.’” For the reasons provided in a companion case, we affirm the District

Court’s Speedy Trial Act ruling. See United States v. Vaughn , 370 F.3d 1049,

1054–55 (10th Cir. 2004).

III. CONCLUSION

Therefore, we AFFIRM the judgment of the District Court except as to the

mistrial claim, which we REVERSE and REMAND with instructions to hold an

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evidentiary hearing in accordance with this opinion. Our opinion in Stiger I is

VACATED.

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