United States v. Renteria

FILED
United States Court of Appeals
Tenth Circuit

June 27, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 12-8009
v.

DANIEL GEORGE RENTERIA, a/k/a
William Esquivel, a/k/a Noe Renteria,

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 12-8010
v.

ALEX GARCIA, JR., a/k/a Hondo,

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 12-8019
v.

MIGUEL ANGEL ORDAZ, a/k/a
Isaias Rivera, a/k/a Tomas Hueso, Jr.,

Defendant - Appellant.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 10-CR-00329-NDF-3, 4 and 7)

Thomas A. Fleener of Fleener & Vang, L.L.C., Laramie, Wyoming, for Defendant
- Appellant Daniel George Renteria.

Timothy Kingston (and Jill A. Higham of Higham Law, with him on the brief),
Fort Collins, Colorado, for Defendant - Appellant Alex Garcia, Jr.

Michael Reese, Cheyenne, Wyoming, for Defendant - Appellant Miguel Angel
Ordaz.

Stuart S. Healy, III, Assistant United States Attorney (and Christopher A. Crofts,
United States Attorney, District of Wyoming, on the briefs), Cheyenne, Wyoming,
for Plaintiff - Appellee.

Before KELLY, GORSUCH, and HOLMES, Circuit Judges.

KELLY, Circuit Judge.

Defendants-Appellants Daniel George Renteria, Alex Garcia, Jr., and

Miguel Angel Ordaz were found guilty of various counts relating to a drug

conspiracy in northern Wyoming and California. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

Background

Information compiled by law enforcement suggested that several members

of a gang from Fresno, California—the Fresno Bulldogs—were living in northern

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Wyoming and distributing methamphetamine from 2007–2010. This opinion

concerns the trial of four members—Mr. Renteria, Mr. Garcia, Mr. Ordaz, and

Robert Velasquez, Jr. (who has not appealed here). Over the course of five

weeks, the jury considered the testimony of thirty witnesses.

Special Agent Michael Hall of the Wyoming Division of Criminal

Investigation testified as to how the operation worked. Mr. Ordaz, Mr. Renteria,

and Mr. Velasquez would periodically receive methamphetamine from Fresno

Bulldog members in California, including Mr. Garcia. III R. (12-8010) at

718–23. Mr. Velasquez operated mainly out of Cody and Basin, Wyoming while

Mr. Ordaz and Mr. Renteria operated mainly around Sheridan. Id. at 766–69.

After selling the drugs, Mr. Velasquez, Mr. Ordaz, and Mr. Renteria would wire

proceeds to Fresno. Id. at 727. Financial records from Money Gram, Western

Union, and Green Dot supported some of these transactions. Id.

California Police Detective Ricardo Gonzalez provided identification

testimony and explained certain characteristics of the Fresno Bulldogs, having

investigated the organization for nine years. Id. at 999–1000. He specifically

identified Mr. Ordaz as a member of the Fresno Bulldogs, identified photographs

of Mr. Renteria, Mr. Ordaz, Mr. Velasquez, and Mr. Garcia, and pointed out

various gang-related features in these photographs, including special tattoos,

clothing, and hand signals. Id. at 1016–28.

Multiple cooperating witnesses testified to their purchases of

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methamphetamine from Mr. Renteria, Mr. Ordaz, and Mr. Velasquez. See, e.g.,

id. at 1202–40 (testimony of Lisa Riggs implicating Mr. Velasquez); id. at

1284–93 (testimony of Juan Marquez implicating Mr. Velasquez); id. at 2121

(testimony of Amber Bear implicating Mr. Velasquez); id. at 2289–2309

(testimony of Cilia Downes implicating Mr. Velasquez, Mr. Renteria, and Mr.

Ordaz); id. at 1864–71, 1904 (testimony of Jason Lyles implicating Mr. Renteria

and Mr. Ordaz).

The testimony of one cooperating witness was particularly helpful to the

prosecution of all Defendants. Melissa Morgan, one of Mr. Velasquez’s

girlfriends, explained that Mr. Garcia would periodically send Mr. Velasquez

packages that contained candles. Id. at 1424–27. The bottoms of the candles

were dug out and contained at least an ounce of methamphetamine each. Id. She

described how Mr. Velasquez would remove the methamphetamine, cut it, and

then repackage it for sale. Id. at 1441. She also testified about multiple trips she

took with Mr. Velasquez to meet with Mr. Ordaz and Mr. Renteria and pick up

methamphetamine. Id. at 1469–72. Mr. Ordaz and Mr. Renteria likewise traveled

on multiple occasions to visit Mr. Velasquez in Basin and Cody and deliver

methamphetamine. Id. at 1475–77. Ms. Morgan also once accompanied Mr.

Velasquez to Fresno where she met Mr. Garcia, and she once wired drug proceeds

to him and his girlfriend. Id. at 1453–63.

Ms. Morgan’s brother, John Morgan, testified that Mr. Velasquez supplied

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him with methamphetamine and that Mr. Velasquez told him that one of his

sources was Mr. Garcia. Id. at 2379. Mr. Morgan also testified that once Mr.

Velasquez was incarcerated, Mr. Renteria became his supplier. Id. at 2416–17.

Originally, Mr. Renteria provided the methamphetamine in ounce quantities, but

when Mr. Morgan could not move it quickly enough, Mr. Morgan began

purchasing it in quarter-ounce and half-ounce quantities. Id. at 2419–21.

Two of Mr. Renteria’s girlfriends corroborated much of Ms. Morgan’s

testimony regarding Mr. Velasquez and Mr. Renteria’s relationship. Id. at

338–39. Candice Kysar testified that Mr. Renteria’s only source of income was

from drug sales and that she saw Mr. Renteria cut, repackage, and sell

methamphetamine, usually in 3.5 gram amounts, nearly every day. Id. at 331–34,

341. Danni Fox testified that she saw Mr. Renteria receive packages of

methamphetamine and cut it before selling it, and that she helped wire large

amounts of money to California, money which Mr. Renteria claimed was for his

children. Id. at 1845–55.

Kimberly Perkins, another cooperating witness, testified that she was aware

Mr. Renteria and Mr. Ordaz were distributing methamphetamine at their

apartment and that she was purchasing it for her own use and resale. Id. at

1926–36. She agreed to receive overnight packages of methamphetamine for Mr.

Renteria and Mr. Ordaz at both her home and workplace and received about a

package a week for a year’s duration. Id. at 1934–41, 1957, 1974.

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 John Sullivan, a fraud investigator for UPS, explained shipping records

from Fresno to addresses associated with Mr. Ordaz, Mr. Renteria, and Ms.

Perkins. Id. at 2218–28. Records custodians from Western Union and Money

Gram also testified, id. at 2610, 2653, and the district court admitted summary

charts of these records, id. at 3009–10; see also Aplee. Br. (12-8009), Att. at 8–23

(Ex. 5000–03).

During a search of Mr. Ordaz’s home, law enforcement officials, including

Special Agent Loy Young, seized a .38 caliber pistol, a pearl handle 9 millimeter

handgun, a .308 caliber bolt action rifle, a 56 SKS assault rifle, a .22 long rifle,

and associated ammunition. Id. at 912, 944–47. They also recovered a black bag

containing a shortened MP-5 machine gun, two bags of methamphetamine, a

digital scale and weigh pan, assorted ammunition, and a banana clip for an SKS

assault rifle. Id. at 948–51. Additionally, they seized various photographs,

documents, additional ammunition, and shell casings. Id. at 969–81. Mr. Lyles,

Mr. Morgan, Ms. Kysar, and Ms. Perkins all testified to seeing Mr. Ordaz display

a variety of these guns at various times. See, e.g., id. at 1876, 2441, 343–49,

1996–98.

Mr. Renteria was found guilty of conspiracy to possess with intent to

distribute, and conspiracy to distribute methamphetamine in violation of 21

U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) and conspiracy to launder money in

violation of 18 U.S.C. § 1956(a)(1)(A)(I) and 1956(h). He was sentenced to 188

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months’ imprisonment on both counts to be served concurrently, and 5 years’

supervised release as to Count One and 3 years as to Count Two also to be served

concurrently. I R. (12-8009) at 565–67.

Mr. Garcia was found guilty of conspiracy to launder money in violation of

18 U.S.C. § 1956(a)(1)(A)(I), (a)(1)(B)(I), and 1956(h) and sentenced to 70

months’ imprisonment and 3 years’ supervised release. I R. (12-8010) at 604–06.

Mr. Ordaz was convicted of conspiracy to traffic in methamphetamine in

violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A) (Count One);

conspiracy to launder money in violation of 18 U.S.C. § 1956(a)(1)(A)(I) and

1956(h) (Count Two); possessing firearms in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1) (Counts Ten and Twelve); possessing

methamphetamine with intent to distribute in violation of § 841(a)(1) and

(b)(1)(B) (Count Eleven); possessing a machine gun in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(ii) (Count Thirteen);

and possession of a firearm in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d)

and 5871 (Count Fourteen). I R. (12-8019) at 970, 973. The court, however,

dismissed Count Ten on the government’s motion because the predicate offense

was the same offense alleged in Count Thirteen. Id. at 970. The court sentenced

Mr. Ordaz to a term of 120 months’ imprisonment as to Counts One, Two, and

Eleven, 120 months as to Count Fourteen to be served concurrently with Counts

One, Two, and Eleven, 30 years as to Count Thirteen to run consecutively to all

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other counts, and 25 years as to Count Twelve also to run consecutively to all

other counts. Id. at 975. The court also imposed 5 years’ supervised release as to

Counts One, Two, Eleven, Twelve, and Thirteen and 3 years as to Count

Fourteen, all to be served concurrently. Id. at 976.

Discussion

Mr. Renteria raises three specific arguments on appeal, Mr. Garcia one, and

Mr. Ordaz five. However, because their cases have been consolidated, each

Defendant attempts to incorporate the others’ arguments as applicable. For

example, Mr. Renteria attempts to “adopt[] the arguments made by Defendant[s]

Ordaz and Garcia . . . so far as they pertain to [him].” Aplt. Br. (12-8009) 47.

And Mr. Garcia asks to “incorporate[] any and all pertinent arguments briefed

and/or argued by Defendants Renteria and Ordaz.” Aplt. Br. (12-8010) 7. This is

problematic because it requires the court to sift through the briefing and record

and imagine which arguments might apply to which Defendants. We decline that

invitation. Fed. R. App. P. 28(i) allows a defendant to “join in a brief” or “adopt

by reference a part of another’s brief.” In a case such as this, however, the court

needs some direction from the Defendant seeking to adopt another’s

argument—specifically, how the argument applies to the adopting Defendant. See

United States v. Swingler, 758 F.2d 477, 493 (10th Cir. 1985). We will allow

Defendants to adopt one another’s arguments but only to the extent we can

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discern a clear and straightforward application to the facts that is fairly presented.

See Kokins v. Teleflex, Inc., 621 F.3d 1290, 1301 n.6 (10th Cir. 2010).

A. Giglio Claim

Mr. Renteria maintains that the government made two undisclosed promises

of leniency to witnesses Melissa Morgan and John Morgan in return for their

testimony. He argues that the government’s failure to disclose these alleged

subrosa agreements violates Giglio and warrants a new trial. See Giglio v. United

States, 405 U.S. 150, 152–55 (1972). Because Mr. Garcia and Mr. Ordaz

attempted to incorporate this argument specifically and its application to them is

apparent, we consider the issue as it relates to all three defendants.

Ms. Morgan testified that she would receive a sentence of eight to ten

years’ incarceration pursuant to a plea in Wyoming state court and that her

testimony against Mr. Renteria would not change that sentence. III R. (12-8010)

at 1438. Mr. Renteria’s brief indicates, without record support, that instead Ms.

Morgan has received a sentence of four to six years. Aplt. Br. (12-8009) 20–21.

Mr. Morgan testified that he would receive a sentence of fifteen years

pursuant to a plea in federal court and that he was not going to receive a

downward departure or any additional consideration for his testimony at trial. III

R. (12-9010) at 2364–65. Again in briefing and again without record support, Mr.

Renteria alleges that Mr. Morgan’s sentence was also reduced from fifteen to ten

years. Aplee. Br. (12-8009) 21–24.

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 These lower-than-expected sentences might indicate that the government

had an agreement with the witnesses that went undisclosed. The problem is

Defendants did not raise this issue in the district court and there is no record

before us of any undisclosed agreement. Appellate courts rarely consider

arguments not raised below, let alone arguments that require the development of a

factual record. See United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328

(10th Cir. 2003). Here there are no factual or legal determinations on the matter

for us to review, and Defendants concede as much. See Aplt. Reply Br. (12-8009)

at 13. At oral argument, we inquired about Defendants developing the record in

the district court, but they have failed to pursue such a course of action. See Fed.

R. Crim. P. 37; Fed. R. App. P. 12.1. Accordingly, we consider this argument

waived for want of a factual record.

B. Admission of Exhibits 5000–5003

Mr. Renteria alleges that the district court abused its discretion when it

admitted Exhibits 5000–5003 (summary charts) over objection. This court

reviews a district court’s evidentiary rulings for abuse of discretion. United

States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003). Because only Exhibit

5002 pertains to Mr. Renteria, 5000 pertains to Mr. Ordaz, and 5003 pertains to

Mr. Garcia, we review this claim as to all three Defendants.

Special Agent Hall compiled four summary charts based upon UPS, Money

Gram, and Western Union documents. III R. (12-8010) at 3002–11. The actual

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UPS and wire transfer records were admitted as business records. Id.

Such summary evidence would usually be permissible under Fed. R. Evid.

1006. The rule provides:

The proponent may use a summary, chart, or calculation to prove the
content of voluminous writings, recordings, or photographs that cannot
be conveniently examined in court. The proponent must make the
originals or duplicates available for examination or copying, or both, by
other parties at a reasonable time and place. And the court may order
the proponent to produce them in court.

Fed. R. Evid. 1006. Defendants suggest, however, that Special Agent Hall added

dates from the testimony of Ms. Kysar and Ms. Fox regarding the wirings they

initiated, making the charts an impermissible summary of testimony rather than of

documents. III R. (12-8010) at 3016–17.

Fed. R. Evid. 611(a), however, allows for such summary evidence

otherwise inadmissible under Rule 1006. Rule 611(a) provides:

The court should exercise reasonable control over the mode and order
of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.

Fed. R. Evid. 611(a). In United States v. Ray, this court adopted a two-part test

to determine whether summarized exhibits relying on previous testimony are

admissible under Rule 611(a). 370 F.3d 1039, 1046–47 (10th Cir. 2004), rev’d

and remanded on other grounds by United States v. Booker, 543 U.S. 220 (2005).

First, the court considers “whether the summary chart . . . aids the jury in

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ascertaining the truth.” Id. at 1046. Relevant factors include the length of trial,

the complexity of case, and the possible confusion generated by a large number of

exhibits. Id. at 1047. All of these factors favor admission here: the trial lasted

five weeks and consisted of thirty witnesses, several of whom were experts and

all of whom provided evidence of an alleged conspiracy over three years in

multiple locations. In fact, Mr. Renteria all but concedes the government meets

the first element of the Ray test. See Aplt. Br. (12-8009) 33.

Second, the court considers any resulting prejudice, looking at whether, for

example, the preparer was available for cross examination and whether the court

gave any limiting instructions. 370 F.3d at 1047. Although there were no

limiting instructions here, none were requested, and the preparer, Special Agent

Hall, was subjected to extensive cross examination. Moreover, the charts were

almost entirely a summary of record exhibits and quantities which are admissible

under Rule 1006. Therefore, we conclude the court did not abuse its discretion.

C. Sufficiency of the Evidence

We review the sufficiency of the evidence to support a jury verdict de

novo. United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005). In doing

so, we consider all evidence and reasonable inferences in the light most favorable

to the government, and we may not weigh evidence or consider credibility of

witnesses. Id. Because each Defendant’s sufficiency argument is unique, we

review them independently.

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 1. Mr. Renteria

Mr. Renteria first argues that there was insufficient evidence to support his

conviction for conspiring to distribute methamphetamine and to distribute an

amount over 500 grams. To prove a conspiracy in violation of 21 U.S.C.

§ 841(a)(1), the government must prove: (1) an agreement with another person to

violate the Controlled Substance Act; (2) knowledge of the essential objectives of

the conspiracy; (3) knowing and voluntary involvement; and (4) interdependence

among the alleged conspirators. United States v. Hernandez, 509 F.3d 1290, 1295

(10th Cir. 2007).

Multiple witnesses, including Ms. Perkins, Ms. Kysar, Ms. Morgan, and

Mr. Morgan, testified that Mr. Renteria and others were involved in a drug

conspiracy. Money Gram, Western Union, and UPS records, and testimony of

Ms. Bear, Ms. Perkins, and Ms. Kysar indicate that Mr. Renteria’s income was

from the sale of methamphetamine and that he frequently wired proceeds to

Fresno. A jury could reasonably conclude that Mr. Renteria distributed over 500

grams solely on account of Ms. Perkins’s testimony that she received packages on

a weekly basis. See III R. (12-8010) at 1965. Although this amount is based on

circumstance and inference, it is nevertheless sufficient for a finding beyond a

reasonable doubt. Dazey, 403 F.3d at 1159 (concluding conspiracy convictions

may be based on inferences from circumstantial evidence alone).

Contrary to Mr. Renteria’s suggestion, the fact that this inculpatory

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evidence originated from co-conspirators and methamphetamine users does not

make it insufficient. See Aplt. Br. (12-8009) 7, 13, 36–39. The credibility of

these witnesses was for the jury to consider, and we may not reevaluate it in

retrospect. See United States v. Sanders, 240 F.3d 1279, 1281 (10th Cir. 2001).

Mr. Renteria also argues that the evidence was insufficient to prove

conspiracy to launder money beyond a reasonable doubt. To prove a money

laundering conspiracy, the evidence must establish (1) an agreement with another

to knowingly conduct a financial transaction involving the proceeds of a specified

unlawful activity with the intent to further the specified unlawful activity; (2)

knowledge of the essential objectives of the conspiracy; (3) knowing and

voluntary involvement; and (4) interdependence among the alleged conspirators.

United States v. Keck, 643 F.3d 789, 794 (10th Cir. 2011).

Money Gram and Western Union records established that between May and

August 2009, Mr. Renteria, or one of his girlfriends, sent in excess of $20,000 to

associates in Fresno, California and that he received multiple packages from

Fresno during that same time. Various testimony indicated that Mr. Renteria had

no consistent employment during this time. This, combined with other testimony

from multiple witnesses, fairly supports an inference that he was involved in a

conspiracy to launder money.

2. Mr. Garcia

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 Mr. Garcia also argues that the government’s evidence was insufficient to

support a conviction of conspiracy to launder money in violation of 18 U.S.C.

§ 1956(a)(1)(A)(I), (a)(1)(B)(I), and 1956(h). In particular, Mr. Garcia points to

three tactics that he finds troubling: (1) overemphasis on the testimony of a few

unreliable witnesses, namely the Morgans; (2) courtroom bravado and misleading

evidence; and (3) assumption of his involvement in the drug conspiracy to prove

participation in money laundering conspiracy. Aplt. Br. (12-8010) 6–7.

First, Mr. Garcia argues that the Morgans are “dishonest, sentence

reduction-chasing, co-conspirators-turned-government witnesses.” Id. at 6. But

given our standard of review, this argument is better suited for the jury than an

appellate court. See Sanders, 240 F.3d at 1281 (concluding credibility

determinations are for the jury).

Second, Mr. Garcia spends much effort focusing on potential evidence that

the government did not provide—namely testimony from individuals in

California. But that is true in most every case—more could have been done. The

issue is whether what was provided was enough and the answer is unequivocal.

The testimony of multiple witnesses in addition to the evidence provided by the

records custodian at Money Gram was certainly sufficient. See, e.g., III R. (12-

8010) at 2653–79.

Finally, we note that the jury’s failure to reach a guilty verdict on the drug

trafficking conspiracy is irrelevant to the sufficiency of the evidence for the

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money laundering conspiracy. See United States v. Irvin, 682 F.3d 1254, 1271

(10th Cir. 2012).

3. Mr. Ordaz

Mr. Ordaz makes two sufficiency arguments. First, he argues that there

was insufficient evidence that he possessed a machine gun in furtherance of a

conspiracy (Count Thirteen). In order to prove this count, the evidence must

show that Mr. Ordaz (1) committed the underlying offense, (2) possessed the MP-

5 machine gun, and (3) did so in furtherance of the drug trafficking crime charge

in Count One. United States v. King, 632 F.3d 646, 650 (10th Cir. 2011). Mr.

Ordaz argues the evidence is insufficient only with respect to the third element.

A firearm is possessed in furtherance of a drug trafficking crime if it

assists, promotes, or aids in accomplishing, advancing, or achieving the goal or

objective of the underlying offense. United States v. Rockey, 449 F.3d 1099,

1103 (10th Cir. 2006). Mere presence of a firearm is not enough; there must be

some nexus between the possession and the offense. Id. The factors a jury may

consider include: (1) the type of drug activity being conducted, (2) the

accessibility of the firearm, (3) the type of firearm involved, (4) whether the

possession of the firearm is illegal, (5) whether the gun is loaded, (6) the

proximity of the firearm to the drugs or drug profits, and (7) the time and

circumstances under which the gun is found. United States v. Lott, 310 F.3d

1231, 1247 (10th Cir. 2002).

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 In light of these factors, there is ample evidence to conclude Mr. Ordaz

possessed the machine gun in furtherance of this conspiracy. Mr. Ordaz puts

much weight on the fact that a missing pin needed to assemble the gun was only

found shortly before trial, but this pertains to only one factor. The remaining

factors clearly cut in favor of the government. The MP-5 machine gun was found

in a bag identified as Mr. Ordaz’s that contained methamphetamine, a cutting

agent, scales, and ammunition. It was found in a home where multiple witnesses

testified they purchased methamphetamine from Mr. Ordaz. Moreover, the

machine gun was unlawful for multiple reasons, including the fact that is was

missing a serial number, had a shortened barrel, and was unregistered. This is

certainly sufficient.

Second, Mr. Ordaz argues that the evidence is insufficient to prove that he

possessed the rifles and pistols listed in Count Twelve in furtherance of an intent

to distribute methamphetamine. He again only challenges the “in furtherance”

element. And again, the relevant factors are easily met. Multiple witnesses

testified about Mr. Ordaz’s drug distribution and had seen him handle several of

the firearms in connection with it. Moreover, the firearms again were located

within close proximity to the methamphetamine recovered from his home.

Mr. Ordaz also, however, contends that the district court erred in failing to

instruct the jury to return a unanimous verdict as to which firearm supported the

18 U.S.C. § 924(c) conviction set forth in Count Twelve. Because he made no

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specific objection below, we review this argument for plain error. See United

States v. Rosalez, 711 F.3d 1194, 1212 (10th Cir. 2013). “Plain error occurs

when there is (i) error, (ii) that is plain, which (iii) affects the defendant’s

substantial rights, and which (iv) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (quotation omitted).

This court in Moore considered a similar unanimity argument in a case

involving multiple firearms and rejected it. United States v. Moore, 919 F.2d

1471, 1476 (10th Cir. 1990). There, the jury convicted the defendant of two

§ 924(c) counts. One count included three firearms and the jury was not

instructed to unanimously find which particular firearm applied to its verdict.

This court concluded that was not error where each firearm could have been

considered possessed in furtherance of his intent to distribute. Id. 1 For the

reasons described above, the same is true here.

Mr. Ordaz relies on a Third Circuit decision in which the court criticized a

jury instruction that did not require the jury to specify which of several firearms

was used in connection with the predicate offense. See United States v.

Theodoropoulos, 866 F.2d 587, 598 (3d Cir. 1989), overruled on other grounds by

United States v. Price, 76 F.3d 526, 528 (3d Cir. 1996). However, unlike

Theodoropoulos, where several firearms were found in a trash can outside the

1
The court nevertheless remanded for resentencing because both § 924(c)
counts were tied to the same predicate drug offense. We do not have that problem
here.

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house, here all the guns were found within the defendant’s apartment and in close

proximity to the drugs. Moreover, in Theodoropoulos, the court determined only

one of the four guns at issue could support the § 924(c) conviction as a matter of

law. Id. at 598. Here, all of the guns listed were found in Mr. Ordaz’s home, and

all were easily accessible. Any one of them was sufficient.

Other courts have also found that jury unanimity with respect to the

particular firearm used is not required. United States v. Perry, 560 F.3d 246, 257

(4th Cir. 2009); United States v. Wise, 515 F.3d 207, 215 (3d Cir. 2008); United

States v. DeJohn, 368 F.3d 533, 540 (6th Cir. 2004); United States v. Hernandez-

Albino, 177 F.3d 33, 40 (1st Cir. 1999); United States v. Morin, 33 F.3d 1351,

1353–54 (11th Cir. 1994); United States v. Correa-Ventura, 6 F.3d 1070, 1087

(5th Cir. 1993). We therefore conclude the fact that the court did not provide the

jury with a special verdict form was not error, let alone plain error, especially

considering that Mr. Ordaz failed to request one.

D. Multiplicitous Convictions

Mr. Ordaz argues that Counts Twelve and Thirteen are multiplicitous.

Because he did not raise this argument below, we review for plain error.

Moreover, we review this argument only with respect to Mr. Ordaz.

This argument fails as a matter of law because both counts are tied to

separate predicate offenses. The underlying predicate offense for Count Twelve

was possession of methamphetamine with intent to distribute, in violation of 21

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U.S.C. § 841(a)(1) and (b)(1)(B). The underlying offense for Count Thirteen was

conspiracy to traffic in methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846. These are separate offenses and each supports a separate

charge under 18 U.S.C. § 924(c). See United States v. Jenkins, 313 F.3d 549,

557–58 (10th Cir. 2002).

E. Admission of Gang Affiliation Evidence

Mr. Ordaz next argues that the district court erred in allowing presentation

of unduly prejudicial gang evidence. Prior to trial, Mr. Ordaz filed a motion in

limine to exclude all evidence of his gang affiliation, arguing it was unduly

prejudicial in violation of Fed. R. Evid. 403. The district court denied the

motion, finding such associational evidence generally relevant to prove a

conspiracy, but allowed for specific objections during trial, including to

“particular items that are more prejudicial than probative.” I R. (12-8019) at

556–57. Out of abundant caution, we review this claim as it might pertain to all

Defendants.

The issue of relevance has been preserved, but we cannot say the same for

the Rule 403 objection. Of course, preservation of a claim of error in admitting

evidence requires a timely and specific objection. Fed. R. Evid. 103(a)(1). If the

district court rules definitively on an evidentiary issue before trial, it is

unnecessary to renew an objection to preserve it. Fed. R. Evid. 103(b). Here the

district court made a blanket ruling on relevance, but then indicated it would

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consider objections based upon Rule 403 during trial. Mr. Ordaz made no

objections, and Mr. Renteria’s counsel objected only on Daubert and hearsay

grounds. Aplt. Reply Br. (12-8019) 16.

The evidence about which Mr. Ordaz complains was relevant to the

formation and structure of the conspiracy, and we find no abuse of discretion in

the district court’s decision. See United States v. Sloan, 65 F.3d 149, 151 (10th

Cir. 1995). Detective Gonzalez identified Mr. Ordaz as a member of the Fresno

Bulldogs and testified about the nature and identifying characteristics of the

organization, including drug distribution. III R. (12-8010) at 1010–16. Other

witnesses testified similarly. Insofar as excluding the evidence on Rule 403

grounds, we find no plain error.

Finally, we note that Mr. Ordaz’s additional argument that Officer

Gonzalez was not offered as an expert but testified as one, is unsupported by the

record. Officer Gonzalez testified to his personal observations and provided

adequate foundation for them. Such testimony is admissible. See United States

v. Zepeda-Lopez, 478 F.3d 1213, 1221–22 (10th Cir. 2007).

F. Bolstering Claim

Mr. Ordaz next argues that the district court erred in admitting certain

testimony of Special Agent Loy Young. In particular, Mr. Ordaz alleges that

when Special Agent Young discussed the process for securing a search warrant,

the prosecutor improperly bolstered his credibility as a witness by suggesting

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there was a prior finding of probable cause. See Aplt. Br. (12-8019) 41–45

(citing United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)). Again, we

review this with respect to all Defendants. Because there was no objection below,

we review for plain error.

There is simply nothing in the record to support this claim. Although Mr.

Ordaz never indicates exactly what language he finds offensive, it appears to be

the following exchange:

Q: Describe first the process you go through in obtaining a
warrant.
A: First, during the investigation you obtain information which
you believe will amount to probable cause, so you complete an
affidavit of probable cause which is then submitted to a judge
for review. If the judge feels like there’s enough information
amounting to probable cause, then the judge will authorize the
search of a residence or person or vehicle, whatever you’re
making application to search.

III R. (12-8010) at 906. Although Mr. Ordaz is correct that improper bolstering

may occur “when the prosecutor implies that the witness’s testimony is

corroborated by evidence known to the government but not known to the jury,”

Francis, 170 F.3d at 551, that is not what occurred here. Special Agent Young’s

reference to the fact that a court issued a search warrant does not amount to the

prosecutor improperly vouching for or bolstering his testimony in any way.

G. Cumulative Error

Finally, Mr. Ordaz argues that he suffers a due process violation as a result

of cumulative error. In analyzing such a claim, this court aggregates all errors

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found to be harmless and analyzes whether their effect as a whole would still be

harmless. United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002). Because

this court finds there was no error—harmless, or otherwise—the claim of

cumulative error fails. See United States v. Barrett, 496 F.3d 1079, 1121 (10th

Cir. 2007).

AFFIRMED. Defendant Renteria’s motion to supplement is DENIED as

the material was not before the district court.

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