                           NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 18a0304n.06

                                          Nos. 16-6786/6807

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

  UNITED STATES OF AMERICA,                            )
                                                                                      FILED
                                                                                Jun 18, 2018
                                                       )
                                                                            DEBORAH S. HUNT, Clerk
          Plaintiff-Appellee,                          )
                                                       )
                 v.                                    )       ON APPEAL FROM THE UNITED
                                                       )       STATES DISTRICT COURT FOR
  GARY RISNER (16-6786); LARRY                         )       THE EASTERN DISTRICT OF
  SHEPHERD (16-6807),                                  )       KENTUCKY
                                                       )
          Defendants-Appellants.                       )
                                                       )


BEFORE: CLAY, COOK, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.               Defendants-Appellants Gary Risner and Larry

Shepherd appeal their convictions for conspiring to bribe voters during the 2014 election in Magoffin

County, Kentucky. Risner additionally appeals several of his substantive voter-bribery convictions.

We AFFIRM.

                                         I.      Background

       In 2014, Charles “Doc” Hardin, Defendant Gary Risner (Risner), and Renee Shepherd

(Defendant Larry Shepherd’s wife) were running for office on the Democratic ticket in Magoffin

County, Kentucky. The government gathered evidence that these individuals and others had formed

an alliance that bought votes and otherwise fraudulently influenced elections in Magoffin County since

at least 2002.

       Risner, his ex-wife Tami Jo Risner, Mason Daniels, and Scott McCarty were indicted for

conspiring to pay others to vote, in violation of 18 U.S.C. § 371, and offering to pay and paying others
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


to vote, in violation of 52 U.S.C. § 10307(c), in the 2014 primary and general elections in Magoffin

County.       A superseding indictment named Larry Shepherd (Shepherd) as a co-defendant. The

government’s theory was that Risner, Tami Jo Risner, Mason Daniels, and Scott McCarty approached

voters and offered to pay them to vote for a particular slate of candidates; then Shepherd, whose

position as Deputy Clerk placed him at the polling location, verified that the voter had voted for the

slate, and Risner paid the voter.

           A jury convicted Risner, Tami Jo Risner, and Shepherd on the conspiracy count, Tami Jo Risner

on two counts of voter bribery,1 and Risner on seven of eight counts of voter bribery. The jury acquitted

Mason Daniels on all counts and acquitted Shepherd of the only substantive bribery count with which

he was charged.

                                             A.       Testimony at Trial

                                               1.       Scott McCarty

           Co-conspirator McCarty pleaded guilty to misdemeanor fraud under 18 U.S.C. § 597 after

agreeing to testify at his co-defendants’ trial. The government filed two notices that it intended to

introduce McCarty’s testimony that Risner and Shepherd were parties to a continuing conspiracy to

corrupt elections in 2002, 2006, 2008, 2010, and 2012. The district court overruled motions in limine

to exclude McCarty’s testimony, concluding it was admissible as background evidence and would

“serve as a prelude to and complete the story of the charged crimes by explaining Risner’s and

Shepherd’s knowledge of vote buying, their respective roles in the conspiracy, and the circumstances

in which the conspiracy allegedly took root.” [Order on Motions in Limine, R. 145 at PID 564–65].

           At the beginning of McCarty’s testimony, the district court instructed the jury:

           [A]t this time I will give a cautionary instruction to the jury that the information
           subject to this witness’s testimony prior to the election in question and the time


1
    This court affirmed her conviction by Rule 34 Order. Case No. 16-6751 (June 9, 2017).


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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


        period charged in the indictment, which is 2013 through 2014, is being provided to
        you as historical information.
        This information standing alone may, of course, not be used as substantive evidence
        in the case against any defendant. It is provided to you as historical information,
        background information, only.

[Trial Tr., R. 190 at PID 810].

        McCarty testified that a group of individuals—including Risner and Shepherd—conspired

together to corrupt elections for over a decade. McCarty explained that his role in the conspiracy began

in 2002, when Hardin directed McCarty to identify any of McCarty’s neighbors willing to sell their

vote, and to pay those neighbors fifty dollars each in exchange for their unmarked, signed ballots.

Hardin gave McCarty ten one-hundred-dollar bills and directed McCarty to mark the ballots (voting

for Hardin) and cast them, which McCarty did. McCarty then paid each voter fifty dollars.

        In 2006, McCarty was appointed2 to the election board of a Magoffin County precinct where

Hardin had fared poorly in previous elections. McCarty’s official role was to work a certain voting

machine. The night before the election, McCarty and Risner met at Hardin’s home. During that

meeting, McCarty was instructed to vote for a “ticket or a slate” of candidates that included Hardin,

Renee Shepherd, and Risner. As planned, Risner sent voters seeking to sell their vote to McCarty’s

voting machine on election day. The voters would tell McCarty that Risner sent them, and McCarty

would physically cast each voter’s vote for the slate.

        There was no county election in 2008, but McCarty testified to his role in a state-representative

race. McCarty, Shepherd, Renee Shepherd, Hardin, and Randy Salyer met and “picked the [precinct]

board” for McCarty’s precinct to help ensure John Sizemore’s election as state representative. Risner

also asked McCarty to “vote extra votes during the course of the day at the election polls.” [Id. at PID



2
 McCarty stated: “In 2006 election year was coming up for county races, and I got ahold of Jerry Helton and Dr. Charles
Hardin and convinced them that I would like to sit on the election board in Carty Branch, and they got that done so I was
part of that precinct that year.” [Id. at PID 811]. There was no further explanation.


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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


817–18]. After McCarty told Risner he cast sixty extra votes, Risner reviewed the voter roster and

signed the names of sixty persons who had not voted.

        In 2010, McCarty attended a meeting with Risner, Randy Salyer, and Shepherd. During that

meeting, Randy Salyer opened a gun safe containing approximately fifty-to sixty-thousand dollars from

which voters were paid. Randy Salyer told McCarty that Hardin had contributed $30,000, Larry and

Renee Shepherd had contributed $10,000, and Gary Risner “said he put a couple thousand in.” During

early, in-person, absentee voting, Hardin’s brother, a member of the fire department, parked a firetruck

horizontally in front of McCarty’s precinct. Shepherd, Risner, and McCarty placed two voting

machines behind the firetruck so passers-by could not see the machines. If Risner had arranged to buy

a person’s vote, he would give the voter a blue ticket. The voter would give the blue ticket to McCarty,

who in turn instructed the voter on the slate of candidates to select; McCarty handed the voter a red

ticket after he or she voted; the voter then returned the red ticket to Risner, and Risner paid the voter

fifty dollars.

        In 2012, McCarty was the Democratic election judge3 in his precinct. He testified that the same

group of persons engaged in the same forms of voter bribery during that election. Once again, voters

would arrive, ask McCarty to physically vote for them, and after doing so McCarty would send them

to Risner for payment. McCarty explained that the group did not use the previously employed ticket

system in 2012 “[b]ecause after [] 2010 there was discussion throughout the county that [they] might

be able to trace that down and show evidence of vote buying.” [Id. at PID 835].

        McCarty testified that he “wanted to get away from” the conspiracy during the 2014 election

for “personal reasons” and “wanted to do whatever [he] could to beat [Hardin].” [Id. at PID 835].



3
 In Kentucky, each county’s board of elections includes two judges (one Democrat and one Republican), one clerk, and
one sheriff of election. Ky. Rev. Stat. § 117.045. Election judges set up voting booths and provide voter assistance. Id.;
Ky. Rev. Stat. § 117.255.


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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


McCarty continued to work with Shepherd and Risner but secretly had some voters cast their votes for

Hardin’s challenger. McCarty worked in the 2014 primary election but not in the general election

“because [he] had already fell out” with Risner and Hardin. McCarty used voter-assistance forms for

individuals willing to sell their votes. McCarty testified that during the 2014 primary election he

assisted several of the voters mentioned in the substantive voter-bribery counts.

       McCarty also testified about a conversation in Shepherd’s office sometime between September

and November 2013 concerning the use of cell phones to facilitate the conspiracy:

       [M]e and Gary [Risner] were sitting there and Larry Shepherd, and we were
       discussing the upcoming election. And in the back of my mind I knew I wouldn’t
       want to be sitting on the board, but I did hear them have a conversation about not
       using the tickets because they didn’t want that to be an issue. So they discussed
       about using mobile phones during the upcoming election, cellular phones, throw-
       away phones.

       As far as me seeing them purchasing them, I don’t know, but they definitely had
       conversations about that.

[Id. at PID 841]. During the primary election, Risner told McCarty that he verified whether a person

had voted by calling Shepherd on a cell phone, but McCarty had no other knowledge whether Risner

or Shepherd bought or used “throw-away” cell phones during the 2014 election.

       After McCarty testified, the district court gave another limiting instruction:

       [L]et me again remind you that I earlier instructed you that you would hear certain
       background evidence, and I gave you a limiting instruction as to how you can
       consider that evidence. . . .

       Again, you’re instructed that you may consider that evidence but only as
       background evidence and not as substantive evidence on the charges that are before
       you to be decided.

[R.191 at PID 936].




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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


                                                  2.       FBI Testimony

           Tressa Whittington worked as a forensic accountant for the FBI. She analyzed the results of

the 2014 Magoffin County general election, in particular the disparity between absentee-ballot votes4

and election-day votes. Hardin received sixty-nine percent (69%) of the absentee-ballot vote compared

to forty-six percent (46%) of the election-day vote. Renee Shepherd received seventy-eight percent

(78%) of the absentee vote compared to fifty-one percent (51%) of the election-day vote. Risner

received seventy-six percent (76%) of the absentee vote compared to slightly less than fifty percent

(50%) of the election-day vote. Whittington testified that the races for the offices on the “slate” Risner

instructed voters to choose (Charles Hardin, Renee Shepherd, and Gary Risner) “turned on the absentee

votes”; in contrast, for other races on the ballot, the election-day and absentee percentages were

“roughly the same . . . only off by a fraction of a percentage.” [Trial Tr., R. 191 at PID 1187–90].

           To corroborate McCarty’s testimony that the historical acts described actually occurred, the

government sought to introduce testimony regarding Randy Salyer’s 2011 conviction of election fraud

concerning the 2010 election. Outside the presence of the jury, the district court heard argument on the

admissibility of Salyer’s conviction. Because Salyer was not a defendant, his conviction could not be

established under Fed. R. Evid. 803(22). Therefore, the government planned to call an FBI agent who

was present throughout Salyer’s trial and sentencing. Counsel for both Risner and Shepherd objected.

The district court overruled the objections.

           FBI agents Kenneth Kirk and Randy Copley testified about Salyer’s 2011 conviction. Kirk

testified regarding the overall 2014 investigation, that Randy Salyer had been convicted of election

fraud concerning the 2010 election, and that Salyer’s wife worked for Hardin. Copley testified that

Salyer was convicted of vote buying, specifically, buying absentee ballots from registered voters.



4
    In-person absentee ballots and mail-in absentee ballots were combined to reach the total number of “absentee-ballot votes.”


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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


                                                3.       Voter Testimony

           The government presented testimony from thirteen Magoffin County voters who had sold their

votes to one or more Defendants in 2014.5

           Angel Foltz testified that McCarty and another man paid her boyfriend, Mitchell Shepherd (no

apparent relation to Defendant Larry Shepherd), for her vote. Mitchell Shepherd instructed Foltz to tell

poll workers she would be out of town on election day in order to vote in-house absentee. Although

she did not remember for whom she voted, Mitchell Shepherd instructed her to vote for certain

candidates and she did so. She also testified that during the general election, there was a “man that

helped me vote,” specifically that a man “pushed the buttons that need[ed] to [be] pushed” on the voting

machine. [Trial Tr., R. 191 at PID 1020–21]. Foltz received fifty dollars for her vote in each election,

delivered by Mitchell Shepherd.

           Mitchell Shepherd testified that Risner gave him fifty dollars to vote in the 2014 primary

election and fifty dollars to vote in the 2014 general election after Risner told him which candidates to

select, and that McCarty physically voted for him in the primary election because he did not know how

to work the voting machine. Shepherd physically voted for him in the general election after Mitchell

Shepherd told Shepherd which buttons to push. Risner also gave him fifty dollars for each election to

give to Foltz, for a total of one-hundred dollars per election.

           Roy Risner (no apparent relation to Gary Risner) testified that he gave Risner his signed,

unmarked ballot in exchange for fifty dollars. Risner did not give Roy Risner the money directly; Roy

found it in his car and understood it to be from Risner.




5
    Several of these witnesses testified to interacting only with co-defendants Tami Jo Risner or Mason Daniels.


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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


        Donnie Montgomery worked for Risner. After voting, Risner paid him fifty dollars.

        James Donald Gambill went to Risner’s home and offered to sell his vote. Risner offered one-

hundred dollars for his vote and provided Gambill with a sample ballot that marked Hardin and Risner.

Risner instructed Gambill to take the sample ballot to the courthouse during early voting, request voter

assistance, and vote as instructed. Gambill went to the courthouse where Shepherd was checking in

voters. Gambill told Shepherd he would not be able to vote on Election Day. Renee Shepherd then

gave Gambill’s absentee voter application to Shepherd, who completed it for Gambill. Gambill then

voted with the assistance of another election worker. After voting, Gambill returned to Risner’s farm,

where Risner paid him one-hundred dollars.

        Jamie Gibson lost his right to vote due to a felony conviction. Risner was apparently unaware

of this and offered to buy Gibson’s vote. Gibson recorded the encounter on his iPhone, and the video

was played for the jury. Gibson offered to “get more votes for him,” but Risner stated he would need

to “see them in person.” [Id. at PID 1165–66].

        Hailee Hunley6 testified that Tami Jo Risner offered to buy her vote. The government asked

Hunley if Tami Jo said “anything about anybody observing” her vote, to which she responded: “[S]he

let me know I was going to have someone come in and let me – make sure that I voted the right way.”

[Trial Tr., R. 236 at PID 1847–48]. Hunley previously identified Shepherd as the person who assisted

her, and she identified him again at trial. Hunley testified that Shepherd “went back through” her ballot

and submitted it for her. Hunley’s husband Chad Hunley received money for her vote. Hunley believed

the money was delivered by Tami Jo Risner but was not certain.




6
 Hunley was subpoenaed but failed to appear before the government rested its case-in-chief. The government therefore
consented to acquittal on Count 2, which charged Shepherd and Tami Jo Risner with paying and offering to pay Hailee
Hunley for her vote. She was later apprehended and testified, but the government did not move to reinstate Count 2.


                                                       -8-
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


                                            4.        Defendants’ Witnesses

         Jerry Helton testified that he served as a precinct officer in Magoffin County. He also served as

the Democratic challenger during early voting. On direct examination, Helton testified that he never

bought or switched votes, that Risner never gave him “cash for votes,” and that he did not see anyone

do anything illegal in the 2014 general election. On cross-examination, the government initiated the

following exchange:

         Q: Now, you – would you consider it a fair statement that Magoffin County
         historically [has] had a lot of problems with vote buying and vote fraud?

         A: Yes.

         Q: You know about the lawsuits overturning elections?

         A: Yes.

         Q: In fact, 2014 was overturned by a lawsuit, wasn’t it?

         A: Yes.7

[Trial Tr., R.231 at PID 1567]. There were no objections to this questioning.

         Shepherd presented the testimony of Manuel Montgomery, the Republican party chair for

Magoffin County. [Trial Tr., R. 236 at PID 1707]. Montgomery appointed Justin Williams as the

Republican county election commissioner during the 2014 general election.                                      The previous

commissioner “abruptly resigned” on Friday, October 17, 2014. As a result, although the Board “fast

tracked” the appointment process, Williams did not assume responsibilities as an election



7
  Sometime prior to Defendants’ trial, Hardin’s opponent filed a civil suit in Kentucky state court to contest the results of
the 2014 election. The trial court set aside the results of the election and declared the office vacant after finding “corrupt
practices” and numerous statutory violations, including voter bribery and improper absentee-voting procedures.
Montgomery v. Magoffin Cty. Bd. of Elections, 2015 WL 4876464 (Ky. Cir. Ct. Feb 20, 2015). That decision was affirmed
by the Kentucky Court of Appeals. Hardin v. Montgomery, 2015 WL 3643448 (Ky. Ct. App. June 12, 2015). However,
two weeks after Defendants’ trial, the Kentucky Supreme Court reversed and remanded the case, concluding that although
“[a] broad spectrum of election irregularities in this case aroused reasonable suspicions that warranted an investigation to
determine the facts[,] . . . the accumulated evidence failed to establish improprieties sufficient to impact the overall validity
of the results.” Hardin v. Montgomery, 495 S.W.3d 686, 711 (Ky. 2016).


                                                             -9-
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


commissioner until Friday, October 24, 2014, four days after early voting began on Monday, October

20, 2014.

       Republican candidates chose Garlena Workman to serve as the Republican challenger during

early voting. She was present for the entirety of early voting. The district court examined Montgomery

about Workman’s position:

       THE COURT: . . . [Y]ou indicated that [Workman] was present during the entire absentee
       voting process for the 2014 election, the absentee process. And she was a member of the County
       Board of Elections, at the time; correct?

       A: She was picked to be a challenger.

       Q: Right. On behalf of the County Board of Elections or designee?

       A: Right.

       Q: You said she was there the entire time performing that duty?

       A: Yes, sir.

[Trial Tr., R. 236 at PID 1727].

       Garlena Workman testified that Shepherd’s role, as she understood it, was to start the voting

machine. Workman also testified that she saw Shepherd assist “a number of voters” while she was

stationed as a challenger. She remembered one specific voter that requested assistance from Shepherd

by name. On cross-examination, Workman testified that she was not aware of any rules that prohibited

Shepherd from assisting voters.

       Justin Williams testified that Shepherd would take voters into the room, “bring up the ballot for

the individual” and “give the instructions to the individual.” [Trial Tr., R. 236 at PID 1774–75].

Williams did not see Shepherd use a cell phone. Williams remembered four voters who specifically

asked for Shepherd to assist them in voting. When a voter requested Shepherd by name, Williams

would either assist the voter alongside Shepherd or allow Shepherd to assist the voter alone while




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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


Williams watched Shepherd closely. On cross-examination, Williams testified that he was not aware

of any “provision in the law” prohibiting Shepherd from assisting voters or from being in the voting

room.

                                            B.       Kentucky Election Laws

           Defendants were not charged with violating any Kentucky statutes. However, the government

cross-examined four defense witnesses (Helton, Montgomery, Workman, and Williams) about their

understanding of election provisions after each witness testified that he or she did not see any improper

conduct, and after Workman and Williams testified that they believed Shepherd was allowed to assist

voters.

           On direct examination, Shepherd’s counsel asked Justin Williams about the training he received

regarding which election personnel could assist a voter. The government objected, arguing “the law

should come from the Court and not from the witness’s understanding of what he was told by another

witness outside the courtroom,” and asked the court to instruct the jury accordingly. [Trial Tr., R. 236

at PID 1784]. Shepherd’s counsel objected to the instruction. The district court sustained the

government’s objection and told the jury:

           Ladies and gentlemen, so there’s no misunderstanding or confusion as to what's
           required under Kentucky law, I will advise you the Kentucky Law provides in part
           with respect to absentee voting that if the members of the county board of elections
           or their designees do not – do not serve as precinct election officers for absentee
           voting, the county clerk or the deputy county clerk shall supervise absentee voting.

           And in this particular case, members of the county board of elections, or the
           designees, were serving as precinct officers. And, therefore, the county clerk or the
           deputy county clerk could not supervise the absentee voting.8

[Trial Tr., R. 236 at PID 1784–87].




8
    As will be explained, infra, the second paragraph is incorrect.


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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       During the jury-instruction conference, the government offered a draft of a jury instruction on

the relevant Kentucky law. Shepherd’s counsel again objected.

       The district court also drew counsel’s attention to 31 Ky. Admin. Regs. 4:040 § 2(2), which

provides: “A voter may request assistance by a person of his own choice who is not an election officer.

Except in no case may the county clerk or his staff provide such assistance.” Counsel replied that

neither his client nor the witnesses knew about the regulation. The district court responded:

       THE COURT: Well, wouldn’t this be clearly relevant though to the argument that
       you made through your witnesses that nothing improper happened, that there were
       no problems, no violations whatsoever. And you put on witnesses to say we didn’t
       see anything wrong.

       And Mr. Taylor points out, well, you know, Mr. Shepherd was not allowed to do
       what he did in assisting these voters . . . .

       The question is whether it would be appropriate to instruct the jury on what
       Kentucky law provides with respect to who can assist and who can’t assist. . . . .

       You tried to get this in through these witnesses that they could do certain things
       under Kentucky law, and the government has pointed out that that’s not what
       statutes and the administrative regulations provide.

[Trial Tr., R. 236 at PID 1833–35]. The court’s instruction (Instruction No. 21) read as follows:

       (1) You are instructed that Kentucky law governing in-house absentee voting
           provides that, when both political parties provide election officers for early in-
           house voting, those officers shall perform the duties and have the same authority
           as Election Day precinct office[r]s. In that case, neither the county clerk nor
           his or her staff may supervise the absentee voting.
       (2) Kentucky law further provides that when a voter requests assistance in voting
           from the election officers, both party judges should be present with the voter at
           the voting machine and one judge should assist the voter in the presence of the
           other. A voter may request assistance by a person of his own choice who is not
           an election officer, except in no case may the county clerk or his or her staff
           provide such assistance.
       (3) Next, other than exceptions not relevant here, Kentucky law provides that no
           person other than election officers, challengers, or persons authorized by law to
           assist voters, shall be permitted within the voting room while the vote is being
           polled.
[Jury Instructions, R. 175 at PID 685].


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                                              II.      Evidentiary Issues

                                            A.       Background Evidence

         Both Risner and Shepherd argue that the district court erred in admitting evidence relating to

Magoffin County elections in 2002, 2006, 2008, 2010, and 2012. We review evidentiary issues for

abuse of discretion. United States v. White, 492 F.3d 380, 398 (6th Cir. 2007). A district court abuses

its discretion when it erroneously permits the admission of evidence, and that admission affects a

substantial right of a party. Id. Under this standard, “[a]ny error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a).

         The district court admitted McCarty’s testimony regarding previous elections as background

evidence. The district court also analyzed the testimony under 404(b), finding it admissible. However,

it is clear from the trial transcript that the testimony was admitted only as background evidence. 9

         “Background or res gestae evidence is an exception to Rule 404(b) [that] consists of those other

acts that are inextricably intertwined with the charged offense.” United States v. Adams, 722 F.3d 788,

810 (6th Cir. 2013) (citations and quotation marks omitted); see also United States v. Clay, 667 F.3d

689, 697 (6th Cir. 2012); United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). “Concerned with

the potential for abuse of background evidence as a means to circumvent Rule 404(b), we have

recognized severe limitations as to temporal proximity, causal relationship, or spatial connections

among the other acts and the charged offense.” Adams, 722 F.3d at 810 (citations and quotation marks

omitted).



9
  See [Trial Tr., R. 191 at PID 1051–52] (“THE COURT: Well, just so we’re – just so we’re clear on this. I have not
admitted any evidence under 404(b). . . . I’ve only admitted . . . background evidence”); see also [Trial Tr., R. 236 at PID
1817–19] (“THE COURT: In the memorandum opinion that was filed early in the case on the motion in limine, I indicated
that this would be proper background evidence and that the United States may also seek to introduce the evidence. . . . But
the government in the course of the trial never asked me to give an instruction that this would also be considered other bad
act evidence under 404(b) for purposes of proving intent. So if you want me to give . . . the 404(b) instruction, I will expand
this and tell the jury that they may also consider this as other bad acts with regard to intent of the defendants.
MR. CURTIS: No, I don’t want to go there.”).


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       Risner argues McCarty’s testimony regarding the 2002 and 2006 elections lacked “any temporal

proximity, causal relationship, or special connection,” and that testimony regarding the 2008 and 2012

elections involved factually distinguishable conduct and was thus irrelevant. [Appellant Risner Br. at

18–19]. The district court rejected similar arguments at trial:

       Here, the evidence . . . occurred close in time with the underlying criminal conduct
       charged in the Superseding Indictment. This is especially true in political elections,
       which typically are not held every year. Thus the government is able to establish a
       close temporal connect between the evidence and the charged offense. It appears
       the government has also established a causal connection between the evidence and
       the charged conduct. McCarty’s testimony provides background regarding the
       circumstances from which the charged conduct developed, including a history of
       the alleged conspirators’ relations.

[Order, R. 114 at PID 363].

       In Adams, the defendants were charged with conspiring to buy votes in the 2002, 2004, and

2006 elections. The government sought to introduce evidence that several co-conspirator defendants

(1) bought votes in 1993; (2) operated as a vote buyer “in the late 70’s–90’s”; and (3) approached

witnesses to buy votes “in the 1980’s.” Adams, 722 F.3d at 811. On appeal, the defendants argued the

testimony lacked temporal and causal proximity to the conspiracy under Clay, “given that most of the

events . . . occurred in the 1980’s.” Id. This court disagreed: “[V]ote buying . . . by nature cannot be

committed every day because elections . . . are not everyday occurrences. Therefore, in the context of

this case, evidence of vote buying from the 1980s was not as remote as in other cases . . . .” Id. The

defendants also argued the causal connection was too attenuated to be admissible and this court again

disagreed: “[T]his evidence is a prelude to and ‘completes the story’ of the charged conspiracy” by

showing how the defendants rose to political power, “their knowledge of vote buying, and their personal

relationship.” Id. at 812.

       In this case, temporal and causal proximity are even stronger than in Adams. McCarty’s

testimony regarding elections from 2002–2012 provided background for the offenses alleged to have



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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


occurred in 2013 and 2014. As the district court outlined, the evidence showed “Risner’s and

Shepherd’s knowledge of vote buying, their respective roles in the conspiracy, and the circumstances

in which the conspiracy allegedly took root.” [Order, R. 145 at PID 565]. Under Adams, the evidence

was admissible.

       Risner argues that Adams “cannot be used for authority” here because in Adams “the scope of

the . . . evidence was very narrow and the same two defendants were involved both in the then current

election and prior elections.” [Appellant Risner Br. at 18]. The district court adequately addressed this

argument: “Although the individuals involved in the 2010 and 2014 events are not identical, the cast of

characters is largely the same. The evidence completes the story of the charged conduct and, therefore,

is likely to enhance juror’s understanding of the events.” [Order, R. 114 at PID 363]. Further, Risner’s

understanding of the evidence in Adams is inaccurate: the challenged historical evidence implicated

five of eight defendants. Adams, 722 F.3d at 811.

       Shepherd challenges the background evidence under Fed. R. Evid. 403, asserting that the

evidence was improperly admitted because “[t]he slight evidence against Shepherd made the prior

evidence more important to the prosecution to achieve a conviction; but the lack of evidence related to

the actual crimes for which Shepherd was charged also made the prior bad acts evidence that much

more prejudicial.” [Appellant Shepherd’s Br. at 12–13]. FRE 403 provides that a court “may exclude

relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403. “The district court is afforded broad discretion in making this determination;

therefore, [this court] review[s] for abuse of discretion and must maximize the probative value of the

challenged evidence and minimize its potential for unfair prejudice.” Adams, 722 F.3d at 812 (quotation

marks and citation omitted).




                                                   - 15 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       The district court conceded that McCarty’s testimony “will likely prejudice the defendants,” but

found “there is no indication they will be prejudiced unfairly.” [Order, R. 145 at PID 567] (citing

United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)). The district court found that McCarty’s

testimony was probative because it explained “Risner’s and Shepherd’s knowledge of vote buying,

their respective roles in the conspiracy, and the circumstances in which the conspiracy allegedly took

root.” [Id. at PID 565]. Regarding prejudice, as in Adams, “the picture painted by the government was

not pretty, but it was not unfairly ugly either.” Adams, 722 F.3d at 812.

       Shepherd relies on two cases for support. In United States v. Cook, 538 F.2d 1000 (3rd Cir.

1976), the Third Circuit held the district court abused its discretion when it allowed the prosecution in

an armed bank robbery trial to introduce evidence of the defendant’s prior sodomy conviction to show

his gun possession was improper. The court noted that, “[w]here, as here, evidence of other crimes is

relevant to a collateral issue only, the trial court must consider the government’s actual need for that

evidence.” Id. at 1004. However, McCarty’s testimony was not collateral to the crimes charged. The

“inflammatory evidence” of sodomy in Cook had no relevance to armed bank robbery, particularly

because Cook had other felony convictions, but the government chose to introduce that conviction

because of its inflammatory nature. Cook is inapposite.

       Shepherd’s other authority, United States v. Riddle, 103 F.3d 423 (5th Cir. 1997), is similarly

distinguishable.   There, nine government witnesses testified about extraneous loans during the

defendant’s trial for bank fraud.       Id. at 432–35.      Thus, the government’s “extensive and

undiscriminating use” of the 404(b) evidence “was offered in such a large and unchecked way that its

permissible limited use was overwhelmed.” Id. at 434. Here, the court gave limiting instructions, and

the testimony was confined to relevant background.




                                                 - 16 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       Additionally, we have consistently found that limiting jury instructions can help mitigate the

chance of substantial prejudice. See, e.g., United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir.

1996). The district court gave three separate limiting instructions—prior to McCarty’s testimony, at

the conclusion of his testimony, and in Jury Instruction No. 29. Each instruction explained that the

evidence was “offered to complete the story of the charged offense or offenses,” but clearly admonished

the jury that the testimony was “not substantive evidence regarding the counts charged in the

indictment. Therefore, you must not consider it for any other purpose.” [Jury Instructions, R. 175 at

PID 694].

       The district court did not abuse its discretion in allowing McCarty’s testimony.

                                      B.      Salyer Conviction

       Both Risner and Shepherd contend that evidence of Randy Salyer’s conviction should have

been excluded under Rule 403. Risner relies on Adams, where the government “introduced testimony

that the defendants may have been involved with drug dealers on the theory that this might have been

a source of money to buy votes.” [Appellant Risner’s Br. at 23–24].

       Risner’s reliance on Adams is not persuasive. In Adams, we found that evidence of drug dealing

“does not qualify as background evidence because it is not inextricably intertwined with the charged

offense [of vote buying]. The evidence does not serve as ‘a prelude to the charged offense’ or ‘complete

the story’ because there was no allegation that drug money . . . was used to buy votes in the charged

conspiracy.” Adams, 722 F.3d at 816 (quoting Hardy, 228 F.3d at 748). Here, McCarty testified that

Salyer was part of the vote buying conspiracy in 2008 and 2010. The government introduced Salyer’s

conviction “to corroborate Scottie McCarty, to give the jury additional [bases] for finding” the acts he

described actually occurred. [Trial Tr., R. 191 at PID 1049].




                                                 - 17 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       Salyer’s conviction for vote buying corroborated McCarty’s testimony about the conspiracy’s

actions during the 2010 election. Defendants appropriately attacked McCarty’s credibility using bias,

prejudice, and motive. The district court did not abuse its discretion in concluding that the probative

value of Salyer’s conviction as corroborative of McCarty’s testimony was not substantially outweighed

by the risk of undue prejudice. Further, the district court’s limiting instruction on all background

evidence ameliorated the potential for undue prejudice. Therefore, testimony about the conviction was

not an abuse of discretion.

                      C.      Cross-Examination about 2014 Election Contest

       Shepherd and Risner both argue that the government should not have referred to the 2014

election litigation in cross-examining Jerry Helton. Because neither Shepherd nor Risner objected to

the questioning at trial, we review for plain error. United States v. Olano, 507 U.S. 725, 731 (1993).

Under the plain-error standard, this court may remedy an error only if it is “clear or . . . obvious[]” and

“affect[s] substantial rights.” Id (quotation marks omitted).

       Risner and Shepherd argue that the government knew that the Kentucky case was not final

because it was still pending on appeal: “The point being driven home to the jury was, of course, that a

court had already declared the election to be a fraud, thereby further tainting the proceedings” against

Defendants. [Appellant Shepherd Br. at 15].

       The government contends the cross-examination question was “plainly probative of Helton’s

potential bias or flawed perception or both.” [Appellee’s Br. at 36]. Although “Helton claimed that he

observed no illegalities[,] . . . a Kentucky circuit court had vacated the results of the election based on

a finding of fraud and was affirmed by the Kentucky Court of Appeals.” [Id.].

       The potential prejudicial effect of the jury hearing that a court had overturned the election for

fraud is apparent. However, we review for plain error, and any error of the district court in failing to




                                                  - 18 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


intervene sua sponte was not clear, and likely did not “affect[] the outcome” of the trial. See United

States v. Zidell, 323 F.3d 412, 425 (6th Cir. 2003) (“In addition, our authority to correct a plain error is

discretionary, and should be employed only if the error ‘seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.’”) (quoting Olano, 507 U.S. at 736). The question was raised

as a vehicle to challenge Helton’s perception of whether the 2014 election was properly run, and it did

not deprive Defendants of their right to a fair trial when viewed in light of the other evidence presented.

                                  III.     Sufficiency of the Evidence

       Risner argues the district court erred in denying his motion for acquittal on Counts 1

(conspiracy), 11 (buying Angel Foltz’s vote in the general election), and 14 (buying Angel Foltz’s vote

in the primary election) because there was insufficient evidence to support these convictions. Shepherd

asserts his conviction under Count 1 was based solely on the background historical evidence. We

review these claims de novo. United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007) (citations

omitted). “However, a sufficiency of the evidence challenge places a very heavy burden on the

defendants-appellants: they must show that after viewing the evidence in the light most favorable to

the prosecution, [no] reasonable trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Robinson, 813 F.3d 251, 255 (6th Cir. 2016) (citations

and internal quotation marks omitted). We may “not weigh the evidence presented, consider the

credibility of witnesses, or substitute our judgment for that of the jury.” United States v. Jackson, 470

F.3d 299, 309 (6th Cir. 2006) (citation omitted).

                                      A.      Count 1: Conspiracy

       A violation of 18 U.S.C. § 371 requires proof that: (1) two or more individuals agreed to violate

the laws of the United States; (2) the defendant knowingly and voluntarily joined the conspiracy; (3)

one of the conspirators performed an overt act; and (4) the “overt act was knowingly done in furtherance




                                                    - 19 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


of some object or purpose of the conspiracy.” United States v. Damra, 621 F.3d 474, 498 (6th Cir.

2010) (quoting United States v. Beverly, 369 F.3d 516, 532 (6th Cir. 2004)).

         Both Shepherd and Risner contend their conspiracy convictions were based solely on historical

evidence. We disagree. Viewing the evidence in the light most favorable to the prosecution, there was

sufficient evidence regarding the 2014 election to support the conspiracy convictions.10

         McCarty testified regarding the conversation in Shepherd’s office concerning the reluctance to

use the ticket method for fear of detection, and the possibility of using drop phones. He further testified

about his interaction with Jamie Gibson:

         Q: Do you recall an incident with Jamie Gibson?

         A: Yes, I do. . . .

         Q: Okay. Did you have conversations with him in 2014 about getting paid?

         A: Yes, I did. . . . I received a text message from Jamie Gibson, and he had – it was
         a pretty long one. He said that if I didn’t pay him the $50 or get Rooster [Risner]
         to pay it or he wanted paid [sic], that he was going to go to the FBI.

         Q: Okay. What happened next?

         A: I believed it. I didn’t say nothing at that second, and a couple days went by and
         Gary [Risner] called me and wanted me to go up there and pay him.

         Q: Did you?

         A: No, I didn’t. And during the conversation Gary [Risner] told me, he said, I need
         to go pay him, but he ain’t voted yet.

         And I said, well, that’s weird, why hasn’t he voted?

         And he said, well, I just talked to Larry Shepherd on the phone, and he hasn’t been
         up there and voted, but I’m going to have to go pay him.

[Trial Tr., R. 190 at PID 840–41].



10
   Regarding the conspiracy itself, as the district court observed, the FBI testimony regarding the election result for the
offices on the slate provides strong evidence of a conspiracy to buy absentee votes.


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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       Additionally, numerous voters testified that either Risner or Tami Jo Risner offered to buy and

actually bought their votes in both the primary and general elections. Regarding Risner specifically,

Mitchell Shepherd, Roy Risner, Donnie Montgomery, James Donald Gambill, and Jamie Gibson all

testified that Risner personally offered to buy and did buy their votes. Jamie Gibson recorded the

encounter, which was played before the jury. Other witnesses testified that they were observed in

voting or their votes were reviewed. This evidence adequately establishes the conspiracy to buy votes

in the 2014 election, overt acts in pursuit of the conspiracy, and Risner’s knowing and voluntary

participation in and advancement of the conspiracy. Further, as the district court observed, the FBI

testimony regarding the discrepancy between the absentee and election-day vote provides

circumstantial evidence of the conspiracy.

       Admittedly, the evidence against Shepherd was less overwhelming; it was nevertheless

sufficient. In addition to evidence provided by McCarty, several witnesses testified that Shepherd

assisted them in voting, and there was testimony that some voters asked for Shepherd by name. Hailee

Hunley testified that Tami Jo Risner told her that someone would review her ballot to ensure she voted

correctly, and that Shepherd reviewed her ballot. Viewed in light of McCarty’s testimony, this evidence

is sufficient for a jury to find Shepherd knowingly and voluntarily entered into the conspiracy. United

States v. Lee, 991 F.2d 343, 348 (6th Cir. 1993).

       Risner analogizes the evidence in this case to United States v. Gibbs, 182 F.3d 408 (6th Cir.

1999). In Gibbs, a “loose-knit group” of drug dealers “decided to band together to form a group that

would offer protection to its members.” Id. at 418. This court found that, despite the fact that the group

“had no hierarchy and was not run like a business,” “[t]he government [] presented enough evidence in

this case for a jury to find that there was a tacit agreement among at least some of the individuals named

in the original indictment.” Id. at 420.




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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       Risner relies on the Gibbs panel’s determination that the evidence was insufficient to convict

six of the defendants of the conspiracy charge where the government’s evidence proved only that those

six defendants “independently sold a lot of drugs. Some bought from each other. Others, though acting

independently, associated with each other.” Id. at 423. Risner contends that the “only thing the

Government has for the 2014 Elections is that McCarty overheard a conversation between Risner and

Shepherd in the Fall of 2013 about the use of cell phones.” [Risner Rep. Br. at 3]. But Risner conflates

the evidence of the existence of a conspiracy—which was sufficient in Gibbs and is sufficient here—

with the sufficiency of the evidence of an individual defendant’s involvement in the conspiracy, which

was lacking for several defendants in Gibbs. Here there was substantial testimony regarding Risner’s

involvement. Risner’s reliance on Gibbs, therefore, is misplaced.

            B.      Risner Counts 11 and 14: Substantive Voter Fraud re: Angel Foltz

       Risner also challenges his convictions on Counts 11 and 14, which charged him with paying

and offering to pay Angel Foltz for her votes in the 2014 primary and general elections. He argues that

because Foltz never identified him during her testimony, there was insufficient evidence that he paid

for her votes. Risner notes that the district court denied his motion for a directed verdict on those counts

“because the trial judge thought she mentioned Gary Risner’s name under her breath. However, a

review of the trial transcript does not reveal this.” [Appellant Risner Br. at 14]. Risner appears to be

correct; Foltz’s transcribed testimony does not mention Risner. However, Foltz’s testimony established

that she was offered and was paid money to vote for the slate of candidates in the 2014 primary and

general elections. The only issue is whether the government presented sufficient evidence to find that

Risner bought her votes. See Robinson, 813 F.3d at 255. It did.

       Mitchell Shepherd testified:

       Q: Did Mr. Risner give you money to give to Ms. Foltz?




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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       A: Yes.

       Q: Did he give you money to give to Ms. Foltz both times we’ve talked about
       [primary and general elections]?

       A: I’m pretty sure.

       Q: How much money did he give you to give to Ms. Foltz?
       A: 50.

       Q: 50 each time?

       A: Yep.

[Trial Tr., R. 191 at PID 1037–38]. Foltz answered “yes” when asked if she chose “the candidates that

[she] voted for because [she] knew that [she] would receive money voting for those candidates.” [Id.

at PID 1025]. She also testified to receiving fifty dollars each election through Mitchell Shepherd after

being instructed which candidates to select. A rational trier of fact could conclude beyond a reasonable

doubt that Risner paid for Foltz’s vote in both elections. See United States v. Sease, 659 F.3d 519, 523

(6th Cir. 2011).

                                   IV.     Jury Instruction No. 21

       Both Risner and Shepherd argue the district court committed reversible error in instructing the

jury on Kentucky law related to in-person absentee voting. We review a district court’s jury instructions

for an abuse of discretion. United States v. Williams, 612 F.3d 500, 506 (6th Cir. 2010). “When jury

instructions are claimed to be erroneous, we review the instructions as a whole, in order to determine

whether they adequately informed the jury of the relevant considerations and provided a basis in law

for aiding the jury in reaching its decision.” Id. (quoting United States v. Frederick, 406 F.3d 754, 761

(6th Cir. 2005)).

       Jury Instruction No. 21 encompassed several statutory provisions most pertinent to Shepherd

and instructed, in essence, that Shepherd should not have been in the voting room for any reason and



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Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


that he should not have assisted voters. This supported the government’s theory that Shepherd’s role

in the conspiracy was to verify paid voters. The instruction was given at the government’s request

because Shepherd elicited testimony from defense witnesses Jerry Helton, Garlena Workman, and

Justin Williams that Shepherd, as Deputy Clerk, was allowed to be in the voting room and to assist

voters.

          Ky. Rev. Stat. § 117.085 sets forth in-person absentee-voting requirements. In pertinent part,

the statute provides:

          [M]embers of the county board of elections or their designees who provide equal
          representation of both political parties may serve as precinct election officers,
          without compensation, for all in-person absentee voting performed on a voting
          machine in the county clerk’s office or other place designated by the county board
          of elections and approved by the State Board of Elections. If the members of the
          county board of elections or their designees serve as precinct election officers for
          the in-person absentee voting, they shall perform the same duties and exercise the
          same authority as precinct election officers who serve on the day of an election. If
          the members of the county board of elections or their designees do not serve as
          precinct election officers for in-person absentee voting, the county clerk or deputy
          county clerks shall supervise the in-person absentee voting.

Ky. Rev. Stat. § 117.085(1)(h). The portion of Jury Instruction No. 21 relevant to this statute read:

          You are instructed that Kentucky law governing in-house absentee voting provides
          that, when both political parties provide election officers for early in-house voting,
          those officers shall perform the duties and have the same authority as Election Day
          precinct office[r]s. In that case, neither the county clerk nor his or her staff may
          supervise the absentee voting.

[Jury Instructions, R. 175 at PID 685]. Shepherd correctly contends the instruction was misleading

because “there was not an instruction that stated if the Magoffin County Board (“Board”) of Elections

did not provide equal representation . . . then the deputy county clerk is legally required to supervise

the election.” [Appellant Shepherd’s Br. at 7]. Shepherd maintains this is critical because the board

did not provide a Republican designee for four days of absentee voting, and therefore the instruction

“misled the jury to believe Shepherd violated the law when he was actually carrying it out.” [Id. at 8].




                                                    - 24 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


       It appears that the district court determined there was in fact equal representation:

       THE COURT: I read the statute. . . If members of the County Board of Elections,
       or its designee, do not serve as precinct election officers for absentee voting, the
       county clerk or deputy shall supervise the absentee voting.

       Members of the county board of elections, or the designees, were serving [as]
       precinct officers, so the county clerk or the deputy county clerk could not supervise
       the absentee voting.

       And Mr. Shepherd is not allowed to assist voters.

       I will give that instruction if requested by the United States at the end of the case.
       They’ve established that during the testimony of the witnesses.

       MR. NEMES: Your Honor, the [first] four days [the] Republican was not sitting.

       THE COURT: There may have been a person absent, but the board of elections
       was there and supervised.

[Trial Tr., R. 236 at PID 1741]. The district court seems to have based this finding primarily on Manuel

Montgomery’s answer that Garlena Workman was picked “[o]n behalf of the County Board of

Elections or designee.” [Id. at PID 1727].

       However, Montgomery made clear that Workman was chosen as a challenger. Other portions

of the Kentucky statute explicitly distinguish between election officers and challengers. See, e.g., Ky.

Rev. Stat. § 117.235(1). Further, Ky. Rev. Stat. § 117.315(2), which outlines the appointment and role

of challengers, notes that “[t]he challenger shall be a registered voter of the county in which the primary

or election is held, shall be appointed in writing by the chair of the committee, independent candidate,

or candidates representing a ticket, and shall produce written appointment on demand of any election

officer.” Ky. Rev. Stat. § 117.315(2). Challengers are chosen by a different process and must produce

credentials at the request of an election officer. A challenger is not an election officer.

       Thus, Workman’s presence as a challenger was not as an election officer and there was no equal

representation of the political parties until Williams arrived on Friday, October 24. It was therefore




                                                  - 25 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


misleading to omit the subsection’s final provision: “If the members of the county board of elections

or their designees do not serve as precinct election officers for in-person absentee voting, the county

clerk or deputy county clerks shall supervise the in-person absentee voting.” Ky. Rev. Stat. §

117.085(1)(h). Instead of understanding that Shepherd was required to supervise voting, the jury was

instructed that he was forbidden from doing so.

         A district court has “broad discretion in drafting jury instructions and does not abuse its

discretion unless the jury charge fails accurately to reflect the law.” United States v. Beaty, 245 F.3d

617, 621 (6th Cir. 2001) (citation omitted). Here, the instruction failed to accurately reflect the law

regarding the first four days of early voting. However, “no single provision of the jury charge may be

viewed in isolation, rather, the charge must be considered as a whole.” Id. (citing United States v. Lee,

991 F.2d 343, 350 (6th Cir.1993)).

         In Instruction No. 21, the court also instructed the jury that “[a] voter may request assistance by

a person of his own choice who is not an election officer, except in no case may the county clerk or his

or her staff provide such assistance.” [Jury Instructions, R. 175 at PID 685]. Shepherd argues that

because Ky. Rev. Stat. § 117.255(3) does not include the limitation on the county clerk and staff, the

instruction was incorrect. However, 31 Ky. Admin. Regs. 4:040 § 2(2) provides: “The county clerk

and his or her staff shall not provide any voter with assistance in voting.” The district court brought

this provision to Shepherd’s counsel’s attention and counsel conceded the regulation applied.11 He

argued only that Shepherd and the witnesses were unaware of the provision. Therefore, it was neither

incorrect nor misleading to include the instruction. Separate and apart from whether Shepherd was




11
  During oral argument, Shepherd’s counsel asserted that this provision only applied when there was equal representation.
However, the regulation states: “(2) The county clerk and his or her staff shall not provide any voter with assistance in
voting, pursuant to the provisions of KRS 117.255.” 31 Ky. Admin. Regs. § 4:040. Ky. Rev. Stat. § 117.255 says nothing
about equal representation; it outlines the procedures for assisting voters. The regulation regarding equal representation is
found in Ky. Rev. Stat. § 117.085(h), which is not mentioned in 31 Ky. Admin. Regs. § 4:040.


                                                           - 26 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


required to “supervise the absentee voting,” Shepherd was not permitted to assist voters under the

regulation.

       The final section of Instruction No. 21 was based on Ky. Rev. Stat. § 117.235(1), which

provides: “No person, other than the election officers, challengers, person assisting voters . . . and a

minor child in the company of a voter, shall be permitted within the voting room while the vote is being

polled” with certain listed exceptions. Instruction No. 21 stated: “Next, other than exceptions not

relevant here, Kentucky law provides that no person other than election officers, challengers, or persons

authorized by law to assist voters, shall be permitted within the voting room while the vote is being

polled.” [Jury Instructions, R. 175 at PID 685]. At trial, Shepherd’s primary argument was that he was

not aware of the law.

       On appeal, Shepherd contends the “other exceptions” included his authority “to keep order and

enforce the law.” [Appellant Shepherd’s Br. at 10] (citing Ky. Rev. Stat. § 117.235(1)(b)). However,

Garlena Workman and Justin Williams both testified that Shepherd was in the room to initialize voting

machines and to assist voters, not to “keep order and enforce the law.” Shepherd also argues he was

authorized in the voting room because “judges of election” may enter to adjust the voting machine “if

the machine is so constructed as to require adjustment after one person has voted before another person

may vote.” Ky. Rev. Stat. § 117.255(9). However, Shepherd was not a “judge of election.” Although

he entered the room to perform that role—to initialize the voting machine—he was not allowed to do

so while voting was taking place. According to this statute, the “judge of election” should have done

that. Therefore, the final provision of Instruction No. 21 was neither incorrect nor misleading.

       Finally, Shepherd argues that the district court abused its discretion in including the instruction

even if it was accurate, because neither Shepherd nor the other election officials were aware of any

statutes or regulations outlined in the instruction. However, as the district court explained, Shepherd




                                                 - 27 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


elicited testimony from Jerry Helton, Garlena Workman, and Justin Williams that Shepherd was

allowed to be in the voting room and to assist voters. The fact that the witnesses were unaware that

their understanding was inaccurate under Kentucky law was relevant to the credibility of their

testimony that the election was properly conducted. Ultimately, the relevant question was whether

Shepherd was aware of the statutes and regulations providing that his presence in the voting room and

his assisting voters were forbidden. However, under the circumstances, the district court did not abuse

its discretion by including the instruction.

       Once Williams arrived on the fifth day of early voting, equal representation was satisfied and

Shepherd was no longer allowed, let alone required, to supervise the voting. Pursuant to Kentucky law,

Shepherd was never allowed to assist voters, nor was he allowed to be in the voting room while a vote

was being polled. The fact remains, however, that the instruction was misleading regarding Shepherd’s

obligation to “supervise voting” during the first four days of early voting.

       Nevertheless, we “will reverse a judgment based upon an improper jury instruction ‘only if the

instructions, viewed as a whole, were confusing, misleading, or prejudicial.’” Beaty, 245 F.3d at 621

(citation omitted). Although Shepherd was required to “supervise absentee voting” for the first four

days, Shepherd was not allowed to assist voters even during that period, and there was testimony from

seven witnesses that Shepherd assisted a number of voters. Further, he continued to assist voters after

there was equal representation. Although the first portion of Instruction No. 21 was misleading, we

conclude that it was not prejudicial, viewing the jury instructions as a whole.




                                                  - 28 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


                                   V.      Prosecutorial Misconduct

       Shepherd argues the government prejudiced his right to a fair trial “by appealing to the jury’s

passions and prejudices in asking them to end vote-buying in Magoffin County” during its opening

statement and closing argument. [Appellant Shepherd’s Br. at 16].

       Prosecutorial-misconduct inquiries have two steps. United States v. Henry, 545 F.3d 367, 376

(6th Cir. 2008) (citation omitted). First, this court determines whether the remarks were improper. Id.

Second, if the remarks were improper, this court analyzes whether they were so flagrant as to warrant

reversal. Id. Four factors help in determining flagrancy: “(1) whether the prosecutor’s remarks or

conduct tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated

or extensive; (3) whether the remarks were accidentally or deliberately made; and (4) the overall

strength of the evidence against the accused.” Id. (citation omitted).

       While this court would typically review the argument de novo, we review for plain error here

because neither Risner nor Shepherd objected to the government’s remarks. See id. “Plain-error review

requires us to determine whether (1) an error occurred in the district court; (2) the error was obvious or

clear; (3) the error affected defendant’s substantial rights; and (4) this adverse impact seriously affected

the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 376–77 (citation and

internal quotation marks omitted). In our analysis, we “afford wide latitude to a prosecutor during

closing argument, analyzing disputed comments in the context of the trial as a whole.” Id. at 377.

       Shepherd points to portions of the government’s opening statement, closing argument, and

rebuttal argument that he argues evince flagrant prosecutorial misconduct. The government’s opening

statement noted that “this crime goes to the very foundation of our democratic system. It’s that right

for each of us to have our vote count the same as the next person and not be diluted by those who would

buy votes that are meaningless to the person who has sold its vote.” [Trial Tr., R. 240 at PID 1994].




                                                   - 29 -
Nos. 16-6786/6807, United States v. Gary Risner and Larry Shepherd


The government’s closing argument included the following: “We . . . have the right to choose who

leads our country, our states, our cities, our counties. . . . In Magoffin County that right was taken from

the people . . . . They didn’t get to pick their leaders. Their leaders were chosen for them.” [Trial Tr.,

R. 241 at PID 2098–99].

         During rebuttal, the government told the jury that election fraud “will happen again unless we

do something about it.” [Trial Tr., R. 241 at PID 2155]. The government continued:

         And I can tell you sometimes we look out in society, and we see people doing
         something that’s wrong, it’s illegal, it’s immoral, in this case illegal, and we say,
         you know, somebody ought to do something about that.

         Well, you know what the next question always is? Who is somebody? Who’s
         somebody that's going to do something about it? Well, today somebody is you. And
         if you don’t do it, nobody else will. One shot. If you don’t do it, it doesn’t get done.

[Id.].

         The government contends the opening statement remarks “were fair references to the charged

conspiracy, the evidence of the conspiracy’s purpose, and the conspiracy’s logical effects.” [Appellee’s

Br. at 48]. Further, it argues the rebuttal remarks were proper because they “did not mislead the jury

or prejudice defendants, but pointed out the role of the jury in the instant case.” [Id. at 50–51] (citing

United States v. Coffman, 574 F. App’x 541 (6th Cir. 2014)).

         Shepherd argues these statements “were more of a call to arms asking the jury to rise up and

end vote buying than they were a sober call to convict Shepherd based on the evidence presented a

trial.” [Appellant Shepherd Br. at 19]. For support, Shepherd cites United States v. Solivan, 937 F.2d

1146, 1153 (6th Cir. 1991). In that case, the defendant was tried for selling cocaine. During closing

arguments, the prosecutor stated: “I’m asking you to tell [the defendant] and all of the other drug dealers

like her that we don’t want that stuff in Northern Kentucky and that anybody who brings that stuff in

Northern Kentucky and . . .” at which point the district court stopped the prosecutor because defense




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counsel objected. Id. at 1148. Counsel moved for a mistrial, which the district court denied. This court

reversed, finding:

       The fear surrounding the War on Drugs undoubtedly influenced the jury by
       diverting its attention away from its task to weigh the evidence and submit a
       reasoned decision finding defendant guilty or innocent of the crimes with which
       she was charged. The substance of the statements made by the prosecutor in this
       case were designed, both in purpose and effect, to arouse passion and prejudice and
       to inflame the jurors’ emotions regarding the War on Drugs by urging them to send
       a message and strike a blow to the drug problem.

Id. at 1153.

       Crucially, the defendant in Solivan objected, so this court reviewed de novo rather than for plain

error. Under plain-error review, inappropriate comments alone do not justify reversal where the

proceedings were otherwise fair. United States v. Hitow, 889 F.2d 1573, 1579 (6th Cir. 1989) (“Even

if certain comments are found to be inappropriate, they . . . must be examined within the context of the

trial to determine whether the prosecutor’s behavior amounted to prejudicial error.”) (citation omitted).

“The plain error doctrine mandates reversal only in exceptional circumstances and only where the error

is so plain that the trial judge and prosecutor were derelict in countenancing it.” United States v.

Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (quoting United States v. Carroll, 26 F.3d 1380, 1383 (6th

Cir. 1994)).

       Assuming arguendo that the remarks crossed the line, viewed in the context of the proceedings

as a whole, the comments were not so far past what is acceptable that the district court was obliged to

jump in sua sponte and admonish the prosecutor. Further, viewing the record as a whole, the statements

were not likely to have misled the jury or caused them to decide the case based on passion or prejudice,

rather than the evidence. Henry, 545 F.3d at 376; see Coffman, 574 F. App’x at 567; United States v.

Shalash, 108 F. App’x 269, 280 (6th Cir. 2004). In sum, the district court’s failure to interject sua

sponte was not clear or obvious error, did not affect Shepherd’s substantial rights, and did not “seriously




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affect[] the fairness, integrity, or public reputation of the judicial proceedings.” Henry, 545 F.3d at

376–77.

                                      VI.      Cumulative Error

       Both Risner and Shepherd argue that, even if none of the individual errors warrant a new trial,

the cumulative effect is so prejudicial as to warrant reversal. The standard of review is whether the

cumulative effect of errors “deprived [Defendants] of a trial consistent with constitutional guarantees

of due process.” United States v. Sypher, 684 F.3d 622, 628 (6th Cir. 2012) (citation omitted).

       Here, the district court did not err in any of the evidentiary holdings challenged on appeal, and

the district court did not plainly err in failing to intervene during the government’s opening statement

and closing argument. The only error we find is in the first section of Jury Instruction No. 21, which

was misleading but does not warrant reversal. Because the single error did not render Defendants’ trial

fundamentally unfair, cumulative error analysis is not applicable.

                                            VII.   Conclusion

        For the foregoing reasons, we AFFIRM both convictions.




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