                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                    PUBLISH                    January 16, 2015
                                                             Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                Clerk of Court

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
       v.                                              No. 13-2190
 RAYVELL VANN,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 1:12-CR-00966-PJK-1)


Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Appellant.

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United
States Attorney, with him on the brief) Albuquerque, New Mexico, for Appellee.


Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Rayvell Vann was caught and convicted of carrying illegal drugs on an

Amtrak train in New Mexico. He argues that he did not receive a fair trial

because (1) the district court improperly denied his challenge to the government’s
discriminatory strike of a potential juror because of the juror’s race; (2) the court

improperly allowed expert testimony about the habits of drug traffickers; and (3)

closing arguments misstated and embellished the evidence. Vann also contends

that the district court erred in permitting him to waive his right to counsel during

sentencing and proceed pro se.

      We conclude the district court did not err in finding the government’s

reasons for dismissing the contested juror were racially neutral; the expert’s

testimony was reliable based on his expertise and experience; and the prosecutor’s

closing argument was not plainly erroneous. Moreover, we find no error in the

district court’s decision to let Vann represent himself at sentencing. We exercise

jurisdiction under 12 U.S.C. § 1291 and AFFIRM.

                                 I. Background

      Vann paid cash for a one-way Amtrak ticket for a two-day train ride from

Los Angeles to Kansas City two hours before the train was set to depart. From

his post in New Mexico, Agent Kevin Small of the Drug Enforcement Agency

was tipped by a confidential source about the unusual circumstances of Vann’s

Amtrak reservation.

      When the train made its regularly scheduled stop in Albuquerque, Agent

Small boarded the train and located Vann. After a brief conversation, Agent

Small asked to search Vann’s bags, and Vann consented. One of the bags



                                         -2-
contained an out-of-place large pink gift box, and, after some discussion, Vann

ultimately admitted that he was transporting codeine and painkiller pills.

      Vann was arrested, and a magistrate judge issued Agent Small a warrant to

search the gift box. When Agent Small and another federal officer opened the

box, they found padding that resembled home-insulation foam. After cutting into

the foam, an odor of ether percolated from it, and the officers moved the

receptacle outside to finish the process. After they finally opened it, they found

two bottles of codeine, twenty-five OxyContin pills, and two jars containing

approximately 100 grams of phencyclidine (PCP) apiece.

      Upon finding the narcotics, several officers, including Agent Small,

interviewed Vann. During the interrogation, Vann admitted to dealing drugs in

Nebraska and that he had purchased PCP in Los Angeles. He contended,

however, that he had shipped the PCP he purchased via the United Parcel Service

and thus did not know PCP was in the box.

      He was charged with possession with intent to distribute phencyclidine and

codeine. A jury found Vann guilty of both charges. At sentencing, Vann excused

his attorneys and proceeded pro se, and the district court ultimately sentenced him

to fifteen years in prison.

                                   II. Analysis

      Vann raises four separate issues on appeal. First, he claims that the district

court committed legal error during jury selection because it improperly

                                         -3-
administered the three-part test under Batson v. Kentucky, 476 U.S. 79 (1986),

after the government used a peremptory strike against the sole African-American

member of the venire. Second, Vann contends that the district court abused its

discretion by allowing Agent Small to testify as an expert at trial. Third, he

argues the district court plainly erred when it failed to sua sponte object to

alleged misstatements by the prosecution during closing arguments. And fourth,

he asserts error in the district court’s decision permitting him to waive his right to

counsel during sentencing.

      We address, and ultimately reject, each of these arguments.

      A. Batson

      Vann first argues that the district court erred in rejecting a Batson

challenge at trial and in a motion for a new trial.

      In the seminal case Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme

Court made clear that the purposeful exclusion of a juror on the basis of race runs

afoul of equal-protection principles in violation of a criminal defendant’s

constitutional rights. As a result, it is impermissible for the prosecution, or any

litigant for that matter, to use its challenges to strike a prospective jury member

due to his or her race. Id. at 85–86.

      Batson challenges are subject to the familiar burden-shifting framework

that the Supreme Court further explained in Johnson v. California, 545 U.S. 162,

169–70 (2005):

                                          -4-
      First, the party challenging the strike as racially motivated “must make out

a prima facie case ‘by showing that the totality of the relevant facts gives rise to

an inference of discriminatory purpose.’” Id. at 168 (quoting Batson, 476 U.S. at

93–94). If the district court moves on to steps two and three, as it did here, the

“preliminary issue of whether the defendant had made a prima facie showing

becomes moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991).

      Second, if the proponent of the Batson challenge meets its initial burden on

the prima facie case, then “the ‘burden shifts to the State to explain adequately

the racial exclusion’ by offering permissible race-neutral justifications for the

strikes.” Id. (quoting Batson, 476 U.S. at 94). The standard here is not high:

“Although the prosecutor must present a comprehensible reason, ‘[t]he second

step of this process does not demand an explanation that is persuasive, or even

plausible’; so long as the reason is not inherently discriminatory, it suffices.”

Rice v. Collins, 546 U.S. 333, 338 (2006) (quoting Purkett v. Elem, 514 U.S. 765,

767–68 (1995)).

      Finally, “‘if a race-neutral explanation is tendered, the trial court must then

decide . . . whether the opponent of the strike has proved purposeful racial

discrimination.’” Johnson, 545 U.S. at 168 (quoting Purkett, 514 U.S. at 767).

“This final step involves evaluating the ‘persuasiveness of the justification’

proffered by the prosecutor, but ‘the ultimate burden of persuasion regarding

racial motivation rests with, and never shifts from, the opponent of the strike.’”

                                          -5-
Rice, 546 U.S. at 338 (quoting Purkett, 514 U.S. at 768); see also United States v.

Nelson, 450 F.3d 1201, 1207 (10th Cir. 2006).

      We are concerned here only with the third step because each side concedes

that its opponent met the burdens imposed at the first and second steps. The

district court’s obligation at step three is to consider “all of the circumstances that

bear upon the issue of racial animosity.” Snyder v. Louisiana, 552 U.S. 472, 478

(2008); see also Miller-El v. Dretke, 545 U.S. 231, 251–52 (2005) (“[T]he rule in

Batson . . . requires the judge to assess the plausibility of that reason in light of

all evidence with a bearing on it.”). As our review of the district court’s

application of Batson is a matter of process, we cannot assume that the district

court evaluated the prosecutor’s credibility simply by virtue of its eventual ruling

denying the Batson challenge. Snyder, 552 U.S. at 479. 1

      Turning to the record, we recognize that the district court’s handling of the

Batson challenge was streamlined. That said, at steps one and two, the Batson

undertaking largely followed the blueprint. Indeed, after defendant raised the

      1
         We review the district court’s factual findings for clear error, United
States v. Williamson, 53 F.3d 1500, 1508 (10th Cir. 1995), but we examine
whether the district court applied the correct legal standard de novo, see e.g.,
United States v. Yarrington, 640 F.3d 772, 778 (7th Cir. 2011). “The district
court’s answer to the ultimate question of discriminatory intent represents a
finding of fact of the sort accorded great deference on appeal because such a
finding largely turns on the trial court’s evaluation of the prosecutor’s
credibility.” Nelson, 450 F.3d at 1207 (internal quotation marks and citations
omitted). In this case, however, Vann has not argued that the district court’s
factual finding at Batson’s third step was clearly erroneous. For this reason, that
argument is waived, and we do not address it here.

                                           -6-
Batson challenge, the prosecution provided several nonracial reasons for striking

the 49-year-old African-American juror:

             Your Honor, for starters, I had [this juror] singled out as
             a potential peremptory challenge prior to seeing him or
             knowing his ethnicity. [Co-counsel] can corroborate
             that.

             What I didn’t like about him, and the racially neutral
             reason as to why I am striking him, with race being no
             consideration, is, number one, he didn’t fill out the
             questionnaire. And I prefer having jurors that are
             educated, that have a stake in society, preferably with
             kids. He doesn’t even list an occupation, he’s seemingly
             unemployed. During the question-and-answer process,
             he seemed a little dazed and disengaged.

             So for those reasons, that’s my basis for striking him. I
             mean, especially – I can present this questionnaire to the
             Court. It’s not filled out. No, there’s no indication that
             he has any type of family or any type of job.

App. Vol. V at 453–54.

      The prosecution next submitted the questionnaire as evidence, and the

district court prematurely noted that “I will rule on your Batson argument.

Nonracial reasons were given that make sense.” Id. at 454. Usually, the district

court would invite defense counsel to offer countervailing reasons as a rebuttal

immediately following the government’s proffer of its nondiscriminatory reasons.

This exchange would typically precede the district court’s ultimate decision on

whether the given nondiscriminatory reason for the strike was genuine.




                                         -7-
      In this case, however, defense counsel recognized it was yet to be heard

and requested an opportunity to rebut the government’s proposed reasons—the

district court freely granted this request. Answering the call, defense counsel

commented “[the juror] did respond when he was asked about prior juror service.

He seemed attentive, articulate. I think there’s—we think the reasons offered by

the government are disingenuous.” Id. After that, the district court renewed its

prior decision, stating “[the Batson challenge is] overruled, and the juror is

stricken.” Id.

      In light of those facts, the question we face is whether the district court

committed legal error through its alleged failure to examine all of the

circumstances surrounding the government’s professed reasons to strike the only

African-American member of the jury pool. As we have said, based on Supreme

Court precedent, the judge is required to “assess the plausibility of [the

government’s nondiscriminatory] reason in light of all evidence with a bearing on

it.” Miller-El, 545 U.S. at 251–52 (emphasis added). Vann contends, at bottom,

that the district court abdicated this responsibility, particularly because the record

provides scant evidence of how the district court came to the conclusion that the

government’s reasons were nondiscriminatory. 2

      2
          Vann’s briefing also implies that the district court’s approach, in and of
itself, amounts to a misapplication of Batson. This is wrong because the court
corrected any out-of-order concern by allowing defense counsel to make a
response on the record. In any event, no rule requires that the district court even
                                                                        (continued...)

                                          -8-
      The record of the district court’s analysis at this point is sparse, of course.

But that is not all that was developed on the claim. After trial, the defense filed a

Rule 33 motion, arguing that all of the government’s race-neutral reasons for

striking the African-American juror were pretextual. In this motion, defense

counsel highlighted another member of the venire that was ultimately selected for

jury service, whose questionnaire indicated that he might have been unemployed,

like the stricken juror. It claimed this fact revealed the disingenuous nature of the

government’s employment-related reason. Furthermore, Vann noted that the juror

the government peremptorily struck had completed two years of college, which

negated another of the government’s reasons; namely, that the juror was

uneducated. As it had during jury selection, defense counsel also disputed the

government’s description of the juror’s demeanor.

      The government responded to the motion and reasserted several of its

reasons for striking the African-American juror, particularly stressing both his

idiosyncratic failure to properly fill out the juror questionnaire 3 and his demeanor.

      2
        (...continued)
hear from the party opposing the strike, only that it consider all of the relevant
evidence. See Heno v. Sprint/United Management Co., 208 F.3d 847, 855 (10th
Cir. 2000) (stating that the “trial court should ask challenging counsel to respond
to the race-neutral reasons which have been proffered” (emphasis added)).
      3
        Of potential jurors who filled out the same form as the stricken juror,
only one left the identical employment sections blank. That juror was never
reached during the selection process because the jury was assembled prior to her
number being called. Two other jurors did a less-than-complete job of filling out
                                                                      (continued...)

                                          -9-
The government conceded that the stricken juror was as educated as persons

selected to serve. It noted, however, that the juror’s indication that he completed

only two years of college and his failure to specify a major suggested that he

might have dropped out of college—this factor buttressed their suspicion based on

his demeanor that he was disconnected from society. The government

additionally responded to Vann’s argument about the similarly situated juror, a

65-year-old Hispanic man. It challenged the relevance of the comparison because

the juror chosen (1) completed a questionnaire, which was different from the

excluded juror’s, that did not raise the same red flags for a failure to address

several sections; and (2) was of retirement age and from an area where

unemployment was more likely.

      The district court denied the motion. First, it stated that the similarity of

some of the responses of the potential jurors was not enough to undermine the

prosecutor’s race-neutral reasons. The court also found no showing of

“purposeful discrimination,” under Batson and that a “credibility finding” was

“implicit in the rationale for denying the objection: the government’s reasons

were non-racial and rational.” App. Vol. III at 164.

      Based on our review of the entire record, we do not perceive a legal error in

the application of the Batson test for several overlapping reasons. First, our case

      3
       (...continued)
the similar sections, and the government used peremptory challenges against both
of them.

                                         -10-
law makes clear that the district court does not need to make a finding on the

record with respect to how it assessed the evidence to rule on the Batson

challenge. United States v. Castorena-Jaime, 285 F.3d 916, 929 (10th Cir. 2002);

see also Saiz v. Ortiz, 392 F.3d 1166, 1180 (10th Cir. 2004) (“While explicit

rulings are preferable, we can conclude in this case that the trial court implicitly

ruled that the explanations offered by the prosecution were credible, believable,

and race-and/or gender-neutral.”). 4 The bottom line is that a paucity of reasoning

on the record to support the ultimate finding of nondiscrimination does not per se

amount to a legal error in the application of Batson.

      In addition, when viewed from a wider lens, simply no evidence of animus

existed for the district court to consider at the time it made its decision. The

impartial district court must rely on the presentation of the parties in issuing its

final ruling on a Batson challenge because, of course, there is no “independent

duty on the trial court to pore over the record and compare the characteristics of

jurors, searching for evidence of pretext, absent any pretext argument or evidence

presented by counsel.” Johnson v. Gibson, 169 F.3d 1239, 1248 (10th Cir. 1999).

And the record reveals that Vann did not present a comprehensive case during


      4
          A number of cases that Vann cites from other circuits do require that the
district court explicitly state its factual findings of the prosecution’s credibility on
the record. See, e.g., Rutledge, 648 F.3d at 560 (“Here too we conclude that
remand is necessary for the district court to make explicit credibility findings.”).
That rule does not come from the Supreme Court, however, and our prior
decisions on this point control.

                                          -11-
voir dire to counteract the government’s nonracially-motivated proffer. The

prosecution submitted at least four separate nonracial reasons as to why it used a

peremptory challenge against the African-American juror. In response, defense

counsel only addressed the demeanor-based reason. 5 That left a minimum of three

nondiscriminatory reasons intact. At least with respect to those reasons, we can

hardly criticize the district court’s decision denying the Batson challenge because

Vann “gave the district court no reasonable basis for questioning the

government’s credibility in offering its race-neutral reasons.” United States v.

Smith, 534 F.3d 1211, 1226 (10th Cir. 2008) (internal quotation marks omitted).

      Logically construed, the best way to interpret this series of events is that

Vann failed to carry his burden of persuasion to demonstrate to the district court

that the prosecutor’s use of a peremptory strike amounted to purposeful

discrimination. This out-and-out failure is apparent on the record, and we refuse




      5
          It is true that when the juror’s demeanor is given as a reason for the
strike, the trial court “must evaluate not only whether the prosecutor’s demeanor
belies a discriminatory intent, but also whether the juror’s demeanor can credibly
be said to have exhibited the basis for the strike attributed to the juror by the
prosecutor.” Snyder, 552 U.S. at 477. It is unclear how deep of a dive the district
court took into the credibility of the demeanor-based reason for the government’s
peremptory strike. Given that the government provided three additional reasons,
however, we are hard pressed to find error in not fully analyzing the question of
the stricken juror’s demeanor, notwithstanding the fact that the parties presented
conflicting information.

                                        -12-
to transform Vann’s inadequate effort to respond to the government into an error

by the district court. 6

       To be sure, Vann further challenged the government’s proffered reasons

after trial. With the benefit of hindsight, Vann constructed a rebuttal to the

government’s nondiscriminatory reasons, challenging each as pretext for the

allegedly racially motivated strike. We have serious reservations about a

litigant’s decision to wait until his motion for a new trial to rebut certain of the

government’s reasons. Other circuits share this concern, and some have found a

Batson proponent’s failure to rebut the government’s nondiscriminatory reasons


       6
         Vann cites a number of extra-circuit cases where a court of appeals
reversed the district court for failing to properly apply the Batson test. In many
of those cases, the deficiency in the trial court’s application of Batson was
apparent. See e.g., Coombs v. Diguglielmo, 616 F.3d 255, 263–64 (3d Cir. 2010)
(finding that “it is clear from the record that the court effectively omitted the
third step of the Batson inquiry by unreasonably limiting the defendant’s
opportunity to prove that the prosecutor’s proffered reasons for striking Black
jurors were pretextual, thereby improperly restricting the defendant’s ability to
prove discriminatory intent” and criticizing the district court’s step two
acceptance of the “prosecutor’s vague and elusive explanation and the apparent
concession that he was not sure why he stuck Juror No. 1”); United States v.
Collins, 551 F.3d 914, 922–23 (9th Cir. 2009) (reversing because the district
court incorrectly ruled that step one of Batson required a pattern of racially
motivated strikes); Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir. 2009) (“In an
effort to save ‘an awful lot of time’ [the trial judge] ruled summarily on the
Batson application after an extremely brief colloquy, and resisted counsel’s
efforts to make arguments regarding the peremptory strikes so as to create a full
record. The trial judge could not properly decide the third Batson step because he
granted counsel no time to identify the relevant facts and assess the circumstances
necessary to decide whether the race neutral reasons given were credible and
nonpretextual. This cursory treatment of Jordan’s Batson application was not a
meaningful inquiry . . . .”).

                                         -13-
during the voir dire process amounts to forfeiture, see United States v. Jackson,

347 F.3d 598, 605 (6th Cir. 2003), or even waiver, Wright v. Harris Cnty., 536

F.3d 436, 438 (5th Cir. 2008). Because we perceive no legal error by the district

court under a less deferential standard, we need not go so far to decide this case.

      We will say, however, that such a rule is intuitively appealing, especially

insofar as it appropriately matches the never-shifting burden of the Batson

proponent to prove discriminatory intent behind the striker’s challenge.

Practically speaking, a Batson challenge is best handled at the time when the

judge and the attorney’s conduct are at issue, especially in a case like this one

where defense counsel asserts that evidence of pretext came to light after the

striker defends against the Batson challenge but before the jury is empaneled. See

United States v. Hendrix, 509 F.3d 362, 371 (7th Cir. 2007) (finding no error

when defendant fails to “cast doubt” on the government’s reasons “during voir

dire”). Here, defense counsel could have specifically objected at any time during

the process of voir dire. Yes, because the alleged pretext of some of the

government’s reasons may only have been discovered as they sifted through the

remainder of the venire, it would not make sense to require an absolutely

contemporaneous rebuttal. But once the jury was comprised, Vann could have

renewed his Batson challenge based on the comparison with the allegedly

similarly situated juror, and likewise with any other reasons that sprouted up.

This would have allowed the trial court to consider the questionnaires side-by-

                                         -14-
side to address the government’s nondiscriminatory reasons. The fact that Vann

waited until the jury was empaneled, the evidence was presented, and a verdict

was rendered leaves the district court in a difficult spot. Instead, to preserve a

Batson challenge, the best course of action is to address each of the government’s

reasons at the time they were offered or when additional information is developed

during voir dire.

      Even though we resist the application of waiver or forfeiture principles to

Vann’s delayed rebuttal, in our review for legal error we underscore the nature of

the information that was before the district court at the time of the Batson

challenge; particularly, the uncontradicted nonracial reasons that remained for the

government’s strike when jury selection closed. At that time, the district court

was not presented with a side-by-side comparison of the stricken juror and his

comparator. Nor did Vann challenge the government’s proffer of a lack of

education or unemployment as reasons for the strike. Given the evidence

presented to the district court during voir dire, we cannot find legal error in how

it handled the Batson challenge.

      In any event, once the briefing on the motion for a new trial was before it,

the district court reconsidered whether the nonracial reasons were pretextual

based on the responsive reasons Vann provided. In other words, despite their

untimeliness, those reasons were placed in front of the district court. But the end

result was the same: Vann failed to meet his burden, and the district court

                                         -15-
believed the government’s proffer of nonracial reasons. We thus ultimately

cannot find error in the district court’s process at any point in the timeline.

      And finally, even though the district court’s review here was done in an

abbreviated fashion, “[w]e traditionally presume, absent some indication in the

record suggesting otherwise, that trial judges are presumed to know the law and

apply it in making their decisions.” United States v. Ruiz-Terrazas, 477 F.3d

1196, 1201 (10th Cir. 2007) (quotation marks and alteration omitted). As a legal

matter, we are convinced that the district court’s decision reflects a proper

application of Batson—ending with a conclusion that, under the circumstances,

the government’s facially nonracial reasons were credible and Vann failed to meet

his burden to demonstrate otherwise. 7

      Considering the relatively sparse record on review, however, we emphasize

that trial courts play a “pivotal role in evaluating Batson claims,” Snyder, 552

U.S. at 477, and are the gatekeepers of fair juries. Batson cannot be reduced to a

perfunctory check-the-box exercise, and, at step three, the district court must

genuinely engage with the evidence presented by both sides to make a reasoned

decision as to whether the government’s proffered nondiscriminatory reasons are

genuine. We are satisfied that the district court did so here, but our task is

      7
         Vann also contends that the district court’s conclusion that “[n]onracial
reasons were given that make sense” is only a step-two finding. Based on the
record, we are convinced that, when combined with the district court’s reassertion
that the Batson challenge was overruled because Vann failed to meet his burden,
this was a step-three credibility finding.

                                          -16-
considerably easier when we benefit from a factual record that memorializes the

decision-making process at each step.

      In sum, we find the district court did not err in rejecting Vann’s Batson

challenge.

      B. Expert Testimony

      Vann also claims that the district court erroneously allowed Agent Small to

testify as an expert at trial. He particularly objects to testimony opining that PCP

wholesalers do not typically package PCP for buyers, which solicited an inference

that Vann must have knowingly packaged the PCP himself. This inference aimed

to show that Vann was aware that he possessed a controlled substance, a

necessary element of the crime charged. We review the district court’s decision

to admit expert testimony for an abuse of discretion. United States v. Orr, 692

F.3d 1079, 1093–94 (10th Cir. 2012), cert denied, 133 S. Ct. 1300 (2013). 8

      Expert testimony is admissible if it meets the standard set forth in Rule 702

of the Federal Rules of Evidence: “A witness who is qualified as an expert by




      8
          The government contends that Vann’s failure to specifically object to the
reliability of Agent Small’s expert testimony leaves our review only for plain
error. Vann objected to Agent Small’s expert testimony in varying forms during a
pretrial hearing and at trial, and we find these challenges sufficiently preserved
the issue. And all things considered, this is not a case where a different result
would occur as a result of our standard of review. For that reason, we review for
an abuse of discretion.


                                         -17-
knowledge, skill, experience, training, or education” can provide opinion

testimony if:

                a) the expert’s scientific, technical, or other specialized
                knowledge will help the trier of fact to understand the
                evidence or to determine a fact in issue;

                b) the testimony is based on sufficient facts or data;

                c) the testimony is the product of reliable principles and
                methods; and

                d) the expert has reliably applied the principles and
                methods to the facts of the case.

Fed. R. Evid. 702.

      Thus, the district court “must satisfy itself that the proposed expert

testimony is both reliable and relevant, in that it will assist the trier of fact before,

permitting a jury to assess such testimony.” United States v. Rodriguez-Felix,

450 F.3d 1117, 1122 (10th Cir. 2006). As we said in United States v. Nacchio,

this process has two parts:

                In determining whether expert testimony is admissible,
                the district court generally must first determine whether
                the expert is qualified “by knowledge, skill, experience,
                training, or education” to render an opinion. See Fed. R.
                Evid. 702. Second, if the expert is sufficiently qualified,
                the court must determine whether the expert’s opinion is
                reliable by assessing the underlying reasoning and
                methodology, as set forth in Daubert.

555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (citing Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993)).


                                            -18-
      Vann does not claim error in the district court’s finding that Agent Small

was qualified to testify as an expert, and thus we only deal here with the

reliability of the testimony. “[T]he law grants a district court the same broad

latitude when it decides how to determine reliability as it enjoys in respect to its

ultimate reliability determination.” Kumho Tire Co. v. Carmichael, 526 U.S. 137,

142 (1999). Along these lines, “our cases do not require district courts to

extensively explain their reliability determinations.” United States v.

Avitia-Guillen, 680 F.3d 1253, 1260 (10th Cir. 2012), cert. denied, 133 S. Ct. 466

(2012).

      This court’s decision in United States v. Kamahele, 748 F.3d 984 (10th Cir.

2014), explains the circumstances under which police officers can testify as

experts. That case reaffirmed that “police officers can testify as experts based on

their experience ‘[b]ecause the average juror is often innocent of the ways of the

criminal underworld.’” Id. at 998 (quoting United States v. Garcia, 635 F.3d 472,

477 (10th Cir. 2011)). Moreover, Kamahele specifically collected cases in which

the court had allowed police officers to testify as experts regarding “means and

methods of drug dealing.” Id. (mentioning at least six cases that fit this model).

Ultimately, the court upheld the officer’s testimony as an expert because he (1)

“relied on multiple sources,” (2) “based his expert testimony on years of

experience,” and (3) provided specific “insights into the distinctive traits” of his

area of expertise. Id. at 998–99.

                                         -19-
      Vann claims Agent Small’s testimony is unreliable because his experience

in dealing with PCP is minimal and thus any criteria or data on which his

opinions were based is insufficient. Furthermore, he argues that Agent Small

fails to make a connection between some of the sources of his knowledge and his

ultimate conclusions. But these arguments are unconvincing, especially insofar as

Vann uses them to establish the district court’s abuse of discretion. The district

court properly vetted Agent Small through a Daubert hearing and at trial,

consistently giving the parties an opportunity to present their case for why Agent

Small should or should not be allowed to testify. This process reflects due

deliberation in a decision to admit an expert’s testimony as reliable. United

States v. West, 671 F.3d 1195, 1201 n.6 (10th Cir. 2012). Indeed, on the basis of

the record, this decision was well within the permissible scope of the district

court’s authority.

      Even putting aside the deferential standard, Agent Small’s competence and

reliability as an expert is not subject to criticism under the circumstances. He had

worked numerous drug interdictions, observed legions of drug-smuggling

methods, and caucused with criminals and professionals alike regarding the “tools

of the drug trade.” This experience gave him dependable intelligence into the

means and methods of drug transportation, as well as the typical relationship

between wholesalers and dealers. And contrary to Vann’s assertions, Agent

Small’s substantial experience in the drug trade generally is helpful in

                                         -20-
establishing a foundation for his opinions and conclusions about PCP specifically.

Regardless, Agent Small attested to numerous PCP arrests as well. Agent Small’s

opinion testimony, acquired through his experience, training, and expertise as a

DEA agent, was properly grounded and well reasoned—in short, it was reliable.

      Vann counters by pointing to a recent case where we found an abuse of

discretion for admitting testimony of law enforcement personnel about drug

traffickers display of “patron saints” for good luck while trafficking. See United

States v. Medina-Copete, 757 F.3d 1092, 1105 (10th Cir. 2014). We held that it

was inappropriate to admit speculative, meandering testimony regarding whether

veneration of certain “narco” saints during a stop was evidence that the occupants

of the vehicle knew that they were transporting drugs. Agent Small’s testimony is

not vulnerable to the same attack.

      In addition, Medina-Copete is the exception not the rule, and, as noted, we

have consistently allowed police officers to testify as to conclusions deriving

from their expertise and experience. Kamahele, 748 F.3d at 999; United States v.

Vazquez, 555 F.3d 923, 931 (10th Cir. 2009); Garcia, 635 F.3d at 477; United

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

Roach, 582 F.3d 1192, 1206 (10th Cir. 2009) (collecting cases). At bottom, it is

this circuit’s longstanding view that “police officers can acquire specialized

knowledge of criminal practices and thus the expertise to opine on such matters.”

United States v. Garza, 566 F.3d 1194, 1199 (10th Cir. 2009).

                                        -21-
      In the end, Vann cannot show an abuse of discretion in the district court’s

decision to admit Agent Small’s expert testimony. As we noted in Nacchio, there

is no abuse of discretion when “[t]here was a sufficiently developed record, a

concrete reliability determination, and specific findings and discussion by the

district court.” Nacchio, 555 F.3d at 1256.

      C. Prosecutorial Misconduct

      Next, Vann claims the district court plainly erred in not sua sponte

addressing alleged prosecutorial misconduct during closing arguments at trial.

“[I]n cases of prosecutorial misconduct in which the defendant makes no

objection, our precedent limits us to plain error review.” United States v. Taylor,

514 F.3d 1092, 1095 (10th Cir. 2008). “Plain error occurs when there is (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.”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1222 (10th Cir. 2008)

(citations and quotation marks omitted).

      We use a two-step process when considering claims of prosecutorial

misconduct. United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996). First, we

determine whether the conduct was improper; if so, we decide whether the

improper conduct warrants relief. Id. On plain-error review, the burden is on the

defendant, and “reversal is warranted only when: (1) the prosecutor’s statement is

plainly improper and (2) the defendant demonstrates that the improper statement

                                         -22-
affected his or her substantial rights.” United States v. Fleming, 667 F.3d 1098,

1103 (10th Cir. 2011); see also United States v. Gonzalez-Montoya, 161 F.3d 643,

650 (10th Cir. 1998) (“In evaluating . . . incidents [of prosecutorial misconduct]

for plain error, we will reverse only if, after reviewing the entire record, we

conclude that the error is obvious and one that would undermine the fairness of

the trial and result in a miscarriage of justice.” (quotation marks omitted)).

“[R]eversal in the absence of contemporaneous objection is a rare exception

rather than the rule.” United States v. Hill, 749 F.3d 1250, 1267 (10th Cir. 2014).

      “When evaluating allegedly inappropriate remarks of counsel for plain

error, we must view the remarks in the context of the entire trial.” United States

v. Lopez-Medina, 596 F.3d 716, 738 (10th Cir. 2010) (quotation marks omitted).

And even when a remark during closing arguments is improper, curative

instructions will typically immunize such a statement from affecting defendant’s

substantial rights. See United States v. Rogers, 556 F.3d 1130, 1140–41 (10th

Cir. 2009). Indeed, when “the jury was properly instructed that [statements and]

arguments [of counsel] are not evidence and that [defendant] [c]ould only be

convicted on the basis of evidence submitted at trial,” id., we have consistently

refused to find plain error based on misstatements by the prosecutor. See United

States v. Fleming, 667 F.3d 1098, 1106 (10th Cir. 2011).

      Vann makes three claims of error, the first two of which target the

prosecution’s presentation of related circumstantial evidence in its theory of the

                                         -23-
case at closing, a theory that Vann labels “demonstrably false.” Aplt. Br. at 50.

In short, the theory of the prosecution’s case for conviction was that, because

Vann could have without incident walked on a plane with the codeine and the

painkillers, his decision to take a train must have been with an awareness that he

was smuggling PCP. Broadly speaking, Vann contends that this theory misstates

the evidence. First, Vann points to the fact that the names were scratched off the

bottles of codeine in this case. That evidence partially runs counter to Agent

Small’s testimony that codeine is “something you can have with you on an

airplane. Your name is on it, whatever, you can take it with you . . . It’s not a

difficult thing.” App. Vol. V at 478–79. Thus, according to Vann, when the

prosecution referred back to Agent Small’s testimony during closing in order to

support its theory, it did so deceptively.

      Along the same lines, Vann argues that the prosecution’s construction of

the evidence in closing was improper because Agent Small testified at the

Daubert hearing that he “intercepted a lot of codeine cough syrup on the trains.”

App. Vol. V at 229. As best as we can tell, Vann’s complaint is that this

concession weakened the inference regarding Vann’s state of mind and this

weakness should have been exposed to the jury. Taken together, these claims of

errors find fault in the prosecutor’s broad counterfactual codeine-on-an-airplane

theory.




                                             -24-
      As an initial matter, Vann’s argument misapprehends the purpose and

nature of circumstantial evidence. Circumstantial evidence is indirect and thus it

requires its proponent to ask that the jury draw a particular inference from certain

information. Inferences vary in their strength, and the fact finder must evaluate

whether an inference makes sense and weigh it accordingly. When a litigant

argues that a piece of circumstantial evidence should lead the jury to a certain

conclusion, that litigant is not committing misconduct or misstating the

evidence—he is, to be blunt, lawyering. United States v. Dazey, 403 F.3d 1147,

1170 (10th Cir. 2005) (“The prosecutor is entitled to argue to the jury that it

should draw reasonable inferences from the evidence to support the government's

theory of the case.”).

      To prove that Vann knowingly transported the PCP, the government relied

on a string of reasonable inferences—some stronger than others—that sought to

show Vann’s state of mind and knowledge. Desert Palace, Inc. v. Costa, 539

U.S. 90, 100 (2003) (“[W]e have never questioned the sufficiency of

circumstantial evidence in support of a criminal conviction, even though proof

beyond a reasonable doubt is required.”). Given the abstract nature of the mens

rea, this tactic is as uncontroversial as it is ubiquitous. United States v. Santos,

553 U.S. 507, 521 (2008) (finding that “knowledge must almost always be

proved” by circumstantial evidence); see also United States v. Haymond, 672 F.3d

948, 957 (10th Cir. 2012), cert. denied, 132 S. Ct. 2789 (2012) (“[A] showing of

                                          -25-
means rea may and often is inferred from circumstantial evidence.” (internal

citations and quotation marks omitted)).

      Moreover, even conceding the alleged discrepancies between the evidence

presented and statements made during closing, we simply do not see the

prosecutor’s statements as improper in any way, as they were “grounded in earlier

testimony and . . . relevant to an element of the crime.” Stouffer v. Trammell, 738

F.3d 1205, 1224 (10th Cir. 2013). Similar to the situation in United States v.

Woods, 764 F.3d 1242 (10th Cir. 2014), these “comment[s] [are], at worst,

ambiguous and allow[] for several interpretations.” Id. at 1246. With respect to

the first statement, placing all of the stock in Agent Small’s comment that “[y]our

name is on it” misses the mark. The point is that prescription medications, unlike

substantial quantities of PCP (or another liquid), have a decent chance of making

it through the airport security, whether in your carry-on or checked bag (and

regardless of whether the names were displayed on the bottles). This was all part

and parcel of a theory that someone carrying PCP may choose Amtrak.

      Nor does the fact that Agent Small had previously intercepted criminals

transporting codeine on trains transform the prosecution’s theory into an

impropriety. In Vann’s view, the government’s theory was entirely deductive—

all drug dealers knowingly carrying only codeine use airplanes exclusively; Vann

took a train; Vann was knowingly carrying more than codeine. Thus, says Vann,

Agent Small’s concession that he has picked up codeine transporters on the train

                                        -26-
reveals a logical fallacy. Of course, this indisputable syllogism was not the

government’s case; rather, it simply argued that, in conjunction with the other

evidence, it was unlikely that Vann would have taken the train unless he knew he

was carrying PCP. Ultimately, the fact that the government’s theory was not

airtight does not mean that it misstated the evidence. To be sure, the

government’s theory is weakened by the fact that persons carrying codeine have

been caught on trains or that the codeine bottles were without names, but that

does not reveal the prosecutors’ misconduct. Sliced any way, these statements

were not plainly improper.

      In addition, the district court instructed the jury that the lawyers’

“statements and arguments are not evidence,” App. Vol. I at 511, and the

prosecutor even issued the same caution at the outset of his closing argument,

“[i]t’s always important to keep in mind that whatever us lawyers say, that is not

evidence, so you need to go with your own memory of the testimony and the

evidence, and make sure that everything that’s said is in line with the evidence,”

App. Vol. 5 at 620–21. In light of these efforts to mitigate any misstatements—to

the extent they can be considered misstatements—any error by the district court in

not responding sua sponte is not reversible on plain-error review.

      And finally, assuming for the sake of argument that the district court erred,

the unobstructed admission of these statements did not affect Vann’s substantial

rights. United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)

                                         -27-
(“An error seriously affects the defendant’s substantial rights . . . when the

defendant demonstrates that there is a reasonable probability that, but for the

error claimed, the result of the proceeding would have been different.” (internal

quotation marks and citation omitted)). Although it was circumstantial, the

government presented significant evidence to permit a reasonable fact finder to

conclude beyond a reasonable doubt that Vann knowingly possessed the PCP,

including: (1) evidence that he admitted during an interview to purchasing PCP in

Los Angeles; (2) evidence that he admitted to dealing drugs; (3) evidence of the

suspicious plane-one-way-train-the-other travel plan; (4) evidence of his

demeanor and inculpatory statements when confronted on the train; (5) evidence

that it is unnecessary to travel to Los Angeles to purchase codeine and

OxyContin; and (6) evidence that drug dealers typically purchase PCP out of Los

Angeles. By any standard, the evidence was enough for the jury to convict

without the alleged misstatements. See Woods, 764 F.3d at 1248 (explaining that

where the other evidence of guilt is strong, any error by the district court in not

correcting alleged prosecutorial misstatements does not affect defendant’s

substantial rights). For this reason, Vann’s substantial rights were not affected by

the alleged misstatements.

      On the third claim of misconduct, Vann claims the government improperly

argued in rebuttal that the typical lower-level drug transporter, or “mule,”

regularly breaks down when he finds that he is carrying more than he bargained

                                         -28-
for. The government described Vann’s reticent reaction to the revelation that the

agents found PCP in the box and used this argument to contend that Vann must

have known he was carrying the PCP. The government had not, however,

presented this as evidence during trial through the testimony of Agent Small or

otherwise—a fact the government concedes. Aple. Br. at 28. Taken in context,

however, this comment was merely a description of Vann’s reaction and

demeanor when he was arrested. It was meant to emphasize the casualness and

acknowledgment of the circumstances of his arrest.

      In any event, we have held in the past that a reference to facts not in

evidence does not necessarily constitute plain error mandating reversal. See

United States v. Oles, 994 F.2d 1519, 1524 (10th Cir. 1993). Furthermore, in a

nearly identical context, we have found that a curative instruction negates the

effect of the prosecution’s reference to facts outside of evidence in rebuttal. See

United States v. Lawson, 968 F.2d 21, at *3 (10th Cir. 1992) (unpublished table

decision). In this case, the district court provided a curative instruction.

      In sum, even assuming this was an error, it was neither plain nor did it

affect substantial rights for all of the reasons expressed above.

      D. Waiver of Right to Counsel

      Finally, Vann argues that he did not knowingly waive his right to counsel at

sentencing.




                                         -29-
      We review the validity of a waiver to the right to counsel de novo. United

States v. Turner, 287 F.3d 980, 983 (10th Cir. 2002). It is well-settled that a

criminal defendant retains his right to counsel during the sentencing phase of his

case. Gardner v. Florida, 430 U.S. 349, 358 (1977). At any phase of the judicial

proceedings, a defendant is permitted to represent himself as a matter of right,

Faretta v. California, 422 U.S. 806, 819 (1975), and can do so by waiving his

right to counsel. The waiver, however, must be “an intentional relinquishment or

abandonment of a known right or privilege.” United States v. McConnell, 749

F.2d 1441, 1450–51 (10th Cir. 1984).

      In the normal course, we examine whether a defendant has effectively

waived his right to counsel under a two-part test. “First, we must determine

whether the defendant voluntarily waived his right to counsel [and] [s]econd, we

must determine whether the defendant’s waiver of his right to counsel was made

knowingly and intelligently.” United States v. Taylor, 113 F.3d 1136, 1140 (10th

Cir. 1997). In this case, the voluntariness of Vann’s waiver is not suspected;

thus, only the second prong is at issue.

      We reflect on the totality of the circumstances to decide whether a

defendant has knowingly decided to proceed pro se. As we have noted, the true

test for an intelligent waiver “turns not only on the state of the record, but on all

the circumstances of the case, including the defendant’s age and education, his




                                           -30-
previous experience with criminal trials, and representation by counsel before

trial.” United States v. Padilla, 819 F.2d 952, 958 (10th Cir. 1987).

      To this end, the tried-and-true method for establishing that a waiver was

knowing and intelligent is to “conduct a thorough and comprehensive formal

inquiry of the defendant on the record to demonstrate that the defendant is aware

of the nature of the charges, the range of allowable punishments and possible

defenses, and is fully informed of the risks of proceeding pro se.” United States

v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991). This so-called Faretta hearing

ensures the defendant is not unwittingly or impulsively disposing of his

constitutional right to counsel.

      And while the hearing itself is a known quantity, we have recognized that

“[t]here are certain limited situations . . . where a waiver may be valid” even

when the inquiry by the court is deficient. United States v. Hughes, 191 F.3d

1317, 1323 (10th Cir. 1999). In Hughes, for example, we found that “a waiver

may be valid absent an inquiry by the court where ‘the surrounding facts and

circumstances, including [the defendant’s] background and conduct, demonstrate

that [the defendant] actually understood his right to counsel and the difficulties of

pro se representation and knowingly and intelligently waived his right to

counsel.’” Id. (quoting Willie, 941 F.3d at 1389) (brackets in Hughes).

      All of this goes to say that the Faretta hearing is one way—probably the

best way—for the district court to satisfy itself that defendant’s waiver of a right

                                         -31-
to counsel was done intelligently. But as the Eleventh Circuit persuasively

concluded in a recent case, a Faretta hearing is only “a means to [an] end” of

ensuring a voluntary and intelligent waiver, and the absence of that means is “not

error as a matter of law.” United States v. Stanley, 739 F.3d 633, 645

(11th Cir. 2014), cert. denied, 134 S. Ct. 2317 (2014). In other words, a

contemporaneous and comprehensive hearing is generally a sufficient condition to

a knowing waiver, but it is not a necessary one.

      Moreover, although the timing of the Faretta hearing is certainly important,

other courts have found that a proper Faretta hearing is not negated when

defendant hesitates or declines to proceed pro se initially before later reasserting

an interest to do so. United States v. Modena, 302 F.3d 626, 631 (6th Cir. 2002)

(“Although Modena had an interim change of heart regarding his decision to

proceed pro se, he ultimately gave the district court no reason to suspect that he

was uncertain about representing himself.”). That point resonates here, as the

government concedes that the district court did not perform a “thorough and

comprehensive formal inquiry” of Vann immediately preceding his waiver during

sentencing. See Aple. Br. at 32–33.

      Instead, the government contends that the inquiry performed in advance of

trial was sufficient to satisfy the requirement. At that hearing, Vann ultimately

withdrew his request to represent himself, but the court satisfactorily explained

the dangers of self-representation. As we see it, there is no question that the

                                         -32-
district court’s colloquy was sufficient vis-à-vis Vann’s trial representation: the

court thoroughly examined defendant and articulated the responsibilities and

drawbacks of representing oneself. App. Vol. V at 265–73.

      The inquiry prior to sentencing, by contrast, did not go into the same depth,

and Vann stresses that the three-month span between trial and sentencing

essentially neutralizes the efficacy of the earlier hearing. Prior to sentencing, the

court did, however, discuss with Vann the problems that he was having with his

lawyers and queried why he wanted to relieve them of their representation. The

court also informed defendant that it thought his current counsel was competent

and would do a better job advocating for Vann during the sentencing phase than

he could do himself. Importantly, the district court also expressed concern about

the delays associated with finding new attorneys, noting that “[y]ou have had two

sets of lawyers. You have fired them both. Now, you want additional ones, and

it’s just delay.” App. Vol. V at 703. Nevertheless, Vann chose to self-represent.

      It is clear from the record that the circumstances of this case permitted the

district court to forego an additional comprehensive inquiry into waiver. In the

main, the district court had explained the risks of self-representation throughout,

including the detailed discussion prior to trial. Vann points to no case holding

that an earlier, in-depth Faretta hearing cannot satisfy the constitutional standard

when a defendant later waives his right to counsel. In the same vein, we have

found nothing authoritative that requires a separate hearing of equal depth each

                                         -33-
time the option of proceeding pro se arises. Such a rule would be unworkable.

Again, the standard is simply that defendant is fully aware of the consequences of

his decision to proceed without counsel. 9 The district court found that he was,

and we agree.

      To be sure, a better course of action might be to re-conduct the colloquy to

confirm the waiver. Still, in light of the district court’s ongoing dialogue with

defendant regarding his issues with his attorneys and his desire for

self-representation, the district court correctly assessed the totality of the

circumstances surrounding defendant’s decision to excuse his attorneys and did

not err in concluding that Vann’s waiver was knowing and intelligent.

                                 III. Conclusion

      We AFFIRM the district court’s decision.




      9
         The district court’s concern that Vann was delaying the proceedings by
firing counsel and requesting new lawyers also brings this case directly into the
guidance of Hughes, which found that purposeful delay by defendant evidenced a
valid waiver. See Hughes, 191 F.3d at 1324. Thus, the district court’s awareness
of possible dilatory tactics further supports the decision to forego a subsequent
Faretta hearing.

                                         -34-
