FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 9, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 12-1408, 12-1442, 13-1032
TRACY MORGAN, a/k/a Tre Dog,
KILLIU FORD, a/k/a Caveman,
AUGUSTUS SANFORD, a/k/a Turk,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:11-CR-00303-REB-1; 1:11-CR-00303-REB-2; 1:11-CR-00303-REB-3)
Richard A. Hostetler, Law Office of Richard A. Hostetler, Denver, Colorado, appearing
for Appellant Tracy Morgan.
Ronald Fujino, Salt Lake City, Utah, appearing for Appellant Killiu Ford.
Jeffrey S. Pagliuca, Haddon, Morgan, and Foreman, P.C., Denver, Colorado, appearing
for Appellant Augustus Sanford.
John F. Walsh, United States Attorney, and Paul Farley, Assistant United States
Attorney, Office of the United States Attorney for the District of Colorado, Denver,
Colorado, appearing for Appellee.
Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
MATHESON, Circuit Judge.
Tracy Morgan, Killiu Ford, and Augustus Sanford (the “Defendants”) were
indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap,
and possession of a firearm during a crime of violence. Each defendant brought a
separate appeal, raising overlapping but not identical issues. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm as to each defendant.
I. BACKGROUND
A. Factual History1
In August 2009, Mr. Morgan and his friend, Marvin Tabor,2 plotted to kidnap and
rob Mario Armendariz. Pursuant to their plan, Mr. Morgan attached a GPS tracking
device to Mr. Armendariz’s car while Mr. Armendariz was visiting Mr. Tabor’s home.
Mr. Tabor then tracked Mr. Armendariz’s location on the Internet using Google Maps,
enabling Mr. Morgan and Mr. Ford to follow Mr. Armendariz in their vehicle.
1
This factual history is based on evidence presented at trial.
2
Mr. Tabor was a co-conspirator who testified for the Government at trial. Xallier
Patterson, Mr. Tabor’s stepbrother, was also a co-conspirator who testified for the
Government at trial. Mr. Patterson’s exact involvement in the crime is unclear from the
record.
-2-
Also in late summer 2009, Mr. Tabor’s brother-in-law, Mr. Sanford, persuaded a
police officer’s minor child to steal four weapons and parts of a police uniform—
including cargo pants, a black police shirt, and an orange reflective vest—from his father
in exchange for two ounces of marijuana. Mr. Sanford also painted his Chevrolet Tahoe
black.
Around 11:00 p.m. on September 22, 2009, the Defendants and Mr. Tabor met at
Mr. Tabor’s house. Mr. Sanford wore the stolen police gear. The Defendants then
departed to locate Mr. Armendariz. Mr. Tabor remained at his home and tracked Mr.
Armendariz using the GPS device and Google Maps, speaking with the Defendants on a
cell phone to update them with Mr. Armendariz’s location.
That night, Mr. Armendariz and his wife, Perla Flores, were getting into their car
with their two young daughters outside of a cousin’s house when they saw two armed
men exit a black Chevrolet Tahoe and at least one other man arrive from across the street.
The men announced they were police officers and ordered Ms. Flores and Mr.
Armendariz to lie on the ground. One of the men was wearing a reflective police vest.
Evidence at trial established the Defendants were present.
Two of the men zip-tied Mr. Armendariz’s arms and legs together, covered his
head, and put him into the back of the Tahoe. Mr. Ford got into the Tahoe and
questioned Mr. Armendariz about where he kept his money while an unknown co-
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conspirator drove the Tahoe around. Eventually the Tahoe dropped off Mr. Ford at Mr.
Armendariz’s home. The Tahoe drove away and parked in a different location.
Meanwhile, Mr. Sanford drove Ms. Flores and her daughters in her car to the
Flores-Armendariz home. Mr. Ford and Mr. Morgan3 met him there. The Defendants
confronted Ms. Flores, demanding to know where Mr. Armendariz kept his money. Ms.
Flores refused to tell them.
Mr. Morgan put a gun to the three-year-old daughter’s head, and Ms. Flores then
told them the money was under her daughter’s dresser. Mr. Morgan retrieved $30,000
from under the dresser and left the home. Mr. Sanford and Mr. Ford continued to search
the house, but after realizing Mr. Morgan had already left with the money, they also
exited the home.
Ms. Flores left the house looking for help. She saw a black sport utility vehicle
pick up Mr. Sanford and Mr. Ford. The driver then drove away from the home, stopped
several miles away, and dropped off Mr. Armendariz on the side of the road.
Later that night or early the next morning, Mr. Ford and Mr. Sanford looked for
Mr. Morgan and found him at a Taco Bell. They divided the money Mr. Morgan took
from Mr. Armendariz’s home.
3
The record is not clear how Mr. Morgan travelled to or from the Flores-
Armendariz home.
-4-
Mr. Sanford returned to Mr. Tabor’s home and complained to Mr. Tabor and Mr.
Patterson about Mr. Morgan’s keeping too much of the proceeds. Mr. Ford called Mr.
Tabor’s home to discuss the kidnapping and robbery with Mr. Tabor and Mr. Patterson.
He also complained that Mr. Morgan kept more than his share of the money.4 Mr.
Morgan joined the phone call for a brief moment and told the others he would arrive at
Mr. Tabor’s house within several hours. The group met at Mr. Tabor’s house and
redistributed the proceeds from the kidnapping and robbery.
B. Procedural History
A grand jury indicted the Defendants on two counts of kidnapping in violation of
18 U.S.C. § 1201(a)(1) for kidnapping Mr. Armendariz and Ms. Flores; two counts of
kidnapping in violation of 18 U.S.C. §§ 1201(a)(1) and 3559(f)(2) for kidnapping the
couple’s two minor children; one count of conspiracy to kidnap in violation of 18 U.S.C.
§ 1201(c); and one count of use of a firearm during a crime of violence in violation of 18
U.S.C. § 924(c).
The Defendants were tried together. The jury found each of them guilty on all
counts. Mr. Morgan and Mr. Ford were each sentenced to 600 months in prison, and Mr.
4
Law enforcement intercepted and recorded this phone call as part of an ongoing
wiretap in a separate drug investigation. The recorded phone call was admitted as
Exhibit 14A at trial. A transcript of the phone call was admitted as Exhibit 14B.
-5-
Sanford was sentenced to 384 months. Each defendant timely filed his notice of appeal.
We will discuss additional procedural history as it pertains to each issue addressed below.
Although the appeals were not formally consolidated, the Government filed only
one answer brief, and the cases were argued consecutively at oral argument.
II. DISCUSSION
The Defendants raise seven issues. Only one applies to all three Defendants.
First, Mr. Sanford and Mr. Ford challenge the constitutionality of the federal kidnapping
statute. Second, Mr. Ford challenges the district court’s jury instructions. Third, the
Defendants all argue the district court violated Federal Rule of Evidence 801(d)(2)(E)
and the Sixth Amendment in admitting the post-kidnapping phone call. Fourth, Mr.
Morgan contends the district court erred by not declaring a mistrial after the jury heard
the post-kidnapping phone call based on a violation of Federal Rule of Evidence 404(b).
Fifth, Mr. Sanford and Mr. Morgan argue the district court erred in denying their motions
for mistrial after Ms. Flores testified she could identify one of the perpetrators but did not
make the identification. Sixth, Mr. Sanford alleges the district court erred in denying his
motion for severance. Seventh, Mr. Morgan contends there was reversible cumulative
error.
A. Constitutionality of Federal Kidnapping Statute
Mr. Sanford and Mr. Ford argue the district court should have dismissed the
indictment because (1) Congress lacked Commerce Clause authority to enact the Federal
Kidnapping Statute, 18 U.S.C. § 1201(a)(1), as amended in 2006; and (2) the statute was
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unconstitutionally applied here.5 We review the as-applied challenge de novo. See
United States v. Carel, 668 F.3d 1211, 1216 (10th Cir. 2011). Because we conclude the
as-applied challenge fails, we need not and do not address the facial challenge. See
Renne v. Geary, 501 U.S. 312, 324 (1991) (endorsing the practice of (1) deciding an as-
applied challenge first, thus (2) obviating the need to address a facial challenge); Colo.
Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1155-56 (10th Cir. 2007).
Congress enacted the Federal Kidnapping Act in 1932 to outlaw interstate
kidnapping in response to the widely publicized abduction of aviator Charles Lindbergh’s
son. See Chatwin v. United States, 326 U.S. 455, 462-63 (1946). A 2006 amendment
expanded the crime to include intrastate activity when an “offender . . . uses . . . any . . .
instrumentality of interstate . . . commerce in committing or in furtherance of the
5
Mr. Sanford argues this issue in his opening brief. Aplt. Sanford Br. at 1-24.
Mr. Ford devotes most of his opening brief to challenging the district court’s jury
instructions regarding whether a cell phone, the Internet, and a GPS device are
instrumentalities of interstate commerce and whether kidnapping is a crime of violence.
But a few pages address the Commerce Clause issue, Aplt. Ford Br. at 28-32, and he
incorporates by reference his co-defendants’ opening briefs, including Mr. Sanford’s
Commerce Clause arguments, id. at 33.
Mr. Morgan, by contrast, did not raise this issue in his opening brief or at oral
argument. In his reply brief, he attempts to adopt the Commerce Clause arguments
appearing in Mr. Sanford’s brief. Because Mr. Morgan raises this issue for the first time
in his reply brief, we address the issue only as to Mr. Sanford and Mr. Ford. See Hill v.
Kemp, 478 F.3d 1236, 1250 (10th Cir. 2007) (“It is our general rule . . . that arguments
and issues presented at such a late stage are waived.”).
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offense.” Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248,
120 Stat. 616 (codified at 18 U.S.C. § 1201(a)(1)).
In accordance with this amended statute, each of the four kidnapping counts
alleged the Defendants “use[d] a means, facility, and instrumentality of interstate and
foreign commerce, those being cellular telephone(s), the internet[,] and a Global
Positioning System, in committing and in furtherance of the commission of the offense.”
Ford ROA, Vol. I at 15-17.
The Defendants do not appeal the jury’s determination that they used a cell phone,
the Internet, or a GPS device to accomplish the abductions.6 Instead, Mr. Sanford and
Mr. Ford argue the indictment’s reliance on their use of any of these devices violates the
Commerce Clause because the charged criminal activity all occurred intrastate. We
disagree based on Supreme Court precedent.
In United States v. Lopez, 514 U.S. 549 (1995), Chief Justice Rehnquist, writing
for the majority, identified “three broad categories of activity that Congress may regulate
under its commerce power”: (1) “use of the channels of interstate commerce,” (2) “the
6
Mr. Sanford’s argument he personally did not use an instrumentality is
unavailing because he was a member of the conspiracy. See Smith v. United States, 133
S.Ct. 714, 721 (2013) (holding it is an “established proposition that a defendant's
membership in the conspiracy, and his responsibility for its acts, endures even if he is
entirely inactive after joining it.”).
-8-
instrumentalities of interstate commerce,” and (3) “activities having a substantial relation
to interstate commerce.” Id. at 558-59.
Based on the language of the federal kidnapping statute and the indictment, this
case falls in the second category, which includes regulation aimed at local, in-state
activity involving instrumentalities of commerce. Lopez cited the Shreveport Rate Cases,
234 U.S. 342 (1914), as an example. See 514 U.S. at 558. In Shreveport, the Court
upheld Congress’s authorizing the Interstate Commerce Commission to regulate
intrastate rates charged by railroads providing interstate service. 234 U.S. at 351. Lopez
also mentioned Southern Railway Co. v. United States, 222 U.S. 20 (1911), which upheld
penalties under the Safety Appliance Act for operating defective railroad cars in intrastate
traffic that were also part of interstate traffic. Lopez, 514 U.S. at 558.
Nowhere in Lopez or any other case has the Supreme Court limited Congress’s
regulatory authority to prevent the harmful use of an instrumentality of interstate
commerce. Indeed, the Lopez Court said “Congress is empowered to regulate and protect
the instrumentalities of interstate commerce . . . even though the threat may come only
from intrastate activities.” Id.7
7
See United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (“Plainly,
congressional power to regulate the channels and instrumentalities of commerce includes
the power to prohibit their use for harmful purposes, even if the targeted harm itself
occurs outside the flow of commerce and is purely local in nature.”)
Continued . . .
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In the 2006 amendment to the Federal Kidnapping Act, Congress prohibited the
use of instrumentalities of interstate commerce to commit the offense of kidnapping. The
Supreme Court in Shreveport upheld a federal law that prohibited the use of an
instrumentality of interstate commerce—a railroad—to charge discriminatory intrastate
rail rates. See Shreveport, 234 U.S. at 351. Here we have a federal law that prohibits the
use of an instrumentality to engage in kidnapping.8 The indictment in this case charged
and the evidence proved that Defendants used an instrumentality of interstate commerce
to commit a kidnapping.
Federal prosecution for such conduct comports with the Commerce Clause. We
conclude Mr. Sanford’s and Mr. Ford’s as-applied Commerce Clause challenge fails. As
previously noted, we need not and do not address their facial challenge. See Colo. Right
to Life Comm., 498 F.3d at 1155-56.9
______________________________________
8
The district court instructed the jury that cell phones, the Internet, and GPS
tracking devices are instrumentalities of interstate commerce. Ford ROA, Vol. I at 1414.
As discussed below, we affirm that instruction on plain error review.
9
Although we are the first circuit court to address a constitutional challenge to the
2006 amendment, every district court to consider the issue has held 18 U.S.C.
§ 1201(a)(1) fits Lopez’s second category and is constitutional under Commerce Clause.
See United States v. Ramos, No. 12 Cr. 556 (LTS), 2013 WL 1932110 (S.D.N.Y. May 8,
2013) (facial and as-applied challenges); United States v. Taylor, No. 12–0056-WS, 2012
WL 3522528 (S.D. Ala. Aug. 14, 2012) (facial challenge); United States v. Jacques, No.
2:08–cr–117, 2011 WL 1706765 (D. Vt. May 4, 2011) (facial and as-applied); United
Continued . . .
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B. Jury Instructions
Mr. Ford challenges jury instructions 11 and 13 and argues the trial court plainly
erred by not submitting to the jury two issues: (1) whether cell phones, GPS tracking
devices, and the Internet are “instrumentalities of interstate commerce” and (2) whether
kidnapping is a “crime of violence” under 18 U.S.C. § 924(c)(1), which imposes a
sentence for the use of a firearm during the commission of such a crime.10 He contends
the jury should have been given the opportunity to determine these matters because they
concern necessary elements the prosecution must prove. Keeping these questions from
the jury, he says, violated his Sixth Amendment right to a fair jury trial. He cites United
States v. Keeling, 235 F.3d 533, 537 (10th Cir. 2000) (holding that an element “must be
charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its
verdict” (quotations omitted)). The Government argues these are questions of law for the
judge to determine, not questions of fact for the jury to decide.
Because Mr. Ford did not object at trial to the jury instructions or propose
alternate jury instructions, we review for plain error. See United States v. Gonzalez-
______________________________________
States v. Augustin, No. 1:09–CR–187, 2010 WL 2639966 (E.D. Tenn. June 28, 2010)
(facial); United States v. Ochoa, No. 8–CR–1980, 2009 WL 3878520 (D.N.M. Nov. 12,
2009) (as-applied, did not reach facial).
10
Mr. Sanford and Mr. Morgan do not raise this issue.
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Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). Mr. Ford must show “(1) error, (2)
that is plain, which (3) affects substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. We find no plain
error and affirm.
1. Jury Instruction 11—Instrumentality of Interstate Commerce
18 U.S.C. § 1201(a)(1) prohibits a person from using an “instrumentality of
interstate or foreign commerce in committing or in furtherance of the commission of the
offense [of kidnapping].” Jury instruction 11—the instruction on counts 1, 2, 3, and 4 for
kidnapping in violation of 18 U.S.C. § 1201(a)(1)—stated the jury must find that “the
defendant whose case you are considering used or caused to be used an instrumentality of
interstate commerce in committing or in furtherance of the kidnapping.” Ford ROA, Vol.
I at 1413. The instruction defined “[a]n ‘instrumentality of interstate commerce’ [to]
include[] a cellphone, the internet[,] and a Global Positioning System ‘GPS’ tracker.” Id.
at 1414.
We have decided the Internet is an instrumentality of interstate commerce. See
Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045,
1054 (10th Cir. 2008). We have not, however, determined whether a cell phone or GPS
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tracking device is an instrumentality of interstate commerce.11 In addition to the Internet,
the district court instructed the jury that cell phones and GPS tracking devices are
instrumentalities of interstate commerce. Mr. Ford contends the jury must make those
determinations, not the court. The question before us is whether the district court plainly
erred by not submitting these determinations to the jury.12
By giving instruction 11 to the jury, the district court concluded it must decide as a
matter of law whether cell phones, the Internet, and GPS devices are instrumentalities of
11
We have held that telephones are instrumentalities of interstate commerce. See
Kerbs v. Fall River Indus., 502 F.2d 731, 738 (10th Cir. 1974), abrogated on other
grounds by Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.
164 (1994). Other circuits have held that cell phones are instrumentalities. See, e.g.,
United States v. Willoughby, 724 F.3d 229, 240 (6th Cir. 2014); United States v. Mandel,
647 F.3d 710, 716 (7th Cir. 2011); United States v. Evans, 476 F.3d 1176, 1180 (11th Cir.
2007); United States v. Giordano, 442 F.3d 30, 40 (2d Cir. 2006); United States v.
Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997). We said in an unpublished opinion that
cell phones are instrumentalities. See United States v. Means, 297 F. App’x 755, 759 n.5
(10th Cir. 2008) (unpublished) (citing United States v. Evans, 476 F.3d 1176, 1180 (11th
Cir. 2007) for authority that cell phones are instrumentalities of interstate commerce).
But we have not done so in a published opinion, nor have we or any other circuit
addressed GPS devices.
12
Mr. Ford does not directly challenge the district court’s determination that cell
phones and GPS tracking devices are instrumentalities of interstate commerce, but his
appeal would fail under the plain error standard of review even if he did. “To be plain, an
error must be clear or obvious under well-settled law.” United States v. Trujillo-
Terrazas, 405 F.3d 814, 818 (10th Cir. 2005) (quotations omitted). As for cell phones,
five other circuits have held they are instrumentalities of commerce, and we have done so
in an unpublished opinion. See supra note 11. No circuit has addressed GPS devices.
Under these circumstances, jury instruction 11 can hardly be considered plainly
erroneous under well-settled law.
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interstate commerce. The court’s choice to decide this issue rather than asking the jury to
do so was not plainly erroneous because there is no contrary Supreme Court or Tenth
Circuit precedent and courts from other jurisdictions have decided similarly. See United
States v. Pierce, 70 M.J. 391, 394 (C.A.A.F 2011) (determining whether the Internet is a
facility or means of interstate commerce “is a question of law, to be answered by the . . .
judge”); see also United States v. Giordano, 442 F.3d 30, 40 (2d Cir. 2006) (holding, as a
matter of statutory interpretation, that intrastate telephone use constitutes the use of a
facility or means of interstate commerce).
Mr. Ford argues that because the jury was required to determine whether Mr.
Armendariz’s young daughters were under 18 years of age for him to be convicted under
18 U.S.C. § 3559(f)(2) (increasing mandatory minimum sentence for kidnapping those
under 18 years of age), the jury should also be required to find that cell phones, the
Internet, and GPS devices are instrumentalities of interstate commerce as a matter of fact.
This comparison is inapt. A victim’s age is a question of fact under the circumstances of
a given case.
When, as here, certain items have been deemed instrumentalities as a matter of
law, the only fact question left for the jury is whether the Defendants used them. To hold
otherwise would allow one jury, for example, to find that the Internet is an
instrumentality of interstate commerce, and another jury to find in a substantially similar
case that the Internet is not an instrumentality of interstate commerce. The district court
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here correctly instructed the jury to determine whether the Defendants used an
instrumentality of interstate commerce—a cell phone, the Internet, or a GPS device—in
committing the crime. See Pierce, 70 M.J. at 394.
2. Jury Instruction 13—Crime of Violence
18 U.S.C. § 924(c)(1) prohibits the use or carrying of a firearm “during and in
relation to any crime of violence or drug trafficking crime.” Section 924(c)(3) defines
“crime of violence” as “an offense that is a felony and . . . has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another, or . . . that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.”
In jury instruction 13—the instruction on count 6 for using a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)—the district
court instructed that to convict, the jury must find “the defendant whose case you are
considering committed the crime of kidnapping or conspiracy to kidnap, which are
crimes of violence.” Ford ROA, Vol. I at 1418.
Whether a crime fits the § 924(c) definition of a “crime of violence” is a question
of law. See United States v. Munro, 394 F.3d 865, 870 (10th Cir. 2005) (calling the
district court’s determination of whether a crime is a crime of violence under § 924(c) a
“legal conclusion”). The answer requires examination of the legal elements of the crime,
not an exploration of the underlying facts. See Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)
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(holding that whether a crime is a crime of violence under 18 U.S.C. § 16—which uses
nearly identical language to § 924(c)(3)—“requires us to look to the elements and the
nature of the offense of conviction, rather than the particular facts relating to [the
Defendants’] crime”). Accordingly, whether kidnapping is a crime of violence turns not
on whether the Defendants committed violent acts, but whether the offense itself is a
crime of violence.
The Supreme Court has recognized kidnapping as a crime of violence under 18
U.S.C. § 924(c). See United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999). The
United States Sentencing Commission Guidelines Manual also lists kidnapping as a
crime of violence. U.S. Sentencing Guidelines Manual § 4B1.2(a) & cmt. n.1 (2013)
(defining “crime of violence” using similar language to § 924(c)(3)).
We have held that conspiracy to commit a federal crime of violence also is a
§ 924(c) crime of violence. See United States v. Brown, 200 F.3d 700, 705-06 (10th Cir.
1999) (holding that a conspiracy to carjack is a crime of violence under § 924(c) because
“an agreement to accomplish the statutory elements of carjacking necessarily involves a
substantial risk of physical force”); see also United States v. Patino, 962 F.2d 263, 267
(2d Cir.1992).
Because kidnapping and conspiracy to kidnap are crimes of violence as a matter of
law, the district court was correct in not submitting this question to the jury. See Sparf v.
United States, 156 U.S. 51, 64-65 (1895).
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C. Statements of Co-Conspirators
All three Defendants argue the district court erred in admitting, under Federal Rule
of Evidence 801(d)(2)(E), an intercepted phone call during which Mr. Patterson, Mr.
Tabor, Mr. Ford, and Mr. Morgan (though only briefly) spoke about dividing the
proceeds of the crime. They contend the statements were not made in the course of or in
furtherance of the conspiracy. They also contend admitting the statements violated their
Sixth Amendment right to confront their accusers under Bruton v. United States, 391 U.S.
123 (1968).13
The phone call at issue14 started at 3:19 a.m. on September 23, 2009, a few hours
after the kidnapping and robbery, and lasted 42 minutes. Before the call, several of the
co-conspirators—Defendants Ford, Sanford, and Morgan—had already met to share the
proceeds. On the call, Mr. Ford complained that Mr. Morgan had taken more than his
13
At the district court, all three defendants objected on Rule 801(d)(2)(E) and
Sixth Amendment grounds. Both Mr. Sanford and Mr. Morgan argue in their opening
briefs the phone call’s admission violated Rule 801(d)(2)(E) and the Sixth Amendment.
But Mr. Ford did not raise this question in his opening brief. Instead, he attempted to join
the entirety of the other Defendants’ briefs without explaining how the arguments apply
to him. Generally, “[t]his is problematic because it requires the court to sift through the
briefing and record and imagine which arguments might apply to which Defendants.”
United States v. Renteria, 720 F.3d 1245, 1251 (10th Cir. 2013). In this instance,
however, because Mr. Sanford’s and Mr. Morgan’s arguments can apply to Mr. Ford, we
consider this issue as to him.
14
The recorded phone call was admitted as Exhibit 14A. A transcript of this
conversation was admitted as Exhibit 14B.
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share. Mr. Morgan then joined the call and stated he would come to Mr. Tabor’s house in
the morning. A short time later, Mr. Morgan arrived at Mr. Tabor’s house, and the co-
conspirators finished dividing up the proceeds.
The Defendants filed pretrial motions in limine to exclude this intercepted phone
call based on both Rule 801(d)(2)(E) and the Sixth Amendment. The district court
denied the motion based on Rule 801(d)(2)(E), subject to the Government proving the
foundational predicates before admitting the phone call. The Defendants again
unsuccessfully objected on both grounds just before jury selection. The district court said
the statements were made in the course of and in furtherance of the conspiracy, thereby
satisfying Rule 801(d)(2)(E), and admitting them would not violate the Sixth Amendment
because the statements were not testimonial. When the Government sought to admit the
call in its case-in-chief, Defendants renewed their Rule 801(d)(2)(E) objection, which the
district court overruled.
The Defendants argue on appeal the district court’s admission of the phone call
violated Rule 801(d)(2)(E) and the Sixth Amendment. As explained below, we review
the issue raised under Rule 801(d)(2)(E) for clear error and abuse of discretion, and the
Sixth Amendment issue de novo.
1. Rule 801(d)(2)(E)
Under Rule 801(d)(2)(E), co-conspirators’ statements that would otherwise be
hearsay may be introduced as evidence against a defendant co-conspirator if they were
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made “during and in furtherance of the conspiracy.” Before admitting such evidence, the
court must determine “(1) by a preponderance of the evidence, a conspiracy existed, (2)
the declarant and the defendant were both members of the conspiracy, and (3) the
statements were made in the course of and in furtherance of the conspiracy.” United
States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). The Defendants contest the third
element.
“[W]hile the ultimate issue of the admission or exclusion of evidence is reviewed
for an abuse of discretion, preliminary foundational determinations, such as whether
statements offered under Rule 801(d)(2)(E) were made [in] the course of and in
furtherance of a conspiracy, are factual findings, reviewed for clear error.” United States
v. Williamson, 53 F.3d 1500, 1517 (10th Cir. 1995) (quotations omitted). Clear error
review “ask[s] whether, on the entire evidence, [the court] is left with the definite and
firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234,
242 (2001) (quotations omitted).
We conclude that the district court’s factual determination that the call was made
in the course of and in furtherance of the conspiracy was not clearly erroneous, and that
admission of the phone call under Rule 801(d)(2)(E) was not an abuse of discretion.
A conspiracy continues until its central purpose has been attained. See Grunewald
v. United States, 353 U.S. 391, 401-02 (1957) (rejecting an implied subsidiary conspiracy
to conceal the crimes because the original purpose had been accomplished); Krulewitch v.
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United States, 336 U.S. 440, 442-43 (1949) (same). “To determine the scope of the
alleged conspiratorial agreement, the court is bound by the language of the indictment.”
United States v. Qayyum, 451 F.3d 1214, 1218 (10th Cir. 2006) (quotations omitted).
As evident from the call and other evidence, the central purpose of kidnapping and
robbing Mr. Armendariz was to obtain money and divide it among the co-conspirators.
The co-conspirators on the call discussed concerns about an unfair distribution of the
proceeds, which furthered their purpose to kidnap for money. After the call, the co-
conspirators met again to redistribute proceeds.
“It is well settled that the distribution of the proceeds of a conspiracy is an act
occurring during the pendency of the conspiracy.” United States v. Davis, 766 F.2d
1452, 1458 (10th Cir. 1985); see also United States v. Knowles, 66 F.3d 1146, 1156-57
(11th Cir. 1995) (distribution of proceeds is in furtherance of conspiracy); United States
v. Turner, 871 F.2d 1574, 1581 (11th Cir. 1989) (admitting under Rule 801(d)(2)(E)
conversations of co-conspirators about how proceeds of theft would be distributed);
United States v. Knuckles, 581 F.2d 305, 313 (2d Cir. 1978) (“[I]t is fair to say that where
a general objective of the conspirators is money, the conspiracy does not end, of
necessity, before the spoils are divided among the miscreants.”).15
15
The Defendants argue the district court erred in how it applied United States v.
Dynalectric, Co., 859 F.2d 1559 (11th Cir. 1988). Dynalectric was a bid-rigging case
Continued . . .
-20-
The indictment lists the Defendants’ multiple meetings to divide the proceeds—
which would include the meeting at Mr. Tabor’s house following the phone call—as one
of the 21 overt acts in furtherance of the conspiracy. Ford ROA, Vol. I at 21. Based on
the record, we cannot hold the district court clearly erred in finding the call was made in
the course of and in furtherance of the conspiracy.16
______________________________________
holding that the conspiracy continued until all the proceeds were procured and
distributed. Id. at 1563. The Defendants argue their case is distinguishable because,
unlike in Dynalectric, the conspiracy to kidnap here did not involve a plan for future
receipt of monies over time. But Dynalectric can reasonably stand for the proposition
that the conspiracy does not end until all the money has been distributed, which is
consistent with this case. Apart from Dynalectric, our own precedent is controlling. See
Davis, 766 F.2d at 1458.
16
The Defendants also argue the phone call is inadmissible because it is a mere
narrative of past events. They cite United States v. Roberts, 14 F.3d 502, 514-15 (10th
Cir. 1993) (“In general, mere narratives between coconspirators or narrative declarations
of past events are not ‘in furtherance,’ while statements of future intent that set
transactions integral to the conspiracy in motion and maintain the information flow
among coconspirators meet the ‘in furtherance’ requirement.”).
This argument fails for the same reasons we conclude the phone call was made in
furtherance of the conspiracy. Although part of the call recounted past events, the
purpose of the call was to discuss future actions, including Mr. Morgan’s suggestion to
meet again. Indeed, Roberts works against them: “Statements made to induce enlistment
or further participation in the group's activities, to prompt further action on the part of
conspirators, to reassure members of a conspiracy's continued existence, to allay a
coconspirator's fears, or to keep coconspirators abreast of an ongoing conspiracy's
activities satisfy the ‘in furtherance of’ requirement.” Id. at 515 (quotations omitted).
-21-
The Defendants also argue Mr. Morgan withdrew from the conspiracy before the
phone call, so the call could not have been in the course of the conspiracy. But the record
indicates otherwise.
The defendant has the burden to show withdrawal by proving he or she
“attempt[ed] to undo the wrong that has been done in one of two ways”: (1) “give
authorities information with sufficient particularity to enable the authorities to take some
action to end the conspiracy”; or (2) “communicate his [or her] withdrawal directly to his
[or her] coconspirators in a manner that reasonably and effectively notifies the
conspirators that he [or she] will no longer be included in the conspiracy.” United States
v. Randall, 661 F.3d 1291, 1294-95 (2011). The second method “requires more than
implied dissociation. It must be sufficiently clear and delivered to those with authority in
the conspiracy such that a jury could conclude that it was reasonably calculated to make
the dissociation known to the organization.” Id.
The district court did not clearly err in finding Mr. Morgan had not withdrawn
from the conspiracy. The record shows Mr. Morgan had not withdrawn or frustrated the
purpose of the conspiracy at the time of the phone call. Although Mr. Morgan left the
crime scene with the money, he met with his co-conspirators to divide the proceeds, he
joined the phone call about the proceeds to say he was coming to Mr. Tabor’s house, and
he then redistributed the proceeds. Rather than showing withdrawal, these actions
demonstrate his continued participation in the conspiracy.
-22-
2. Sixth Amendment Bruton Claim
The Defendants contend the admitted phone call violated their Sixth Amendment
right to confront their accusers under Bruton. See Bruton, 391 U.S. at 124-26. We
review de novo any alleged Sixth Amendment Bruton errors. See United States v. Nash,
482 F.3d 1209, 1218 (10th Cir. 2007).
Bruton holds that admission of a non-testifying co-defendant’s confession
implicating another defendant violates the latter’s Sixth Amendment Confrontation
Clause protection because it deprives the right to cross-examine the declarant. See 391
U.S. at 124-26. A jury instruction to consider the statement only against the declarant
and not any co-defendant is not sufficient to cure a Bruton error. See United States v.
Hill, 901 F.2d 880, 883 (10th Cir. 1990).
The Defendants’ claim fails because Bruton applies only to testimonial statements.
See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010). A testimonial
statement is a “formal declaration made by the declarant that, when objectively
considered, indicates” that the “primary purpose of the [statement is] to establish or prove
past events potentially relevant to later criminal prosecution.” Id. at 777-78 (quoting
Davis v. Washington, 547 U.S. 813, 822 (2006)).
In overruling the Defendants’ Confrontation Clause objection to Exhibit 14A, the
district court said “the Sixth Amendment applies only to statements that are testimonial”
-23-
and “[t]here is absolutely no indication that the statements in the telephone call” are
testimonial. Ford ROA, Vol. II at 42. We agree.
The statements in the contested phone call were not made to be used for
investigation or prosecution of a crime. See Smalls, 605 F.3d at 777. The parties on the
call were speaking on a private phone line to co-conspirators. No law enforcement
official or any other third party participated in the conversation.17 Mr. Ford recounted
events from the crime to his fellow conspirators, who in turn made inculpatory statements
during the call. No one referenced any pending or future prosecution. The record does
not support a conclusion that the primary purpose of the statements in the phone call was
to “establish or prove past events potentially relevant to later criminal prosecution.” Id.
The statements, in short, were not testimonial.
Because Bruton does not apply to non-testimonial statements, see id. at 768 n.2,
the district court did not violate the Defendants’ Sixth Amendment rights by admitting
the phone call into evidence.
17
Although law enforcement wiretapped the phone call, there is no evidence the
Defendants knew of the wiretap. See United States v. Ramirez, 479 F.3d 1229, 1249
(10th Cir. 2007) (holding statements of co-conspirators procured through a wiretap are
not testimonial because they were made in furtherance of a conspiracy) abrogated on
other grounds as recognized in United States v. Bagby, 696 F.3d 1074, 1081 (10th Cir.
2012); see also United States v. Crawford, 541 U.S. 36, 56 (2004) (holding that
“statements in furtherance of a conspiracy” are by nature not testimonial).
-24-
D. Rule 404(b) Evidence and Mistrial
Mr. Morgan argues the district court erred by failing to order a mistrial after the
jury heard evidence of Mr. Morgan’s prior bad acts in the same phone call discussed
above.18 As noted below, even if Mr. Morgan preserved this issue for appeal, we affirm
under the abuse of discretion standard of review.
At a pretrial motions hearing, Mr. Morgan objected to the phone call’s admission
under Rule 404(b).19 The district court did not rule at that time. As noted above, all
Defendants objected at trial to admission of the phone call. After the phone call was
admitted, Mr. Morgan complained the call included two statements that should have been
excluded under Rule 404(b) because they implicated him in prior criminal activity.20 Mr.
18
Mr. Ford attempts to join this issue as part of the blanket statement in his brief
joining the other briefs. He did not make this objection in the district court and provides
no argument as to how this evidence affects him. We do not consider this issue as to Mr.
Ford. See Renteria, 720 F.3d at 1251. Mr. Sanford does not attempt to join this issue.
19
Rule 404(b)(1) prohibits the admission of “[e]vidence of a crime, wrong, or
other act . . . to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.”
20
The first reference was Mr. Ford’s statement about a prior dealing with Mr.
Morgan:
That's just like when we had got Cortino. You know what I'm saying? The
n[word] was supposed to come back in with ten. This n[word] don't come
back at all. He done went from California to Dallas to Atlanta to New
York. Then he comes back three weeks later with $200 n[word].
Continued . . .
-25-
Morgan’s counsel said he did not “know how that can be cured by any type of limiting
instruction at this time.” Ford ROA, Vol. II. at 685. The court agreed that admitting the
statements violated Rule 404(b), ordered the statements stricken from the record, and
instructed the jury not to consider them.21 Mr. Morgan did not object to these curative
measures.
Mr. Morgan’s failure to ask explicitly for a mistrial before or after the district
court acted on the Rule 404(b) concern suggests he forfeited this issue. Assuming
without deciding he raised the mistrial issue when he said no limiting instruction could
cure the Rule 404(b) problem, the district court did not abuse its discretion by not
ordering a mistrial. See United States v. Peveto, 881 F.2d 844, 859 (10th Cir. 1989) (we
review the district court’s denial of a mistrial motion for abuse of discretion).
______________________________________
Ford ROA, Vol. II at 681-82. Mr. Morgan’s counsel explained that Mr. Ford was
referencing a crime Mr. Morgan allegedly committed for which Mr. Morgan was
paid $10,000 but only returned with $200 to share. Id.
The second reference was from Mr. Patterson. Mr. Morgan’s counsel
explained Mr. Patterson was talking about when Mr. Morgan committed a crime
with others and split the proceeds right away. Mr. Patterson stated, “Check this
out though, Cave [Mr. Ford]. Check this out though, Cave. I'm just saying, okay.
You all had a shootout and some more shit the other time and you all shot straight
over here. That was the whole lot going on right there.” Id. at 682-83.
21
Because the district court decided the evidence was inadmissible, Mr. Morgan
only challenges the district court’s not declaring a mistrial.
-26-
“Where [admitted] evidence is later ruled inadmissible, a cautionary instruction is
ordinarily sufficient to cure any alleged prejudice to the defendant and declaring a
mistrial is only appropriate where a cautionary instruction is unlikely to cure the
prejudicial effect of an error.” Id. “However, as an exception to the general rule, where
the character of the testimony is such that it will create so strong an impression on the
minds of the jurors that they will be unable to disregard it in their consideration of the
case, although admonished to do so, a mistrial should be ordered.” Maestas v. United
States, 341 F.2d 493, 496 (10th Cir. 1965).
Here, the district court gave the jury a cautionary instruction and redacted the
challenged statements.22 Mr. Morgan failed to show before the district court and now on
appeal why this evidence was so prejudicial that the curative jury instruction was not
sufficient. The statements were street slang, vague, and a small fraction of a 42-minute
audio conversation. They were therefore difficult to understand.
In the first statement, Mr. Ford recalled the time they “got Cortino” and “the
n[word] was supposed to come back in with ten.” Ford ROA,Vol. II at 681-82. It is not
clear to whom Mr. Ford is referring, who or what Cortino is, or what “got” means.
22
The district court told the jury the remarks about prior acts had been stricken
and the jury “may not consider or use this stricken material as evidence or for any other
purpose during the trial. And the written transcript will be redacted to exclude any
reference to this stricken material.” Ford ROA, Vol. II at 714.
-27-
The second statement by Mr. Patterson is virtually incomprehensible: “You all
had a shootout and some more shit the other time and you all shot straight over here.
That was the whole lot going on right there.” Id. at 682-83. It is not clear who “you all”
refers to, or what the “shootout” or “some more shit the other time” was, or what “shot
straight over here” means.
Mr. Morgan relies on Maestas, where we reversed the denial of a mistrial when at
trial the objectionable statement was made a second time after the court warned the
witness not to say it. See 341 F.2d at 496. Here, the tape was played once for the jury.
Although the jury had an unredacted transcript at the time the call was played, the
transcript the jury had in deliberations was redacted, and the district court instructed the
jury to not consider the stricken statements. No witnesses were questioned about those
statements, and the Government did not use them in closing argument. Unlike Maestas,
this is not a case where the statements created so “strong an impression on the minds of
the jurors that they will be unable to disregard it in their consideration of the case.” Id.
Even if Mr. Morgan preserved his mistrial issue for appeal, the district court did
not abuse its discretion in failing to order a mistrial.
-28-
E. Ms. Flores’s Identification Testimony
Mr. Sanford and Mr. Morgan argue the district court erred by denying a mistrial
based on Ms. Flores’s testimony.23 Until Ms. Flores testified, she had not been able to
identify any of the perpetrators. The Defendants expected she would not be asked to do
so at trial. On cross-examination by Mr. Morgan’s counsel, Ms. Flores confirmed she
had excluded a photo of Mr. Morgan from a photo array. Ford ROA, Vol. II at 164-72.
After this cross-examination, Ms. Flores appeared emotional and the court took a recess.
Mr. Sanford’s counsel then cross-examined Ms. Flores.
On redirect, the Government asked:
Q: Ms. Flores, I know you’ve gotten upset a few times. Do you recognize
any of the men who were at your house in the courtroom today?
A: Yes.
Ford ROA, Vol. II at 187.
All three Defendants immediately objected to this questioning as beyond the scope
of cross-examination. The district court dismissed the jury, and all three defense counsel
continued to argue that none of them had asked Ms. Flores to identify the Defendants,
23
Mr. Morgan and Mr. Sanford argue this issue in their opening briefs. Mr. Ford
attempts to join this issue as part of his blanket statement in his brief joining the other
briefs, but he does not make any argument on appeal about why he was prejudiced. Mr.
Sanford and Mr. Morgan each argue this testimony specifically prejudiced each of them
in unique ways. Their arguments do not apply to Mr. Ford. He did not present any
arguments as to why Ms. Flores’s identifying statement prejudiced him specifically. We
therefore do not consider this issue as to him. See Renteria, 720 F.3d at 1251.
-29-
and that the Government’s question broached an entirely new topic in a manner that was
unduly prejudicial. The Defendants also argued Ms. Flores’s identification testimony
was improper because the Government had not provided them during discovery any
indication Ms. Flores could identify a defendant. Mr. Sanford then moved for mistrial.
The Government moved to withdraw the question.
The district court next heard argument on Mr. Sanford’s motion for mistrial, which
the other defendants joined. The district court denied the motion because a cautionary
instruction would ameliorate any prejudice. The court said it could better evaluate
prejudice at the end of the Government’s case-in-chief. The court instructed the jury to
disregard the question and Ms. Flores’s answer and not consider them as evidence:
[You are instructed t]hat the last question yesterday afternoon by [the
Government] and the answer of Ms. Flores to that last question have been
stricken by the Court. Thus, this question and answer are not evidence in
this trial and may not be used as such by you, the jury.
I rehearse or reiterate that any verdict you return must be based on the
evidence presented properly during the trial and may not be based on
anything that I have stricken, which must be disregarded entirely.
Ford ROA, Vol. II at 225.
We review the district court’s denial of the mistrial motion for abuse of discretion.
See Peveto, 881 F.2d at 859. We reverse only if we have a “definite and firm conviction
that the lower court has made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d 1237,
1248 (10th Cir. 2000) (quotations omitted).
-30-
“[A] cautionary instruction is ordinarily sufficient to cure any alleged prejudice to
the defendant and declaring a mistrial is only appropriate where a cautionary instruction
is unlikely to cure the prejudicial effect of an error.” Peveto, 881 F.2d at 859. We look
to see if the evidence “will create so strong an impression” on the jurors that they could
not “disregard it in their consideration of the case” despite cautionary instructions.
Maestas, 341 F.2d at 496. “[M]otions for mistrial . . . call for an examination of the
prejudicial impact of an error or errors when viewed in the context of an entire case.”
United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996).
Based on our review of the record, we do not think Ms. Flores’s uncompleted
identification testimony was so prejudicial that the district court abused its discretion by
denying the motion for mistrial and opting instead for a curative instruction. Ms. Flores’s
testimony was one short moment in a seven-day trial. Again, unlike in Maestas, the
question here was posed only once. She did not identify anyone. The district court
advised the jury to disregard the statement, and juries are presumed to follow curative
instructions. See United States v. Muessig, 427 F.3d 856, 865 (10th Cir. 2005).
Mr. Sanford argues this evidence prejudiced him because his main defense was
that he did not commit any crime and therefore could not be identified as one of the
perpetrators. He further argues that Ms. Flores’s statement that she could identify a
perpetrator undermined his defense because the jury could speculate Ms. Flores saw Mr.
Sanford. These arguments fail because there was ample evidence placing him as a
-31-
perpetrator at the scene. Mr. Tabor testified that Mr. Sanford was part of the conspiracy,
and the wiretap recorded a phone call in which Mr. Ford discussed Mr. Sanford’s role in
the crime. The police officer’s son, from whom Mr. Sanford procured the police gear,
also identified Mr. Sanford. In the face of this evidence, Mr. Sanford fails to show how
the uncompleted identification was so prejudicial as to necessitate a mistrial.
Like Mr. Sanford, Mr. Morgan argues prejudice because the jurors would believe
that Ms. Flores could identify one of the Defendants but were left to speculate which
one.24 He also contends the only other evidence linking him to the crime was the biased
testimony of the unindicted co-conspirators, Mr. Patterson and Mr. Tabor. These
arguments also fail because the evidence against Mr. Morgan was overwhelming. Mr.
Tabor and Mr. Patterson testified about Mr. Morgan’s involvement. Mr. Ford spoke on
the phone call about Mr. Morgan’s involvement, and Mr. Morgan’s participation in the
phone call bolsters that conclusion.
24
Mr. Morgan asserts this problem was compounded by a recorded phone call
played for the jury in which Mr. Ford stated that Ms. Flores saw Mr. Sanford’s and Mr.
Morgan’s faces. Upon hearing this statement later in the trial, Mr. Morgan argues, the
jury would be reminded of Ms. Flores’s uncompleted identification and speculate as to
which of these two men Ms. Flores had intended to identify in court.
Mr. Morgan did not make this argument in the district court. Because we do not
review issues for the first time on appeal, Mr. Morgan has waived this argument. See
United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002).
-32-
Furthermore, any prejudice was ameliorated because Mr. Morgan’s counsel
extensively cross-examined Ms. Flores about her previous attempts to identify Mr.
Morgan and established she had at one point ruled him out as one of the perpetrators.
Although the question may have invited the jury to speculate, Ms. Flores had not
identified Mr. Morgan at any time up to and after that point in trial.
Ms. Flores’s uncompleted identification did not impair Mr. Sanford’s or Mr.
Morgan’s right to a fair trial or warrant the “drastic action of declaring a mistrial.”
Gabaldon, 91 F.3d at 95 (quotations omitted). The district court’s refusal to declare a
mistrial was not an abuse of discretion.
F. Severance
Mr. Sanford appeals the district court’s denial of his severance motion.25 All three
Defendants were indicted together and slated for a joint trial. Before trial, Mr. Sanford
moved to sever, and the district court denied his motion. Mr. Sanford renewed his
motion after Ms. Flores stated she could identify one of the perpetrators. The district
court denied Mr. Sanford’s motion again. Mr. Sanford argues the district court abused its
25
We address this issue only as to Mr. Sanford. Mr. Ford also moved for
severance at the district court, and he now attempts to join this issue as part of his blanket
statement joining the other briefs. He does not provide any arguments on appeal as to
why the denial of his severance motion prejudiced him. Mr. Sanford’s arguments are
specifically about why the joint trial prejudiced him because he was less involved than
the other defendants. These arguments do not apply to Mr. Ford, and we do not consider
this issue as to him. See Renteria, 720 F.3d at 1251.
-33-
discretion as to both rulings because he suffered prejudice from being tried with the other
Defendants, against whom the evidence was much stronger.
“We review the district court's denial of a motion to sever for an abuse of
discretion.” United States v. Hall, 473 F.3d 1295, 1302 (10th Cir. 2007).
Federal Rule of Criminal Procedure 14(a) states: “If the joinder of offenses or
defendants in an indictment, an information, or a consolidation for trial appears to
prejudice a defendant or the government, the court may order separate trials of counts,
sever the defendants’ trials, or provide any other relief that justice requires.” The
Supreme Court has expressed a “preference in the federal system for joint trials of
defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993).
“[W]hen defendants properly have been joined under Rule 8(b), a district court should
grant a severance under Rule 14 only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” Id. “Inasmuch as severance is a
matter of discretion and not of right, the defendant must bear a heavy burden of showing
real prejudice to his case.” United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir.
1984).
To establish “real prejudice, the defendant must demonstrate that the alleged
prejudice he suffered outweighed the expense and inconvenience of separate trials.”
United States v. Martin, 18 F.3d 1515, 1518 (10th Cir. 1994) (quotations omitted). The
-34-
requisite showing of prejudice “is not made by a complaint that one defendant is less
culpable than another, or by an allegation that a defendant would have a better chance of
acquittal in a separate trial, or by a complaint of the ‘spill-over’ effect of damaging
evidence presented against a codefendant.” United States v. Iiland, 254 F.3d 1264, 1270
(10th Cir. 2001) (citations omitted). “Rather, a defendant must show that he was
deprived of his right to a fair trial.” United States v. Zapata, 546 F.3d 1179, 1191 (10th
Cir. 2008).
Mr. Sanford failed to meet his heavy burden both before the district court and now
on appeal. Although some elements of the Government’s case implicated only the other
defendants, Mr. Sanford had the opportunity to point this out to the jury through cross-
examination and again during closing argument. The jury was instructed to examine the
evidence for each individual defendant, and juries are presumed to follow instructions.
See Weeks v. Angelone, 528 U.S. 225, 234 (2000). Mr. Sanford asserts only that the spill-
over effect of damaging evidence about the other defendants prejudiced him. This
assertion is not sufficient to support the requisite showing of prejudice. See Iiland, 254
F.3d at 1270.
We conclude the district court did not abuse its discretion by denying Mr.
Sanford’s motion for severance.
-35-
G. Cumulative Error
Mr. Morgan argues we should reverse because all the errors combined deprived
him of his right to a fair trial. “To analyze cumulative error, we aggregate all the errors
that we have found to be harmless and determine whether their cumulative effect on the
outcome of the trial mandates reversal.” United States v. Anaya, 727 F.3d 1043, 1060-61
(10th Cir. 2013) (quotations omitted). This “applies only if true errors occurred.” Id. at
1061. We deny Mr. Morgan’s cumulative error appeal because we find no error among
the appealed issues.
III. CONCLUSION
For the foregoing reasons, we affirm the district court.
-36-
12-1408, 12-1442, 13-1032; United States v. Morgan, et al.
HOLMES, Circuit Judge, concurring.
I respectfully concur. I agree with the outcome of the majority’s opinion
and, with one exception, endorse its reasoning. The exception involves Part II.D.
In particular, I write separately to express my view that Mr. Morgan forfeited his
claim that the district court should have declared a mistrial after the jury heard
potentially improper Rule 404(b) evidence. Thus, rather than affirming under the
abuse-of-discretion standard, I would review this claim for plain error and affirm
under that rubric.
The majority correctly notes that we generally review the refusal to grant a
mistrial for an abuse of discretion. See United States v. Stiger, 413 F.3d 1185,
1194 (10th Cir. 2005). But we do so only when the mistrial decision is “squarely
presented” to the district court. United States v. Taylor, 514 F.3d 1092, 1096
(10th Cir. 2008). As I read our precedent, there can be no abuse of discretion in
this regard if the defendant never requested a mistrial. See United States v.
Meienberg, 263 F.3d 1177, 1180 (10th Cir. 2001) (“Where there has been no
motion for a mistrial . . . , the district court has not exercised its discretion, and
therefore it is meaningless to look for an abuse of discretion.” (quoting United
States v. Gabaldon, 91 F.3d 91, 94 (1996)) (internal quotation marks omitted)).
The record indicates that Mr. Morgan never gave the district court an opportunity
to exercise its discretion by seeking a mistrial on the alleged 404(b) issue.
Nonetheless, Mr. Morgan contends that “[he] implied that there was a
motion for a mistrial,” Oral Argument at 14:55, United States v. Morgan (No. 12-
1408), and the majority seems willing to entertain this possibility. See Majority
Op. at 25–26 (noting that Mr. Morgan failed to “ask explicitly for a mistrial
before or after the district court acted” but “[a]ssuming without deciding he raised
the mistrial issue when he said no limiting instruction could cure the Rule 404(b)
problem”). However, I believe the more prudent course is not to countenance,
even tacitly, “implied-mistrial” arguments, lest in so doing, we suggest that
district courts should act as advocates for defendants—obliged to apprehend and
respond to such implied arguments. That would be error, for “the court cannot
take on the responsibility of serving as the litigant’s attorney in constructing
arguments.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005).
In my opinion, our precedent makes clear that (1) mounting a vague
objection to the evidence in question does not “squarely present” a mistrial
request; and (2) in this case, Mr. Morgan forfeited his 404(b)-mistrial challenge in
prototypical fashion and, accordingly, he is entitled to no more than plain-error
review. See United States v. Anaya, 727 F.3d 1043, 1059 (10th Cir. 2013) (“[The
defendant] did not request a mistrial. We therefore review the district court’s
failure to grant a mistrial sua sponte . . . for plain error . . . [and conclude that]
the district court was not clearly obligated to grant a mistrial sua sponte.”);
Taylor, 514 F.3d at 1096 (applying plain-error review when the defendant “did
2
not [expressly] move for a mistrial and the court rapidly responded with a
curative instruction”); id. at 1100 (finding “no authority for the proposition that
the district court was clearly obliged . . . to grant a mistrial sua sponte”); United
States v. Devous, 764 F.2d 1349, 1356 (10th Cir. 1985) (“The court sustained the
defense’s objection [to an alleged error]. [The defendant] now contends that
. . . the court should have granted a mistrial sua sponte. We disagree.”); United
States v. Crawford, 707 F.2d 447, 450 (10th Cir. 1983) (“[I]n the absence of a
motion for mistrial, we must weigh the prejudicial effect of the [error] with the
weight of the evidence pointing to . . . guilt.”).
Under the plain-error standard, even assuming arguendo that the court’s
alleged error on this score was “clear or obvious under current law,” United
States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (internal quotation marks
omitted), I would affirm the district court’s judgment because any error did not
impact Mr. Morgan’s substantial rights. Mr. Morgan has not argued that, but for
the district court’s inaction, an acquittal was likely—and, given the copious
evidence supporting the verdict (as noted by the majority, supra), I am confident
that he could not have made such a showing. Mr. Morgan also benefitted from
rigorous cross-examination of witnesses and two limiting instructions regarding
the Rule 404(b) evidence, which would belie any suggestion that his substantial
rights were affected. In other words, I would conclude that his claim fails under
the third prong of our plain-error test.
3
In sum, I fully join in the panel’s ultimate decision to affirm. However,
regarding Part II.D—addressing the 404(b)-mistrial challenge—I would affirm on
different grounds, concluding that Mr. Morgan forfeited this challenge and has
not satisfied the plain-error standard.
4
United States v. Morgan
Court: Court of Appeals for the Tenth Circuit
Date filed: 2014-04-09
Citations: 748 F.3d 1024
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