United States v. Watson

FILED
United States Court of Appeals
Tenth Circuit

September 11, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 12-5104
VINCENT BRET WATSON,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:11-CR-00166-CVE-2)

J. Lance Hopkins, Tahlequah, OK, for Defendant-Appellant.

Joel-lyn A. McCormick, Assistant United States Attorney (Danny C. Williams,
Sr., United States Attorney, with her on the brief), Tulsa, OK, for Plaintiff-
Appellee.

Before HOLMES, MURPHY, and MATHESON, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Vincent Watson was convicted by a jury of five

counts relating to the cultivation and distribution of marijuana. He raises three

challenges to his conviction on appeal: (1) that his second counsel provided
ineffective assistance by failing to adequately pursue, and communicate with him

about, the possibility of entering into a plea agreement with the government; (2)

that the district court violated his rights under the Speedy Trial Act (“STA” or

“the Act”) by granting the government an ends-of-justice continuance following

his co-defendant’s decision to plead guilty and cooperate with the government a

week before trial was scheduled to begin; and (3) that the district court

improperly admitted testimony regarding Mr. Watson’s previous cultivation and

distribution of marijuana. For the reasons that follow, we reject all three of Mr.

Watson’s claims and affirm his conviction.

I

Pursuant to a five-count indictment, Mr. Watson and his co-defendant,

David Shuck, were charged with: one count of conspiring to manufacture

marijuana in violation of 21 U.S.C. § 846 (Count 1); one count of manufacturing

100 or more marijuana plants in violation of 21 U.S.C. § 841(a)(1) (Count 2); two

counts of using and maintaining a place for the purpose of manufacturing

marijuana in violation of 21 U.S.C. § 856(a)(1) (Counts 3 and 4); and one count

of possessing with the intent to distribute marijuana in violation of 21 U.S.C.

§ 841(a)(1) (Count 5). The conspiracy charged in Count 1 was alleged to have

lasted from sometime in 2010 to approximately July 29, 2011. We set forth only

the factual and procedural background relevant to each of Mr. Watson’s three

2
claims. 1

Following Mr. Watson’s indictment and arrest, Assistant Federal Public

Defender Stephen Greubel was appointed to represent him. Well before trial was

scheduled to begin, Mr. Greubel met with the government on behalf of Mr.

Watson to discuss the possibility of a plea agreement; the government offered to

enter into a plea agreement with Mr. Watson. Under that agreement, Mr. Watson

would be obliged to plead guilty to Count 3—a felony charge of using and

maintaining a place for the purpose of manufacturing marijuana. In return, the

government would, inter alia, dismiss all of the remaining charges in the

indictment against Mr. Watson. Mr. Greubel relayed that offer to Mr. Watson and

explained to him the consequences of pleading guilty. Mr. Watson rejected the

offer, explaining to Mr. Greubel that he did not want a felony conviction on his

record because that could result in the loss of his license to sell insurance.

At the January 6, 2012, pretrial conference, both Mr. Watson and Mr.

Shuck stated that they intended to go to trial. Three or four days later, however,

Mr. Greubel was informed that Mr. Shuck intended to plead guilty and begin

cooperating with the government. Sometime between January 9 and 11, due to

1
Mr. Watson has not challenged on appeal the sufficiency of the evidence to
support his convictions. In crafting our background statement, “[w]e recite the facts in
the light most favorable to the jury’s verdict,” United States v. Berry, 717 F.3d 823, 827
(10th Cir.), cert. denied, --- U.S. ----, 134 S. Ct. 495 (2013); accord Pratt v. Petelin, 733
F.3d 1006, 1009 (10th Cir. 2013), and also draw upon the district court’s unchallenged
factual findings.

3
the changed circumstances, Mr. Greubel again contacted the government to see

whether the opportunity for Mr. Watson to enter into a plea agreement was still

available. The government informed Mr. Greubel that, other than the third base-

offense-level point for acceptance of responsibility that was included in its first

plea offer, the same plea deal previously offered remained available until the end

of business on January 11.

On January 11, Mr. Greubel met with Mr. Watson to relay the terms of the

government’s second plea offer. Again, Mr. Watson stated that he was not

interested in pleading guilty and that he wanted to go to trial. Moreover, Mr.

Watson informed Mr. Greubel that he had retained counsel, W. Creekmore

Wallace, II, to represent him at trial and that Mr. Greubel’s services were no

longer needed. After the meeting, Mr. Greubel called Mr. Wallace and informed

him of the government’s most recent plea offer and of Mr. Watson’s rejection of

it. Mr. Wallace later acknowledged that he learned of the government’s second

plea offer as well as Mr. Watson’s rejection of it, and indicated that he never

personally discussed plea negotiations with Mr. Watson.

The trial was set to begin on January 17, 2012. But, in light of Mr. Shuck’s

recent change of plea and willingness to cooperate, the government moved to

continue the trial pursuant to an ends-of-justice continuance under the STA, 18

U.S.C. § 3161(h)(7)(A). According to the government, debriefing sessions with

Mr. Shuck on January 10 and 11 necessitated that it seek a continuance to further

4
investigate the information that he provided. Specifically, the government

asserted that it required more time (1) to conduct additional debriefing sessions

with Mr. Shuck, (2) to interview numerous individuals identified by Mr. Shuck

that might be material witnesses, and (3) to obtain documents described by Mr.

Shuck. Relying on the government’s three asserted bases, the district court

granted its motion for an ends-of-justice continuance and continued the trial for

thirty-five days, until February 21, 2012. 2

2
Mr. Watson asserts in his opening brief that the continuance granted by the
district court allowed for “an additional 35 days,” from the initial trial date of January 17,
2012 to the new trial date of February 21, 2012. Aplt. Opening Br. at 26. Mr. Watson
does not explicitly identify the reasoning underlying his determination of the number of
excludable days authorized by the court’s continuance order; presumably, Mr. Watson did
not include either the first day (January 17) or the last day (February 21) in his
excludable-days computation in arriving at the thirty-five-day figure. If he had added to
the list of excludable days the first and last days, the number of excludable days would
actually have been thirty-six, instead of thirty-five. It is not entirely clear from the
language of the district court’s order how many days the court intended to designate as
excludable. The order indicates that “the time between January 17, 2012 and February
21, 2012 is excludable” under the ends-of-justice provision. R., Vol. I, at 43 (Order, filed
Jan. 13, 2012) (emphasis added). Conceivably, this language could be read as not adding
to the excludable-days tally the first and last days, which would make the number of
excludable days thirty-four, instead of thirty-five. Controlling precedent offers little
definitive guidance on discerning the import of this or similar language that district courts
employ in orders granting ends-of-justice continuances. See United States v. Williams,
511 F.3d 1044, 1056 n.12 (10th Cir. 2007) (“The courts appear not to have explicitly
discussed this computation issue. When they have expressly noted the number of
excludable days flowing from an ends-of-justice excludable period (e.g., from a given
date “A” to date “Z”), the Supreme Court and our panels appear to have not counted as
excludable the first day of the period.”).

Thankfully, we need not delve into the minutiae of this computation question here
and are content to use the thirty-five-day figure that Mr. Watson asserts for two reasons:
(continued...)

5
 Prior to the newly set trial date, the government filed notice under Federal

Rule of Evidence 404(b) of its intent to offer evidence at trial regarding Mr.

Watson’s past drug-related conduct. Specifically, the government intended to

offer the testimony of two witnesses—Mr. Shuck and a then-unnamed

witness—regarding Mr. Watson’s cultivation and distribution of marijuana in the

mid-to-late 1990s through approximately the mid-2000s. After questioning Mr.

Shuck outside of the presence of the jury and over Mr. Watson’s objection, the

district court granted the motion as to Mr. Shuck, reasoning that such evidence

was intrinsic to the crimes alleged and thus was not other-acts evidence subject to

the strictures of Rule 404(b). Accordingly, at trial, the government offered Mr.

Shuck’s testimony regarding his and Mr. Watson’s past marijuana cultivation and

distribution.

The government did not call the unnamed witness specified in its 404(b)

notice to testify during its case-in-chief. After Mr. Watson took the witness stand

in his own defense, however, the government did call that witness in rebuttal; the

2
(...continued)
first and foremost, because whether the correct figure is thirty-five, thirty-six, or
thirty-four has no material bearing on our substantive analysis and no party has suggested
to the contrary; and, second, because the government does not contest Mr. Watson’s
assertion that the district court’s January 2012 continuance order at issue allowed for an
additional thirty-five days, thus leaving us no contested matter between the parties to
resolve. To complete the picture, however, we also note that the district court
subsequently granted a short additional continuance at the government’s request, but it is
not challenged here. The trial actually commenced on February 27, 2012.

6
previously unnamed witness was Ms. Shelby Armbruster. Again, over Mr.

Watson’s objection, the district court admitted her testimony, but for a different

reason than it admitted Mr. Shuck’s—that is, instead of concluding that her

testimony was intrinsic to the crimes charged, or even that it was admissible

under Rule 404(b), the district court concluded that it was admissible to impeach

Mr. Watson’s earlier testimony.

In the end, the jury found Mr. Watson guilty on all five counts. A few

weeks after trial, Mr. Watson sent a letter to the district court stating that he

wanted a second chance at the government’s plea offer and that, for a variety of

reasons, he had been unable to give it full and appropriate consideration at the

time it was presented to him. Shortly thereafter, Mr. Wallace withdrew as Mr.

Watson’s counsel and Lance Hopkins was appointed to represent Mr. Watson.

Subsequently, Mr. Watson filed a motion to vacate the jury’s verdict and for a

new trial on the grounds that Mr. Wallace provided ineffective assistance of

counsel by failing to inform Mr. Watson of the risks of proceeding to trial and,

relatedly, for failing to enter into plea negotiations with the government.

The district court denied the motion, reasoning that Mr. Wallace did not

provide deficient performance because, inter alia, Mr. Greubel adequately

informed Mr. Watson of the consequences of proceeding to trial and the potential

benefits of pleading guilty, and Mr. Wallace was aware that Mr. Watson had

rejected the government’s two prior offers. Furthermore, the district court noted

7
that, even if Mr. Wallace’s performance was deficient, “it is doubtful” that Mr.

Watson could establish that he was prejudiced by the deficient performance

because “[t]here is no evidence . . . that there was a reasonable probability that

[Mr. Watson] would have accepted the plea offer” had Mr. Wallace re-

communicated it to him. R., Vol. I, at 235 (Op. & Order, filed May 18, 2012).

II

We turn first to Mr. Watson’s ineffective-assistance-of-counsel claim. 3 The

primary thrust of Mr. Watson’s claim is that his second attorney, Mr. Wallace,

provided ineffective assistance by failing to adequately discuss with him the

government’s plea offers and the possible consequences of proceeding to trial.

The Sixth Amendment provides defendants a right to the effective

3
Ineffective-assistance-of-counsel claims should ordinarily be brought in a
collateral proceeding rather than on direct appeal. See United States v. Galloway, 56 F.3d
1239, 1242 (10th Cir. 1995) (en banc). This is because effective appellate review of such
claims requires “[a] factual record [to] be developed in and addressed by the district court
in the first instance.” Id. at 1240. Therefore, ineffective-assistance claims brought on
direct appeal are “presumptively dismissible, and virtually all will be dismissed.” Id.
“Nonetheless, this court has considered ineffective assistance of counsel claims on direct
appeal in limited circumstances, but only where the issue was raised before and ruled
upon by the district court and a sufficient factual record exists.” United States v. Flood,
635 F.3d 1255, 1260 (10th Cir. 2011); see Galloway, 56 F.3d at 1241–42. Here, Mr.
Watson raised his ineffective-assistance claim in the district court, the district court held a
hearing on the claim—during which it developed a full factual record—and subsequently
ruled on the claim; accordingly, we may address it on direct appeal. See United States v.
Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008) (reviewing an ineffective-
assistance-of-counsel claim on direct appeal because the claim was “raised and ruled
upon by the [d]istrict [c]ourt” and “the record [wa]s sufficiently developed for review”);
United States v. Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007) (reviewing an
ineffective-assistance-of-counsel claim because the district court addressed the claim and
a full factual record was developed for review).

8
assistance of counsel, and this right “extends to the plea-bargaining process.”

Lafler v. Cooper, --- U.S. ----, 132 S. Ct. 1376, 1384 (2012). Like other claims of

ineffective assistance of counsel, ones made “in the plea bargain context are

governed by the two-part test set forth in Strickland [v. Washington, 466 U.S. 668

(1984)].” Missouri v. Frye, --- U.S. ----, 132 S. Ct. 1399, 1405 (2012). This test

requires a defendant to demonstrate that counsel’s performance (1) was

unconstitutionally deficient, and (2) resulted in prejudice. See Strickland, 466

U.S. at 687; United States v. Flood, 713 F.3d 1281, 1286 (10th Cir.), cert. denied,

--- U.S. ----, 134 S. Ct. 341 (2013). “The performance prong of Strickland

requires a defendant to show that counsel’s representation fell below an objective

standard of reasonableness.” Lafler, 132 S. Ct. at 1384 (quoting Hill v. Lockhart,

474 U.S. 52, 57 (1985)) (internal quotation marks omitted). And to demonstrate

prejudice, “a defendant must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted). More specifically, when a defendant’s claim is that counsel’s deficient

performance caused him to reject a plea offer and proceed to trial, he must show

that

there is a reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have withdrawn
it in light of intervening circumstances), that the court would
have accepted its terms, and that the conviction or sentence, or

9
 both, under the offer’s terms would have been less severe than
under the judgment and sentence that in fact were imposed.

Id. at 1385; see Frye, 132 S. Ct. at 1410 (holding that, to demonstrate prejudice

resulting from counsel’s deficient performance that caused a defendant to forgo a

favorable plea offer, a defendant must show that “he would have accepted the

offer to plead” and that “there is a reasonable probability neither the prosecution

nor the trial court would have prevented the offer from being accepted or

implemented”).

“In evaluating an ineffective assistance of counsel claim, we ‘accept the

district court’s underlying factual findings unless clearly erroneous,’ and ‘we

review de novo whether counsel’s performance was legally deficient and whether

any deficiencies prejudiced the defendant.’” Rodriguez-Rivera, 518 F.3d at 1216

(quoting Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 858 (10th Cir. 2005)).

“Courts are free to address [Strickland’s] two prongs in any order, and failure

under either is dispositive.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir.

2011); see Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding

an ineffective assistance claim to . . . address both components of the inquiry if

the defendant makes an insufficient showing on one. In particular, a court need

not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.”). The

district court concluded that Mr. Watson’s counsel, Mr. Wallace, did not provide

10
deficient performance, and that even if he had, it was unlikely that Mr. Watson

could establish prejudice. We affirm solely on the latter ground—that is,

assuming arguendo that Mr. Wallace’s performance was deficient, Mr. Watson

failed to prove that he was prejudiced thereby.

Mr. Watson directs nearly all of his efforts on appeal to establishing that

his second counsel, Mr. Wallace, provided deficient performance by not

contacting the government regarding the prior plea offers and subsequently

communicating any plea offers to Mr. Watson, as well as by not adequately

advising him of the potential consequences of proceeding to trial. Assuming

without deciding that Mr. Wallace’s failure in these respects constituted deficient

performance, Mr. Watson still bears the burden of proving prejudice—viz.,

proving, inter alia, that, but for Mr. Wallace’s allegedly deficient performance,

Mr. Watson would have accepted the government’s offer. See Frye, 132 S. Ct. at

1410; Lafler, 132 S. Ct. at 1385.

Mr. Watson cannot demonstrate prejudice because he does not point to any

evidence that he would have accepted a plea offer had Mr. Wallace discussed it

with him. Instead, he merely makes two unadorned assertions that there is a

reasonable probability he would have pleaded guilty had Mr. Wallace done so.

See Aplt. Opening Br. at 24 (“The undersigned counsel submits to the Court that a

review of the record establishes that if Mr. Watson would have been properly

advised [of the punishment he faced] and the substantial risk that he would have

11
been found guilty . . . by the jury, there is more than a reasonable probability that

[Mr. Watson would have pleaded guilty].”); Aplt. Reply Br. at 6 (“If [Mr.]

Wallace . . . had inquired about the offer by contacting the Assistant U.S.

Attorney[] [and] informed [Mr.] Watson of the particulars of the offer and its

benefits [to] him, . . . there is more than a reasonable probability that [Mr.

Watson would have pleaded guilty].”).

Thus, the most that can be said with respect to prejudice is that Mr. Watson

asserts he was prejudiced; his mere self-serving statement, which does no more

than open the door to conjecture, is not enough. Cf. Heard v. Addison, 728 F.3d

1170, 1184 (10th Cir. 2013) (“[W]e remain suspicious of bald, post hoc and

unsupported statements that a defendant would have changed his plea absent

counsel’s errors, and if the defendant can muster no other evidence of how he

would have responded if he had received effective assistance of counsel, the

inquiry will focus on the objective evidence.”). Mr. Watson must prove with

evidence that there is a reasonable probability that, inter alia, he would have

accepted the plea agreement had Mr. Wallace discussed it with him. See

Strickland, 466 U.S. at 693 (“[T]he defendant [must] affirmatively prove

prejudice.” (emphasis added)); see also id. at 695 (“In making [the prejudice]

determination, a court hearing an ineffectiveness claim must consider the totality

of the evidence before the judge or jury.” (emphasis added)). This he has not

done.

12
 Mr. Watson also does not demonstrate prejudice for the additional reason

that he did not provide evidence of the other showings required by Frye and

Lafler—viz., that the plea offer, had he accepted it, “would have been adhered to

by the prosecution and accepted by the trial court.” 4 Frye, 132 S. Ct. at 1411; see

also Lafler, 132 S. Ct. at 1385. Mr. Watson does not even confront these

possibilities, let alone provide arguments or evidence as to why these additional

requirements are met.

Mr. Watson’s failure to point to any evidence in support of prejudice

provides a sufficient basis, standing alone, to reject his ineffective-assistance

claim. However, we also note that our independent review of the record validates

the district court’s conclusion that the record is devoid of evidence in support of

Mr. Watson’s assertion of prejudice. Instead, the evidence at least arguably

supports the opposite inference. The district court found that Mr. Greubel

informed Mr. Watson of both plea offers as well as the consequences of pleading

guilty and of proceeding to trial. Fully apprised of this information, Mr. Watson

rejected both plea offers, and the second rejection occurred after Mr. Watson

knew that Mr. Shuck was cooperating with the government. Furthermore, the

district court found that Mr. Watson “repeatedly” told Mr. Greubel that he would

4
A defendant must also show “that the conviction or sentence, or both, under
the offer’s terms would have been less severe than under the judgment and sentence that
in fact were imposed.” Lafler, 132 S. Ct. at 1385. Mr. Watson failed to discuss this
requirement as well.

13
not plead guilty to a felony because that would require the forfeiture of his

insurance license. R., Vol. I, at 235. In short, the inference that might reasonably

be drawn from this evidence is that under no circumstances did Mr. Watson

intend to plead guilty—even though he knew his co-defendant was cooperating

with the government—because he would have necessarily lost his insurance

license. In other words, there is no evidence that, had Mr. Wallace re-discussed

the plea offer with him, Mr. Watson would have changed his mind. Accordingly,

even if Mr. Wallace’s failure in this regard amounted to deficient performance,

we would be hard-pressed to conclude that Mr. Watson was prejudiced by it.

Whether counseled by Mr. Wallace about the government’s plea offer or not, Mr.

Watson would have made the same decision to reject a plea deal and proceed to

trial; thus, any prejudice that Mr. Watson suffered by going to trial would not

have been because of any alleged deficient performance by Mr. Wallace.

However, lest our independent review of this evidence suggest to the

contrary, let us underscore the point that is determinative here: Mr. Watson bears

the burden of “affirmatively prov[ing]” that there is a reasonable probability that

he would have accepted the plea had Mr. Wallace communicated the offer to him,

Strickland, 466 U.S. at 693; see also Frye, 132 S. Ct. at 1410; Lafler, 132 S. Ct.

at 1385, and this he has utterly failed to do. Were mere assertions that a

defendant suffered prejudice sufficient, the prejudice prong of Strickland would

be a formality, met in every case. Of course, it is not. Accordingly, Mr.

14
Watson’s ineffective-assistance-of-counsel claim must fail.

III

We turn next to Mr. Watson’s STA claim. He contends that the district

court erred in granting the government an ends-of-justice continuance following

Mr. Shuck’s decision to plead guilty and cooperate with the government.

As a general matter, we “review the decision to grant an ends-of-justice

continuance for abuse of discretion.” 5 United States v. Banks, --- F.3d ----, 2014

WL 3805481, at *4 (10th Cir.), pet. for cert. filed (U.S. Aug. 23, 2014) (No. 14-

229); accord United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir. 1998).

But “[w]hether discretion has been abused depends, of course, on the bounds of

that discretion and the principles that guide its exercise.” United States v. Taylor,

487 U.S. 326, 336 (1988). Because the STA sets forth detailed procedures for

district courts to follow, appellate review of decisions made under the STA

5
At oral argument, the government suggested that we should review Mr.
Watson’s STA claim only for plain error because he failed to specifically assert before the
district court that an ends-of-justice continuance would violate his rights under the STA
(as opposed to his constitutional right to a speedy trial). But, as the government conceded
subsequently in the oral argument, it failed to raise this forfeiture argument in its
appellate brief. “[T]he decision regarding what issues are appropriate to entertain on
appeal in instances of lack of preservation is discretionary.” Abernathy v. Wandes, 713
F.3d 538, 552 (10th Cir. 2013), cert. denied, --- U.S. ----, 134 S. Ct. 1874 (2014). “[A]
colorable argument could be advanced that we should overlook Mr. [Watson’s] apparent
failure to preserve his [STA claim] because the government forfeited the right to object to
it.” United States v. McGehee, 672 F.3d 860, 873 n.5 (10th Cir. 2012). We need not
continue this preservation inquiry—viz., our inquiry into whether it is appropriate to apply
the plain-error standard on these facts—because, even applying the more generous abuse-
of-discretion standard, we conclude that Mr. Watson cannot prevail on his STA
challenge.

15
encompasses a review of whether the district court complied with those

procedures. See id.; see also Zedner v. United States, 547 U.S. 489, 499 (2006)

(“Th[e] [ends-of-justice] provision gives the district court discretion—within

limits and subject to specific procedures—to accommodate limited delays for

case-specific needs.”). Whether the district court complied with the Act’s

procedures—that is, applied the appropriate legal standards—is an issue of law

that we review de novo. See United States v. Thomas, 749 F.3d 1302, 1308 (10th

Cir. 2014) (noting that we employ “de novo review regarding compliance with the

Speedy Trial Act”); accord Williams, 511 F.3d at 1049; Gonzales, 137 F.3d at

1433. “When the district court errs in deciding a legal issue, it necessarily abuses

its discretion.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th Cir.

2009) (quoting In re Qwest Commc’ns Int’l, Inc., 450 F.3d 1179, 1184 (10th Cir.

2006)) (internal quotation marks omitted); accord United States v. Hasan, 609

F.3d 1121, 1127 (10th Cir. 2010). And we review any factual findings underlying

a district court’s ends-of-justice decision for “clear error.” United States v.

Spring, 80 F.3d 1450, 1456 (10th Cir. 1996); accord United States v. Clark, 717

F.3d 790, 822 (10th Cir. 2013), cert. denied, --- U.S. ----, 134 S. Ct. 903 (2014).

The STA generally requires that a defendant be brought to trial within

seventy days of the filing of the indictment or information or the defendant’s

initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1); Banks,

2014 WL 3805481, at *5. Several periods of time, however, are excluded from

16
the seventy-day window. See 18 U.S.C. § 3161(h). One such exclusion is the

ends-of-justice continuance, which covers “[a]ny period of delay resulting from a

continuance granted by any judge . . . if the judge granted such continuance on

the basis of his findings that the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in a speedy trial.”

Id. § 3161(h)(7)(A). “Th[e] [ends-of-justice] exception to the otherwise precise

requirements of the Act was meant to be a rarely used tool for those cases

demanding more flexible treatment.” United States v. Toombs, 574 F.3d 1262,

1269 (10th Cir. 2009) (alterations in original) (quoting United States v. Doran,

882 F.2d 1511, 1515 (10th Cir. 1989)) (internal quotation marks omitted); see

Doran, 882 F.3d at 1515 (characterizing the ends-of-justice exclusion as a

“narrow exception”).

To grant an ends-of-justice continuance, the district court must “set[] forth,

in the record of the case, . . . its reasons for finding that the ends of justice served

by the granting of such continuance outweigh the best interests of the public and

the defendant in a speedy trial,” 18 U.S.C. § 3161(h)(7)(A), and consider the four

factors set forth in the STA, see id. § 3161(h)(7)(B)(i)–(iv). 6 See Toombs, 574

6
Specifically, with respect to those four factors, the statute provides:

(B) The factors, among others, which a judge shall consider in
determining whether to grant a continuance under subparagraph (A) of
this paragraph in any case are as follows:

(continued...)

17
F.3d at 1268–69. Two important functions are served by requiring the district

court to set forth in the record its reasons for granting a continuance: “[f]irst, it

insures careful consideration of the relevant factors by the trial court,” and

“[s]econd, the requirement provides the appellate court with an adequate record

on which to review the district court’s decision.” Williams, 511 F.3d at 1057

(quoting Doran, 882 F.2d at 1515) (internal quotation marks omitted); see

6
(...continued)
(i) Whether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due to the
number of defendants, the nature of the prosecution, or the
existence of novel questions of fact or law, that it is
unreasonable to expect adequate preparation for pretrial
proceedings or for the trial itself within the time limits
established by this section.

(iii) Whether, in a case in which arrest precedes indictment,
delay in the filing of the indictment is caused because the arrest
occurs at a time such that it is unreasonable to expect return and
filing of the indictment within the period specified in section
3161(b), or because the facts upon which the grand jury must
base its determination are unusual or complex.

(iv) Whether the failure to grant such a continuance in a case
which, taken as a whole, is not so unusual or so complex as to
fall within clause (ii), would deny the defendant reasonable time
to obtain counsel, would unreasonably deny the defendant or the
Government continuity of counsel, or would deny counsel for
the defendant or the attorney for the Government the reasonable
time necessary for effective preparation, taking into account the
exercise of due diligence.

18 U.S.C. § 3161(h)(7)(B)(i)–(iv).

18
Toombs, 574 F.3d at 1269. “Failure to address [the reasons] on the record creates

the unnecessary risk of granting continuances for the wrong purposes, and

encourages overuse of this narrow exception.” Doran, 882 F.2d at 1515. We do

not, however, “require district judges to address those factors that do not apply,”

United States v. Occhipinti, 998 F.2d 791, 798 (10th Cir. 1993), nor “articulate

facts which are obvious and set forth in the motion for the continuance itself,” id.

at 797 (internal quotation marks omitted); accord United States v. Loughrin, 710

F.3d 1111, 1119 (10th Cir. 2013), aff’d, --- U.S. ----, 134 S. Ct. 2384 (2014).

Here, the district court began by setting forth the relevant STA provisions.

In particular, the district court explicitly stated that the fourth factor under the

Act required it to consider “whether the failure to grant such a continuance . . .

would deny counsel for the defendant . . . the reasonable time necessary for

effective preparation, taking into account the exercise of due diligence.” R., Vol.

I, at 41–42 (omissions in original) (quoting 18 U.S.C. § 3161(h)(7)(B)(iv))

(internal quotation marks omitted). Next, the district court noted the impetus for

the government’s motion: on January 10, 2012, in the shadow of Messrs.

Watson’s and Shuck’s January 17, 2012, trial date, Mr. Shuck decided to plead

guilty and to begin cooperating with the government. The court further observed

that, following debriefing sessions with Mr. Shuck on January 10 and 11, the

government moved on January 12 for a thirty-day ends-of-justice continuance.

The district court’s analysis then set forth the three justifications for an

19
ends-of-justice continuance offered by the government in light of Mr. Shuck’s

decision to cooperate—namely, that the government needed additional time to:

“(i) interview numerous individuals identified by [Mr. Shuck] to determine

whether they [we]re material witnesses in this matter; (ii) conduct further

debriefings with [Mr. Shuck]; and (iii) obtain documents described by [Mr.

Shuck].” Id. at 42. Based on these factors, the district court reasoned:

Given the circumstances cited by counsel for the government, the
Court finds that an ends of justice continuance is appropriate,
despite defendant’s opposition. Counsel’s request for additional
time to prepare for the trial [is] reasonable. It is in the interests
of the public that the government be given an opportunity to
investigate newly discovered information that relates to the
prosecution of defendant. In addition to the interests of the
public, the Court has considered the defendant’s interest in the
speedy resolution of his criminal case and finds that a limited
ends of justice continuance will not subvert defendant’s interest
in the prompt prosecution of this matter.

Id. The district court accordingly granted the government’s motion; it extended

the continuance for slightly longer than the government had requested, scheduling

the trial to commence thirty-five days after the stricken trial date of January 17,

2012. 7

7
Mr. Watson does not argue in his opening brief that the district court erred
in granting a continuance longer than the one requested by the government, so he has
waived any possible argument to this effect. See, e.g., United States v. Yelloweagle, 643
F.3d 1275, 1280 (10th Cir. 2011). Although we therefore need not (and do not)
definitively opine on the matter, such an argument might be a tough row to hoe in any
event. Cf. Loughrin, 710 F.3d at 1123 (“While perhaps the government did not need the
full two months by the time of the February 2 hearing—indeed, it originally requested
only one month—the facts do not indicate that the district court acted arbitrarily or
(continued...)

20
 Mr. Watson’s primary argument is that the district court’s findings were

insufficient to warrant an ends-of-justice continuance under the statute. 8 On

several occasions, our court has addressed whether the findings in support of an

ends-of-justice continuance were sufficient. We have found that perfunctory and

conclusory orders granting continuances are insufficient. Three examples may

illustrate this principle.

In Toombs, we found the reasons supporting several ends-of-justice

continuances inadequate where the “sole explanation contained in the record for

each of the continuances [wa]s that discovery was recently disclosed and counsel

consequently needed additional time to prepare for trial.” 574 F.3d at 1272. Nor

was there any indication in Toombs—from the motions seeking continuances or

from the district court’s orders granting them—that the district court had

considered “the nature of the recently disclosed discovery, the relevance or

importance of the discovery, or why . . . it [was] proper to grant an approximately

two-month continuance.” Id.

7
(...continued)
capriciously in excluding those days from the STA clock.”).
8
Specifically, Mr. Watson makes several arguments for the first time in his
reply brief: that the government did not need additional time to conduct debriefings with
Mr. Shuck or to find additional witnesses, that the continuance did not result in the
government locating additional witnesses for its case-in-chief, and that the continuance
was not proper under 18 U.S.C. § 3161(h)(7)(C). Because these arguments were not
raised in Mr. Watson’s opening brief, they are waived. See, e.g., United States v. Benoit,
713 F.3d 1, 12 n.2 (10th Cir. 2013); United States v. Bader, 678 F.3d 858, 894 (10th Cir.
2012).

21
 The district court’s findings in support of the ends-of-justice-continuance in

Williams also were deficient. Specifically, we concluded in Williams that the

reasons supporting all three ends-of-justice continuances were inadequate. See

511 F.3d at 1056–59. The district court’s first two orders did “not contain any

findings,” while the third order, which did contain findings—thus presenting “a

somewhat closer question”—was also deficient because the district court merely

noted the presence of the defendant’s new counsel, who needed time to become

familiar with the case. Id. at 1057. “Although the district court . . . mentioned

the presence of new counsel,” we observed, “it did not issue findings specifically

addressing [the defendant’s] stated grounds for a continuance, . . . [n]or did the

district court otherwise comment on the issue of trial preparation time . . . [nor]

hint that it weighed the proper factors under the Act . . . [or even] cite the Act’s

ends-of-justice provision.” Id. at 1058. 9

Finally, in Gonzales, we again concluded that the district court’s ends-of-

justice findings were inadequate. See 137 F.3d at 1434–35. There, the district

court granted a continuance following representations by the government that the

9
Indeed, Williams is part of our long line of cases rejecting the grant of an
ends-of-justice continuance where the district court failed to make any specific ends-of-
justice findings. See, e.g., United States v. Saltzman, 984 F.2d 1087, 1090–91 (10th Cir.
1993) (holding that the ends-of-justice continuances were inappropriate because no ends-
of-justice findings were made); Doran, 882 F.2d at 1515 (holding that the ends-of-justice
continuance was inappropriate because, although “[t]he record . . . [wa]s replete with
discussions regarding why the case against [the defendant] could not proceed,” it was
“devoid . . . of specific findings regarding the need or justification for significant
delays”).

22
prosecuting attorney would be out of town shortly before the scheduled trial date,

making preparation difficult, and that the following week, too, would be

problematic because three witnesses would be out of town. See id. at 1434. The

district court granted an ends-of-justice continuance, concluding that “the

interests of justice outweigh the interest of the public and the defendant in a

speedy trial . . . based upon the finding that counsel for the United States would

be denied the reasonable and necessary time to prepare for trial.” Id.

We held in Gonzales that such truncated findings were insufficient to

justify the ends-of-justice continuance on several bases: first, the district court

failed to consider the nature and the complexity of the case, as required under the

STA; second, “there was a complete lack of inquiry concerning whether the

prosecutor’s absence justified a continuance on continuity of counsel grounds

under § [3161(h)(7)(B)(iv)] or whether the case could be tried adequately by other

government counsel”; and third, “there was no discussion concerning how much

time the prosecutor actually needed to prepare for trial and no discussion of what

preparations he had already made.” Id. at 1434–35. “Without this information,”

we concluded,

we fail to see how the district court adequately could have
determined whether denial of a continuance would have deprived
the prosecutor of “reasonable time necessary for effective
preparation,” 18 U.S.C. § [3161(h)(7)(B)(iv)], let alone whether
the purported reasons for granting the continuance outweighed
the best interests of the public and Gonzales in a speedy trial.

23
Id. at 1435.

Taken together, our precedents require “the record, which includes the oral

and written statements of both the district court and the moving party, [to] contain

an explanation of why the mere occurrence of the event identified by the party as

necessitating the continuance results in the need for additional time.” Toombs,

574 F.3d at 1271. “Simply identifying an event, and adding the conclusory

statement that the event requires more time for counsel to prepare, is not enough.”

Id. at 1271–72. That being said, lengthy explanations are not required. See

Occhipinti, 998 F.2d at 797–98.

The district court’s findings in this case, although not expansive, go

sufficiently beyond those in Toombs, Williams, and Gonzales. 10 As detailed

10
Further supporting the adequacy of the district court’s findings is our
holding in Occhipinti. There, the government sought an ends-of-justice continuance
based on three upcoming and conflicting trial dates. See Occhipinti, 998 F.2d at 797.
The district court “found that a continuance was necessary to allow the government
sufficient time to prepare and stated in its written order that . . . the ends of justice served
by the granting of such continuance outweigh the best interest of the public and the
defendant in a speedy trial.” Id. at 797–98 (internal quotation marks omitted). Our
conclusion that these relatively sparse findings were sufficient was rooted in two
justifications, both of which can equally be said about the district court’s findings here:
“[f]irst, the court found specifically that granting the continuance struck the proper
balance between the ends of justice and the best interest of the public and the defendants
in a speedy trial,” and “[s]econd, the court articulated as the basis for that conclusion its
belief that a continuance was necessary to allow the government sufficient time to prepare
for trial.” Id. at 798.

To be sure, we recognized that the district court’s findings in Occhipinti were not
optimal. See id. (“Although a more thorough and explicit articulation might have better
facilitated our review of the district court’s decision, the order did list the reasons
(continued...)

24
above, the district court began by setting forth the relevant STA provisions, citing

the fourth factor as relevant to its decision. It was not required to explicitly

discuss the other factors if they were inapplicable. See Occhipinti, 998 F.2d at

798. Further, the district court’s findings made clear that the event necessitating

the government’s request for a continuance—Mr. Shuck’s decision to cooperate

with the government—occurred one week before the scheduled trial date. In light

of this limited amount of time, the district court found that the three specific

justifications for a continuance set forth by the government—interviewing

potential material witnesses, conducting further debriefings with Mr. Shuck, and

obtaining documents described by Mr. Shuck—were sufficient to justify a

continuance under the statute. 11 Indeed, the district court specifically performed

10
(...continued)
supporting the finding.”). However, we have nevertheless declined to eschew the
reasoning in Occhipinti that upheld those findings. For example, we have since noted
that, “although not optimally detailed,” those findings in Occhipinti were sufficient
because “the government’s listing of the dates for each of the three other trials and their
expected durations provided an explanation . . . of why these events, the trials, would
require additional time for the government to prepare for the upcoming trial.” Toombs,
574 F.3d at 1272. The same can certainly be said for the instant case, as the
government’s three reasons, adopted by the district court, in conjunction with a trial date
only seven days away, provided an adequate explanation for why the government needed
additional time to prepare.
11
To the extent that Mr. Watson attempts to undercut the veracity of one of
the government’s three asserted justifications—the interviewing of potential material
witnesses—his attempt to do so is off the mark. Specifically, he focuses on
§ 3161(h)(3)(A), which permits the exclusion from the seventy allotted days of “[a]ny
period of delay resulting from the absence or unavailability of the defendant or an
essential witness,” and argues that Mr. Shuck was available and Ms. Armbruster was not
(continued...)

25
the balancing required by § 3161(h)(7)(A), noting that “[i]t is in the interests of

the public that the government be given an opportunity to investigate newly

discovered information” and that a “limited ends of justice continuance will not

subvert defendant’s interest in the prompt prosecution of this matter.” R., Vol. I,

at 42.

More to the point, the specific deficiencies that we found determinative in

Toombs, Williams, and Gonzales are simply not present here. Unlike in Toombs,

the district court here considered “the nature of the recently disclosed discovery[]

[and] the relevance or importance of the discovery,” and it set forth “why [it]

thought it proper to grant a[] . . . continuance.” 574 F.3d at 1272. Unlike in

Williams, the district court here did not simply recognize the triggering event and

grant a continuance; rather, it set forth in detail its obligations under the Act’s

ends-of-justice provision, it made specific findings regarding the government’s

asserted justifications, and it “weighed the proper factors under the Act.” 511

F.3d at 1058. And finally, unlike in Gonzales, the district court here had the

information necessary to evaluate whether the “denial of a continuance would

have deprived the prosecutor of reasonable time necessary for effective

11
(...continued)
an essential witness. But the district court did not rely on § 3161(h)(3)(A) to exclude the
thirty-five days at issue, and instead excluded the days via an ends-of-justice continuance
granted pursuant to § 3161(h)(7)(A)—i.e., an entirely distinct statutory basis for
excluding the days. Therefore, Mr. Watson’s arguments regarding the availability of Mr.
Shuck and whether Ms. Armbruster was an essential witness are irrelevant to our inquiry.

26
preparation,” 137 F.3d at 1435 (internal quotation marks omitted), because the

court understood that the new information was first acquired only a week before

trial, and it explicitly noted the specific tasks that engendered the government’s

need for additional time, see also Loughrin, 710 F.3d at 1123 (in distinguishing

Gonzales, noting that “the record here is not nearly as sparse as that in

Gonzales”).

To be sure, failing to find support in the particulars of our precedents, Mr.

Watson urges us to consider the broader implications of allowing ends-of-justice

continuances in cases such as this; he points out that such a “liberal” use of the

ends-of-justice provision does not comport with our description of the exception

as one rarely to be used. Aplt. Opening Br. at 28. More specifically, he contends

that in multi-defendant cases such as this, defendants frequently decide to plead

guilty and cooperate with the government close to trial, and if an ends-of-justice

continuance would be warranted every time this occurred, trials could be extended

for years, contrary to the goals of the Act and the purposes of the ends-of-justice

provision. Given that we have consistently recognized that an ends-of-justice

continuance is “to be a rarely used tool,” Toombs, 574 F.3d at 1269 (quoting

Doran, 882 F.2d at 1515) (internal quotation marks omitted); see also Williams,

511 F.3d at 1049 (“[E]nds-of-justice continuances should not be granted

cavalierly.”), we cannot say that Mr. Watson’s argument is not worthy of serious

consideration.

27
 However, Mr. Watson’s argument bears no relationship to the facts of this

case; in other words, his argument positing a situation where trial judges

reflexively grant continuances in multi-defendant cases and consequently

engender long delays does nothing more than erect a conjectural bogeyman

that—on these facts—cannot frighten a reasonable jurist. As noted, the district

court here considered the proper factors and sufficiently set forth its reasoning in

granting the government a continuance. Further, in performing the required

balancing, the district court appropriately considered in its calculus the relatively

short duration of the requested continuance and found that Mr. Watson’s interest

in the speedy resolution of this case would not be overly burdened by a “limited

ends of justice continuance” of thirty-five days. R., Vol. I, at 42 (emphasis

added).

Mr. Watson does not contend that any of the district court’s factual findings

were clearly erroneous. And, under abuse-of-discretion review, “when the

statutory factors are properly considered, and supporting factual findings are not

clearly in error, the district court’s judgment of how opposing considerations

balance should not lightly be disturbed.” Taylor, 487 U.S. at 337. In this light,

we discern no basis to disturb the balance struck by the district court here. Our

decision to uphold the district court’s analysis should not—and cannot—be read

as endorsing the routine granting of ends-of-justice continuances when defendants

in multi-defendant cases decide to cooperate with the government close to trial.

28
We simply hold that under the circumstances of this case, the district court did

not err in granting the ends-of-justice continuance, and Mr. Watson’s rights under

the STA were not violated.

IV

Mr. Watson’s third and final claim is that the district court erred in

admitting the testimony of (1) Mr. Shuck regarding Messrs. Watson’s and Shuck’s

alleged marijuana-related conduct during the mid-to-late 1990s and during the

mid-2000s, and (2) Ms. Armbruster regarding Mr. Watson’s alleged marijuana

distribution from 1994 or 1995 through 2000 or 2001, because it all was

inadmissible other-acts evidence under Federal Rule of Evidence 404(b). The

district court admitted the challenged testimony over Mr. Watson’s objection. We

review the district court’s evidentiary decisions for an abuse of discretion, “which

means we will not disturb [its] ruling 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. Batton, 602 F.3d 1191, 1196 (10th Cir.

2010) (quoting United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005))

(internal quotation marks omitted); see also United States v. Commanche, 577

F.3d 1261, 1266 (10th Cir. 2009) (“We review the district court’s decision to

admit evidence under 404(b) for abuse of discretion.”). We address Mr. Shuck’s

and Ms. Armbruster’s testimony in turn.

29
 A

1

We begin with Mr. Shuck’s testimony. At trial, Mr. Shuck testified that he

and Mr. Watson grew marijuana together outdoors from approximately 1995 to

1999 on land Mr. Watson owned with his brothers. Although they discontinued

their outdoor grow in 1999, according to Mr. Shuck, they resumed growing

marijuana together in 2005 inside a trailer situated on land owned by Mr. Watson.

The crimes charged in the instant case resulted from the indoor grow that began in

2005. Mr. Watson challenges the admissibility of Mr. Shuck’s testimony

regarding their prior outdoor growing activity.

Rule 404(b) sets forth both the prohibited and (in non-exhaustive terms) the

permitted uses for evidence of “crimes, wrongs, or other acts.” Fed. R. Evid.

404(b) (capitalization altered). Such evidence is not admissible “to prove a

person’s character in order to show that on a particular occasion the person acted

in accordance with the character,” but is admissible if offered “for another

purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Id. (emphasis

added). “Rule 404(b) is considered to be an inclusive rule, admitting all evidence

of other crimes or acts except that which tends to prove only criminal

disposition.” United States v. Burgess, 576 F.3d 1078, 1098 (10th Cir. 2009)

(quoting United States v. Tan, 254 F.3d 1204, 1208 (10th Cir. 2001)) (internal

30
quotation marks omitted); see also United States v. Parker, 553 F.3d 1309, 1314

(10th Cir. 2009) (“The standard for satisfying Rule 404(b) admissibility is

permissive . . . .”); United States v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997)

(“[R]ule [404(b)] is one of inclusion, rather than exclusion . . . .”), overruled on

other grounds as recognized in United States v. Hathaway, 318 F.3d 1001, 1006

(10th Cir. 2003).

But other-acts evidence need not meet the requirements of Rule 404(b) in

every case: if the other-acts evidence is intrinsic to the charged crime—that is,

“inextricably intertwined” with the evidence of the charged crime—it is

admissible without regard to Rule 404(b)’s prohibitions. See United States v.

O’Brien, 131 F.3d 1428, 1432 (10th Cir. 1997) (internal quotation marks

omitted); see also United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)

(“Other act evidence is intrinsic when the evidence of the other act and the

evidence of the crime charged are inextricably intertwined or both acts are part of

a single criminal episode or the other acts were necessary preliminaries to the

crime charged.” (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.

1990)) (internal quotation marks omitted)).

2

The government filed a notice asserting its intention to introduce Mr.

Shuck’s testimony for permissible purposes under Rule 404(b). See generally

Fed. R. Evid. 404(b)(2)(A) (providing for such government notice to the defense).

31
The district court decided that Mr. Shuck’s testimony was admissible. However,

it declined to rely on Rule 404(b); rather, the court concluded that Mr. Shuck’s

testimony was inextricably intertwined with the evidence of the crimes charged,

and thus Rule 404(b) did not apply. Yet, we have discretion nevertheless to

affirm on any ground adequately supported by the record, and we exercise that

discretion here. See United States v. Damato, 672 F.3d 832, 844 (10th Cir. 2012).

Even assuming arguendo that the district court erred in concluding that Mr.

Shuck’s testimony regarding the outdoor grow was intrinsic to the crimes

charged, we hold that the evidence was nevertheless admissible under Rule

404(b). 12

“To determine whether Rule 404(b) evidence was properly admitted we

look to the four-part test set out by the Supreme Court in Huddleston v. United

12
In exercising our discretion to affirm on an alternative ground, we consider
three factors: “whether the ground was fully briefed and argued here and below, whether
the parties have had a fair opportunity to develop the factual record, and whether, in light
of . . . [the] uncontested facts, our decision would involve only questions of law.” Harvey
v. United States, 685 F.3d 939, 950 n.5 (10th Cir. 2012) (alteration in original) (omission
in original) (quoting Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004)) (internal
quotation marks omitted). Here, all of these considerations militate in favor of affirming
on the alternative ground of Rule 404(b). Not only was the Rule 404(b) admissibility
question argued below, but Mr. Watson’s briefing on appeal gives the question equal
treatment with the threshold issue of whether the evidence was intrinsic to the crimes
charged. Further, the record was fully developed during the course of Mr. Watson’s jury
trial. And Mr. Watson is not challenging any of the district court’s factual findings,
leaving for our resolution solely an issue of law. Accordingly, it is unquestionably proper
for us to exercise our discretion to affirm on this alternative ground. See id. (affirming on
an alterative ground when all three of the relevant factors were met); Damato, 672 F.3d at
844 (affirming on an alternative ground when only two of the three relevant factors were
met).

32
States[, 485 U.S. 681 (1988)].” United States v. Zamora, 222 F.3d 756, 762 (10th

Cir. 2000). To be admissible, this test requires that those factors—often called

the “Huddleston factors”—be satisfied:

(1) the evidence was offered for a proper purpose under [Rule]
404(b); (2) the evidence was relevant under [Rule] 401; (3) the
probative value of the evidence was not substantially outweighed
by its potential for unfair prejudice under [Rule] 403; and (4) the
district court, upon request, instructed the jury pursuant to [Rule]
105 to consider the evidence only for the purpose for which it
was admitted.

United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000); accord United

States v. Smalls, 752 F.3d 1227, 1237 (10th Cir. 2014); United States v. Farr, 701

F.3d 1274, 1280 (10th Cir. 2012); see also Huddleston, 485 U.S. at 691–92.

Mr. Watson challenges the admissibility of Mr. Shuck’s testimony on three

bases, arguing that: (1) the evidence is nothing more than impermissible character

evidence offered to prove that he acted in conformity therewith and, thus, it does

not fall within any of the permitted uses for other-acts evidence set forth in Rule

404(b)(2); (2) the other-acts evidence lacked relevance because the alleged events

occurred over a decade before the crimes charged; and (3) the district court erred

in its Rule 403 balancing when it concluded that the probative value of the other-

acts evidence was not substantially outweighed by the prejudice flowing

therefrom. In short, Mr. Watson contends that none of the first three Huddleston

factors are met in this case. (He does not contest the fourth Huddleston factor.)

We address each of the three challenged factors in turn, ultimately concluding

33
that each is met.

a

The first Huddleston factor requires us to assess whether the challenged

testimony was offered for a proper purpose under Rule 404(b). See Farr, 701

F.3d at 1280; Becker, 230 F.3d at 1232. Although the district court admitted the

evidence as intrinsic, and thus not subject to Rule 404(b), the government also

maintained that the evidence was admissible under Rule 404(b) to prove, inter

alia, Mr. Watson’s knowledge and intent. We agree that Mr. Shuck’s testimony

was admissible for at least these two proper purposes under Rule 404(b)—namely,

to prove Mr. Watson’s knowledge and intent to join the charged conspiracy with

Mr. Shuck to manufacture marijuana, to use and maintain a place for the purpose

of marijuana manufacturing, and to possess marijuana with the intent to distribute

it. 13

13
By focusing solely on the other-acts evidence’s permitted uses to establish
Mr. Watson’s knowledge and intent, we do not mean to suggest that the evidence would
not be admissible for other reasons consistent with Rule 404(b). We choose to focus on
knowledge and intent, however, because all of the crimes with which Mr. Watson was
charged require a showing of at least one of these two categories of criminal intent, and
because such other-acts evidence is frequently offered to prove both knowledge and intent
in drug cases such as this, given that the two concepts are related. See, e.g., United States
v. Russell, 109 F.3d 1503, 1507 (10th Cir. 1997) (White, J., sitting by designation)
(holding that “evidence of prior drug transactions was admissible, under [Rule] 404(b), to
show,” inter alia, “intent to enter into the drug conspiracy[] [and] knowledge of the
conspiracy”); see also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 404.22[2], at 404-114.8 to 404-114.11 (Joseph M. McLaughlin ed., 2d ed.
2014) [hereinafter “Weinstein’s”] (“[T]he hypothesis justifying the admission of other-
acts evidence [to prove knowledge] is similar to that invoked with intent . . . .”).

34
 Our court has time and again held that past drug-related activity is

admissible other-acts evidence under Rule 404(b) to prove, inter alia, that the

defendant had the knowledge or intent necessary to commit the crimes charged.

See, e.g., United States v. Brooks, 736 F.3d 921, 940 (10th Cir. 2013)

(“[Defendant’s] past associations and conduct with the [narcotics] conspiracy

members were admissible to show his intent to join the conspiracy and the basis

of the relationships between them.”), cert. denied by --- U.S. ----, 134 S. Ct. 2157

(2014), and --- U.S. ----, 134 S. Ct. 1526 (2014); United States v. Esquivel-Rios,

725 F.3d 1231, 1240 (10th Cir. 2013) (concluding that we were “unable to fault”

the district court’s determination that “the evidence of [the defendant’s] prior

drug deals [was] relevant and admissible for a proper purpose—to show his

knowledge of the drugs’ presence and his intent to distribute them”); United

States v. Cherry, 433 F.3d 698, 701 (10th Cir. 2005) (“This Court has repeatedly

held that evidence of past crimes is admissible to establish specific intent,

including intent to distribute in a drug trafficking offense.”); Becker, 230 F.3d at

1232 (“We find the first [Huddleston] factor . . . satisfied because the evidence

was introduced for the proper purpose of using ‘prior drug involvement to show

plan, motive or intent in a drug trafficking offense.’” (quoting United States v.

Sturmoski, 971 F.2d 452, 459 (10th Cir. 1992))); United States v. Ramirez, 63

F.3d 937, 943 (10th Cir. 1995) (“This court has repeatedly held that ‘the use of

prior drug involvement to show plan, motive or intent in a drug trafficking

35
offense is appropriate.’” (quoting Sturmoksi, 971 F.2d at 459)); United States v.

Record, 873 F.2d 1363, 1375 (10th Cir. 1989) (affirming the district court’s

decision to admit Rule 404(b) evidence of a past instance wherein the defendant

imported marijuana, reasoning that “[w]e have previously recognized the

probative value of uncharged acts evidence to demonstrate motive, intent,

knowledge, or plan in the context of a conspiracy prosecution” and collecting

cases). The other-acts testimony of Mr. Shuck comfortably fits within these

precedents.

Our decision in United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995),

aptly illustrates why this is the case. There, several defendants were charged

with, inter alia, possession with the intent to distribute marijuana following the

discovery of their alleged marijuana growing operation. See id. at 1460. The

government sought to introduce the testimony of multiple witnesses who had

previously purchased marijuana from one of the defendants and the testimony of

another witness that two of the defendants had been involved in marijuana

processing several years ago. See id. at 1468. At trial, two of the defendants

disavowed having the requisite criminal intent to join the drug conspiracy and

maintained that they did not have any ownership or control over the marijuana at

issue. See id. at 1469. We held that testimony regarding their past uncharged

acts “was properly admitted to show [the defendants’] intent and plan.” Id.

As in Wacker, Mr. Watson’s knowledge and intent were contested at trial.

36
Indeed, after Mr. Shuck’s testimony, Mr. Watson took the stand and put at issue

whether he had the requisite knowledge and intent to commit the crimes charged;

specifically, he testified that he had never grown marijuana with Mr. Shuck, had

never sold or distributed marijuana, and was unaware that Mr. Shuck was growing

marijuana in the trailer located on his land, despite having visited the trailer on

multiple occasions. 14

The challenged testimony regarding Mr. Watson’s previous outdoor

marijuana grow with Mr. Shuck was thus admissible to prove that Mr. Watson had

engaged in the charged crimes with the requisite knowledge and intent. Put

differently, the evidence of Mr. Watson’s prior outdoor growing activity with Mr.

Shuck served to prove that Mr. Watson knew that Mr. Shuck was growing

marijuana for distribution in the trailer on his land and that he intended to

participate in that enterprise with Mr. Watson, as he had previously done. 15 See

14
We mention Mr. Watson’s testimony on the matters here only to firmly
underscore the point that knowledge and intent were at issue. When the court decided to
admit Mr. Shuck’s testimony, there would not have been any certainty, of course, that Mr.
Watson would testify and dispute these elements. However, on appeal, Mr. Watson does
not contest that knowledge and intent were at issue. Moreover, even if he had, it is clear
that they were at issue because the government had to prove them to obtain a guilty
verdict and Mr. Watson at no time conceded at trial that they were met. Whether these
elements were at issue is important because, had they not been, any Rule 404(b) evidence
offered to prove their presence would not have been relevant. See Cherry, 433 F.3d at
701 (holding that the Rule 404(b) evidence admitted to prove intent was “clearly
relevant” because intent was “at issue in the trial”).
15
Mr. Watson’s heavy reliance on United States v. Sullivan, 919 F.2d 1403
(10th Cir. 1990), is misplaced. In Sullivan, the government introduced testimony
(continued...)

37
Cherry, 433 F.3d at 700–01 (holding that a prior conviction for using a

communications device to facilitate the distribution of cocaine was admissible

under Rule 404(b) to prove that the defendant had the requisite intent to distribute

cocaine); Ramirez, 63 F.3d at 943 (holding that testimony that the defendant was

previously arrested for possession with the intent to distribute cocaine was

admissible under Rule 404(b) to prove that he had the requisite intent to distribute

cocaine); see also Weinstein’s, supra, § 404.22[1][a], at 404-91 to 404-93 (“The

requisite intent may be inferred from the fact that, after being involved in a

number of similar incidents, the defendant must have had a mental state that is

inconsistent with innocence.”); Weinstein’s, supra, § 404.22[2], at 404-114.8 to

404-114.11 (“[T]he hypothesis justifying the admission of other-acts evidence [to

prove knowledge] is similar to that invoked with intent . . . .”). In sum, the first

Huddleston factor is satisfied here: Mr. Shuck’s testimony was admissible for

15
(...continued)
regarding the defendant’s past drug-manufacturing activities—the “Mississippi
cook”—arguing that the evidence was “part of the history of the conspiracy.” Id. at 1413
(internal quotation marks omitted). We held that the district court erred in admitting the
evidence because “the prosecutor made no effort to explain a probative purpose or
connection of the earlier conduct in Mississippi to this case” and, further, because “[s]uch
a general assertion as a basis for introducing evidence of prior wrongs or conduct is not
sufficient for purposes of Rules 403 or 404(b).” Id. at 1416. This case is readily
distinguishable from Sullivan; here, the government explained the purposes for which the
evidence was offered (e.g., knowledge and intent) and, as discussed in detail infra, the
other-acts evidence offered is clearly relevant to the crimes charged. Cf. United States v.
Maass, 153 F.3d 729, 1998 WL 458577, at *2 (10th Cir. 1998) (unpublished)
(recognizing that in Sullivan, “it was obvious that the ‘Mississippi cook’ evidence at issue
was not related to the crime charged”).

38
permissible purposes under Rule 404(b)—that is, to prove knowledge and intent.

b

Under the second Huddleston factor, the other-acts evidence must also be

relevant. See Farr, 701 F.3d at 1280; Becker, 230 F.3d at 1232. Mr. Watson’s

only argument on this score is that Mr. Shuck’s testimony related to events so

removed in time from the events in question that it lacked relevance. It is true, as

Mr. Watson contends, that the length of time separating the past acts and the

charged conduct has a bearing on the relevancy of the other-acts evidence. In this

regard, “we have noted that prior narcotics involvement is relevant when that

conduct is close in time, highly probative, and similar to the activity with which

the defendant is charged.” Becker, 230 F.3d at 1232 (quoting United States v.

Wilson, 107 F.3d 774, 785 (10th Cir. 1997)) (internal quotation marks omitted).

Indeed, we have held that “two prior felony convictions [that] preceded the

incident by approximately six years and . . . four years . . . transcends our

conception of close in time.” Id. (quoting Wilson, 107 F.3d at 785) (internal

quotation marks omitted).

The outdoor marijuana growing operation about which Mr. Shuck testified

occurred approximately ten to seventeen years before the crimes charged. But our

holding in Becker regarding acts occurring four and six years prior to the crimes

charged did not establish a bright-line rule for the relevance of other-acts

evidence. Under the right circumstances, the “[s]imilarity of prior acts to the

39
charged offense may outweigh concerns of remoteness in time.” United States v.

Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997); see Weinstein’s, supra,

§ 404.21[2][c], at 404-76 to 404-77 (“If the connection between the other crime

and the charged crime is strong, admission may be appropriate, even if the other

acts were remote in time.”).

Here, any concerns about the other-acts evidence being too remote are

outweighed by the similarity between the other-acts evidence and the crimes

charged. The challenged testimony revealed that Mr. Watson previously

cultivated marijuana with the same individual with whom he was currently

charged. For all practical purposes, the other-acts evidence demonstrated that Mr.

Watson previously engaged in almost the exact same conduct with the exact same

person. When the similarities are this evident, we have had no trouble concluding

that the “[s]imilarity of [the] prior acts to the charged offense[s] . . . outweigh[s]

concerns of remoteness in time.” Meacham, 115 F.3d at 1495; see also Brooks,

736 F.3d at 940 (“The fact that [Defendant] previously dealt drugs with the

coconspirators helps establish the basis of the relationship between them and his

intent to do the same. [Defendant] teamed up with them to deal drugs in 2000,

and those relationships made it more likely he intended to team up with them

again [six to ten years later in the charged narcotics conspiracy] from 2006 to

2010, rather than just carrying on as an independent seller.” (emphasis added)).

Indeed, prior acts that were quite remote to the crimes charged have

40
frequently been deemed by us and our sister circuits to be relevant if they were

sufficiently similar to those crimes. See United States v. Rodriguez, 215 F.3d

110, 121 (1st Cir. 2000) (holding that the “striking similarity between the acts

alleged in the indictment and the prior incidents” rendered incidents that occurred

fifteen years prior to the acts alleged in the indictment relevant and admissible

under Rule 404(b)); United States v. Hernandez-Guevara, 162 F.3d 863, 873 (5th

Cir. 1998) (holding that evidence of an eighteen-year-old conviction was

admissible to show intent because that conviction “involved exactly the same

crime as was charged in the indictment”); Meacham, 115 F.3d at 1495 (holding

that testimony that the defendant molested his stepdaughters twenty-five to

twenty-nine years prior to the crime charged—that is, transporting a minor in

interstate commerce with the intent that she engage in sexual activity—was

admissible to prove the defendant’s intent because it “suggest[ed] a similar

pattern of sexual abuse of female minor relatives made possible by exploitation of

familial authority”).

In fact, “[t]here is no absolute rule regarding the number of years that can

separate offenses. Rather, the court applies a reasonableness standard and

examines the facts and circumstances of each case.” United States v. Shumway,

112 F.3d 1413, 1421 (10th Cir. 1997) (alteration in original) (quoting United

States v. Franklin, 704 F.2d 1183, 1189 (10th Cir. 1983)) (internal quotation

marks omitted); see Rodriguez, 215 F.3d at 120 (“[T]here is no per se rule to

41
determine when a prior bad act is ‘too old’ to be admissible.”); see also Cherry,

433 F.3d at 702 n.4 (“[W]e review the facts and circumstances of each case to

determine whether a prior act is stale.”); cf. United States v. Mares, 441 F.3d

1152, 1159 (10th Cir. 2006) (“Our cases make clear that the degree to which

factors such as temporal distance and geographical proximity are important to a

determination of the probative value of similar acts will necessarily depend on the

unique facts of each case’s proffered evidence.”).

This is an unremarkable proposition because the second Huddleston factor

involves a relevancy inquiry under Rule 401. See 485 U.S. at 691; Becker, 230

F.3d at 1232. That rule deems evidence relevant if it “has any tendency to make a

fact more or less probable than it would be without the evidence” if “the fact is of

consequence in determining the action.” Fed. R. Evid. 401. Such an inquiry is

necessarily a fact-laden, case-specific one; not surprisingly, it takes into account

not only the temporal remoteness of the other-acts evidence from the charged

crimes, but also its similarity to those crimes. Consequently, adopting an

approach that would involve reflexively applying time periods found too distant

in other cases to the case at hand in determining whether the other-acts evidence

at issue is relevant would be wrongheaded—notably, because it would effect a

marked departure from the particularized inquiry that Rule 401 contemplates.

Thus, we would be hard-pressed to conclude that the other-acts

evidence—in the form of Mr. Shuck’s testimony—regarding Mr. Watson’s past

42
drug-related conduct with Mr. Shuck was irrelevant simply because it pertained to

events that are comparatively remote from the charged crimes. In other words,

we would have difficulty concluding that this other-acts evidence did not have

any tendency to make a fact of consequence, in the form of Mr. Watson’s

knowledge and intent, more probable. And we in fact cannot reach that

conclusion. The evidence of Mr. Watson’s prior outdoor grow with Mr. Shuck

had a tendency to make it more likely that Mr. Watson knew that Mr. Shuck was

growing marijuana in the trailer on his land and that he intended to participate in

that endeavor, as he had previously done. In sum, we conclude that the other-acts

evidence—that is, the outdoor-grow testimony of Mr. Schuck—satisfies the

second Huddleston factor.

c

Lastly, Mr. Watson challenges the third Huddleston factor—whether the

evidence was admissible under Rule 403. See Farr, 701 F.3d at 1280; Becker,

230 F.3d at 1232. Rule 403 provides that a “court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.

403. After explaining why Mr. Shuck’s testimony was otherwise admissible, the

district court found that Rule 403 did not preclude its admission. Although it

recognized that the evidence “may prejudice” Mr. Watson, the district court

43
concluded that the evidence was “highly relevant to the offenses charged” and

thus had “significant probative value.” R., Vol. I, at 80 (Op. & Order, filed Feb.

28, 2012). Moreover, the court determined that, in any event, “the probative

value of the evidence [was] not substantially outweighed by any unfair

prejudice.” Id.

The burden facing litigants seeking to demonstrate that a district court

abused its discretion when conducting Rule 403 balancing is onerous. First, as a

general matter, “our law favors admission of all relevant evidence not otherwise

proscribed; thus, exclusion under this rule is ‘an extraordinary remedy [that]

should be used sparingly.’” United States v. Irving, 665 F.3d 1184, 1213 (10th

Cir. 2011) (alteration in original) (quoting United States v. Rodriguez, 192 F.3d

946, 949 (10th Cir. 1999)); accord Smalls, 752 F.3d at 1238; Tan, 254 F.3d at

1211. Second, not only is exclusion under Rule 403 disfavored as a general

matter, but our review of a district court’s Rule 403 determination is limited: “We

afford district courts ‘broad discretion in making rulings under Rule 403.’”

Cherry, 433 F.3d at 702 (quoting Ramirez, 63 F.3d at 943). We grant district

courts this “considerable discretion” in performing Rule 403 balancing because

“district court judges have front-row seats during trial and extensive experience

ruling on evidentiary issues.” United States v. MacKay, 715 F.3d 807, 839 (10th

Cir. 2013) (quoting United States v. Cerno, 529 F.3d 926, 935–36 (10th Cir.

2008)) (internal quotation marks omitted), cert. denied, --- U.S. ----, 134 S. Ct.

44
1275 (2014); accord United States v. Archuleta, 737 F.3d 1287, 1292 (10th Cir.

2013), cert. denied, --- U.S. ----, 134 S. Ct. 2859 (2014).

“In determining whether evidence is properly admitted under Rule 403, we

consider (1) whether the evidence was relevant, (2) whether it had the potential to

unfairly prejudice the defendant, and (3) whether its probative value was

substantially outweighed by the danger of unfair prejudice.” MacKay, 715 F.3d at

839 (emphasis added) (quoting Cerno, 529 F.3d at 933) (internal quotation marks

omitted); accord Burgess, 576 F.3d at 1098–99. The district court made findings

as to all three factors that supported admission of the evidence, and Mr. Watson

does not provide us with any basis to disturb the district court’s decision.

In fact, Mr. Watson spends little time developing his Rule 403 argument.

He generally asserts that the other-acts evidence lacked probative value due to its

remoteness and its lack of connection to the charged crimes. We rejected such

arguments during our analysis of the first two Huddleston factors supra. 16 First,

we recognized the relevance of the challenged evidence to prove, inter alia, that

Mr. Watson acted with the requisite knowledge and intent to commit the crimes

16
To be sure, the assessment of the probative value of evidence under Rule
403 is distinct from the evidence’s relevance under Rule 401 in that the measurement of
probative value “is determined by comparing evidentiary alternatives.” Weinstein’s,
supra, § 404.21[3][a], at 404-82.1. But Mr. Watson does not advance any arguments
regarding the probative value of the evidence from this angle—that is, he does not argue
that the challenged evidence was cumulative or unnecessary in light of the government’s
other evidence. Thus, we need not assess the evidence from this perspective and address
only the arguments Mr. Watson presents.

45
charged despite the remoteness of the past acts. Second, as also demonstrated

supra, any contention that the prior acts lack probative value due to their

dissimilarity with the charged conduct is belied by the evidence. As the district

court recognized in its order, “[t]he earlier marijuana grow operation involved the

same people, the same controlled substance, and the same offenses.” R., Vol. I,

at 79. We agree with the district court that the similarities between Mr. Watson’s

prior conduct and the conduct charged give the other-acts evidence “significant

probative value.” Id. at 80; see Zamora, 222 F.3d at 762 (“The more similar the

act . . . is to the charged crime, the more relevant it becomes.”).

We underscore that “Rule 403 does not protect a party from all prejudice,

only unfair prejudice.” United States v. Smith, 534 F.3d 1211, 1218–19 (10th Cir.

2008) (emphasis added) (quoting Deters v. Equifax Credit Info. Servs., Inc., 202

F.3d 1262, 1274 (10th Cir. 2000)) (internal quotation marks omitted); see

Esquivel-Rios, 725 F.3d at 1240 (noting that the prejudicial effect stemming from

the capacity of certain evidence to rebut a defendant’s exculpatory theory “alone

is not usually enough to establish unfair prejudice”). We measure unfair

prejudice by assessing whether the “[e]vidence . . . makes a conviction more

likely because it provokes an emotional response in the jury or otherwise tends to

affect adversely the jury’s attitude toward the defendant wholly apart from its

judgment as to his guilt or innocence of the crime charged.” MacKay, 715 F.3d at

840 (quoting United States v. Leonard, 439 F.3d 648, 652 (10th Cir. 2006))

46
(internal quotation marks omitted); see Irving, 665 F.3d at 1213 (“[U]nfair

prejudice in the Rule 403 context ‘means an undue tendency to suggest decision

on an improper basis, commonly, though not necessarily, an emotional one.’”

(quoting Tan, 254 F.3d at 1211)). The district court found on this record that the

challenged other-acts “evidence may prejudice [Mr. Watson].” R., Vol. I, at 80.

However, the court did not make a finding that the evidence would do so unfairly.

And we discern no support for such a finding in the record.

Moreover, we cannot say that the district court abused its discretion in

ultimately deciding that the other-acts evidence had “significant probative value”

that was not substantially outweighed by any possible prejudice—unfair or

otherwise. Cf. Irving, 665 F.3d at 1214 (“Even if . . . prejudice is found, it must

substantially outweigh the probative value of the evidence in order to be excluded

under Rule 403.” (quoting Tan, 254 F.3d at 1212) (internal quotation marks

omitted)). 17 Indeed, we have consistently upheld district courts’ Rule 403

17
Again, Mr. Watson’s reliance on Sullivan for his Rule 403 argument is
misplaced. In Sullivan, the district court found the evidence prejudicial and “clearly
announced [its] view that [the Mississippi cook] evidence was not relevant.” 919 F.2d at
1417. Even assuming arguendo that the challenged other-acts evidence was not only
prejudicial, but to some degree unfairly so, unlike in Sullivan, the evidence at issue here
had significant probative value; therefore, the unfair prejudicial effect had to be great to
substantially outweigh this probative value, and no level of alchemy by Mr. Watson could
demonstrate such an effect on this record. Mr. Watson’s reliance on United States v.
McDermott, 64 F.3d 1448 (10th Cir. 1995), is equally unavailing. There, the defendant
was charged with, inter alia, engaging in a continuing criminal enterprise. See id. at
1450. The government introduced testimony that the witness had called the defendant a
“pothead and a drug dealer” before the defendant threatened to have her killed, but “[t]he
(continued...)

47
determinations in cases such as this when the other-acts evidence at issue is

sufficiently similar to the crime with which the defendant is charged. See, e.g.,

United States v. Conway, 73 F.3d 975, 981 (10th Cir. 1995) (“Given the similarity

of the circumstances between [the defendant’s] prior drug-related arrests and the

incident for which he was convicted, the probative value of the evidence was very

high for the purposes of showing a common plan, knowledge, intent, and the

absence of mistake or accident. Accordingly, any potentially prejudicial impact

had to be extremely heavy, in order for the district court to have deemed the

evidence inadmissible under Rule 403[, and in this case, it was not].”); cf. United

States v. Easter, 981 F.2d 1549, 1554 (10th Cir. 1992) (upholding the district

court’s admittance of the defendant’s prior cocaine dealing with a co-conspirator

under Rules 403 and 404(b) when the defendant was charged with conspiracy to

possess and distribute cocaine, reasoning that the acts were close in time to the

charged conduct and that the uncharged acts “involved one of [the defendant’s]

17
(...continued)
government never specifically stated the purpose for which it was offering the evidence
or the precise inferences to be drawn from it.” Id. at 1456 (internal quotation marks
omitted). The district court initially excluded the evidence under Rule 403, but later
altered course and admitted the evidence. See id. Although we recognized that the
evidence could have been offered for a proper purpose under Rule 404(b), we held that
the district court was right the first time, as the necessary link between the evidence and
the crime charged turned out to be unexpectedly weak once the witness actually testified.
See id. at 1456–57. This case is a far cry from McDermott. As we have discussed at
length, the similarities between Mr. Watson’s prior conduct and the charged crimes was
quite strong. And, further, Mr. Shuck’s testimony was nearly identical to what the
government represented it would be in its notice of intent to offer Rule 404(b) evidence.

48
coconspirators, and involved distribution of cocaine base—the same scheme with

which [the] [d]efendant was eventually charged”).

The crimes with which Mr. Watson was charged were strikingly similar to

the prior acts as to which Mr. Shuck testified. Therefore, this case fits

comfortably within the caselaw admitting such similar other-acts evidence under

Rule 403. For this reason, and because Mr. Watson has provided no basis for us

to find that the district court erred in its Rule 403 balancing, the third Huddleston

factor is also satisfied.

In sum, for the reasons stated, we affirm the district court’s admittance of

Mr. Shuck’s other-acts testimony on the alternative ground that the testimony was

admissible under Rule 404(b).

B

We turn next to Mr. Watson’s challenge to Ms. Armbruster’s testimony.

Ms. Armbruster testified, as a rebuttal witness, that, inter alia, she purchased

marijuana from Mr. Watson from 1994 or 1995 through 2000 or 2001 and had

previously used marijuana with him. Mr. Watson challenges this testimony for

the same reasons he challenges Mr. Shuck’s; indeed, he does not distinguish

between the two witnesses’ testimony in his briefing and instead addresses their

testimony collectively. This approach is misguided. More specifically, Mr.

Watson’s argument is untenable because it is based on a false premise—that Ms.

Armbruster’s testimony was admitted under Rule 404(b). Actually, Ms.

49
Armbruster’s testimony was expressly admitted by the district court for

impeachment purposes, instead of as substantive evidence under Rule 404(b). 18

18
Ms. Armbruster testified in rebuttal after Mr. Watson left the witness stand.
Mr. Watson’s counsel complained that his direct examination of Mr. Watson did not open
the door to Ms. Armbruster’s testimony because the examination only covered the
approximate period of the crimes charged. Specifically, counsel contended that Mr.
Watson’s testimony “never went back to the time” covered by Ms. Armbruster’s
testimony—i.e., from 1994 or 1995 through 2000 or 2001. R., Vol. II, at 482 (Jury Trial
Tr., dated Feb. 29, 2012). In other words, under the reasoning of Mr. Watson’s counsel,
Ms. Armbruster’s testimony would be improper because it would not relate to the same
time period as the substantive evidence offered by Mr. Watson’s direct-examination
testimony. However, the district court immediately responded and clarified the basis for
the admission of Ms. Armbruster’s testimony: “[Mr. Watson is] denying everything that
Mr. Shuck said on the stand and I’m going to allow them to inquire as to his use and sale
of marijuana. It’s [i.e., Ms. Armbruster’s testimony is] impeachment.” Id. The district
court underscored the basis for its ruling during the course of Ms. Armbruster’s
testimony. After Mr. Watson left the witness stand, Ms. Armbruster testified that she had
used marijuana, and then the government asked her where she “generally g[ot] [her]
marijuana from,” and she testified that “[a] lot of times we got it from [Mr.] Watson.” Id.
at 492. Mr. Watson’s counsel objected, and then the following exchange occurred at the
bench:

THE COURT: Mr. Watson took the stand and denied any involvement
in any activities related to this case.

[DEFENSE COUNSEL]: In cross-examination.

THE COURT: Well, he took the stand in direct in answer to your
questions and said he was not involved in a conspiracy with Mr. Shuck
and did not grow or use marijuana. You asked him if he uses marijuana
and they asked him if he uses marijuana, and he denied he ever
distributed marijuana. I am allowing this testimony [i.e., of Ms.
Armbruster].

Id. at 492–93. In other words, the district court expressly admitted Ms. Armbruster’s
testimony regarding purchasing marijuana from Mr. Watson, and using it with him,
during a period earlier than the charged crimes to impeach Mr. Watson’s testimony that
he never used or distributed marijuana.

50
 As such, Ms. Armbruster’s testimony was qualitatively different than Mr.

Shuck’s, or any other Rule 404(b) testimony. “[E]vidence offered under Rule

404(b) is substantive evidence against the accused, i.e., it is part of the

government’s case offered to prove his guilt beyond a reasonable doubt.” United

States v. Haslip, 160 F.3d 649, 654 (10th Cir. 1998) (alteration in original)

(emphasis added) (quoting United States v. Valencia, 61 F.3d 616, 619 (8th Cir.

1995)) (internal quotation marks omitted). On the other hand, impeachment

evidence serves a different purpose altogether, related to challenging witness

credibility. In other words, substantive evidence is that which is “offered to help

establish a fact in issue,” Black’s Law Dictionary 640 (9th ed. 2009), while

impeachment evidence is offered to “undermine a witness’s credibility,” id. at

637; see Friedman v. Rehal, 618 F.3d 142, 153–54 (2d Cir. 2010)

(“[I]mpeachment evidence . . . is offered to discredit a witness . . . to reduce the

effectiveness of [her] testimony by bringing forth evidence which explains why

the jury should not put faith in [her] or [her] testimony.” (second, third, and

fourth alterations in original) (second omission in original) (quoting Chiasson v.

Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993)) (internal quotation

marks omitted)); United States v. Harris, 557 F.3d 938, 942 (8th Cir. 2009)

(“Impeachment is an attack on the credibility of a witness . . . .” (internal

quotation marks omitted)); cf. United States v. Carter, 973 F.2d 1509, 1512 (10th

Cir. 1992) (“A witness’ ‘prior statements are admissible only to impeach or

51
discredit the witness and are not competent substantive evidence of the facts to

which the former statements relate.’” (quoting United States v. Eaton, 485 F.2d

102, 105 (10th Cir.1973))); cf. also Regan-Touhy v. Walgreen Co., 526 F.3d 641,

651 (10th Cir. 2008) (“[A] prior statement offered for impeachment purposes is

admissible only to show that the speaker is not worthy of belief; it is not received

for the truth of the matter asserted.”).

Ms. Armbruster was a rebuttal witness. Rebuttal evidence “allows a party

to ‘explain, repel, contradict or disprove an adversary’s proof,’” United States v.

Magallanez, 408 F.3d 672, 681 (10th Cir. 2005) (quoting United States v.

LiCausi, 167 F.3d 36, 52 (1st Cir. 1999)), and its limits are within the sound

discretion of the district court, see Geders v. United States, 425 U.S. 80, 86

(1976) (“Within limits, the judge may control the scope of rebuttal

testimony . . . .”). Here, the district court expressly reasoned that Ms.

Armbruster’s rebuttal testimony cast doubt on the veracity of Mr. Watson’s

direct-examination testimony that he did not use marijuana and had never assisted

Mr. Shuck in growing marijuana for distribution. 19 In other words, the district

19
This is not to say that rebuttal-witness testimony is categorically only
admissible as impeachment evidence (as opposed to substantive evidence). Indeed, in
certain circumstances, rebuttal evidence can constitute substantive evidence. See Harris,
557 F.3d at 942–43 (holding that the challenged evidence the government introduced in
rebuttal was substantive evidence and “not . . . relevant for impeachment purposes”
because it was “not offered to show that [the witness] was not a credible person but to
show that” she was not at the defendant’s home during the relevant time, making her
testimony that she did not see any drug-related activity while at the defendant’s home
(continued...)

52
court admitted the evidence not because it helped establish a fact at issue, but

because it called into question the truthfulness of Mr. Watson’s testimony. Thus,

in short, the challenged testimony was “not offer[ed] . . . for any of the purposes

covered by Rule 404, proper or improper, but rather to impeach credibility.”

United States v. Rackley, 986 F.2d 1357, 1363 (10th Cir. 1993); accord United

States v. Burch, 153 F.3d 1140, 1144 (10th Cir. 1998).

When a defendant, like Mr. Watson, challenges evidence under Rule 404(b)

that was admitted solely for impeachment purposes, we need not pursue the Rule

404(b) challenge any further. See Burch, 153 F.3d at 1143 (declining to assess

the defendant’s Rule 404(b) challenge to certain evidence because he

“misunderstood the basis for its admission”); Rackley, 986 F.2d at 1363 (“We find

defendant’s argument based on [Rule] 404(b) standards to be incorrect because

the [challenged evidence admitted via] cross-examination . . . was not 404(b)

evidence. It went to the issue of the witnesses’ credibility, and was properly

admitted as impeachment under [Rule] 611(b).”); cf. United States v. Crockett,

435 F.3d 1305, 1312 (10th Cir. 2006) (“Although Defendant couches his

argument in terms of the allegedly erroneous admission of evidence under [Rule]

404(b), that rule is only tangentially related to the allegation of error here. The

dispositive issue is the proper scope of cross-examination.”).

19
(...continued)
irrelevant). However, in this case, the challenged testimony of the rebuttal witness, Ms.
Armbruster, was admitted to impeach Mr. Watson’s direct-examination testimony.

53
 Mr. Watson’s misunderstanding about the actual basis for admitting Ms.

Armbruster’s testimony—that is, impeachment—has resulted in him waiving

through briefing omission any challenge to that true basis. See, e.g., O’Neal v.

Ferguson Constr. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001) (“We will not

make arguments for [a party] that it did not make in its briefs.”). And it

ineluctably follows that the challenge that he has made under Rule 404(b) cannot

give him succor because it is wholly inapposite. Accordingly, Mr. Watson’s

challenge to Ms. Armbruster’s testimony must fail. 20

V

For the foregoing reasons, Mr. Watson’s conviction is AFFIRMED.

20
Even if we put aside the district court’s explicit statements and assume
arguendo that Ms. Armbruster’s testimony actually was admitted as substantive evidence
of Mr. Watson’s guilt under Rule 404(b)—rather than impeachment evidence—we would
still conclude that her testimony was properly admissible other-acts evidence.
Significantly, Mr. Watson does not attempt to distinguish in his Rule 404(b) arguments
between the testimony of Mr. Shuck and Ms. Armbruster. In other words, insofar as there
are features of Ms. Armbruster’s testimony that would make it admissible under Rule
404(b), even if Mr. Shuck’s testimony was not, Mr. Watson has not identified those
features for us. Therefore, when we concluded supra that Mr. Watson’s Rule 404(b)
arguments regarding Mr. Shuck were untenable and, consequently, must fail, we
necessarily addressed the merits of any tacit Rule 404(b) arguments advanced by Mr.
Watson regarding Ms. Armbruster and reached the same conclusion—viz., in rejecting
Mr. Watson’s arguments regarding Mr. Shuck’s testimony, we simultaneously sounded
the death knell for any of his Rule 404(b) arguments regarding Ms. Armbruster’s
testimony.

54