Appellate Case: 21-6118 Document: 010110799195 Date Filed: 01/18/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 18, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 21-6118
v.
GERMAINE COULTER, SR., a/k/a Slim,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:18-CR-00156-D-1)
_________________________________
Bill Zuhdi, The Zuhdi Law Firm, Oklahoma City, OK, for Defendant-Appellant.
Tiffany Noble, Assistant United States Attorney (Robert J. Troester, United States
Attorney, with her on the brief), Oklahoma City, OK, for Plaintiff-Appellee.
_________________________________
Before MATHESON, CARSON, and ROSSMAN, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Defendant-Appellant Germaine Coulter, Sr., appeals his convictions for child
sex trafficking and conspiracy to commit child sex trafficking. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
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I. BACKGROUND
A. Factual History1
For many years, Mr. Coulter was a pimp in the Oklahoma City area. Upon
release from a five-year state prison term in 2017, he conscripted an underage girl,
“Doe 2,” to recruit a schoolmate, “Doe 1,” to perform sex work for him. He gave
Doe 1 a ride home from school, proposed that she work for him, and promised her
money and gifts in return. After Doe 1 expressed interest, Elizabeth Andrade, one of
Mr. Coulter’s longtime sex workers, took pictures of Doe 1 in various stages of
undress and sent them to Mr. Coulter. He forwarded the photos to potential clients
with messages suggesting that Doe 1 would perform sex acts for money. Ms.
Andrade also sent the photos to potential clients and used one of the photos to
advertise Doe 1’s services online.
Doe 1 had sexual encounters with clients for money. Mr. Coulter gave her
detailed instructions about how much she should charge and when to collect the
money. He also told Ms. Andrade to teach Doe 1 how to perform various sex acts.
Ms. Andrade took Doe 1 on a “call” with her, and both of them had sex with the
client.
Around the same time, Mr. Coulter attempted to recruit another underage girl,
“Doe 3.” He gave Doe 3 a ride home from school and asked whether she wanted to
1
This factual summary derives from the evidence presented at trial, stated in
the light most favorable to the jury’s verdict. See United States v. Kaspereit,
994 F.3d 1202, 1207 (10th Cir. 2021).
2
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earn money by “prostitut[ing] [her]self with the other girls.” ROA, Vol. III at 864.
Doe 3 told Mr. Coulter she would “think about it,” but she had no interest in working
for him and never did. Id. at 867.
B. Procedural History
A grand jury indicted Mr. Coulter and later issued a superseding indictment
charging him with (1) conspiring with Ms. Andrade to commit child sex trafficking,
(2) child sex trafficking with respect to Doe 1, and (3) child sex trafficking with
respect to Doe 3. The grand jury also indicted Ms. Andrade for conspiracy to commit
child sex trafficking. She pled guilty.
The case against Mr. Coulter proceeded to a jury trial. The Government
introduced testimony from (1) law enforcement agents who investigated Mr. Coulter;
(2) Ms. Andrade and other women who had worked for Mr. Coulter; (3) Does 1, 2,
and 3; and (4) the client who had the sexual encounter with Ms. Andrade and Doe 1.
The Government also introduced into evidence Mr. Coulter’s cell phone records,
which corroborated these witnesses’ testimony.
We note three occurrences during trial that are relevant to this appeal. First,
the Government elicited testimony from two witnesses about the deaths of two
women associated with Mr. Coulter—Elizabeth Diaz and Jamie Biggers. Defense
counsel objected to some questions about Ms. Diaz’s death, arguing they implied that
Mr. Coulter was responsible.2 The district court sustained the objection and forbade
2
For example, Ms. Andrade testified on direct examination that Ms. Diaz died
after being “given a hotshot”—a cocktail of drugs designed to induce an overdose.
3
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the Government from “rais[ing] an inference that [Mr. Coulter is] responsible for
th[e] girl’s death.” ROA, Vol. III at 427. During closing arguments, the Government
briefly mentioned Ms. Diaz, but did not suggest that Mr. Coulter had killed her.
Second, the district court appointed a guardian ad litem for each of the minors
involved in the case. At one point during Doe 1’s testimony, defense counsel
requested a bench conference and asserted that Doe 1’s guardian ad litem had
mouthed “[y]ou’re doing a good job” to Doe 1 while she was on the stand.
ROA, Vol. III at 690. The district court had not observed this conduct, but at defense
counsel’s request, the court told the guardian ad litem to avoid signaling Doe 1
during her testimony. The court also delivered a curative instruction to the jury.
Third, the jury deliberated for about six hours before reporting it had reached a
verdict. It filled out verdict forms finding Mr. Coulter guilty on Counts 1 and 2—the
conspiracy charge and the child sex trafficking charge related to Doe 1—but said it
was deadlocked on Count 3—the child sex trafficking charge related to Doe 3. When
the district court polled the jury, one juror, Ms. Noland, said the verdict did not
reflect her opinion and expressed that she did not want to return to the deliberations.
ROA, Vol. III at 425. The Government asked Ms. Andrade, “[W]ho gave her a
hotshot?” Id. Mr. Coulter objected on relevance grounds. Id. at 425-26. During a
bench conference, the Government said it expected Ms. Andrade to testify that “Mr.
Coulter was responsible for Ms. Diaz being given a hotshot.” Id. at 427.
4
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The district court recessed for the weekend. On Monday morning, Mr. Coulter
moved for a mistrial based on these events with the jury. The district court denied
the motion.
The judge then spoke with Ms. Noland in chambers. She said that she was
willing to continue deliberating. The court next convened the jury and delivered an
Allen instruction encouraging the jury to try to reach unanimity.3 After several more
hours of deliberation, the jury again returned a guilty verdict on Counts 1 and 2 but
reported it could not reach agreement on Count 3.4 All jurors confirmed their assent
to the published verdict.
Mr. Coulter later moved for a new trial under Federal Rule of Criminal
Procedure 33(a), asserting that (1) the evidence against him was insufficient to
support the jury verdict and (2) the district court erred in admitting testimony about
3
An Allen instruction is a “supplemental instruction given to a divided jury to
encourage it to agree on a verdict.” United States v. Cornelius, 696 F.3d 1307, 1313
n.1 (10th Cir. 2012) (quotations omitted). It is thus distinct from the standard
instruction a court delivers at the close of evidence informing the jury how to
deliberate and encouraging it to try to reach a unanimous verdict. United States v.
Arrowgarp, 253 F. App’x 790, 795 (10th Cir. 2007) (unpublished) (“an explanation
of the duty to deliberate and the unanim[ity] requirement” delivered with other jury
instructions is “not a typical Allen charge” (quotations omitted)).
Although not precedential, we find the reasoning of the unpublished cases
cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”); see also Fed. R. App.
P. 32.1.
4
The district court therefore declared a mistrial as to Count 3 and dismissed
that count.
5
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the deaths of Ms. Diaz and Ms. Biggers. The court denied the motion. It sentenced
Mr. Coulter to 360 months in prison. This appeal followed.
We set out additional facts and procedural history as needed in reviewing the
issues Mr. Coulter raises.
II. DISCUSSION
On appeal, Mr. Coulter argues:
A. The evidence was insufficient to support the guilty verdict;
B. The district court improperly admitted testimony about the deaths of
Ms. Diaz and Ms. Biggers;
C. The behavior by Doe 1’s guardian ad litem was improper bolstering;
D. The district court erred in its post-trial interactions with the jury; and
E. The convictions should be reversed based on cumulative error.5
As discussed below, Mr. Coulter failed to raise a contemporaneous objection
to preserve several of these issues. When a party fails to preserve an issue, we
review only for plain error. United States v. Mullins, 613 F.3d 1273, 1283
(10th Cir. 2010). “A plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.” Fed. R. Crim. P. 52(b). We
provide a brief overview of plain error here.
Under plain error review, the appellant bears the burden to “show the district
court committed (1) error (2) that is clear or obvious under current law, and which
5
Mr. Coulter lists seven issues in his brief, Aplt. Br. at 2, but after eliminating
duplication, we identify the five issues presented above.
6
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both (3) affected [his] substantial rights and (4) undermined the fairness, integrity, or
public reputation of judicial proceedings.” Mullins, 613 F.3d at 1283.
“In general, for an error to be [clear or obvious and] contrary to well-settled
law”—the second prong of plain error—“either the Supreme Court or this court must
have addressed the issue.” United States v. DeChristopher, 695 F.3d 1082, 1091
(10th Cir. 2012) (quotations omitted).
To establish that an error affects a defendant’s “substantial rights”—the third
prong—the appellant must show “there is a reasonable probability that, but for the
error claimed, the result of the proceeding would have been different.” United States
v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (en banc) (quotations
omitted). An appellant facing “overwhelming evidence of his guilt” usually “cannot
establish a reasonable probability” that an alleged error “affected the outcome of the
trial.” See United States v. Ibarra-Diaz, 805 F.3d 908, 926 (10th Cir. 2015).
Finally, the fourth prong of plain error review—whether an error “seriously
affects the fairness, integrity or public reputation of judicial proceedings”—is a
“case-specific and fact-intensive” inquiry. Bustamante-Conchas, 750 F.3d at 1141
(quotations omitted). Generally, “the seriousness of the error must be examined in
the context of the case as a whole,” and the error must be “the kind [] that
undermines the fairness of the judicial process.” Id. at 1141-42 (quotations omitted).
7
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A. Sufficiency of the Evidence
Mr. Coulter argues that the evidence was insufficient to support his
convictions. In particular, he contends that Ms. Andrade and Doe 1 were not credible
witnesses. Aplt. Br. at 38-39. We reject his argument and affirm.
Standard of Review
“We review [an] insufficiency-of-the-evidence claim de novo.” United States
v. Benford, 875 F.3d 1007, 1014 (10th Cir. 2017) (quotations omitted). “Evidence is
sufficient to support a conviction if, viewing the evidence and the reasonable
inferences therefrom in the light most favorable to the government, a reasonable jury
could have found the defendant guilty beyond a reasonable doubt.” Id. “In
reviewing the evidence, we do not weigh conflicting evidence or consider witness
credibility, as these duties are delegated exclusively to the jury.” United States v.
Evans, 318 F.3d 1011, 1018 (10th Cir. 2003).
Analysis
The Government presented more than sufficient evidence to support Mr.
Coulter’s two convictions.
a. Child sex trafficking
To convict Mr. Coulter of child sex trafficking, the jury had to find that Mr.
Coulter:
(1) “by means affecting interstate commerce,
(2) knowingly recruited, enticed, harbored, transported, provided, obtained,
or maintained [a minor] or benefitted in a venture which involved [a
minor], and
8
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(3) knew or recklessly disregarded the fact that [the minor] was younger
than 18, and
(4) knew or recklessly disregarded the fact that [the minor] would engage
in a commercial sex act.”
United States v. Brinson, 772 F.3d 1314, 1325 (10th Cir. 2014) (numbers added)
(citing 18 U.S.C. § 1591(a)).
Elements (1), (2), and (4) - In addition to the testimony of Doe 1 and Ms.
Andrade about the recruitment and preparation of Doe 1 for sex work, the
Government introduced Mr. Coulter’s phone records, which contained (1) explicit
pictures of Doe 1, (2) text messages soliciting clients for Doe 1, and (3) instructions
directing Doe 1 to take money from clients in exchange for sex. Suppl. ROA, Vol. II
at 16, 19-21 [Redacted]; ROA, Vol. III at 453-56. The Government also presented a
client who had a sexual encounter with Doe 1 and Ms. Andrade in exchange for
money. ROA, Vol. III at 731-32. This evidence was sufficient to establish that Mr.
Coulter used means affecting interstate commerce to knowingly recruit Doe 1 to
perform commercial sexual transactions and facilitated those transactions. A
reasonable jury could find elements (1), (2), and (4) of child sex trafficking beyond a
reasonable doubt.
Element (3) - According to both Ms. Andrade and Doe 1, Mr. Coulter first
suggested that Doe 1 perform sex work for him while driving her home from high
school. ROA, Vol. III at 443. Ms. Andrade also testified that she told Mr. Coulter
that Doe 1 was a minor. Id. at 456. And Doe 1 testified that Mr. Coulter promised
her “a place to stay when she’s old enough.” Id. at 446. A reasonable jury could find
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beyond a reasonable doubt that Mr. Coulter knew or recklessly disregarded the fact
that Doe 1 was a minor—element (3) of child sex trafficking.
b. Conspiring to commit child sex trafficking
To convict Mr. Coulter on the conspiracy count, the jury had to find:
(1) “that ‘two or more persons agreed to violate’ the child-sex-trafficking
laws;
(2) that [Mr. Coulter] ‘knew at least the essential objectives of the
conspiracy’;
(3) that he ‘knowingly and voluntarily became part of it’; and
(4) that the ‘alleged coconspirators were interdependent.’”
United States v. Anthony, 942 F.3d 955, 971 (10th Cir. 2019) (numbers added)
(quoting United States v. Serrato, 742 F.3d 461, 467 (10th Cir. 2014)).
In addition to the evidence discussed above, Ms. Andrade testified that she and
Mr. Coulter worked together to recruit Doe 1 and that they both facilitated her
participation in commercial sex transactions. For example, Ms. Andrade took
explicit pictures of Doe 1, and Mr. Coulter used those pictures to entice potential
clients. ROA, Vol. III at 608-09. The evidence was sufficient for a reasonable jury
to find beyond a reasonable doubt that (1) Mr. Coulter and Ms. Andrade agreed to
violate the child sex-trafficking laws, (2) Mr. Coulter knew the objective of the
conspiracy with Ms. Andrade was to traffic Doe 1, (3) he knowingly and voluntarily
participated in the conspiracy, and (4) he worked interdependently with Ms. Andrade
to implement their agreement.
10
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c. Mr. Coulter’s arguments against sufficiency
Mr. Coulter’s arguments are unavailing. He focuses primarily on the
credibility of Ms. Andrade and Doe 1. But on review of the sufficiency of the
evidence, we do not “consider witness credibility,” a task “delegated exclusively to
the jury.” Evans, 318 F.3d at 1018. And as discussed above, the Government
corroborated both witnesses’ testimony with ample supporting evidence.
Mr. Coulter also claims he “had nothing to do with [a] sexual transaction
between [a client] and Doe 2.” Aplt. Br. at 39. But his convictions stem from his
conduct toward Doe 1, not Doe 2. He also disputes a law enforcement officer’s
testimony that Mr. Coulter was a member of the “Crip” gang. Aplt. Br. at 40. This
testimony was not relevant to the child sex trafficking offense.
B. Testimony about the Deaths of Ms. Diaz and Ms. Biggers
Mr. Coulter contends that the admission of testimony about the deaths of Ms.
Diaz and Ms. Biggers violated the Sixth Amendment’s Confrontation Clause,
Aplt. Br. at 16, or constituted inadmissible hearsay, id. at 33-34. He also suggests
the Government engaged in prosecutorial misconduct by eliciting this testimony and
referencing Ms. Diaz’s death in its closing argument. Id. at 28.
The Challenged Testimony and Closing Argument
Two witnesses testified about the deaths of Ms. Diaz and Ms. Biggers: Megan
Mullins, who formerly worked for Mr. Coulter, and Ms. Andrade, his alleged
co-conspirator.
11
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a. Ms. Mullins’s testimony
During the direct examination of Ms. Mullins, the Government asked about how
Mr. Coulter disciplined women when they disobeyed him. In response, Ms. Mullins said
that when “Lizzy”—Elizabeth Diaz—refused to turn over her earnings, Mr. Coulter
physically abused Ms. Diaz and locked her in a closet. ROA, Vol. III at 169.
On cross-examination, Mr. Coulter’s attorney asked, “[H]ave you seen that girl
since?” Id. at 200. Ms. Mullins replied, “She’s dead.” Id. Mr. Coulter’s attorney asked
when Ms. Diaz died. Id. Ms. Mullins responded, “I think 2011, 2012.” Id.
On redirect, the Government and Ms. Mullins had the following exchange:
Q: You mentioned that Elizabeth Diaz passed away.
A: Yes.
Q: What happened to her?
A: I was incarcerated. From my understanding, she went on
a call and she was --
Defense counsel: Objection. Hearsay.
District court: Overruled. You opened the door to this . . . so
I’m going to let her follow up. Go ahead.
A: She was found fully clothed like ten days later. They said
it was a drug overdose.
Q: All right. What do you believe happened to her?
Defense counsel: Objection. Speculation.
District court: Overruled. I’ll listen to the answer first.
A: I mean, she was killed.
Q: Do you know who killed her?
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A: I don’t know.
Q: Do you have someone in mind that you believe was
responsible?
A: I don’t know.
...
Q: What did Mr. Coulter say about Ms. Diaz dying?
...
A: We shouldn’t let bad things happen to daddy.6
ROA, Vol. III at 204-06.
Later in the redirect examination of Ms. Mullins, while discussing other women
who were associated with Mr. Coulter, the Government asked about Jamie Biggers. Ms.
Mullins said that Ms. Biggers had “passed away.” Id. at 210. When the Government
asked how this occurred, Ms. Mullins stated that Ms. Biggers “got pushed out of a car on
the highway and got hit head on.” Id. at 210. The Government asked, “Who pushed
her?” Id. Ms. Mullins responded, “I don’t know.” Id. Defense counsel did not object to
the questions regarding Ms. Biggers’s death. Id.
b. Ms. Andrade’s testimony
During direct examination, the Government asked Ms. Andrade about several
women associated with Mr. Coulter, including Ms. Diaz and Ms. Biggers.
Ms. Andrade said Ms. Diaz “passed away” because “[s]he was given a hotshot,”
ROA, Vol. III at 425, a cocktail of drugs designed to induce an overdose. Id. at 427.
6
“[D]addy” is a reference to Mr. Coulter.
13
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The Government asked, “[W]ho gave [Ms. Diaz] a hotshot?” Id. at 425-26. Defense
counsel objected on relevance grounds. Id. The district court sustained the objection
and forbade the Government from eliciting any testimony that “might raise an
inference that [Mr. Coulter is] responsible for this girl’s death.” Id. at 427.
Ms. Andrade also testified that Ms. Biggers had “passed away,” but Mr. Coulter did
not object to that testimony. Id. at 425.
c. The Government’s closing argument
During the closing argument, the prosecutor briefly referenced Ms. Diaz’s
death, saying “Lizzie Diaz died while [Mr. Coulter] was in jail, and Mr. Coulter told
Ms. Mullins, according to her, ‘We shouldn’t let bad things happen to daddy.’”
ROA, Vol. III at 928. Mr. Coulter did not object to this statement. Id. at 928-29.
Analysis
a. Confrontation Clause
Mr. Coulter contends that the testimony from Ms. Mullins and Ms. Andrade
about Ms. Diaz’s and Ms. Biggers’s deaths violated the Confrontation Clause.
Aplt. Br. at 16. Mr. Coulter has waived this argument.
i. Standard of review and waiver
“[W]here a Confrontation Clause objection is not explicitly made below we
will not address the constitutional issue in the absence of a conclusion that it was
plain error for the district court to fail to raise the constitutional issue sua sponte
. . . .” United States v. Perez, 989 F.2d 1574, 1582 (10th Cir. 1993) (en banc);
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see also Ibarra-Diaz, 805 F.3d at 919-20 (applying plain error review to an
unpreserved Confrontation Clause argument).
When a defendant fails to preserve a Confrontation Clause challenge in the
district court and also fails to “argue for the plain error standard in his opening
brief,” he has generally waived the issue. United States v. MacKay, 715 F.3d 807,
834 (10th Cir. 2013); see also United States v. Leffler, 942 F.3d 1192, 1196
(10th Cir. 2019) (“When an appellant fails to preserve an issue and also fails to make
a plain-error argument on appeal, we ordinarily deem the issue waived (rather than
merely forfeited) and decline to review the issue at all—for plain error or
otherwise.”). We have exercised our discretion to consider plain error arguments
raised for the first time in an appellant’s reply brief, but seldom do so if (1) the
appellant clearly forfeited the issue below and (2) the appellant’s failure to argue for
plain error review in the opening brief appears to be intentional. Leffler, 942 F.3d
at 1198.
ii. Application
Mr. Coulter did not make a Confrontation Clause objection in district court.
Instead, he objected to Ms. Mullins’s testimony on hearsay and speculation grounds
and to Ms. Andrade’s testimony on relevance grounds. See ROA, Vol. III at 204-06;
425-26. Because “a Confrontation Clause objection [was] not explicitly made
below,” we review for plain error. Perez, 989 F.2d at 1582.
Mr. Coulter makes no plain error arguments in his opening brief. He instead
asserts that we should review his Confrontation Clause claim de novo. Aplt. Br.
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at 15. In his reply brief, Mr. Coulter states that “reviewing the testimony . . . under
the plain error standard” entitles him to relief, Aplt. Reply Br. at 8, but he does not
address the elements of plain error. Because Mr. Coulter fails to argue for plain error
in his opening brief or discuss the elements of the standard in his reply brief, he has
waived the issue. MacKay, 715 F.3d at 834.7
b. Hearsay
Mr. Coulter argues that the testimony about Ms. Diaz’s and Ms. Biggers’s
deaths was inadmissible hearsay. Aplt. Br. at 33-36. Mr. Coulter preserved only one
hearsay argument: the overruling of his objection to the Government’s redirect
examination of Ms. Mullins about the manner of Ms. Diaz’s death. ROA, Vol. III
at 204-06.
i. Waiver
Mr. Coulter forfeited any hearsay challenge to the remaining portions of Ms.
Mullins’s and Ms. Andrade’s testimony about Ms. Diaz’s and Ms. Biggers’s deaths.
Mr. Coulter objected to Ms. Andrade’s testimony on relevance, not hearsay grounds.
ROA, Vol. III at 425-26. The district court also sustained his objection and
prevented the testimony from continuing. Id. Mr. Coulter failed to object to Ms.
7
The argument also fails on the merits because Mr. Coulter concedes in his
reply brief that he “never claimed the hearsay testimony regarding the killing/deaths
of Ms. Diaz and Ms. Biggers were testimonial statements.” Aplt. Reply Br. at 6. The
Confrontation Clause applies only to “testimonial” statements by out-of-court
declarants. Michigan v. Bryant, 562 U.S. 344, 354 (2011); see also Hemphill v. New
York, 142 S. Ct. 681, 690 (2022).
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Mullins’s and Ms. Andrade’s testimony about Ms. Biggers’s death. ROA, Vol. III at
210, 425.
On appeal, Mr. Coulter fails to argue plain error in his opening brief.
See Aplt. Br. at 35-36. In his reply brief, he asserts that “[e]ven reviewing the
testimony about Ms. Bigger’s [sic] death . . . under the plain error standard,” he is
entitled to relief. Aplt. Reply Br. at 8. But he still fails to show how he has satisfied
the four elements of plain error review. See id. at 8-9. Thus, he waived the issue.
Leffler, 942 F.3d at 1198. This leaves only Mr. Coulter’s hearsay challenge to
Ms. Mullins’s testimony on redirect about the manner of Ms. Diaz’s death.
ii. Ms. Mullins’s testimony about Ms. Diaz
1) Standard of review
“We review the district court’s evidentiary rulings”—including decisions
about hearsay—“for an abuse of discretion, considering the record as a whole.”
United States v. Lovato, 950 F.3d 1337, 1341 (10th Cir. 2020) (quotations omitted).
“Any error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.” Fed. R. Crim. P. 52(a); see United States v. Jones,
818 F.3d 1091, 1101 (10th Cir. 2016). Under this standard, “[a]n error is harmless
unless it had a substantial influence on the outcome or leaves one in grave doubt as to
whether it had such effect.” Jones, 818 F.3d at 1101 (quotations omitted).
“We ‘review[] the record as a whole de novo to evaluate whether the error
[was] harmless, examining the context, timing, and use of the erroneously admitted
evidence at trial and how it compares to properly admitted evidence.’” United States
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v. Blechman, 657 F.3d 1052, 1067 (10th Cir. 2011) (quoting United States v.
Hanzlicek, 187 F.3d 1228, 1237 (10th Cir. 1999)). “A nonconstitutional error is
reversible unless the Government can prove harmlessness by a preponderance of the
evidence.” Jones, 818 F.3d at 1101.
2) Legal background
“A witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.” Fed. R.
Evid. 602. “If, however, the witness merely has personal knowledge of an out-of-
court statement offered to prove the fact asserted in that statement—but not the
underlying fact—then his or her testimony must comply with the hearsay rule.”
United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir. 2014).
“‘Hearsay’ means a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove
the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Hearsay is
generally inadmissible. Fed. R. Evid. 802.
3) Application
Ms. Mullins’s testimony about Ms. Diaz’s death was hearsay. First, there was
no “evidence [] sufficient to support a finding that” she “ha[d] personal knowledge
of” Ms. Diaz’s death. Gutierrez de Lopez, 761 F.3d at 1132 (citation omitted).8
8
In his brief, Mr. Coulter mostly refers to the testimony about Ms. Diaz’s
death as “hearsay,” but occasionally refers to it as “speculation.” See, e.g., Aplt.
Br. at 16. Ms. Mullins’s testimony about Ms. Diaz’s death was hearsay rather than
speculation because it was based on out-of-court statements rather than mere
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Instead, Ms. Mullins “merely ha[d] personal knowledge of [] out-of-court
statement[s]” about Ms. Diaz’s death. Id. Second, in context, the Government
elicited this testimony to “prove the fact of the matter asserted in th[e]
statement[s]”—namely, that Ms. Diaz had died due to a drug overdose. Id. Her
testimony was therefore hearsay. See id.
The district court overruled Mr. Coulter’s hearsay objection, concluding that
defense counsel “opened the door” on cross-examination of Ms. Mullins to rebuttal
testimony about the manner of Ms. Diaz’s death. ROA, Vol. III at 204-06. Mr.
Coulter disagrees. Aplt. Br. at 16. On appeal, the Government argues that Mr. Coulter
opened the door, but that even if he did not, any error was harmless. See Aplee. Br.
at 18-19; id. at 37-38.
We agree with the Government that it can prove by a preponderance that any
hearsay error was harmless. We thus need not decide whether Mr. Coulter’s counsel
opened the door to testimony about Ms. Diaz’s death. Based on the overwhelming
evidence of Mr. Coulter’s guilt, we are not “in grave doubt as to whether” any such
error “ha[d] a substantial influence on the outcome of the trial.” Blechman, 657 F.3d
at 1067 (quotations omitted). We make that determination in light of “the record as a
whole,” considering “the context, timing, and use of the erroneously admitted
evidence.” Id. (quotations omitted). The testimony from Doe 1, Ms. Andrade, the
guesswork: she testified that “[t]hey said” Ms. Diaz died of “a drug overdose.”
ROA, Vol. III at 204-06. See Hayes v. SkyWest Airlines, Inc., 12 F.4th 1186, 1208
(10th Cir. 2021).
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former client, and other witnesses, as well as the cell phone records, showed that Mr.
Coulter solicited clients for Doe 1 and instructed her on how to perform commercial
sex transactions. No part of the Government’s case depended on Ms. Diaz’s death.
In light of this evidence, any prejudice resulting from Ms. Mullins’s and
Ms. Andrade’s references to Ms. Diaz’s death was comparatively insignificant.
Ms. Mullins’s discussion of Ms. Diaz was a small fraction of her testimony.
Moreover, when the Government attempted to connect Ms. Diaz’s death to
Mr. Coulter during Ms. Andrade’s testimony later in the trial, the district court
prevented the Government from eliciting testimony that Mr. Coulter was involved.
ROA, Vol. III at 427. Indeed, Ms. Mullins testified that Mr. Coulter was in jail at the
time of Ms. Diaz’s death. ROA, Vol. III at 204-06. When the Government
referenced Ms. Diaz’s death in its closing argument, it stated that “Lizzie Diaz died
while [Mr. Coulter] was in jail,” ROA, Vol. III at 928, weakening any inference that
Mr. Coulter was involved in her death. Given the “context, timing, and use” of the
evidence about Ms. Diaz’s death, any erroneous admission of the evidence did not
have “a substantial influence on the outcome of the trial.” Blechman, 657 F.3d
at 1067 (quotations omitted).
c. Prosecutorial misconduct
Mr. Coulter argues the prosecution engaged in misconduct by asking about
Ms. Diaz’s and Ms. Biggers’s deaths and referencing Ms. Diaz’s death in closing
argument. Aplt. Br. at 24. We disagree.
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i. Standard of review
Mr. Coulter did not raise a contemporaneous prosecutorial misconduct
objection when the Government asked about Ms. Diaz’s and Ms. Biggers’s deaths,
ROA, Vol. III at 204-06, 210, 425-26, nor when it mentioned Ms. Diaz’s death in
closing argument, ROA, Vol. III at 928, so we “review the district court’s failure to
grant a mistrial sua sponte based on prosecutorial misconduct for plain error.”
United States v. Anaya, 727 F.3d 1043, 1059 (10th Cir. 2013).
ii. Legal background
A prosecutor may commit misconduct by eliciting improper and prejudicial
witness testimony. See, e.g., United States v. Green, 435 F.3d 1265, 1268-69
(10th Cir. 2006). A prosecutor’s questions to witnesses are not improper if the
questions elicit testimony for a “permissible purpose.” United States v. Shamo,
36 F.4th 1067, 1080 (10th Cir. 2022); see also United States v. Lonedog, 929 F.2d
568, 573 (10th Cir. 1991).
A prosecutor may also commit misconduct by making improper comments
during closing argument. United States v. Christy, 916 F.3d 814, 824-25
(10th Cir. 2019). In assessing a misconduct claim on this ground, “(1) the court first
decides whether the prosecutor’s comments were improper, and (2) if so, it examines
their likely effect on the jury’s verdict.” Id. at 824. A prosecutor’s comments are
generally improper if they distort the record or encourage the jury to base its decision
on irrelevant considerations. Id. at 824-25 (summarizing categories of improper
statements).
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If a prosecutor acted improperly, we must then assess “whether the c[onduct]
affected the jury’s verdict” in light of “the trial as a whole.” Id. at 826 (citations
omitted).
iii. Application
Mr. Coulter asserts he has shown plain error stemming from (1) the
Government’s questions about the deaths of Ms. Diaz and Ms. Biggers and (2) the
prosecution’s reference to Ms. Diaz’s death during its closing argument. Aplt. Br.
at 32. His arguments are lacking.
Mr. Coulter has not shown that the Government acted improperly in
questioning Ms. Mullins and Ms. Andrade about the deaths of Ms. Diaz and Ms.
Biggers. The Government argues it asked Ms. Mullins and Ms. Andrade about Ms.
Diaz’s death to “provide[] context to the dynamic of the relationship between Coulter
and the victims he employed.” Aplee. Br. at 35. It contends that Mr. Coulter used
Ms. Diaz’s death to “intimidate[] his victims” by implying that “had [Ms. Diaz]
protected Coulter from going to prison, he might have been able to protect Ms. Diaz
and prevent her death.” Id. As for Ms. Biggers, the Government argues that
testimony about her death provided additional context about Mr. Coulter’s
relationship with the women who worked for him, and points out that none of its
questions about Ms. Biggers suggested that Mr. Coulter was involved in her death.
Id. at 28-29. We find these points persuasive, and Mr. Coulter does not refute them.
He thus has not shown that the Government elicited this testimony for an
impermissible purpose. Shamo, 36 F.4th at 1080.
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Similarly, Mr. Coulter has not shown that the prosecutor’s closing argument
comments about Ms. Diaz were improper. Christy, 916 F.3d at 824-25. The
Government explains that in quoting Mr. Coulter as saying “[w]e shouldn’t let bad
things happen to Daddy,” ROA, Vol. III at 928, it “illustrate[d] his callous treatment
of the women who worked for him,” Aplee. Br. at 35. The Government’s use of
Mr. Coulter’s statement neither distorted the record nor encouraged the jury to base
its decision on irrelevant considerations. Christy, 916 F.3d at 824-25.
And even if the Government acted improperly in examining Ms. Mullins and
Ms. Andrade or referencing Ms. Diaz’s death in closing argument, Mr. Coulter fails
at the second and third prongs of plain error review. He has not demonstrated that
the alleged error was “clear or obvious under current law,” Mullins, 613 F.3d at 1283
(quotations omitted), by citing Tenth Circuit or Supreme Court precedent.
DeChristopher, 695 F.3d at 1091. And he has not shown “a reasonable probability
that, but for the error claimed, the result of the proceeding would have been
different,” Bustamante-Conchas, 850 F.3d at 1138 (quotations omitted), given the
“overwhelming evidence of his guilt,” Ibarra-Diaz, 805 F.3d at 926. Any prejudice
here was minimal because the evidence did not suggest that Mr. Coulter was involved
in the deaths. Ms. Mullins testified that Mr. Coulter was in prison when Ms. Diaz
died, ROA, Vol. III at 205-06, and Ms. Andrade said nothing to indicate that Mr.
Coulter was responsible for Ms. Biggers’s death.
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C. Doe 1’s Guardian Ad Litem
Mr. Coulter argues that the guardian ad litem’s mouthing “you’re doing a good
job” to Doe 1 during her testimony constituted improper bolstering in violation of his
“Sixth Amendment rights to an impartial jury” and his right to a fair trial. Aplt. Br.
at 47. We disagree.
Standard of Review
Mr. Coulter objected to the guardian ad litem’s conduct when it occurred.
ROA, Vol. III at 690. The district court sustained the objection and delivered a
curative jury instruction. Id. at 697-89. Because Mr. Coulter “fail[ed] to object to
the adequacy of the curative action or ask for a mistrial, we review for plain error.”
United States v. Anaya, 727 F.3d 1043, 1052 (10th Cir. 2013).9
Legal Background
“‘Vouching,’ or ‘an assurance by the prosecuting attorney of the credibility of
a government witness through personal knowledge or by other information outside of
the testimony before the jury,’ amounts to improper prosecutorial conduct.”
Littlejohn v. Trammell, 704 F.3d 817, 837 (10th Cir. 2013) (quoting Lam v. Kelchner,
304 F.3d 256, 271 (3d Cir. 2002)). This improper conduct “can result in
constitutional error” in two ways: (1) “prejudice a specific right . . . [so] as to
9
Both Mr. Coulter and the Government agree that plain error review applies
despite Mr. Coulter’s contemporaneous objection to the guardian ad litem’s conduct.
Aplt. Br. at 47; Aplee. Br. at 59.
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amount to a denial of that right” or (2) “render a [defendant’s] trial so fundamentally
unfair as to deny him due process.” Littlejohn, 704 F.3d at 837 (quotations omitted).
A statement about a witness’s credibility is improper bolstering only if the
prosecutor “explicitly or implicitly guarantee[s] that the witness[’s] statements were
true.” United States v. Brooks, 736 F.3d 921, 935 (10th Cir. 2013). We have applied
the prohibition on bolstering to statements by prosecutors and individuals affiliated
with the prosecution. For example, in Brooks, we considered whether a law
enforcement officer improperly bolstered cooperating witnesses by testifying “about
how [they] conferred with the government on the scope and substance of their
testimony.” Id. at 934.
But we have never applied the doctrine to statements by third parties
unaffiliated with the prosecution. Instead, when a defendant claims a third party
acted inappropriately at trial, we typically assess whether the third party’s behavior
violated the defendant’s Fifth Amendment right to due process. In United States v.
Dixon, for example, a witness mouthed “I am sorry” to the defendant after giving
testimony against him. 268 F. App’x 767, 770 (10th Cir. 2008) (unpublished). The
defendant argued that this violated due process because it unfairly reinforced the
witness’s credibility. Id. We disagreed, holding that “[e]ven if the jury may have
viewed [the witness’s] apology as enhancing her credibility to some degree, it
certainly did not bolster it so much as to warrant a new trial.” Id.; see also United
States v. Encinias, 123 F. App’x 924, 942 (10th Cir. 2005) (unpublished) (rejecting a
defendant’s due process claim based on a victim’s mother’s outburst).
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When the district court issues a curative instruction, “we presume the jury
followed the instruction.” Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1175
(10th Cir. 2003).
Application
We discern no error, let alone plain error. We have never held that a statement
by a third party unaffiliated with the prosecution can constitute improper bolstering.
Mr. Coulter presents no argument or authority suggesting that a guardian ad litem or
a similarly situated third party may commit improper bolstering. See Littlejohn,
704 F.3d at 837 (bolstering is “an assurance by the prosecuting attorney of the
credibility of a government witness” (quotations omitted)).
Even if the bolstering doctrine applies to third parties, the guardian ad litem’s
conduct was not improper bolstering, which occurs only with “explicit[] or implicit[]
guarantee[s] that the witness[’s] statements were true.” Brooks, 736 F.3d at 935. In
context, the guardian ad litem’s “doing a good job” message was an attempt to
reassure Doe 1 rather than a guarantee that Doe 1 was telling the truth. See State v.
Smith, 780 N.E.2d 221, 232 (Ohio 2002) (a prosecutor did not bolster a witness by
“telling her she was doing a good job,” because he “was simply reassuring [the
witness] in the midst of her difficult testimony”). The guardian ad litem’s conduct
thus did not violate Mr. Coulter’s Sixth Amendment rights.
Although some of our cases have discussed due process challenges based on a
third party’s inappropriate or distracting conduct during a trial, see Dixon,
268 F. App’x at 770; Encinias, 123 F. App’x at 942, Mr. Coulter does not cite these
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cases, nor does he use the phrase “due process” in connection with the guardian ad
litem. See Aplt. Br. at 46-48. Thus, although Mr. Coulter claims that “the [guardian
ad litem’s] actions . . . caused his trial to be fundamentally unfair,” Aplt. Br. at 47, he
does not develop a due process fairness argument.
But even if he had, the guardian ad litem’s conduct did not render Mr.
Coulter’s trial unfair. It appears that Mr. Coulter’s attorney was the only person who
saw the alleged interaction between the guardian ad litem and Doe 1. ROA, Vol. III
at 690. If any jurors saw the interaction, it is unlikely that it affected the outcome of
the trial. As we held in Dixon, “[e]ven if the jury may have viewed” the guardian’s
conduct “as enhancing [Doe 1’]s credibility to some degree, it certainly did not
bolster it so much as to warrant a new trial.” 268 F. App’x at 770.
Finally, the district court delivered a curative instruction telling the jury to
disregard any communication between the guardian ad litem and Doe 1. We
“presume the jury followed th[at] instruction,” Abuan, 353 F.3d at 1175, and Mr.
Coulter has presented nothing to suggest otherwise.
D. The District Court’s Interactions with the Jury
Mr. Coulter challenges the district court’s post-trial interactions with the jury
on various grounds. Because we find the court did not abuse its discretion, we
affirm.
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Additional Procedural History
After the parties’ closing arguments, the district court delivered the jury
instructions, which included a standard instruction encouraging the jury to try to achieve
unanimity.
The jury retired to deliberate at 12:36 p.m. on Friday, July 19. At 5:21 p.m., the
district court received the following written question from the jury: “[W]hat do we do if
we are unable to vote a unanimous verdict for Count 3?” ROA, Vol. III at 973. The
district court responded in writing that the jury should review the instruction on how to
deliberate, and that “[i]f you cannot reach a unanimous verdict on any particular count
and believe you are hopelessly deadlocked, you may return a partial verdict on other
counts on which you unanimously agree.” Id. at 973-74.
At 6:45 p.m., the jury signaled it had reached a verdict. The foreperson said that
the jury could not reach agreement on Count 3 but found Mr. Coulter guilty on Counts 1
and 2. The district court announced the verdict on the first two counts and asked the
jurors to “indicate by raising [their] hands” whether “the verdict constitute[s] [their]
unanimous verdict.” Id. at 979. One juror, Ms. Noland, did not raise her hand. Id.
When the court questioned her about whether the verdict on Counts 1 and 2 represented
her vote, she responded, “No.” Id. at 979-80.
The district court, after consulting with both parties, told the jury, “I’m going to
give you an instruction fairly quickly with respect to what we’re going to do for the rest
of the evening.” Id. at 980. He then sent the jury back to the jury room to continue its
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deliberations. Ms. Noland, however, became “emotional” and refused to return to the
jury room. Id. at 982. The court decided to send the jury home for the weekend.
On Monday morning, Mr. Coulter filed a motion for a mistrial, arguing that (1) the
jury’s deliberations were no longer secret and (2) the district court pressured the jury to
reach a unanimous verdict when it answered the jury’s written question about deadlock
by directing its attention to the instruction on how to deliberate. ROA, Vol. I at 480-82.
The court denied the motion for a mistrial and decided—over Mr. Coulter’s objection—
to talk with Ms. Noland outside the presence of the remaining jurors to determine
whether she would be willing to continue deliberating. ROA, Vol. III at 1000.
The district court brought Ms. Noland into chambers. The judge assured her that
she “didn’t do anything wrong” and was “not in trouble.” Id. at 1006-07. He also
reminded her that she should not discuss “how anybody is voting in the deliberation
room.” Id. at 1007. Then the judge asked her whether she was “ready, willing, and able
to continue to deliberate with the other jurors” and “able to follow [the court’s]
instructions on the law.” Id. at 1007-08. Ms. Noland said she was. Id. The judge
reminded her that “there is a process for the jury to communicate with me that you can’t
reach a unanimous agreement,” and asked her to return to the courtroom. Id. at 1008. As
she was leaving, Ms. Noland remarked that she “felt like [she] was at the principal’s
office.” Id.
Back in the courtroom, the district court delivered the following Allen instruction:
Members of the jury, I’m going to ask that you return to the
jury room and deliberate further. I realize that you are having
some difficulty reaching a unanimous agreement but that is
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not unusual. Sometimes, after further discussions, jurors are
able to work out their differences and agree. This is an
important case. If you should fail to agree upon a verdict, the
case is left open and must be tried again. Obviously, another
trial would require the parties to make another large
investment of time and effort, and there is no reason to
believe that the case can be tried again by either side better or
more exhaustively than it has been tried before you . . . . In
the course of your deliberations, do not hesitate to re-examine
your own views and change your opinion if you are
convinced it is erroneous. But do not surrender your honest
conviction as to the weight or effect of the evidence solely
because of the opinion of your fellow jurors or for the mere
purpose of returning a verdict. What I have just said is not
meant to rush or pressure you into agreeing on a verdict.
Take as much time as you need to discuss things. There is no
hurry. I will now ask that you retire once again and continue
your deliberations with these additional comments in mind to
be applied, of course, in conjunction with all of the
instructions I have previously given to you.
ROA, Vol. III at 1012-13. Mr. Coulter did not object to this instruction. See id.
at 1010-11. The jury resumed deliberating at 10:34 a.m.
At 2:07 p.m., the jury again indicated that it had reached a verdict. It reported a
deadlock on Count 3, but said it had reached a unanimous guilty verdict on Counts 1 and
2. The district court declared a mistrial as to Count 3, and announced the verdict on the
first two counts. The court again polled the jury. All jurors, including Ms. Noland,
raised their hands to manifest agreement with the published verdict. Id. at 1016-17.
Standard of Review
We review the district court’s management and decisions about jury
deliberations for abuse of discretion. This includes whether to poll the jury sua
sponte, to declare a mistrial or direct the jury to continue to deliberate, to investigate
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potential problems with jury deliberations, and to deliver an Allen instruction
encouraging the jury to try to reach unanimity. See United States v. Shamo,
36 F.4th 1067, 1080 (10th Cir. 2022); United States v. Cornelius, 696 F.3d 1307,
1321 (10th Cir. 2012); United States v. Zabriskie, 415 F.3d 1139, 1147
(10th Cir. 2005).
Analysis
Mr. Coulter argues that the district court abused its discretion by placing
improper pressure on the jury to reach a unanimous verdict in violation of his Sixth
Amendment right to an impartial jury. Aplt. Br. at 44; see Zabriskie, 415 F.3d
at 1148.10 He contends that the court should instead have granted his motion for a
mistrial. Aplt. Br. at 40. We disagree.
a. Jury poll and numerical inquiry
Federal Rule of Criminal Procedure 31(d) provides:
After a verdict is returned but before the jury is
discharged, the court must on a party’s request, or may on
its own, poll the jurors individually. If the poll reveals a
lack of unanimity, the court may direct the jury to
deliberate further or may declare a mistrial and discharge
the jury.
Mr. Coulter suggests on appeal that the district court should not have polled
the jury. See, e.g., Aplt. Br. at 44-45. Specifically, he contends the district court
violated Brasfield v. United States, 272 U.S. 448 (1926), in which the Supreme Court
10
We address challenges to the district court’s post-trial interactions with the
jury that Mr. Coulter appears to raise on appeal.
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held that a trial court may not “inquire[] how [the jury] was divided numerically”
during jury deliberations. Id. at 449.11 The Court reasoned that such numerical
inquiries exert a “coercive . . . [and] improper influence upon the jury” to reach a
unanimous verdict. Id. at 450.
Because the jury poll revealed that only one juror did not acquiesce in the
verdict, Mr. Coulter suggests that the poll was an improper “numerical inquiry”
under Brasfield. Aplt. Br. at 44. We disagree. In Brasfield, after the jury said it was
deadlocked, the trial court inquired about the number of votes for guilt and for
acquittal. 272 U.S. at 449. Here, by contrast, the district court polled the jury only
after it rendered a verdict, and the court had no reason to suspect the verdict was not
unanimous. Once the poll revealed that Ms. Noland did not agree with the verdict,
the court conducted no further inquiries about Ms. Noland’s position or that of other
jurors. As far as the district court was aware, Ms. Noland could have disagreed with
the verdict as to Count 1, Count 2, or both, or could have wished to continue
deliberating on Count 3. The court did not conduct a “numerical inquiry” and thus
did not violate Brasfield.
The Supreme Court and our circuit have repeatedly rejected efforts to expand
the Brasfield principle to standard jury polls. See, e.g., Lowenfield v. Phelps,
11
Mr. Coulter alluded to this argument in his motion for a mistrial, though he
did not cite Brasfield. See ROA, Vol. I at 480-81. He argued that the jury poll
revealed Ms. Noland’s vote, making the jury’s deliberations no longer secret and
imposing pressure on her to assent to the verdict. Id.
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484 U.S. 231, 239-40 (1988) (an Allen charge, combined with non-numerical jury
polling, did not violate the Brasfield rule); Gafford v. Warden, U.S. Penitentiary,
Leavenworth, Kan., 434 F.2d 318, 319 (10th Cir. 1970) (declining to extend Brasfield
to jury polls); United States v. Alvarez-Pasillas, 159 F. App’x 42, 45 (10th Cir. 2005)
(unpublished) (district court has discretion to direct further deliberations after polling
the jury); United States v. Smith, 562 F.2d 619, 622 (10th Cir. 1977) (same). This
precedent is consistent with Federal Rule of Criminal Procedure 31(d), which gives
the district court the discretion to poll the jury and, if the poll reveals a lack of
unanimity, to declare a mistrial or direct further deliberations.12 Mr. Coulter’s
argument based on Brasfield thus lacks merit.
The district court therefore acted within its discretion when it polled the jury.
If a poll shows that the jurors are not unanimous, “Rule 31(d) vests in the trial court
broad discretion whether to declare a mistrial or order the jury to resume
deliberations.” Alvarez-Pasillas, 159 F. App’x at 45. This is because “[t]he trial
judge ‘is in a better position than the appellate court to determine the effect of a
dissenting or uncertain vote upon the likelihood that further deliberations will yield a
freely given verdict.’” Id. (quoting Smith, 562 F.2d at 622).
12
Brasfield “makes no mention of the Due Process Clause or any other
constitutional provision.” Lowenfield, 484 U.S. at 240 n.3. We thus have interpreted
Brasfield as “an exercise of [the appellate court’s] supervisory powers . . . not a
constitutional holding.” Gilbert v. Mullin, 302 F.3d 1166, 1176 (10th Cir. 2002)
(quotations omitted).
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Here, when the poll “reveal[ed] a lack of unanimity,” the court acted within its
discretion by “direct[ing] the jury to deliberate further” rather than declaring a
mistrial. Id. The court was in “a better position” than we are “to determine the effect
of” Ms. Noland’s dissent on the likelihood that the jury could reach a unanimous
verdict. Smith, 562 F.2d at 622. Mr. Coulter presents no argument that the district
court acted unreasonably when it polled the jury and decided that further
deliberations could be productive.
b. Pressure on Ms. Noland from other jurors
Mr. Coulter suggests that when the district court ordered the jury to return to
deliberations after Ms. Noland revealed her dissenting vote, she may have faced
pressure from the other jurors to reach a unanimous verdict. Aplt. Br. at 44
(Ms. Noland’s unwillingness to return to the deliberations “indicates she was feeling
undue pressure from the other jurors”). This argument is speculative. Also, when
addressing arguments that a juror felt pressured to reach a verdict, we typically focus
on the behavior of the trial court—not other jurors. In Crease v. McKune, 189 F.3d
1188 (10th Cir. 1999), for example, a juror reported that she “finally voted to convict
after feeling pressure from other jurors.” Id. at 1194. We nonetheless denied relief
to the defendant because there was no evidence that the juror “felt [] pressure from
the judge to vote to convict.” Id. Mr. Coulter presents no authority suggesting that
the possibility of pressure from other jurors on Ms. Noland, without more, violated
his constitutional rights.
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c. The district court’s meeting with Ms. Noland
Mr. Coulter contends that the district court’s separate meeting with Ms.
Noland placed “undue coercion and pressure” on her to reach a unanimous verdict.
Aplt. Br. at 43. He points to her statement that she “felt like [she] was at the
principal’s office.” Id. (quoting ROA, Vol. III at 1008). We disagree.
If the district court identifies a potential problem with jury deliberations, it has
“broad discretion in investigating,” including “separately interviewing” jurors.
Zabriskie, 415 F.3d at 1147. But the court must not “impose[] such pressure on the
[members of the] jury such that the accuracy and integrity of their verdict becomes
uncertain.” Id. at 1148.
Here, the district court properly exercised its “broad discretion in
investigating” when it “separately interview[ed]” Ms. Noland. Zabriskie, 415 F.3d
at 1147.13 The judge told Ms. Noland that she was “not in trouble” and cautioned her
not to reveal “how anybody is voting.” ROA, Vol. III at 1006-07. He asked Ms.
Noland only whether she was willing to continue deliberating and follow the law.
Id. at 1007-08. Although Ms. Noland may have felt nervous—hence the “principal’s
office” comment—the record fails to show inappropriate pressure to reach a
unanimous verdict.
13
In Zabriskie, we affirmed the district court’s decision to speak separately
with an individual juror. But we ultimately reversed the conviction because, during
the one-on-one meeting with the juror, the court gave an individualized Allen
instruction just to that juror. See 415 F.3d at 1148.
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d. Allen instruction
Mr. Coulter suggests that the district court’s giving the Allen instruction was
coercive and deprived him of his right to a unanimous verdict. Aplt. Br. at 43-46.14
i. Legal background – Allen instructions
A district court may deliver an Allen instruction to encourage deliberation.
See Allen v. United States, 164 U.S. 492 (1896) (approving an instruction
encouraging a deadlocked jury to continue deliberating). An Allen instruction
“urg[es] deadlocked jurors to review and reconsider the evidence in the light of the
views expressed by other jurors so as to avoid a mistrial.” Cornelius, 696 F.3d
at 1321 (quoting United States v. LaVallee, 439 F.3d 670, 689 (10th Cir. 2006)).
A district court must not deliver an “improperly coercive” Allen instruction.
Cornelius, 696 F.3d at 1321. We consider four factors to assess whether an Allen
instruction is improperly coercive: “(1) the language of the instruction, (2) whether
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In his motion for a mistrial, Mr. Coulter “respectfully submit[ted] his
objection to another giving and/or instructing to go to a modified Allen instruction
and/or an Allen instruction,” which “would be impermissibly coercive.” ROA, Vol. I
at 482 (citation and quotations omitted). In its brief, the Government addresses this
argument, stating “[i]t is not entirely clear that Coulter is challenging the trial court’s
decision to give the modified Allen instruction. However, to the extent that the
coercive nature of Allen instructions was addressed in his motion for mistrial, it
seems necessary to address this issue.” Aplee. Br. at 54; see id. at 54-57. Although
Mr. Coulter agreed with the wording of the instruction, ROA, Vol. III at 1010, we
address his coerciveness objection to the district court’s decision to give it. See
United States v. Ellzey, 936 F.2d 492, 500 (10th Cir. 1991) (noting a distinction
between a “general ‘coercion’ objection to [an] Allen instruction” and a specific
objection to “certain language in the instruction”).
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the instruction is presented with other instructions, (3) the timing of the instruction,
and (4) the length of the jury’s subsequent deliberations.” Id. (quotations omitted).
We elaborated on these factors in Cornelius. The language of an Allen
instruction is not improperly coercive if it “urge[s] all jurors, not just those in favor
of acquittal, to reconsider their views” and “stresse[s] the importance of integrity in
being an impartial, deliberate fact-finder.” Cornelius, 696 F.3d at 1322. When the
district court presents an Allen instruction after other jury instructions, it should
inform the jury “to apply the Allen instruction in conjunction with all of the
instructions the court ha[s] previously given.” Id. If the district court delivers an
“Allen instruction after the jury informed the court that it was unable to reach a
verdict,” this “weighs against a determination of improper coercion.” Id. (quotations
omitted). After the district court delivers the instruction, a “relatively long period of
further deliberation tends to negate an inference of improper coercion.” Id. at 1323.
Relatedly, if the jury remains deadlocked on some issues after receiving an Allen
instruction, that fact “demonstrates that [the jury] was not compelled or coerced to
reach a unanimous verdict.” United States v. Ailsworth, 138 F.3d 843, 852
(10th Cir. 1998) (quotations omitted).
ii. Application
The district court did not abuse its discretion by delivering the Allen
instruction. First, like the Allen instructions we have upheld in other cases, the
court’s instruction “urge[d] all jurors, not just those in favor of acquittal, to
reconsider their views” and “stresse[d] the importance of . . . being an impartial,
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deliberate fact-finder.” Cornelius, 696 F.3d at 1322. And Mr. Coulter agreed to the
language. ROA, Vol. III at 1010. Second, the district court told the jury to apply the
Allen instruction in conjunction with all its previous instructions, which reduces the
likelihood of coercion. Id. at 1322. Third, the court delivered the instruction only
after the jury indicated it was deadlocked, which “weighs against a determination of
improper coercion.” Id. (quotations omitted). Fourth, the jury deliberated for several
hours after the district court delivered the Allen instruction. See ROA, Vol. III
at 1013-14. This “relatively long period” “tends to negate an inference of improper
coercion.” Cornelius, 696 F.3d at 1323; see also LaVallee, 439 F.3d at 689 (“several
hours of deliberation” following an Allen instruction indicates that the instruction did
not coerce the jury to reach a verdict). Finally, although the jury reached a
unanimous verdict on the first two counts, it remained deadlocked on Count 3, which
“demonstrates that it was not compelled or coerced to reach a unanimous verdict.”
Ailsworth, 138 F.3d at 852 (quotations omitted).
* * * *
The district court handled its post-trial jury interactions without abusing its
discretion.
E. Cumulative Error
Mr. Coulter argues that the cumulative effect of the errors he alleges deprived
him of due process. Aplt. Br. at 49. We disagree.
A defendant is entitled to reversal on cumulative error grounds if the cumulative
effect of the errors he identifies rendered “the trial [] so fundamentally unfair as to deny
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[him] due process.” United States v. Christy, 916 F.3d 814, 840 (10th Cir. 2019)
(quotations omitted). “We consider cumulative error only if the appellant has shown at
least two errors that were harmless.” Id. at 827. Then the “question [becomes] whether
the two or more harmless errors together constitute prejudicial error.” Id.
Based on the discussion above, we have identified only one putative error that
we resolved as harmless: the district court’s admission of hearsay testimony from
Ms. Mullins regarding Ms. Diaz’s death. Because Mr. Coulter has failed to show “at
least two errors that were harmless,” Christy, 916 F.3d at 827, we need not progress
further in the cumulative error analysis.
III. CONCLUSION
We affirm the district court.
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