United States v. Jeffery

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 11 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-8009
v. (D. Wyoming)
BRIAN THOMAS JEFFREY, also (D.C. No. 03-CR-109-B)
known as “Jersey,”

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Brian Thomas Jeffrey 1 was convicted, following a jury trial, of one count of

conspiracy to possess with intent to deliver more than 500 grams of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) and 846

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
For the sake of consistency with the district court judgment, we refer to
the defendant as Brian Thomas Jeffrey; however we note that his birth name
appears to be, and he is often referred to throughout the record as, Brian Thomas
Jeffery.
(Count 1); two counts of possession with intent to distribute methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts 2 and 3); one count of

distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C) (Count 4); one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 5); and one count of

carrying a firearm during and in relation to a drug-trafficking offense, in violation

of 18 U.S.C. § 924(c)(1)(A)(I) (Count 6). At sentencing, the district court found

that Jeffrey had been convicted of two prior drug felony convictions and

sentenced him to a mandatory term of life imprisonment under 18 U.S.C. § 851 on

Count 1; 300 months imprisonment on each of Counts 2, 3, and 4, to run

concurrently with Count 1; 120 months on Count 5, also to run concurrently with

Counts 1-4; and 60 months on Count 6, to be served consecutively to Counts 1-5.

Jeffrey appeals his conviction, contending that the district court erroneously

admitted into evidence: (1) hearsay and vouching statements of witnesses; (2)

testimony of uncharged misconduct relating to guns and violence; and (3) an

inculpatory statement by Jeffrey. He also appeals his life sentence, contending

that when the government files, as it did here, a separate information charging

that the defendant had committed two prior drug offenses, making him liable

under 21 U.S.C. § 851, a jury, rather than the court, must decide predicate facts as

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to such offenses. For the reasons stated below, we affirm both the conviction and

the sentence.

BACKGROUND

A.

On May 22, 2003, a grand jury charged Jeffrey (a/k/a “Jersey”), Robert

Dodge, Frank Sisneros, Jesse Elmo Spencer, and Jeremiah Ben Carson with

conspiracy to possess with intent to deliver and to deliver more than 500 grams of

methamphetamine. The indictment also named Robert Scot Clark as an active

participant in the conspiracy, along with Jeffrey’s girlfriend, Maryann Montoya.

As indicated above, in addition to the single count of conspiracy, Jeffrey was also

charged with three additional drug-trafficking counts and two firearms counts.

Trial in the matter was set for October 14, 2003. Prior to that date Jeffrey’s

co-defendants, Spencer, Sisneros, and Carson, each pled guilty to the conspiracy

count (the sole count against them), and testified against Jeffrey and Dodge at

their joint trial. Likewise, Clark, Montoya, Elizabeth Morgan, Autumn Williams,

and Shannon Jackson also pled guilty to various drug-trafficking charges and

testified against Jeffrey and Dodge. In all, the government called twenty-six

witnesses, who included, besides the coconspirators, employees of motels who

identified registrations and other records in the names of various individuals

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involved in the case; representatives of telephone companies who testified about

records showing calls between cell phones and residences connected to the

coconspirators; law enforcement officers; and technicians from the state crime

laboratory who testified regarding drug identity and amounts. The government’s

exhibits implicating Jeffrey, in addition to various amounts of methamphetamine,

also included paraphernalia for drug use and distribution, scales with traces of

methamphetamine on them, two .38 caliber revolvers, and a ledger belonging to

Jeffrey containing a record of amounts received from and owed by various

individuals for drugs.

According to the testimony, the history of methamphetamine use and

dealing by and among individuals identified in this case, including

methamphetamine use by Jeffrey, began sometime prior to June 2002. The

government’s case opened by mostly detailing Dodge’s and other coconspirators’

activities during the months from June into September 2002. Jeffrey’s

involvement in a major way covered only a period of a few months, September

through the middle of December 2002, when he was arrested. It resumed in 2003

in a smaller way and continued until his arrest again in March 2003. The impetus

for Jeffrey’s heightened activity beginning in September 2002 was provided by

his receipt of more than $100,000 in cash as a settlement for the loss of his leg in

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an accident on a job site. The money provided capital for his methamphetamine

trafficking.

The concluding event occurred on March 4, 2003, when Shannon Jackson,

who was wearing a wire and acting as a police informant, purchased a purported

1.5 grams 2 of methamphetamine from Jeffrey at a motel. This transaction was the

basis for Count 4 of the Indictment (distribution).

Notably, Jeffrey did not at trial and does not on appeal develop any specific

or substantial challenge to the three drug-trafficking charges contained in Counts

2, 3, and 4 of the Indictment (possession with intent to distribute and distribution

of methamphetamine). 3 However, the recitation of facts below includes the

government’s case on those counts.

2
Jeffrey was charged in Count 4 of the Indictment with distributing 1.5
grams in the controlled buy with Shannon Jackson. Later testing by the crime
laboratory revealed that only .8 of a gram was actually methamphetamine; the
other .7 of a gram was a non-controlled substance identified by Casper Police
Department Sergeant Wnuk as “fake crystal.” Tr. of Jury Trial, R. Vol. 6 at 180.
Wnuk also testified that the allegation that Jeffrey possessed 1.5 grams was
incorrect. The judge ultimately instructed the jury that it need only find
possession of a “detectable” amount to find Jeffrey guilty of County 4.
3
In his closing argument at trial defense counsel virtually conceded Counts
2 and 4 by conspicuous omission, stating to the jury: “What should be the
verdict? Count One, not guilty, okay, Count Three, personal use, not guilty,
Count Five, not guilty, we don’t have credible evidence on the .38s, which we
require, okay, and Count Six, not guilty. Thank you.” Tr. of Jury Trial, R. Vol. 7
at 48.

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 Because Jeffrey challenges the conspiracy conviction on the ground that

hearsay testimony was improperly allowed, the following summary of the

testimony of the prosecution’s witnesses consists almost exclusively of testimony

which is not specifically challenged in Jeffrey’s brief on appeal.

B.

1. Jesse Spencer. Jesse Spencer testified as follows. In August 2002 he

was introduced to Bob Dodge (Jeffrey’s codefendant) for the purpose of

purchasing a pound-and-a-half of methamphetamine for $13,000 to $14,000, for

distribution to and through Tina Stillman, and two others, Steve and Chris, from

Sheridan, Wyoming. Dodge drove Spencer to a Motel 6 in Casper where, on a

second visit, Dodge took $10,000 from Spencer, went into the motel, and returned

with a one-pound cylinder of methamphetamine packaged in layers of plastic wrap

with grease in between. Spencer paid Dodge with an eighth of an ounce, and

Spencer kept an ounce for his efforts.

Within a few days the same scenario was repeated at the motel. This time

Spencer purchased a quarter-pound of methamphetamine for $3000. He gave a

small amount to Dodge, used part, and sold part to various customers, one of

whom was Jeffrey. A few days later the scenario was repeated except that this

time Dodge took Spencer inside the motel room that Dodge had entered

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previously. Inside the room Dodge introduced Spencer to two Hispanics, one

named Isidro (nicknamed “Chitto”), and the other unidentified. Dodge gave Isidro

the money Dodge had received from Spencer, and Isidro went into another room,

returned, and gave Dodge a quarter-pound of methamphetamine. Spencer received

the drug, then used and distributed it as in the previous transactions. Spencer,

Dodge, Isidro and the other Hispanic repeated the same process a few days later,

except that Spencer was short $800 of the purchase price and took some of the

drugs on credit (called a “front” or “fronting”) for that amount. Spencer and

Dodge each took half of the drugs. Spencer used part and sold the rest of his half.

On September 13, 2002, Spencer wired the balance owed to Isidro to him at a town

in the state of Washington. The Western Union receipt was admitted into

evidence. During this period of time, Jeffrey was one of Spencer’s “better

customers,” who got drugs from Spencer both for cash and on a front basis. Tr. of

Jury Trial, R. Vol. 4 at 26.

On Spencer and Dodge’s fifth trip to the Motel 6, Spencer again went inside

Isidro’s motel room with Dodge. Isidro was with “another Mexican.” Id. at 34.

This time Isidro made a telephone call and Frank Sisneros (whose photograph was

identified by Spencer in court) soon arrived and was introduced to Spencer.

Sisneros gave his telephone number to Spencer who called Sisneros later in the

day seeking to purchase methamphetamine. Sisneros then came to Spencer’s

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house and fronted him six to eight ounces of methamphetamine which Spencer

broke into smaller amounts for sale at retail prices to secure approximately $5000

to pay Sisneros. Four days later Spencer went to Sisneros’ house to pay him and

obtain an additional supply which he both sold and used as usual. It was during

this time frame that Spencer wired Isidro’s money to him in Washington. This

latter method of operation, purchases from Sisneros for use and resale, was

repeated three or four more times. Jeffrey continued to be a regular customer of

Spencer during this time. Id. at 43.

In late September Spencer placed a call to Isidro’s phone which resulted in

Spencer calling Sisneros in an attempt to make a larger purchase of one or more

pounds. Ultimately Sisneros sold him fourteen ounces on credit, two of which

Spencer distributed to Jeffrey.

Spencer considered the quality of all the methamphetamine he purchased

from Isidro, Dodge, and Sisneros to be very poor. As a result he never intended to

pay for the methamphetamine he was able to get from Sisneros in the last

described transaction. These matters, quality and drug debt, resulted in a series of

heated telephone conversations between Spencer, Isidro, and Sisneros. And, on

one occasion, Isidro, another Mexican, and Sisneros went to Spencer’s house, but

when Spencer looked at his security video monitor and identified who was at the

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door, he did not answer it. Dodge also called Spencer numerous times during this

period regarding the debt to Isidro and Sisneros.

In September 2002 Spencer accompanied Jeffrey to Jeffrey’s attorney’s

office where he saw Jeffrey receive more than $100,000 from his lawyer as a

settlement for the loss of Jeffrey’s leg in an accident. Spencer also testified that

during the course of his dealings with Jeffrey, Jeffrey possessed a .25 or .22

caliber handgun, and Spencer sold him an 810 millimeter handgun.

Finally, Spencer testified that after Jeffrey came into money Spencer had

many conversations with him, knew he was trafficking in methamphetamine, told

Jeffrey they were both being ripped off by Dodge due to the inferior quality of the

drug supply, and that on a visit to the residence occupied by Jeffrey and his

girlfriend Maryann Montoya, he observed notebook records of drug transactions

and saw Montoya writing in the ledger. He also testified that he purchased small

amounts of methamphetamine from Jeffrey at least twice, both on front.

2. Elizabeth Morgan. Elizabeth Morgan testified as follows. During

August and September 2002, she was a purchaser and user of methamphetamine,

and she came to know Dodge, Jeffrey, Montoya, and Spencer, among others. She

also obtained methamphetamine from Jeffrey and others. She stayed for awhile

with Jeffrey and later at a place occupied by Jeffrey and Montoya. During that

time she saw Jeffrey on multiple occasions in possession of and distributing

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methamphetamine, with one quantity being as large as a softball. She heard him

complain that people owed him money. She stated that Dodge came to the house

and she heard them conversing about methamphetamine, including its source and

quality. She also observed Jeffrey in possession of a .22 or .25 semi-automatic

pistol which he kept on the table where the drugs were. Finally, Morgan testified

that while at her friend Lori Carson’s house she saw on the surveillance video

monitor a man, 55 or older, at the back door. He was identified as “Mexican

Frank.” Id. at 97. Morgan became aware that he was looking for Jeffrey, but

Spencer, who was there, also appeared to be avoiding him. Id. In court, Morgan

identified a picture of Frank Sisneros as the one known as Mexican Frank. She

also identified Dodge at counsel table.

3. Maryann Montoya. Maryann Montoya testified that during the period

in question she was a user and dealer of methamphetamine in association with

Jeffrey. She knew and, with Jeffrey, had dealings with Dodge, Sisneros, Spencer,

Jeremiah Carson, John Burnite, Jeremy Bramson, James Rice, Kenny Smith,

Robert Scot Clark, and numerous others. She began a live-in relationship with

Jeffrey in September 2002, married him in December 2002, and divorced him in

July 2003. She testified at length about Jeffrey’s drug dealing, including his

confederates, through December 10, 2002, when she was arrested after her car

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which she was driving, with Jeffrey and Liz Breeden as passengers, was pulled

over.

Montoya testified that Jeffrey had about $105,000 in cash which he used to

purchase home furnishings, vehicles, and methamphetamine. The significant

quantity purchases of methamphetamine followed conversations and association

with Bob Dodge. The first transaction involved $10,000 for a pound of

methamphetamine. Jeffrey and Montoya in their car met Dodge in his. Montoya,

who, by agreement with Jeffrey, usually carried the cash and a gun, gave Jeffrey

$10,000 and, at his request, Jeffrey’s .25 caliber pistol which she had in her bag.

Jeffrey then got into Dodge’s car and left Montoya to wait in a convenience store

parking lot. Dodge brought Jeffrey back with a pound of methamphetamine

wrapped in a cylindrical shape inside alternating layers of saran-like wrap and

grease. Montoya and Jeffrey then broke the pound into smaller, bagged amounts

for distribution and sale, using scales to weigh out specific amounts. Montoya

carried the merchandise and Jeffrey distributed it. 4 Id. at 128-30. In short, then

4
The following testimony by Montoya is illustrative:

A. It was like I would weigh up, you know, and he would be handed
cash and I would be handed the methamphetamine and he would give
me the money and he would—I would put it in my bag and he would
give the person the drugs.

Tr. of Jury Trial, R. Vol. 4 at 130.

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and thereafter, they worked together, interdependently, including Montoya’s

maintenance of a drug ledger of their sales and distribution, showing amounts paid

and owed. Spencer stated in his testimony that Montoya kept the ledger because

she was the more literate of the two. As indicated above, the ledger and scales

were introduced into evidence.

About a week after the transaction just described, Jeffrey and Montoya

contacted Dodge to get another pound for $10,000 and were directed to go to

Dodge’s trailer. When they arrived, Dodge introduced them by name to his source,

Frank Sisneros (identified by Montoya in court by his picture). Montoya and

Jeffrey gave Dodge the money, and Dodge went into a back room with Sisneros

and returned with the pound of methamphetamine which he gave to Jeffrey. The

pound was in the usual packaging, described above. The almost identical scenario

and amounts occurred about a week later at Dodge’s trailer, except that this time

Montoya and Jeffrey dealt directly with Sisneros. They told him they wanted two

pounds, rather than one, whereupon Sisneros left, returning in about twenty

minutes with two pounds of methamphetamine for which Montoya and Jeffrey paid

him $20,000. Again, the packages were wrapped in the usual distinctive manner,

similar to that described by Spencer in his dealings with Isidro and Dodge.

Subsequently, Montoya and Jeffrey broke, weighed, and bagged the supply into

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smaller amounts which they sold and distributed mainly to John Burnite, 5 Jeremy

Bramson, Jeremiah Carson, and James Rice—individuals whose names crop up at

various points in the testimony, and all of whose names appeared in Jeffrey’s drug

transaction ledger, among others.

About a week-and-a-half after the two-pound purchase, Dodge called Jeffrey

on behalf of Sisneros, soliciting further purchases. That led to a one-half-pound

purchase of methamphetamine by Jeffrey and Montoya from Sisneros at Dodge’s

trailer. That amount was also both used and distributed by Montoya and Jeffrey.

Montoya stated that during this series of transactions she saw Jeffrey with at

least four guns which he kept within reach of where he was distributing drugs: in

his lap, sitting next to him, on the bed, and in Montoya’s bag. The firearms

included the .25 caliber, two 9 millimeters, and a big Colt revolver.

About a week after the half-pound transaction, Dodge came to Motel 6

where Montoya and Jeffrey had temporarily taken a room, in addition to having

their apartment, and told them the Mexicans from Washington were back and were

at the motel. Id. at 143. He purchased some crystal methamphetamine from

Jeffrey. Jeffrey and Montoya subsequently advanced him $3000 to purchase

The individual in question was known both as John Burnite and John
5

Faulkner. We use Burnite when referring to him.

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methamphetamine from the Mexicans, but Dodge only delivered part. Id. at

145-46.

Shortly thereafter, officers spotted Montoya at the apartment she and Jeffrey

occupied and sought entry into the apartment from Jeffrey, who answered the door

when they knocked. Upon inquiry, he denied Montoya was there, but let the

officers in. They found Montoya hiding in a closet and arrested her on an

outstanding warrant for probation revocation. Subsequently, Jeffrey was charged

with interference because he lied to the officers about Montoya’s presence in the

apartment.

After Montoya’s arrest at the apartment, she told the police, including, in

short order, Agent Brad Wnuk, about the methamphetamine trafficking in which

she was involved. That discussion implicated the Mexicans from Washington

staying at Motel 6, including a description of their vehicles (as was developed in

testimony, outlined below). Thus, when Montoya was released after a few hours,

she returned to the Motel 6, and immediately observed police conducting

surveillance. She and Jeffrey contacted Jeremiah Carson to come to the motel to

pick them up, which he did. John Burnite, Wanda Mills, and James Rice also

showed up to help. Rice and his girlfriend Autumn were around Jeffrey and

Montoya a lot and were regular purchasers, as was Burnite, for whom Jeffrey

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bought a car. Carson had purchased increasing amounts, up to quarter-pound

quantities. Jeffrey bought him a car.

A few hours after Montoya and Jeffrey departed, the Mexicans from

Washington were arrested and they, Dodge, and Sisneros, ceased to be sources for

Jeffrey’s drugs. So Jeffrey turned to Kenny Smith from whom he purchased a

pound. Thereafter, Jeffrey and Montoya spoke with Carson and, as a result of that

conversation, gave him $7000, and the three drove to the residence of Robert Scot

Clark, a/k/a “Smiley,” where Jeffrey obtained a little less than a pound of

methamphetamine. Montoya and Jeffrey broke up and distributed the amount as

before. Shortly thereafter Montoya and Jeffrey returned to Clark’s apartment

where they consummated a smaller transaction because of limited funds. They saw

more of the drug at the apartment, and were offered more to buy, but had no

money for more. As usual, for the amount purchased, Montoya gave Jeffrey the

money, and Jeffrey gave it to Clark.

Montoya, Jeffrey, and Liz Breeden subsequently went to the apartment of

Justin Marshall and his girlfriend Shannon (a different individual than Shannon

Jackson whose testimony is outlined below) to collect a drug debt Marshall owed

to Jeffrey. Having no cash, Marshall paid part in goods, including two .38 caliber

revolvers which are the subject of Count 5 of the indictment. Montoya put one

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gun in her bag and Jeffrey took the other gun, which he put under his seat in

Montoya’s truck.

A short time later, on December 10, 2002, they were pulled over by the

highway patrol, resulting in the arrest referred to above. Montoya testified that as

the police approached, both she and Jeffrey passed their guns to Breeden in the

back seat. During an initial search the police recovered one .38 revolver from the

pocket of Breeden’s jacket and the other from under her seat. Those guns were

identified by Montoya and admitted as exhibits in court. Montoya stated that

before the weapons were handed to Breeden, they had both been within easy

reaching distance of the drugs in Montoya’s purse/duffle bag on the driver’s side

floor. Id. at 162-64. The arresting officer testified that both guns were loaded and

ready to fire. Methamphetamine found in Montoya’s duffle bag included that

obtained from Clark the night before.

4. Frank Sisneros. Frank Sisneros testified that he met Isidro and Miguel

(whom he identified at trial by their pictures at the top of the government’s

organizational chart) at a bar in June 2002. That meeting led to another at Isidro

and Miguel’s room at Motel 6 where they asked Sisneros if he wanted to sell

methamphetamine for them. They displayed a pound of the drug packaged in

layers of plastic wrap and grease. Sisneros took an ounce on a front and sold it.

Subsequently, Isidro and Miguel came to Sisneros’ house and supplied him with

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another fifteen ounces. They left, but returned later accompanied by “two other

Mexicans” and Bob Dodge, whom they introduced to Sisneros. Tr. of Jury Trial,

R. Vol. 6 at 39-40. Sisneros had not met Dodge before, but he fronted Dodge two

of the fifteen ounces Isidro had furnished him.

After that, for the next week or two Dodge got more supplies of

methamphetamine, and he also introduced Sisneros to “Jesse.” Thereafter,

Sisneros delivered methamphetamine in varying quantities to Jesse, and Jesse

would pay him. Isidro and Miguel brought Sisneros a pound of the drug, all cut up

into ounces. Isidro distributed at least two pounds by the end of August. Jesse did

not pay for the last eight ounces he obtained, and Sisneros began getting calls from

Isidro and Miguel about the debt, leading finally to the fruitless visit to Jesse’s

house by Sisneros and Isidro in an attempt to collect the debt.

In October 2002 Isidro and Miguel came to Sisneros’ house with four one-

pound packages of methamphetamine to deliver to Dodge. Four or five days later

Dodge showed up in a car with another person in it, later identified by Sisneros as

Jeffrey, id. at 66, and gave Sisneros $10,000 in cash for a pound of the drug.

Three or four days later Sisneros gave Dodge another pound in exchange for

$10,000 cash. In November, in response to a call from Dodge, Sisneros went to

Dodge’s trailer where he was introduced to a “guy with one leg” (identified by

Sisneros in court as Jeffrey), and his “woman,” Maryann. Id. at 52, 57. They

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wanted to purchase two pounds of methamphetamine, not just one. So, Sisneros

went home, got another pound, returned and gave the two pounds to Jeffrey and

Montoya, for $20,000 cash. Three or four days later Miguel and another man came

to Sisneros to collect the $40,000 in cash he had received for the four pounds

described above. After another visit by these men Sisneros learned they were

again staying at Motel 6, and later found out that they had been arrested. Sisneros

also stated that at an earlier time he had visited Isidro and Miguel at the Royal Inn,

and that they also had stayed at the Shilo.

5. Jeremiah Carson. Jeremiah Carson testified that he knew Jeffrey,

Montoya, Spencer, Clark, Dodge and others whose names came up at trial. He

admitted to being both a user and a seller of methamphetamine. He stated that on

one occasion Jeffrey fronted him one ounce of methamphetamine worth $1000,

which he sold. Later Jeffrey supplied Carson with two more ounces and told him

he would give him two more but had to wait until “his dude came over . . . .” Tr.

of Jury Trial, R. Vol 5 at 143. Without objection, Carson said Jeffrey identified

his “dude” as Dodge.

Further, Jesse Spencer supplied Carson on various occasions with two-

ounce to quarter-pound amounts of methamphetamine, and Carson saw Spencer

with as much as a pound of methamphetamine. Carson also related that he and

Spencer called each other on cell phones when they were making drug deals. On

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at least one occasion each, Carson saw Jeffrey with Spencer and Dodge with

Spencer.

On one occasion, Carson was picked up by John Burnite and driven to

Jeffrey and Montoya’s apartment where he was “chewed out” regarding the unpaid

amount he owed Jeffrey for drugs. On that occasion he saw a pound of

methamphetamine, in a cylindrical shape, which Jeffrey broke open and shared

enough for all of them to get high. Subsequently, Bob Dodge came over and spoke

privately with Jeffrey and Montoya, following which Jeffrey fronted Carson

another ounce of methamphetamine. Carson used part and sold part.

Carson testified that Montoya and Jeffrey did deals in motels and that one

time he met them at Motel 6 to pay some of his debt. Rice was also present.

While Carson was there a “Mexican” pulled up and Jeffrey went out and left with

him. Still later Carson moved in with Jeffrey and Montoya for about two weeks.

During that time Jeffrey and Montoya supplied him with methamphetamine,

quantities varying from an ounce to a quarter of a pound. Carson then sold the

drugs, paying Jeffrey in part from the proceeds. Carson observed Montoya

keeping a ledger, in code, of amounts people owed Jeffrey for drugs. Carson also

observed quantities of methamphetamine in the apartment in addition to the

amounts supplied to him by Jeffrey. These quantities included pound amounts,

and included crystal methamphetamine as well as chud (also known as “crank,” a

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lower grade than crystal methamphetamine). He also saw various people,

including Rice and Burnite, come to the apartment and receive methamphetamine

in varying amounts.

As previously mentioned, Dodge also came to the apartment. Notably, on

one occasion Jeffrey ran out of drugs. Dodge came to the house and after he left,

Jeffrey had a supply, two ounces of which he gave to Carson.

On November 23, 2002, Carson received a call from Jeffrey asking him to

pick up Jeffrey and Montoya at Motel 6 because of intense police activity there.

When Carson arrived he saw Jeffrey and Montoya putting everything they had in

the motel in Jeffrey’s car. Rice was also there. Jeffrey and Montoya got in

Carson’s vehicle and he observed that they were “freaked out” and “scared.” Id. at

168. After that date Carson did not think Jeffrey’s drug source was active

anymore. About a week after the motel exodus, Carson told Jeffrey that he might

have an even better source, “Smiley, my friend Scot Clark.” Id. at 171. Carson

had dealt with him before.

Jeffrey agreed and Carson went to Clark’s place and got fronted two ounces

of methamphetamine. He told Clark that if Clark would sell pound quantities

cheap Carson might be paid by Jeffrey with a car. Carson then agreed on a price

of $7000 to $8000 per pound to be paid by Jeffrey. Later Carson got $1000 from

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Montoya as part payment for the two ounces he got from Clark, and he paid it to

Clark.

Carson testified that he went with Jeffrey and Montoya to a place a few

apartments away from Clark’s house. Clark, Jeffrey, whom Clark knew, Montoya

and Carson were present (Carson learned introductions were unnecessary). Carson

stated that Clark pulled a pound of methamphetamine from his pocket, Jeffrey

gave him the money, and Clark gave Jeffrey the drugs—less an ounce or more to

account for the unpaid amount previously fronted through Carson. Jeffrey then

gave Carson the drugs to sell and bought him a car.

Carson testified further that he had often seen Jeffrey with guns within

arm’s reach during his drug transactions. Those guns included a .38 and a 9

millimeter Hi-Point which Jeffrey lent to Carson from time to time to carry with

him on his drug runs for personal protection and to protect the drugs.

Finally, Carson stated that he had observed Jeffrey and Montoya, especially

Montoya, using scales to weigh out quantities of methamphetamine, and saw them

with quantities of the drug up to pounds. He estimated that overall he distributed

about a kilo of methamphetamine for Jeffrey.

6. Robert Scot Clark. Robert Clark testified that he was a major dealer in

methamphetamine; that in November 2002 Jeremiah Carson asked him to sell to

Jeffrey; and that, subsequently, Carson, Montoya and Jeffrey came to his house

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and he sold Jeffrey a pound of methamphetamine for $7000. Montoya weighed the

drugs on scales she and Jeffrey brought with them. Subsequently, in December,

Clark sold an additional amount to Jeffrey.

7. Autumn Williams. Autumn Williams testified that she and Rice

purchased methamphetamine from Jeffrey, mostly on credit, and that on one

occasion she saw a large amount of the drug at Montoya and Jeffrey’s apartment.

8. Keith Wilhelm. Officer Keith Wilhelm of the Natrona County Sheriff’s

Department testified that on November 23, 2002, he participated in the

surveillance of the two Hispanic males being investigated by Agent Brad Wnuk.

The surveillance took place at Motel 6, the same motel where Jeffrey and Montoya

had a room, and Dodge had visited in November 2002, and from which Jeffrey and

Montoya, seeing police activity, hurriedly departed in Carson’s vehicle on

November 23, 2002.

Officer Wilhelm stated that the surveillance revealed three, not two,

Hispanic males and two vehicles with State of Washington license plates, with

registrations from Othello, Washington, belonging to them. During the

surveillance the individuals being investigated drove around Casper and, among

other things, met with Frank Sisneros.

Later in the evening of November 23 officers stopped one of the vehicles as

it left an Albertson’s parking lot. The three males inside the vehicle were

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identified as Victor Manuel Colmenares, Miguel Angela Pena-Ramos, and Isidro

Rodriguez-Pena—all of whom were identified by Wilhelm in court by way of

photographs. The car and its occupants were at first allowed to proceed, then

stopped again a short time later, and the occupants were arrested, and turned over

to Agent Wnuk.

Officer Wilhelm testified further about his participation with Agent Wnuk

and other officers in a search of the Hispanics’ motel room the next day,

November 24. He also assisted in a search of Robert Scot Clark’s residence on

December 11, 2002. That search turned up methamphetamine, packaging materials

for drugs, and a cell phone, from which officers produced a page-and-a-half record

of calls. Wilhelm further stated that Clark’s cell phone had numbers on it for

Carson, a/k/a “Miah,” Paul Rodriguez, a/k/a “Pablo,” who was Carson’s friend and

primary customer, and Jeffrey and Montoya. Clark’s phone also showed that

Jeffrey had made a call to Clark earlier that day, December 11.

During the search in question, Wilhelm also found and examined a Palm

Pilot which revealed some addresses and phone numbers and code for amounts,

and a notebook with what appeared to be figures showing amounts paid and owed,

all of which the officer associated with drug transactions.

9. David Keane. David Keane, a state highway trooper, testified that on

December 10, 2002, he had cause to detain a specific automobile which he had

-23-
previously spotted and pulled over. The vehicle was being driven by Montoya,

who, it was discovered, owned it. Jeffrey was in the front passenger’s seat, and

Liz Breeden was in the back seat. Breeden was arrested when the officers found

her in possession of a loaded .38 caliber revolver, which she had in her pocket,

and also on outstanding warrants. The officers found another loaded .38 caliber

revolver under her seat. Officers determined that the two guns had been stolen.

After an initial search revealed drugs and paraphernalia in the duffle bag/purse

which was on the driver’s side floor of the vehicle, Montoya was arrested for

possession of a controlled substance. A full search of the bag and materials

concealed on Montoya’s person ultimately turned up three bags, two containing

marijuana, and the third containing a large rock of methamphetamine. Keane and

another officer testified that upon a later detailed search of Montoya’s bag, the

police found hypodermic needles, 30-40 one-inch baggies which were typical of

use for retail drug distribution, marijuana, chud, methamphetamine, and crystal

methamphetamine, which together weighed approximately 32 grams.

10. Aaron Shatto. Deputy Aaron Shatto testified that on December 14,

2002, he was notified that Jeffrey, who by that time had an outstanding warrant on

the charge of interfering with an officer, was in the parking lot of the Natrona

County Detention Center where he had gone to bail Montoya out of jail. When

Officer Shatto arrived, he arrested and handcuffed Jeffrey, then conducted a search

-24-
of his vehicle. The search turned up drug paraphernalia (pipe and spoon), baggies

in the ashtray containing marijuana, and what the officer field-identified as more

than three grams of methamphetamine. He also found $546 in cash in Jeffrey’s

possession.

11. Shannon Jackson. Shannon Jackson, a methamphetamine user and

seller, was Jeffrey’s friend and lived with him for a time during which she

purchased drugs from him. During that time she also drove him around, “helped

him deal and I carried a gun for him for protection.” Tr. of Jury Trial, R. Vol. 5 at

105. She testified further that 90 percent of the time that she was with Jeffrey he

had a gun in his possession, “[u]sually sticking it on the table, so like an

intimidation factor . . . [toward] whoever was in the room.” Id. Subsequently,

Jackson was arrested and jailed for forgery and possession.

In March 2003, at the behest of police, Jackson was fitted with a wire and

went to the Colonial Motel to effect a controlled buy of methamphetamine from

Jeffrey. When she arrived there was a Hispanic male in the room. He went into

the bathroom and did not reappear. Jackson then purchased from Jeffrey both

chud and crystal methamphetamine, similar to types of the drug she had previously

seen in Jeffrey’s possession in the same motel room. The drugs were in plastic

bags. Jackson then left and returned to the police station where she delivered the

drugs to Agent Brad Wnuk. Jackson testified that on the various occasions when

-25-
she had purchased methamphetamine from Jeffrey she sold part “[b]ecause that’s

how I got my drugs.” Id. at 119.

12. Motel, Telephone, and Western Union Records. The government

called five witnesses qualified to authenticate motel registrations and records for

Motel 6, Quality Inn, Super 8, and Royal Inn motels in Casper, Wyoming, and the

Shilo Inn motel in Evansville, Wyoming, close to Casper. The records, and in one

instance, personal observation, established numerous visits from June through

November by, variously, individuals with addresses in Othello, Washington, fairly

identified by these addresses and name variations as Isidro Rodriguez-Pena,

Miguel Angela Pena-Ramos, Victor Colmenares, Montoya and Dodge, as well as a

Leticia Cervantes and a Mariselva Ponoe. One of the witnesses identified

registrations and records showing that Spencer (who had a residence in Casper)

had stayed at the Quality Inn (formerly the EconoLodge) four times during August,

September and October 2002, and that Robert Dodge (who also had a residence in

Casper) had taken a room at the same time Spencer was there on October 18-19,

2002. In the instances described above, the registrations and records were

introduced into evidence. Telephone records associated with statements for the

rooms were also admitted into evidence.

The government also called three witnesses representing various telephone

and cell phone carriers, and they identified calls to and from telephone or cell

-26-
phone numbers associated with Dodge, Spencer, Isidro, Miguel, and Sisneros.

Agent Wnuk, in separate testimony, summarized the interconnection between the

calling numbers, including numbers for Jeffrey and Montoya.

13. Brad Wnuk. The government called Sergeant Brad Wnuk of the

Casper Police Department as its final witness. During the time period in question

Officer Wnuk worked as a special agent with the Central Enforcement Team of the

Wyoming Division of Criminal Investigation, focusing on controlled substance

offenses.

Agent Wnuk described how he became involved in the investigation, arrests,

applications for search warrants, and searches in this case. On November 23,

2002, Montoya, who had been arrested on an outstanding warrant at the apartment

she shared with Jeffrey, expressed a desire to speak to someone regarding what she

knew about methamphetamine trafficking. She was brought to Agent Wnuk,

where she told him of multiple pound transactions involving Jeffrey, Dodge, and

Sisneros, and that methamphetamine was coming from some “Mexicans” from

Washington. She indicated that they were staying at Motel 6. As a result, Wnuk

activated officers to begin surveillance on the motel and the two vehicles

described by Montoya as belonging to the men from Washington. Shortly

thereafter the surveillance team grew from three agents to six, including agents

from the DEA and INS.

-27-
 Agent Wnuk went on to describe the vehicle stop and arrest of Victor

Manuel Colmenares Salcedo, Isidro Rodriguez-Pena, and Miguel Angel Pena-

Ramos, and the seizure of cell phones in the possession of Isidro (on the account

of Leticia Cervantes) and Miguel (on the account of Augustina Pena). Phone

numbers for both were identified and matched by Wnuk in court to telephone

records earlier introduced into evidence. The agent then tied Sisneros’ phone

number to that found on calls on Isidro’s cell phone, and in his phone book. A

piece of paper later seized from one of the suspect’s vehicles also had Bob

Dodge’s number written on it.

Next, Agent Wnuk described the search of the suspects’ room at Motel 6. It

revealed methamphetamine and other controlled substances. He also stated that a

search of the suspects’ truck revealed places in the gas tank and dashboard which

had been altered so that they could be used to contain and conceal goods

(including drugs, money or both). Papers in the truck traced it to 370 South

Reynolds Road, Othello, Washington, Isidro’s address.

Subsequently, as the testimony went, Bob Dodge’s house at 16 Cacti was

searched, and officers seized telephone bills and a list of long-distance calls for

that address. The stop and search of Montoya’s vehicle was also described, and,

based on information received from Montoya, Robert Scot Clark’s residence was

placed under surveillance, during which James Rice drove by and was later

-28-
arrested on an outstanding warrant. Based on information (not detailed in the

testimony) obtained from Montoya and Rice, Agent Wnuk obtained a warrant,

searched Clark’s residence and, later, interviewed Clark.

The government then introduced through Agent Wnuk summary exhibits

depicting telephone calls to and from the residences and cell phones of Isidro,

Miguel, Dodge, Spencer, Sisneros, and Jeffrey. Over the period of time in

question, the number of calls was very substantial, sometimes running into the

hundreds and, at one point, October 19-24, there were so many calls involving the

phones of Isidro, Miguel, Dodge, Jeffrey, and Spencer the agent “couldn’t even

count them all.” Tr. of Jury Trial, R. Vol. 6 at 170. He stated that it would take

“several days to compile the data. You can look at it and see it [from looking at

the lists of calls shown on phone records in evidence], but I can’t explain it

without just giving everybody a headache.” Id. The calls showed interconnection

among the phones in question, and, notably, Agent Wnuk pointed out a pattern of

calls from one phone to another within a very short time, sometimes minutes,

around some of the significant dates and events identified in the testimony set out

above.

Agent Wnuk also testified at length regarding the controlled buy of

methamphetamine from Jeffrey by Shannon Jackson in March 2003 and the

interview with Jackson leading to that event.

-29-
 Finally, Agent Wnuk related that in April 2003 he went to Jeffrey’s motel

room along with probation and parole personnel. Wnuk searched the room and

found controlled substances, and arrested Jeffrey for possession of a marijuana

pipe. At the end of the encounter, but not in response to any questions from the

officers, Agent Wnuk testified that Jeffrey said he “was a big boy and he could do

his time.” Id. at 186.

DISCUSSION

A.

Jeffrey challenges the admission of certain testimony on various grounds,

including hearsay which was not subject to any exception or exclusion under the

Rules of Evidence; improper vouching for the credibility of witnesses; allegedly

prejudicial testimony about uncharged misconduct relating to Jeffrey’s possession

of guns, and prior acts of violence; and the allegedly improper testimony of Agent

Wnuk about the single inculpatory statement made by Jeffrey.

We review evidentiary rulings by the district court under the deferential

abuse of discretion standard. United States v. Davis, 40 F.3d 1069, 1073 (10th

Cir. 1994). We give heightened deference to the trial judge’s decisions when

reviewing hearsay determinations. United States v. Hernandez, 333 F.3d 1168,

-30-
1176 (10th Cir. 2003), cert. denied, 540 U.S. 992 (2003); United States v. Jones,

44 F.3d 860, 873 (10th Cir. 1995).

We review any non-constitutional errors in the admission of evidence under

the harmless error standard. A non-constitutional error, such as a decision whether

to admit or exclude evidence, is considered harmless “unless a substantial right of

[a] party is affected.” See Fed. R. Evid. 103(a); Fed. R. Crim. P. 52(a); see also

United States v. Velarde, 214 F.3d 1204, 1211 (10th Cir. 2000). We have defined

an error affecting a substantial right of a party as “an error which had a

‘substantial influence’ on the outcome or [which] leaves one in ‘grave doubt’ as to

whether it had such an effect.” Velarde, 214 F.3d at 1211 (quoting United States

v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946))). We review the record as a whole. The

government bears the burden of proving that an error is harmless. Id.

Finally, we review de novo whether any constitutional error was committed,

United States v. Sarracino, 340 F.3d 1148, 1158-59 (10th Cir. 2003), cert. denied,

124 S. Ct. 1105 (2004), and any non-structural constitutional error for

harmlessness beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18,

24 (1967); United States v. Gomez, 67 F.3d 1515, 1528 (10th Cir. 1995).

1.

-31-
 Excluding arguments regarding Agent Wnuk’s testimony, which we treat

separately below, Jeffrey’s brief contains five pages of allegedly inadmissible

hearsay statements, objected to at trial, from Spencer, Montoya, Clark, Carson,

David Young, and Sisneros. Appellant’s Br. at 8-12. The statements are all in the

same vein; so, as examples, we repeat the challenged statements of the first three

witnesses listed in the appellant’s brief as follows:

Jesse Spencer testified, among other things, that:

C Dodge said he “could provide [Spencer] with ‘some weight’ in
drugs.”
C Dodge said “that his source for methamphetamine were some
‘Mexicans.’”
C Dodge said “smaller amounts had to go through Sisneros.”
C Sisneros said he “called Washington about drugs, and the
Washington source called Spencer and said to go to Frank
Sisneros’ house.”
C Sisneros said his drug sources were Isidro and Damian.
C Dodge said that “the debt he owed the ‘Mexicans’ would be
added to his debt.”

Appellant’s Br. at 8-9.

Maryann Montoya testified, among other things, that:

C James Rice told Jeffrey that “he should not allow people to
nickel and dime him, that his money would be gone fast and he
should go in bigger quantities.”
C Dodge said he “could get Mr. Jeffrey a pound of
methamphetamine, that there were two different kinds and he
could get a pound of each.”
C Dodge said “his source was ‘Mexicans.’”
C Dodge told Sisneros that Jeffrey and Montoya “were the ones
buying the pound with cash up front.”

-32-
 C Dodge said he “owed $10,000.00 and was accountable for the
$10,000.00 because he had introduced an individual to them
who did not pay [and] he was afraid of being killed.”
C She “talked to the police and told the police of the one or two-
pound transactions that they were involved with.”
C Jeremiah Carson said that “he would set it up with Smiley
[Clark] and we would go over to the apartment to meet him and
purchase methamphetamine.”

Id. at 9-10.

Robert Clark testified, among other things, that:

C Jeremiah Carson told him Jeffrey and Montoya were his source
for the methamphetamine he was selling, and that they would
pay high dollar for some methamphetamine.

Id. at 10.

It could be argued that many of the statements objected to were admissible

on grounds that they were not offered for the truth of the matter stated or on other

grounds. Most of these, for example, are simply direct testimony of the witness as

to his or her actions which also involved other individuals, places, conduct, and

personal perception. 6 Or, they could be admissible as part of the res gestae, to

give context to or explain the actions the witnesses took, or as an admission of a

party admissible under Fed. R. Evid. 801(d)(2)(A). But the main battleground in

6
See United States v. Mobile Materials, Inc., 881 F.2d 866, 871 (10th Cir.
1989) (“The direct testimony of a conspirator . . . describing his participation in
the conspiracy and the actions of others is not hearsay, and the cases concerning
co-conspirator hearsay under Rule 801(d)(2) are inapplicable.”); United States v.
Smith, 692 F.2d 693, 697-98 (10th Cir. 1982) (“Rule 801(d)(2)(E) . . . [is]
irrelevant to the direct testimony of a coconspirator.” (emphasis in original)).

-33-
the briefs, especially the government’s brief, is whether the bulk of the statements

were admissible under the coconspirator exclusion to the hearsay rule provided in

Fed. R. Evid. 801(d)(2)(E). As relevant here, that rule provides for the admission

of an out-of-court statement “by a coconspirator of a party during the course and

in furtherance of the conspiracy.”

This exclusion comes with requirements. In admitting purported

coconspirator testimony as non-hearsay, a district court must determine that the

statements fall within Fed. R. Evid. 801(d)(2)(E)’s definition. Bourjaily v. United

States, 483 U.S. 171, 175 (1987). In this circuit, a trial court must find that (1) by

a preponderance of the evidence a conspiracy existed, (2) the declarant and the

defendant were both members of the conspiracy, and (3) the statements were made

in the course of and in furtherance of the conspiracy. United States v. Owens, 70

F.3d 1118, 1123 (10th Cir. 1995) (citing United States v. Urena, 27 F.3d 1487,

1490 (10th Cir. 1994)). These factual determinations can be made in two ways.

The district court may hold what is usually referred to for shorthand purposes as a

“James” hearing 7 outside the presence of the jury. Owens, 70 F.3d at 1123. Or, it

may admit the statements on the condition that the prosecution “connect up” the

evidence and prove the existence of the predicate conspiracy through trial

7
Following the requirements discussed in United States v. James, 590 F.2d
575, 582 (5th Cir. 1979).

-34-
testimony or other evidence. Id. Subject to the exception discussed below, a trial

court’s failure to make Rule 801(d)(2)(E) findings on the record is an abuse of

discretion. United States v. Rascon, 8 F.3d 1537, 1539 (10th Cir. 1993). In such a

case, we are to first assume that the challenged statements are inadmissible, then

assess whether their admission was harmless error. United States v. Perez, 989

F.2d 1574, 1581 (10th Cir. 1993). When a trial court fails to make on-the-record

findings and the admission of the coconspirator hearsay is not harmless, we can

retain jurisdiction and remand to the district court to make the 801(d)(2)(E)

findings it failed to make in the first instance. Id. If it does so, the conviction

stands, subject to further review of the trial court’s findings by this court if such

review is sought by the defendant. Such a review would be under the abuse of

discretion standard applicable to rulings on the admission of evidence generally.

If, however, the trial court determines that the 801(d)(2)(E) findings have not been

established, a new trial is necessary. Id.

Compliance with the coconspirator statement exclusion in this case is

problematic. On the one hand, Jeffrey correctly points out that the district court

did not formally and in specific words make the required findings on the record

during the trial, despite objections from Jeffrey’s counsel on hearsay and

confrontation grounds. On the other hand, the government correctly points out

that prior to trial the court did hold a James hearing on a motion by counsel for

-35-
Sisneros, and entered on the consolidated record in this case an eleven-page order

making the required findings, including a finding that:

A conspiracy to distribute methamphetamine existed between
[Sisneros], Brian Thomas Jeffrey, Robert Dodge, Jesse Spencer,
Marianne [sic] Montoya, Isidro Rodriguez-Pena, Miguel Pena-Ramos,
Victor Colnares-Saucedo [sic], James Rice, Frank Spencer, Heather
Carrillo, Elizabeth Morgan, and Robert Scott [sic] Clark. The
conspiracy existed between June 2002 and May 2003.

Order on Def’s [Frank Sisneros] Mot. for a James Hr’g, No. 03-CR-109-2B, at 8

(D. Wyo. July 29, 2003).

As shown by the district court docket, and not disputed by Jeffrey, the order

was entered on the consolidated docket of this case relating to all the indicted

defendants, and a copy was provided to counsel for each defendant, presumably

including counsel for Jeffrey. Furthermore, neither prior to nor at trial was any

comment, motion, or objection made by Jeffrey’s counsel as to the applicability of

the court’s findings to Jeffrey. Nor did Jeffrey’s counsel even allude to any

coconspirator hearsay findings required under the rules during the trial or in his

motion for acquittal at the close of the trial, with one exception. Perversely, when

the government put on a witness, Timothy David Young, peripheral to the

conspiracy, and began asking him about who introduced him to Jeffrey, Jeffrey’s

counsel spoke up at that time and told the court that as to that witness’s testimony

“ . . . maybe I can also suggest this is [an] 801(E)(2)(E) [sic] statement. I think we

may need to have a hearing in this regard.” Tr. of Jury Trial, R. Vol. 5 at 208.

-36-
 The government argues that under these circumstances the court’s James

hearing findings in response to Sisneros’ motion satisfy the requirements of the

coconspirator statement rule for Jeffrey’s trial. Notably, Jeffrey’s Reply Brief

does not address these arguments.

Nevertheless, the problems with the government’s position are manifold.

Neither Jeffrey nor his counsel were at Sisneros’ James hearing; 8 and, the court’s

order was specific only as to hearsay statements made by the coconspirators to

DCI agents and the testimony was not presented in that fashion at trial. More

particularly, neither the district court nor government counsel displayed the

slightest indication at Jeffrey’s trial that hearsay objections by Jeffrey’s counsel to

coconspirator hearsay statements were countered by the Sisneros James Hearing

Order. Rather, to the contrary, as the following statement made by the district

court to the jury toward the beginning of Spencer’s testimony (the first witness)

indicates, the court had in mind that the required findings were yet to be made.

[W]hen counsel has risen and said objection[,] 802, what they’re
referring to is a rule of evidence, which is number 802. And it
basically says that hearsay statements, which are statements out of
court, not in the presence of the defendant, may not be received unless
those statements are received in the course of a conspiracy. And
they’re objecting on the ground there isn’t evidence of conspiracy. I
think [the witness] is in the process of laying it, and, therefore, I have
received these statements.

8
The appellant’s brief raises no due process issue as to whether Jeffrey’s
right to be present at every stage of the proceedings is implicated.

-37-
Tr. of Jury Trial, R. Vol. 4 at 23-24 (emphasis added). Government counsel was

silent regarding the court’s statement, evincing acquiescence.

Jeffrey’s argument is, at most, a matter of form over substance. Most of the

arguably challengeable statements are coconspirator hearsay on their face, and it is

crystal clear from the record that, if reminded about or challenged as to the rule’s

requirements, the district court would have instantly made the necessary findings

on the record. Indeed, Jeffrey’s counsel essentially concedes that he was not

prejudiced by the lack of a formal finding.

Furthermore, while Jeffrey seeks a remand due to the district court’s

technical oversight, our research reveals remand to be an extraordinary remedy. In

the eighteen years since the Supreme Court held in Bourjaily that 801(d)(2)(E) was

firmly rooted and required no separate inquiry into reliability of coconspirator

statements, Bourjaily, 483 U.S. at 182, literally hundreds of cases dealing with this

issue have been decided. Of these, only a minuscule number were remanded or

reversed due to a trial judge’s failure to make formal 801(d)(2)(E) findings. In our

circuit, we found only one such case, Rascon, 8 F.3d at 1541, where we remanded

for findings because of the unusual state of the evidence. Id. at 1540. Notably,

our search indicates that the remand did not change the result for the defendant.

Similarly, of the handful of cases remanded in the past eighteen years by our sister

-38-
circuits for the failure to make 801(d)(2)(E) findings, we found very few cases in

which a defendant’s conviction was overturned as a result.

As noted above, it is generally an abuse of discretion for a trial court to

admit coconspirator statements without making explicit 801(d)(2)(E) findings. 9

However, we have held that “a case could arise in which the record demonstrates

without any question that the trial court did make the requisite inquiry [under

801(d)(2)(E)] even though no formal findings appear. . . . In [this] event, a

remand would not be necessary.” Perez, 989 F.2d at 1582 n.3. This is such a case.

The pretrial James hearing as to Sisneros enabled the judge to evaluate the

evidence relating to all the conspirators, and that evidence was not significantly

different from that actually offered at Jeffrey’s trial.

Alternatively, assuming, arguendo, that the judge committed error by

admitting these coconspirator hearsay statements, we conclude that the error was

harmless. The extensive direct testimony set out in detail above made

substantially the same points as the challenged testimony. That direct testimony

was independently corroborated by evidence of drugs, drug paraphernalia, guns,

motel registrations, telephone records, pay/owe ledgers, scales, vehicles fitted with

9
Our cases do not describe any particular form of or detail to be included in
such findings. Presumably, they could consist of a single declarative sentence—a
point to be kept in mind when considering the utility of a remand for findings.
See, e.g., Rascon, 8 F.3d at 1541.

-39-
secret compartments for carrying contraband, and more, all linking or reasonably

inferring linkage between and among the coconspirators.

We arrive at the same conclusion as to the passing references in Jeffrey’s

brief, with no developed specific arguments, to (a) evidence by the government as

to proffers (and plea agreements of witnesses who pled guilty and agreed to testify

truthfully in exchange for acceptance of responsibility reductions in offense level

and downward departure motions by the government for substantial

cooperation—see Appellant’s Br. at 14-15); 10 (b) confrontation (on which he cites

no authority, is not witness specific, and which, in any event, in fact was accorded

as to every major point and witness); and (c) other miscellaneous matters. Error,

arguendo, on those points was both harmless and—assuming, again arguendo, that

the standard by some stretch applies—harmless beyond a reasonable doubt.

2.

Agent Wnuk’s testimony is challenged on multiple grounds, including

improper vouching for the truthfulness of the government witnesses to bolster

10
Passing references in the appellant’s brief to proffers/confessions and
related matters do not cite to the record, cite any cases, for instance, regarding the
admissibility of plea agreements (especially when the main defense targeted those
agreements as incentives to lie on the stand), or develop any arguments. Thus, we
do not address them.

-40-
witness testimony, erroneous admission of prior consistent statements, and the

hearsay admission of confessions.

As indicated above, Agent Wnuk, as the lead investigator in this case,

testified at length. During that testimony he related how Montoya, after her arrest

in November, spoke to him and related her drug-trafficking activities in detail,

implicating Dodge, “some Mexicans from Washington,” and others. Tr. of Jury

Trial, R. Vol. 6 at 133. Her statement to Wnuk led to the surveillance at Motel 6

described above. During questioning on this subject government counsel elicited

from Wnuk the statement that he had been present at Montoya’s later proffer, and

that the proffer gave details about the first one-pound purchase involving her,

Jeffrey, Dodge and Sisneros. Id. at 133-34. Montoya had, as set out above,

already testified to these facts at trial, and was cross-examined.

Government counsel did the same thing when he questioned Wnuk about

Clark. Wnuk testified that Clark’s proffer detailed the one-pound

methamphetamine sale, also described above in the trial testimony of Montoya,

Carson, and Clark—all of whom were subject to cross-examination. Id. at 156.

Government counsel did largely the same thing again when questioning

Wnuk about Jesse Spencer. Government counsel said: “I don’t want to go over

that [the statement] piece by piece, the jury’s heard it, but was the statement he

gave on that day consistent with the testimony he gave in court?” to which Agent

-41-
Wnuk responded: “It changed very little.” Id. at 172-73. Defense counsel

objected to all of the above statements.

Prior consistent statements are admissible only if they are made before an

influence or motive to fabricate arises. Tome v. United States, 513 U.S. 150, 167

(1995). A motive to fabricate testimony may arise as soon as a defendant is

arrested, not just after a plea bargain is reached. United States v. Moreno, 94 F.3d

1453, 1455 (10th Cir. 1996).

Likewise, direct testimony which does nothing more than vouch for the

credibility or truthfulness of a witness on a particular occasion, as opposed, for

instance, to giving testimony regarding a witness’s general character or reputation

for truthfulness, is inadmissible. See United States v. Charley, 189 F.3d 1251,

1267 (10th Cir. 1999) (citing authorities).

The statements in question by Agent Wnuk violated both of those rules and

the district court abused its discretion by admitting them. Accordingly, we

evaluate those errors under the harmless error standard, set out above. For reasons

already stated, we conclude the errors were harmless. The evidence, including

independent corroborating facts, overwhelmingly supports the verdict.

-42-
 3.

As outlined above, during the trial witnesses were permitted to testify about

Jeffrey’s possession of multiple firearms, in a variety of settings, in addition to

testimony regarding the .38 caliber revolvers which are the subject of Counts 5 and

6 of the indictment. Jeffrey contends that the admission of testimony regarding

any firearm other than the .38 revolvers violated the four-part test for admissibility

set out in Huddleston v. United States, 485 U.S. 681, 691-92 (1988), including

serving no proper purpose under Fed. R. Evid. 404(b).

We disagree. Rule 404(b) only applies to acts extrinsic to the crime

charged. Evidence of acts intrinsic to, inextricably intertwined with, or a

necessary preliminary to the crime charged, is admissible. See United States v.

Green, 175 F.3d 822, 831 (10th Cir. 1999); United States v. Lambert, 995 F.2d

1006, 1007 (10th Cir. 1993). The use of firearms is a well-established

characteristic of the drug distribution business; and, the use of firearms is

probative of the accused’s participation in the business. Green, 175 F.3d at 831;

United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991). The district

court did not abuse its discretion in admitting the evidence in question.

Jeffrey also challenges, on the same grounds, the admission, on redirect

examination of Montoya, of evidence of a single act of domestic violence—a time

when Jeffrey held a knife to Montoya’s throat. The district court ruled that

-43-
defense counsel opened the door to that inquiry on cross-examination. We

conclude that the district court did not abuse its discretion in allowing the

testimony.

4.

Finally, Jeffrey argues that the district court erred when it allowed Agent

Wnuk to repeat Jeffrey’s statement that he was “a big boy” and could “do [his]

time.” Tr. of Jury Trial, R. Vol. 6 at 186. Jeffrey contends that the statement was

allowed in violation of his Fifth Amendment right to remain silent.

The district court ruled that the statement was voluntarily made and was

admissible. Id. at 182. We review the question of voluntariness de novo, and the

district court’s underlying factual findings for clear error. United States v. Muniz,

1 F.3d 1018, 1021 (10th Cir. 1993). For Fifth Amendment protections to apply,

the suspect must be in custody and interrogation, in some form, must be occurring.

See Yarborough v. Alvarado, 124 S. Ct. 2140, 2147-48 (2004); United States v.

Rambo, 365 F.3d 906, 909 (10th Cir. 2004). If a person voluntarily speaks,

without interrogation, Fifth Amendment protections do not apply. Muniz, 1 F.3d

at 1022. Voluntariness is subject to a totality of the circumstances test. Id.

Ultimately, “[t]he test is whether the person’s will was overcome, or whether the

statement was freely made.” Id.

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 We have reviewed the record and conclude that the district court did not err

by allowing the testimony as a volunteered statement by Jeffrey, not made in

response to interrogation.

B.

Prior to sentencing, the government filed an information charging Jeffrey

with having been convicted in Wyoming state court of narcotics violations on two

prior occasions. Accordingly, at sentencing the district court held a hearing and

found that Jeffrey had two prior convictions as charged. He therefore sentenced

Jeffrey to a term of imprisonment for life as required for repeat offenders by 21

U.S.C. §§ 841 and 851, which provide in pertinent part as follows:

If any person [distributes or intends to distribute 50 grams or more of
methamphetamine, or 500 grams or more of a mixture containing a
detectable amount of methamphetamine] after two or more prior
convictions for a felony drug offense have become final, such person
shall be sentenced to a mandatory term of life imprisonment without
release.

21 U.S.C. § 841(b)(1)(A).

No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial . . . the United States attorney files an
information with the court . . . stating in writing the previous
convictions to be relied upon. . . . The court shall hold a hearing to
determine any issues raised by [the defendant’s] response [to the
information] which would except a person from increased
punishment. . . . The hearing shall be before the court without a jury
and either party may introduce evidence. . . . [T]he United States

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 attorney shall have the burden of proof beyond a reasonable doubt on
any issue of fact.

21 U.S.C. § 851(a)(1), (c)(1).

On appeal, Jeffrey argues that his life sentence violates the Sixth

Amendment because the sentence enhancement procedure of 21 U.S.C. § 851

actually sets forth elements of an offense which must be found by the jury rather

than the judge. 11 He contends that the jury should have found the following

“elements”: that he was the defendant in the prior cases, that there were two

separate convictions, that the convictions involved drug offenses, and that the

convictions were felonies. Jeffrey’s argument was raised in the district court and

is, accordingly, properly before us on appeal.

However, we are unpersuaded. In Almendarez-Torres v. United States, 523

U.S. 224 (1998), the Supreme Court held that recidivism is “as typical a

sentencing factor as one might imagine,” id. at 230 (emphasis added), not an

element of the offense that had to be charged in the indictment or submitted to the

11
Jeffrey does not dispute on appeal the district court’s factual
determinations regarding his prior convictions. The government at sentencing
introduced five exhibits showing that Jeffrey had been convicted of the two prior
drug felonies. Jeffrey, in turn, produced a transcript of the state court
proceedings and argued that it showed that he had one prior felony drug
conviction rather than two. The district court concluded that “it is clear that these
are treated as separate offenses, and consequently, under 21 U.S. Code Section
851 the Court finds that Mr. Jeffrey [sic] is a career offender and that the
provisions of 851 apply in this case.” Tr. of Sentencing Hr’g at 11-14.

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jury. 12 The Court reiterated this principle in Blakely v. Washington, 124 S. Ct.

2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). Blakely, 124 S.

Ct. at 2536 (“‘Other 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.’” (emphasis added) (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000))); Booker, 125 S. Ct. at 756

(“Any fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty

must be admitted by the defendant or proved to the jury beyond a reasonable

doubt.” (emphasis added)).

Jeffrey has provided us with no good reason to deviate from these

authorities when 18 U.S.C. § 851 is applied below. We, and at least one other

circuit, have already concluded that § 851 involves a sentencing enhancement

properly applied by the judge. United States v. Thomas, 398 F.3d 1058, 1063-64

12
We note that in the recent case of Shepard v. United States, No. 03-9168,
544 U.S. __, 2005 WL 516494 (Mar. 7, 2005), Justice Thomas stated that a
majority of the Court now recognizes that Almendarez-Torres was wrongly
decided. Justice Thomas also predicted that Almendarez-Torres would be
overruled sometime in the near future. Shepard, 2005 WL 516494, at *9
(Thomas, J., concurring). Nonetheless, “we are bound by existing precedent to
hold that the Almendarez-Torres exception to the rule announced in Apprendi [v.
New Jersey, 530 U.S. 466 (2000)] and extended to the Guidelines in [United
States v.] Booker, [125 S. Ct. 738 (2005)] remains good law.” Moore, 2005 WL
668813, at *3.

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(8th Cir. 2005) (reviewing § 851 life sentence post-Booker and concluding that

jury need not have found facts of prior convictions); United States v. Wilson, 244

F.3d 1208, 1216-17 (10th Cir. 2001) (reviewing § 851 enhancement post-Apprendi

and concluding that fact of prior conviction need not be submitted to jury).

Our conclusion is further supported by a recent case in which we examined

the prior convictions exception in light of the argument that a jury had to find that

the defendant’s prior crimes were “violent felonies” in order for his sentence to be

enhanced under the Armed Career Criminal Act. United States v. Moore, No.

04-8078, __ F.3d __, 2005 WL 668813, at *1 (10th Cir. Mar. 23, 2005). We

concluded that “the government need not charge in an indictment and prove to a

jury that a defendant’s prior conviction constitutes a ‘violent felony’ under [the

ACCA].” Id. at *5. Our reasoning was based, in part, on the principle that the

determination of the fact of a prior conviction entails many subsidiary findings,

properly made by a judge rather than a jury, that are “intimately related” to the

question of whether a prior conviction exists. The conclusion that a conviction

was for a “violent felony” was just such a subsidiary finding. Id. The reasoning

of Moore forecloses Jeffrey’s argument that the jury should have made findings as

to what he argues are “elements” in § 851. Such questions are “intimately related”

to the overall inquiry into the existence of the prior convictions, and therefore the

findings were properly made by the judge. See United States v. Burgin, 388 F.3d

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177, 186 (6th Cir. 2004) (subsidiary finding under recidivist statute that prior

offenses were committed on “different occasions” need not have been submitted to

a jury); United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (“[T]he

separateness of the convictions is not a fact which is different in kind from the

types of facts already left to the sentencing judge by . . . Apprendi.”). 13

CONCLUSION

For the foregoing reasons, Jeffrey’s conviction and sentence are

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

13
In this case, we need not examine whether the district court committed
non-constitutional Booker error by applying the Sentencing Guidelines in a
mandatory, as opposed to discretionary, fashion. Booker, 125 S. Ct. at 769.
While the court calculated Jeffrey’s sentencing range under the Guidelines as 360
months to life, the mandatory life sentence was imposed pursuant to the statutory
requirements of 21 U.S.C. §§ 841 and 851 and not the Guidelines. See United
States v. Moore, No. 04-8078, __ F.3d __, 2005 WL 668813, at *1 n.1 (10th Cir.
Mar. 23, 2005). We therefore have analyzed only the Sixth Amendment portion
of Booker.

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