United States v. Stein

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 25, 2021

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-3030

PATRICK EUGENE STEIN,

Defendant - Appellant.
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-3034

CURTIS WAYNE ALLEN,

Defendant - Appellant.
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-3035

GAVIN WAYNE WRIGHT,

Defendant - Appellant.
_________________________________
 Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:16-CR-10141-EFM)
_________________________________

Meredith B. Esser, Assistant Federal Public Defender, (and Virginia L. Grady, Federal
Public Defender, on the brief), Denver, Colorado, for Defendant – Appellant Patrick
Eugene Stein.

Paige A. Nichols, Assistant Federal Public Defender, (and Melody Brannon, Federal
Public Defender, on the briefs), Topeka, Kansas, for Defendant – Appellant Curtis
Wayne Allen.

Kari S. Schmidt (and Tyler J. Emerson of Conlee, Schmidt & Emerson, LLP, on the
briefs), Wichita, Kansas, for Defendant – Appellant Gavin Wayne Wright.

Erin H. Flynn, (Thomas E. Chandler, Alisa C. Philo of Department of Justice, Civil
Rights Division, Appellate Section, Washington, D.C.; Stephen R. McAllister, United
States Attorney, Anthony W. Mattivi, Assistant United States Attorney, District of
Kansas, Topeka, Kansas; Eric S. Dreiband, Assistant Attorney General and Alexander V.
Maugeri, Deputy Assistant Attorney General, Washington, D.C., on the brief), for
Appellee United States of America.
_________________________________

Before HARTZ, KELLY, and HOLMES, Circuit Judges.
_________________________________

KELLY, Circuit Judge.
_________________________________

Defendants-Appellants Patrick Stein, Curtis Allen, and Gavin Wright appeal

from their convictions for conspiring to use a weapon of mass destruction against

people and property within the United States in violation of 18 U.S.C. § 2332a(a)(2)

and knowingly and willfully conspiring to violate civil rights in violation of

18 U.S.C. § 241. Mr. Wright also appeals from his false statements conviction under

18 U.S.C. § 1001(a)(2). Exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we affirm the convictions and sentences of all three defendants.

2
 Background

In October 2016, defendants were arrested in connection with a scheme to

bomb an apartment complex and mosque in Garden City, Kansas. The arrests were

the result of an extended FBI investigation involving an undercover informant, Dan

Day, who joined defendants’ militia, Kansas Security Force (KSF), to monitor what

the FBI considered a threat to public safety.

In June 2016, defendants began planning an attack on local Muslims in

response to the Pulse nightclub shooting in Orlando, Florida, which was carried out

by an American citizen of Afghan descent. At the FBI’s request, Mr. Day recorded

defendants’ meetings and telephone communications discussing the details of the

attack, including possible targets and methods of attack. Over the course of several

meetings, defendants decided to target the West Mary Street apartment and mosque

complex, where defendants believed a large number of Somali immigrants resided.

Defendants pursued various strategies for obtaining explosives to carry out the

attacks, including manufacturing their own explosives and meeting with an FBI

undercover employee (“UCE”) posing as an arms dealer.

Mr. Allen was arrested first, after his girlfriend filed a domestic violence

report against him and told police she had seen Mr. Allen and Mr. Wright

manufacturing explosives at Mr. Wright’s business. Two days later, Mr. Stein was

arrested when he attempted to deliver cash and 300 pounds of fertilizer to the UCE in

exchange for the UCE’s help constructing an explosive. Mr. Wright was arrested

later that day. While executing search warrants on defendants’ property, the FBI

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discovered, among other things, materials for making explosives and a draft

manifesto addressed to “the U.S. government and [] the American people,” urging

government officials and private citizens to stop “the sellout of this country.”

Defendants were charged with two separate conspiracies: (1) conspiring to use

a weapon of mass destruction against people and property within the United States in

violation of 18 U.S.C. § 2332a(a)(2) and (2) knowingly and willfully conspiring to

violate the civil rights of the residents of the 312 West Mary Street apartment

complex in violation of 18 U.S.C. § 241. The government also charged Mr. Wright

with making materially false statements to the FBI in violation of 18 U.S.C.

§ 1001(a)(2).

Prior to jury selection, defendants challenged the jury selection plan under the

Jury Selection and Service Act (“Jury Act”). Under the challenged plan, 1 grand

jurors were drawn from each of the District of Kansas’s six judicial divisions, while

petit jurors were drawn only from the three divisions with an active federal

courthouse. These three divisions do not include the Dodge City division where most

of defendants’ conduct took place. The district court rejected the challenge on the

merits. At defendants’ request, the district court also held a pre-trial hearing to

determine whether the recordings of defendants’ meetings and phone calls were

1
On March 4, 2020, the Chief Judge for the District of Kansas issued an
administrative order amending the district’s petit jury selection procedure to draw
from all six judicial divisions. See In re Administration of Jury Plan Pursuant to
D. Kan. Rule 38.1, Administrative Order No. 2020-1 (Mar. 4, 2020). The order still
permits the creation of petit jury panels from a single division as practical.
4
admissible as coconspirator statements under Fed. R. Evid. 801(d)(2)(E). Over the

course of the three-day hearing, the district court ruled that most of the statements the

government intended to offer were admissible.

The case proceeded to a jury trial. The government called 15 witnesses,

including undercover informant Dan Day, and introduced more than 500 exhibits,

hundreds of which were audio or video recordings. Defendants called 10 witnesses

and introduced nearly 40 exhibits but did not testify themselves. At the close of

evidence, defendants requested that the district court instruct the jury on an

entrapment defense. The district court found that defendants had failed to establish

an evidentiary basis for entrapment and declined to offer the instruction.

The defendants were convicted on all counts. At sentencing, the district court

applied the terrorism enhancement over defendants’ objections and varied downward

from defendants’ guidelines range of life imprisonment, sentencing Mr. Allen to 300

months’ imprisonment, Mr. Wright to 312 months’ imprisonment, and Mr. Stein to

360 months’ imprisonment.

Discussion

All three defendants challenge their convictions and sentences on three

grounds: (1) the method of petit jury selection violated the Jury Act, (2) the district

court improperly refused to instruct the jury on entrapment, and (3) the district court

erred in applying the terrorism enhancement at sentencing. Mr. Wright also raises

several additional challenges in which his co-defendants do not join.

5
 A. Jury Selection

Prior to trial, defendants challenged the district court’s jury selection plan, in

which the petit jury pool was drawn only from the Wichita/Hutchinson division,

where the courthouse is located, and not from the Dodge City division. The district

court rejected the challenge on the merits. On appeal, defendants argue that the

exclusion of jurors from the Dodge City division violated the Jury Act’s policy “that

all citizens shall have the opportunity to be considered for service on grand and petit

juries in the district courts of the United States,” and that, as a result, they are entitled

to a new trial. 28 U.S.C. § 1861. We review the district court’s legal conclusions

under the Jury Act de novo and any underlying factual determinations for clear error.

United States v. Kamahele, 748 F.3d 984, 1022 (10th Cir. 2014).

A defendant must raise a Jury Act challenge “before the voir dire examination

begins, or within seven days after the defendant discovered or could have discovered,

by the exercise of diligence, the grounds therefor, whichever is earlier.” 28 U.S.C.

§ 1867(a). In addition, the challenge requires a “sworn statement of facts” showing a

substantial failure to comply with the Act. 28 U.S.C. § 1867(d). “Strict compliance

with these procedural requirements is essential.” United States v. Contreras, 108

F.3d 1255, 1266 (10th Cir. 1997); see also United States v. Morales, 108 F.3d 1213,

1218 (10th Cir. 1997). In Contreras, we cautioned against “ad hoc review” of the

Jury Act’s procedural requirements given that the statute provides a remedy for

substantial violations without a showing of prejudice. 108 F.3d at 1266. A

defendant’s failure to file a challenge within seven days after being put on notice of

6
the allegedly deficient jury selection procedures precludes a Jury Act claim. See

United States v. Windrix, 405 F.3d 1146, 1157 (10th Cir. 2005).

Defendants’ Jury Act motions were untimely. Defendants were on notice of

the jury selection plan as early as the November 16, 2017 status conference where, in

response to defendants’ concerns regarding prejudicial media coverage in Southwest

Kansas, the jury coordinator confirmed that petit jury pools were drawn only from

the Wichita/Hutchinson division. Under the Jury Act, defendants had seven days

from this time (i.e., through November 23, 2017) to file a compliant motion

challenging this practice. 28 U.S.C. 1867(a); see also Windrix, 405 F.3d at 1157.

This they did not do.

Defendants’ first Jury Act motion (urging the court to summon jurors from the

Dodge City division) was not filed until December 8, 2017 and, as the government

pointed out, lacked a sworn statement of facts. The district court denied the motion

on January 17, 2018. Six days later, on January 23, 2018, defendants filed their

second Jury Act motion containing a sworn statement of facts. Defendants plainly

recognized the timeliness problem, arguing that their first Jury Act challenge was

really an attempt to “nullify” the issue and that the seven-day clock began running

when the district court denied their first motion. In arguing for the district court’s

denial of the second motion, the government reiterated the procedural requirements

of the Jury Act.

Although defendants argue that the government waived the issue by merely

reciting the procedural requirements and addressing the merits, we disagree. The

7
government did not intentionally relinquish or abandon in the district court any

procedural challenge to defendants’ Jury Act motion; it simply did not make such an

argument. See United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir.

2007). This failure of course does not prevent us from affirming the district court’s

judgment on this ground, even though the court did not address any procedural

deficiencies of the motion. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130

(10th Cir. 2011). And the matter was clearly before the district court. Defendants’

second Jury Act motion plainly raises the issue, arguing that it was timely because

the jury coordinator’s statement only reflected past practice and the district court

could have altered the plan in response to defendants’ first Jury Act motion. This

argument, however, is not persuasive; defendants had enough to go on after being

informed of the practice at the November 16 hearing. The bottom line is that

defendants filed a non-compliant Jury Act motion well over seven days after being

put on notice of the jury selection plan. Accordingly, their Jury Act challenge must

be rejected as procedurally barred under our precedent.

Moreover, even if the challenge were not procedurally barred, it fails on the

merits. The Jury Act provides remedies when a jury selection procedure “involves a

substantial failure to comply with the statute.” Kamahele, 748 F.3d at 1022; 28

U.S.C. § 1867(a). “A failure is considered ‘substantial’ when it ‘frustrates one of the

three principles underlying the Act’: (1) the random selection of jurors, (2) culling of

the jury from a fair cross-section of the community, and (3) determination of

disqualifications, exemptions, and exclusions based on objective criteria.”

8
Kamahele, 748 F.3d at 1022 (quoting United States v. Carmichael, 560 F.3d 1270,

1277 (11th Cir. 2009)). A technical deviation from the provisions of the Jury Act

will not be considered a substantial failure to comply if it does not “result in

impermissible forms of discrimination and arbitrariness.” United States v. Bailey, 76

F.3d 320, 322 (10th Cir. 1996) (quoting United States v. Gregory, 730 F.2d 692, 699

(11th Cir. 1984)).

Defendants argue that the exclusion of petit jurors from the Dodge City

division is a substantial failure to comply with the Jury Act in that it prevents the

random selection of jurors and involves the de facto creation of a new category of

exclusion.

The jury selection plan did not prevent the random selection of jurors. The

randomness principle underlying the Jury Act “requires a system of selection that

affords no room for impermissible discrimination against individuals or groups.”

Carmichael, 560 F.3d at 1277 (citation omitted). Defendants contend that

randomness is not possible when half of a district’s divisions are not summoned for

jury service, but they fail to identify “an identifiable and cognizable segment of the

community” excluded from the jury pool in a manner that frustrates the Jury Act’s

purpose. See Bailey, 76 F.3d at 323 (citation omitted). Geographical imbalance,

absent evidence of discrimination or discriminatory effects, is insufficient to

establish a substantial failure to comply with the Jury Act. See id.; United States v.

Test, 550 F.2d 577, 581 n.4 (10th Cir. 1976).

9
 Similarly, the selection of jurors only from judicial divisions with an active

federal courthouse did not constitute the creation of a new category of exclusion in

violation of the Jury Act. We have rejected the argument that the exclusion of jurors

based on the judicial division in which they reside violates the Jury Act, recognizing

instead that “the partitioning of a district into jury divisions is sanctioned by [the Jury

Act], and is clearly not unconstitutional, absent evidence that some cognizable group

has been systematically excluded by ‘gerrymandering’ the division lines.” Test, 550

F.2d at 594. Again, defendants fail to identify a cognizable group systematically

excluded from the petit jury pool as a result of this practice.

B. Entrapment Instruction

Defendants next argue that the district court erred in declining to instruct the

jury on an entrapment defense. “Whether there is evidence sufficient to constitute a

triable issue of entrapment is a question of law which we review de novo,” viewing

the evidence in the light most favorable to the defendant. United States v. Vincent,

611 F.3d 1246, 1249–50 (10th Cir. 2010) (internal quotations omitted).

“[A] defendant is entitled to have a jury consider any defense which is

supported by the law and has sufficient foundation in the evidence to create a genuine

issue of fact.” United States v. Ortiz, 804 F.2d 1161, 1163 (10th Cir. 1986). To raise

a valid entrapment defense, a defendant must show an evidentiary basis on which the

jury could find (1) “government inducement of the crime,” and (2) “a lack of

predisposition on the part of the defendant to engage in the criminal conduct.”

Mathews v. United States, 485 U.S. 58, 62–63 (1988). A defendant may do this

10
“either by presenting his own evidence or by pointing to evidence presented by the

government,” United States v. Scull, 321 F.3d 1270, 1275 (10th Cir. 2003), but

“conclusory and self-serving statements,” such as suggestions that the jury could

disbelieve evidence presented at trial, alone will not suffice. See Ortiz, 804 F.2d

at 1165–66. The fact that the government employed deceit or persuasive tactics in

investigating criminal activity is insufficient to establish entrapment. United States

v. Russell, 411 U.S. 423, 435–36 (1973); Vincent, 611 F.3d at 1250–51.

Taken in the light most favorable to defendants, the evidence presented at trial

did not create a triable issue as to inducement. Inducement is “government conduct

which creates a substantial risk that an undisposed person or otherwise law-abiding

citizen would commit the offense.” Ortiz, 804 F.2d at 1165. Defendants did not

testify, and primarily point to evidence presented by the government in arguing that

there was an evidentiary basis for an entrapment instruction at trial. Specifically,

defendants contend that there was evidence that Mr. Day proposed the location and

time defendants ultimately chose for the attack, was the first to show the location to

Mr. Stein, urged defendants to meet with the UCE and to develop explosives, and

made sustained efforts to appeal to defendants’ ideologies, including by echoing

defendants’ attitudes towards Muslims. Defendants also argue that the FBI’s use of a

UCE posing as an arms dealer, as well as its efforts to build chargeable offenses,

further supported a finding of inducement.

The government responds that the actual evidence at trial reflects that the

defendants, not Mr. Day or the UCE, originated a plan to kill innocent Muslims with

11
explosives. It does appear from the record that (1) Mr. Stein did not first learn about

the Mary Street apartment complex from Mr. Day, but rather through his involvement

in a different militia; (2) Mr. Stein asked Mr. Day to show him the location of the

complex in daylight; and (3) Mr. Allen and Mr. Wright were engaged in their own

efforts to develop explosives at the time they resisted meeting with the undercover

agents posing as arms dealers.

Defendants counter that these findings improperly “presume[] the truth of”

impeached government witnesses’ testimony. However, the suggestion that the jury

could have disbelieved or disregarded this evidence is insufficient without pointing to

evidence in the record to support a contrary finding. See Ortiz, 804 F.2d at 1165–66

(explaining that “conclusory and self-serving statements, standing alone,” will not

establish a triable issue of inducement). In any event, even if defendants’

characterizations of the evidence found support in the record, evidence that a

government agent encouraged or solicited a defendant to engage in criminal conduct,

without more, is insufficient to constitute inducement. Vincent, 611 F.3d at 1250–

51; Ortiz, 804 F.2d at 1165. After a review of the record, we are satisfied that the

district court’s assessment is correct.

Nor can defendants demonstrate a basis for finding a lack of predisposition,

even viewing the evidence in the light most favorable to the defendants.

Predisposition is “a defendant’s inclination to engage in the illegal activity for which

he has been charged,” and may be demonstrated by a defendant’s “eagerness to

participate in” the illegal activity. United States v. Fadel, 844 F.2d 1425, 1433

12
(10th Cir. 1988). Defendants argue that, among other things, their quiet lives prior to

their arrests demonstrate a lack of predisposition. Mr. Wright argues further that his

past business dealings with Muslims demonstrate a lack of predisposition, and Mr.

Stein argues that his “anti-Muslim sentiments and grandiose schemes” never

materialized into action prior to Mr. Day’s involvement.

These arguments overlook the fact that defendants were charged with

conspiracies. While conspiracy “cannot exist without at least the degree of criminal

intent necessary for the substantive offense itself,” Ingram v. United States, 360 U.S.

672, 678 (1959), predisposition is judged by examining whether defendants were

“ready and willing to commit the crime” for which they were charged — here,

conspiracy to use weapons of mass destruction and to violate the civil rights of local

Muslims. Ortiz, 804 F.2d at 1165. There is extensive evidence over time of

defendants’ eagerness to enter into this conspiracy. Defendants’ rhetoric regarding

Muslims predated Mr. Day’s involvement, and their actions, independent of Mr. Day,

to develop a bomb for use in the attack do not support the notion that they were not

predisposed to be involved in such a conspiracy or that their plans would not have

materialized absent Mr. Day’s involvement. Accordingly, defendants failed to raise a

triable issue as to entrapment and the district court did not err in declining to offer an

entrapment instruction.

C. Terrorism Enhancement

Defendants next challenge the district court’s application of the terrorism

enhancement under § 3A1.4 of the Sentencing Guidelines. “We review the district

13
court’s application of the Sentencing Guidelines for abuse of discretion.” United

States v. Rodriguez, 945 F.3d 1245, 1248 (10th Cir. 2019). “In applying that

standard, we review questions of law de novo and factual findings for clear error.”

Id. at 1249.

Defendants first argue that, because application of the terrorism enhancement

significantly increased their guidelines range, it should have been subject to the clear

and convincing standard of proof, rather than a preponderance of the evidence.

In general, factual findings at sentencing must be supported by a

preponderance of the evidence. United States v. Robertson, 946 F.3d 1168, 1171

(10th Cir. 2020). While “we have left open the possibility that due process may

require proof by clear and convincing evidence” where an enhancement “increases a

sentence by an extraordinary or dramatic amount,” United States v. Ray, 704 F.3d

1307, 1314 (10th Cir. 2013) (internal quotations omitted), we have never held that a

sentencing enhancement was subject to the clear and convincing standard based on its

disproportionate impact on the guidelines range. 2 United States v. Olsen, 519 F.3d

1096, 1105 (10th Cir. 2008). Here, the terrorism enhancement increased defendants’

guideline ranges from approximately 15–20 years to life imprisonment and

defendants ultimately received sentences ranging from 25 to 30 years. To the extent

2
To the contrary, in several cases we have stated explicitly that the argument
for a higher standard of proof at sentencing for contested facts has been foreclosed in
this circuit. See Robertson, 946 F.3d at 1171; United States v. Constantine, 263 F.3d
1122, 1125 n.2 (10th Cir. 2001); United States v. Valdez, 225 F.3d 1137, 1143 n.2
(10th Cir. 2000); United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993).
14
that an argument for a higher standard of proof for enhancements resulting in an

extraordinary sentence increase is available in this circuit, this case does not involve

such an increase. 3

Second, defendants argue that the district court erred in applying the terrorism

enhancement under any standard of proof because their offense was not primarily

calculated to influence or retaliate against government conduct.

In relevant part, the terrorism enhancement applies to offenses that are

“calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct.” U.S.S.G. § 3A1.4, cmt. 1;

18 U.S.C. § 2332b(g)(5). Section 3A1.4 also provides for an upward departure where

the defendant’s “motive was to intimidate or coerce a civilian population,” rather

than to influence or retaliate against government conduct. U.S.S.G. § 3A1.4, cmt. 4.

Defendants contend that because the primary target of their offense was a

civilian population, i.e., the Muslim residents of the West Mary Street apartment

complex, the district court should have imposed an upward departure rather than the

full terrorism enhancement. However, “[t]he terrorism enhancement applies so long

as [defendants’] conduct was ‘calculated . . . to retaliate against government

3
Defendants also preserve for further review the argument that, because their
sentences can be upheld as reasonable only because of the existence of judge-found
facts, the sentences violate their Sixth Amendment right to trial by jury and Fifth
Amendment due process rights. See Rita v. United States, 551 U.S. 338, 375 (2007)
(Scalia, J., concurring). As defendants acknowledge, this argument is foreclosed by
circuit precedent. See United States v. Redcorn, 528 F.3d 727, 745–46 (10th Cir.
2008).
15
conduct,’ even if it was also calculated to accomplish other goals simultaneously.”

United States v. Van Haften, 881 F.3d 543, 545 (7th Cir. 2018) (quoting 18 U.S.C.

§ 2332b(g)(5)(A)); see also United States v. Wright, 747 F.3d 399, 408 (6th Cir.

2014); United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010). While it is true that

defendants were motivated by a strong anti-Muslim sentiment, there is ample

evidence demonstrating that defendants’ offenses were also calculated to influence or

retaliate against government conduct. Defendants’ manifesto was addressed to the

U.S. government and aimed to “wake up the American people” to the “tyrannical

government.” It continued: “It must be understood by all just what our government is

up to. . . Not enforcing our borders, illegally bringing in Muslims by the thousands,

top U.S. officials being above the law, top officials in our government taking

donations of bribes from foreign nations.” The evidence introduced at trial also

included numerous references by defendants to the immigration policy of the Obama

administration as a motivating factor for the attack. This evidence supports a finding

that defendants’ offenses were calculated to influence or retaliate against government

conduct under any standard of proof. Accordingly, the district court correctly applied

the terrorism enhancement.

D. Defendant Wright’s Claims

In addition to the claims discussed above, Mr. Wright brings four additional

challenges to his conviction and sentence in which his co-defendants do not join.

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 1. Prosecutorial Misconduct

Mr. Wright argues that the government engaged in prosecutorial misconduct

that violated his due process rights. We review allegations of prosecutorial

misconduct de novo. United States v. Caballero, 277 F.3d 1235, 1248 (10th Cir.

2002).

In reviewing claims of prosecutorial misconduct, we first determine whether

the conduct was improper, then whether any improper conduct warrants reversal. Id.

at 1247–48. “[P]rosecutorial misconduct must be ‘of sufficient significance to result

in the denial of the defendant’s right to a fair trial’ before it will rise to the level of a

due process violation” warranting reversal. Id. at 1248 (quoting Greer v. Miller, 483

U.S. 756, 765 (1987)).

Mr. Wright identifies two instances of allegedly improper conduct by the

government: (1) the government’s alleged delay in providing the defense with

transcripts identifying the specific recorded statements the government sought to

offer as coconspirator statements at trial; and (2) the government’s representation that

the transcripts at issue were “verified, accurate, and trustworthy,” when in fact a

small number of the transcripts contained misattributions.

Mr. Wright’s allegation regarding the government’s delay in identifying the

statements to be offered as coconspirator statements is contradicted by the record.

Defense counsel received the complete recordings of defendants’ meetings and phone

calls after defendants’ arrest in October 2016. By May 11, 2017, defense counsel had

also received draft transcripts of those recordings. Prior to the James hearing to

17
determine the admissibility of the statements the government planned to offer at trial,

defendants received the excerpted recordings the government intended to offer as

well as printed transcripts marking the excerpts of each audio clip the government

planned to use. Accordingly, Mr. Wright has failed to identify government

misconduct, let alone misconduct undermining his right to a fair trial. See Caballero,

277 F.3d at 1248.

Mr. Wright’s allegation that prosecutors knowingly introduced false evidence

in the form of inaccurate transcripts of the audio clips similarly lacks merit. In order

to establish a due process violation, Mr. Wright must show that (1) the prosecution

introduced false evidence, (2) the prosecution knew the evidence to be false, and

(3) the evidence was material. See id. at 1243. Mr. Wright’s claim fails on the first

element. The transcripts were never admitted into evidence and the district court

repeatedly instructed the jury that only the recordings, and not the transcripts, were to

be considered as evidence. In addition, when the defense asked FBI Agent Kuhn

about the transcript inaccuracies during her testimony at trial, Agent Kuhn admitted

that the transcripts contained some misattributions. The government therefore did

not present false evidence.

2. Admission of Coconspirator Statements

Mr. Wright next challenges the procedure by which the district court

determined the admissibility of the recordings as coconspirator statements under Fed.

R. Evid. 801(d)(2)(E). Specifically, he contends that the district court abused its

discretion by (1) admitting the statements in the absence of independent evidence

18
supporting the existence of the conspiracy; and (2) evaluating entire excerpts of

defendants’ recorded conversations rather than evaluating each excerpt sentence-by-

sentence. We review the district court’s admission of coconspirator statements,

including the method it uses to determine admissibility, for abuse of discretion.

United States v. Alcorta, 853 F.3d 1123, 1137–38 (10th Cir. 2017); United States v.

Roberts, 14 F.3d 502, 514 (10th Cir. 1993).

Statements by a party’s coconspirator made “during and in furtherance of the

conspiracy” are excluded from the definition of hearsay and admissible against all

coconspirators. Fed. R. Evid. 801(d)(2)(E). Before statements may be admitted

under this rule, the district court “must determine that (1) by a preponderance of the

evidence, a conspiracy existed, (2) the declarant and the defendant were both

members of the conspiracy, and (3) the statements were made in the course of and in

furtherance of the conspiracy.” United States v. Owens, 70 F.3d 1118, 1123 (10th

Cir. 1995). The “preferred procedure of this circuit” is to hold a James hearing

outside the jury’s presence to make preliminary findings as to whether these

requirements are satisfied, Alcorta, 853 F.3d at 1138, but the district court also “may

provisionally admit the evidence with the caveat that the evidence must ‘connect up’

during trial.” Owens, 70 F.3d at 1123 (citation omitted).

A district court’s preliminary conclusion that the predicate conspiracy existed

at most must be supported by some “independent evidence” of the conspiracy other

than the proffered coconspirator statements themselves, although such evidence need

not be substantial. United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir.

19
1996). Testimony of a government agent regarding his interactions or conversations

with coconspirators is adequate independent evidence. Owens, 70 F.3d at 1125.

Here, the district court followed the preferred procedure and held a multi-day

James hearing to determine whether the predicate conspiracy existed. In addition to

the proffered statements themselves, the district court considered Mr. Day’s

observations of and contacts with Mr. Wright, as well as grand jury testimony from

another witness supporting the existence of the conspiracy as early as June 14, 2016.

And by the time the statements were admitted at trial, multiple witnesses had testified

to defendants’ activities in connection with the conspiracy. Accordingly, the district

court did not abuse its discretion in finding that the recordings were preliminarily

admissible as coconspirator statements based on the evidence produced at the James

hearing, and that evidence was strengthened by the time the statements were admitted

at trial.

Mr. Wright also challenges the district court’s decision to evaluate the

proffered audio clips in their entirety, instead of sentence-by-sentence. Mr. Wright

does not identify a single statement that he contends was improperly admitted as a

result of the district court’s election to proceed in this manner and accordingly fails

to demonstrate any harm resulting from the district court’s approach. This argument

is meritless.

3. False Statements Charge

Next, Mr. Wright challenges the district court’s denial of his motion for a

judgment of acquittal on the false statements charge on two grounds. First, he argues

20
that the government failed to prove that his statements were material. Second, he

argues that the government improperly charged him under 18 U.S.C. § 1001(a)(2).

The denial of a motion for a judgment of acquittal is reviewed de novo to determine

whether, “viewing the evidence in the light most favorable to the government,” a

rational jury could have found the defendant guilty of the crime beyond a reasonable

doubt. United States v. Gordon, 710 F.3d 1124, 1141 (10th Cir. 2013).

“[A] false statement is material if it has a natural tendency to influence, or [is]

capable of influencing, the decision of the decision-making body to which it was

addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (quotations omitted).

Materiality does not depend on whether the statement actually influenced the

decision at issue and is a “mixed question of law and fact that the jury decides.”

United States v. Williams, 934 F.3d 1122, 1128–29 (10th Cir. 2019).

Mr. Wright’s false statements were clearly material to the federal investigation

into defendants’ plan to bomb the Mary Street apartment complex. When Mr. Wright

was denied entry to his business following Mr. Allen’s arrest, he went to the police

station to find out why. While there, he agreed to an interview with agents from the

FBI and Kansas Bureau of Investigation, in which he denied involvement in

defendants’ plan. At trial, the government introduced a video in which Mr. Wright

made several false statements to state and federal investigators, including (1) he did

not know anything about Mr. Allen developing explosives at his business; (2) he was

not aware of any explosives located on his business’s premises; (3) he did not belong

to a militia; and (4) he had neither attended nor been invited to any KSF meetings.

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The government was not required to introduce additional evidence that investigators

were actually influenced by these statements. See Williams, 934 F.3d at 1129. The

jury’s verdict is supported by the record.

Mr. Wright also argues that the government improperly indicted him under

18 U.S.C. § 1001(a)(2) because a federal investigation is not a sufficiently discrete

“decision” for purposes of the statute. In other words, Mr. Wright asks this court to

hold that Section 1001(a)(2) is limited to situations in which the government must

approve or deny an application and is inapplicable to criminal interviews. However,

both the Supreme Court and this circuit have confirmed that a defendant’s false

statements to investigators in the course of a federal investigation can support a

conviction under 18 U.S.C. § 1001’s “false, fictitious, or fraudulent statements”

clause. See Brogan v. United States, 522 U.S. 398, 400–02 (1998) (considering a

prior version of 18 U.S.C. § 1001 containing the same relevant language as in

18 U.S.C. § 1001(a)(2)); Gordon, 710 F.3d at 1145.

4. Cumulative Error

Finally, Mr. Wright argues that to the extent any of the purported errors

discussed above, or those discussed below, are deemed harmless, the cumulative

effect of all errors demands reversal.

Cumulative error analysis “aggregates all the errors that individually have

been found to be harmless, and therefore not reversible,” and “analyzes whether their

cumulative effect on the outcome of the trial is such that collectively they can no

longer be determined to be harmless.” Hooper v. Mullin, 314 F.3d 1162, 1178 (10th

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Cir. 2002) (quotations omitted). “Only actual errors are considered in determining

whether the defendant’s right to a fair trial was violated.” United States v. Toles, 297

F.3d 959, 972 (10th Cir. 2002). Where a defendant fails to establish the existence of

multiple non-reversible errors, he cannot benefit from the cumulative error doctrine.

United States v. Lopez-Medina, 596 F.3d 716, 741 (10th Cir. 2010).

Mr. Wright identifies three additional purported evidentiary errors by the

district court that he contends, together with those discussed above, give rise to

cumulative error.

First, he argues that the district court abused its discretion by denying his

request under Fed. R. Evid. 106 to play the entire recordings of each of defendants’

multi-hour meetings — over a hundred hours of recordings, collectively. Rule 106

does not require that an entire statement or recording be admitted, but rather permits

a court to admit additional portions of a statement when necessary to clarify or

explain the portion already admitted. Lopez-Medina, 596 F.3d at 735. In requesting

to play the entirety of the recordings, Mr. Wright did not identify portions of the

admitted statements needing clarification, instead arguing broadly that the

government’s introduction of the recordings in clips was unfair. As the district court

noted, Mr. Wright waited until the middle of trial to object to the introduction of the

clips, despite knowing well in advance that the government did not plan to introduce

entire recordings, and failed to identify specific statements requiring clarification in

his objection. Accordingly, the district court reasonably found that the objection was

not made in good faith and did not abuse its discretion in denying it.

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 Mr. Wright also argues that the district court erred in only allowing him to

play clips of phone calls between Mr. Wright and Mr. Day during Mr. Day’s cross-

examination and later permitting the government to play the entire recordings on Mr.

Day’s redirect. However, Mr. Wright twice stated below that he had no objection to

the government invoking Rule 106 to play the recordings in their entirety during Mr.

Day’s redirect, and accordingly has waived the argument on appeal. See United

States v. Malone, 937 F.3d 1325, 1327 (10th Cir. 2019).

Finally, Mr. Wright argues that the district court abused its discretion by

refusing to permit him to cross-examine Mr. Day regarding an application for

Supplemental Security Income Mr. Day submitted nine months after defendants’

arrest. Fed. R. Evid. 608 does not permit the admission of extrinsic evidence in order

to attack a witness’s character for truthfulness, but it permits the court to allow

inquiries into relevant instances of conduct on cross-examination. 4 The district court

permitted defense counsel to ask Mr. Day whether he reported payments from the

FBI on his tax returns and the extent to which he reported the payments differently in

different years. It properly refused to admit the application itself under Rule 608(b)

and did not abuse its discretion in refusing to allow defense counsel to ask about the

application on the basis that a separate “trial within a trial” would be necessary to

establish whether Mr. Day’s statements on the application were in fact untruthful.

4
To the extent Mr. Wright now relies on Fed. R. Evid. 613 in support of this
argument, that argument is waived because he did not raise it below and did not
argue plain error on appeal. United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir.
2019).
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 Mr. Wright has failed to establish the existence of multiple non-reversible

errors. Accordingly, he cannot benefit from the cumulative error doctrine. Lopez-

Medina, 596 F.3d at 741.

AFFIRMED.

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