                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          DEC 22 2003
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 03-3023
          v.                                  (D.C. No. 98-CR-40083-01-RDR)
 MICHAEL McELHINEY,                                      (D. Kansas)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


I.    BACKGROUND

      Defendant Michael P. McElhiney was convicted of conspiracy to distribute

and possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(C), and aiding and abetting the distribution of heroin, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. The convictions stemmed


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
from Defendant’s alleged participation in a drug smuggling operation while an

inmate at the United States Penitentiary in Leavenworth, Kansas.

      Prior to the trial which resulted in the two convictions at issue on this

appeal, Defendant was tried on two separate occasions for his alleged

involvement in the drug smuggling operation. He was initially charged only with

conspiracy to distribute heroin and to possess heroin with the intent to distribute.

After the first trial resulted in a hung jury, Defendant was convicted at a second

trial in September and October of 1999. This court then reversed and remanded

for a new trial due to an impermissibly coercive Allen charge. United States v.

McElhiney, 275 F.3d 928 (10th Cir. 2001). On March 27, 2002, a superseding

indictment was issued. The indictment again charged Defendant with conspiracy,

but also included a charge of aiding and abetting in the distribution of heroin.

After being convicted at the third trial, Defendant filed this appeal, raising four

issues, which we discuss in turn.

II.   DISCUSSION

      A.     Admission of Sahakian’s Prior Testimony

      Defendant challenges the district court’s decision to admit a transcript of

David Sahakian’s testimony from Defendant’s second trial. After testifying at

Defendant’s second trial, Sahakian was indicted on charges arising from the same

alleged drug smuggling operation, and he consequently invoked his Fifth


                                          -2-
Amendment right not to testify at the third trial. Defendant argues that the prior

testimony was improperly admitted because (1) the requirements of Federal Rule

of Evidence 804(b)(1) were not satisfied; (2) the admission of the testimony

violated his Sixth Amendment right of confrontation; and (3) the government

engaged in misconduct in charging Sahakian in order to ensure that he would

invoke his Fifth Amendment privilege in the third trial.

         We review the district court’s admission of the testimony under Rule

804(b)(1) for abuse of discretion. O’Banion v. Owens-Corning Fiberglas Corp.,

968 F.2d 1011, 1014 (10th Cir. 1992). The district court’s legal conclusions

regarding the rules of evidence and the confrontation clause, however, are

reviewed de novo. United States v. Price, 265 F.3d 1097, 1102-03 (10th Cir.

2001).

         Federal Rule of Evidence 804(b)(1) excludes from the general rule barring

admission of hearsay, “[t]estimony given as a witness at another hearing of the

same or a different proceeding . . . if the party against whom the testimony is now

offered . . . had an opportunity and similar motive to develop the testimony by

direct, cross, or redirect examination,” as long as that witness is unavailable to

testify.

         There is no dispute that Sahakian’s invocation of his constitutional

privilege rendered him unavailable. But Defendant contends that “[h]e did not


                                           -3-
have the same opportunity or motive to develop the testimony of the witness as it

related to Count II of the superseding indictment against him,” because of the

addition of the second charge (aiding and abetting) between the time of the

second and third trials. Aplt. Br. 10.

      We disagree. Rule 804(b)(1) does not require that the prior testimony be

given in the context of identical charges. See, e.g., United States v. Salerno, 505

U.S. 317, 326 (1992) (Blackmun, J., concurring) (“‘similar motive’ does not mean

‘identical motive’”); Murray v. Toyota Motor Distributors, Inc., 664 F.2d 1377,

1379 (9th Cir. 1982) (for former testimony to be admissible under Rule 804(b)(1),

“[t]he motive need only be ‘similar,’ not identical”). Defendant had every

incentive, and opportunity, to dispute Sahakian’s testimony at the second trial.

He has not pointed to any statement by Sahakian that he would have wanted to

challenge at the third trial but had no interest in challenging at the second trial.

      Defendant does not suggest that the Confrontation Clause requires more

than Rule 804(b)(1), so we likewise reject his Confrontation Clause claim.

      Finally, we reject Defendant’s suggestion that the government committed

misconduct by charging Sahakian with a crime following his testimony at the

second trial in order to procure his unavailability at the third trial and thereby

“obtain evidentiary value” from his silence. Aplt. Br. at 12. As the government




                                           -4-
notes, this argument is refuted by the fact that Sahakian was charged long before

Defendant’s conviction was reversed in December 2001.

      B.     Admission of Portions of Defendant’s Prior Closing Argument

      Defendant next argues that the district court erred in admitting statements

he made while representing himself at the second trial. During closing argument

he discussed notes (“kites”) sent to request heroin. The following statements

made during that argument were introduced at the third trial: “The biggest

conspiracy in any of those kites shown is I’m trying to help David get a shot of

dope. I don’t use heroin. He’s my friend, he does, I will help him. . . . Slim did

not bring me no heroin, not once. Those kites are simply saying Dave wanted a

shot of dope and I helped him get it.” Trial Tr. at 713-14. Defendant asserts that

these statements were improperly considered to be admissions by a party. See

Fed. R. of Evid. 801(d)(2)(A). In addition, he contends that the district court

should have addressed whether Federal Rules of Evidence 403 and 404(b) barred

their admission, even though he did not object on the basis of either rule at trial.

      We review the district court’s decision to admit Defendant’s statements

under Rule 801(d)(2)(A) for abuse of discretion. See United States v. Mitchell,

113 F.3d 1528, 1531 (10th Cir. 1997). Because Defendant did not object based

on Rules 403 or 404(b) at trial, we will reverse on the basis of those rules only if




                                         -5-
the admission of the statements amounted to plain error. See United States v.

Martinez, 76 F.3d 1145, 1150 (10th Cir. 1996).

      Under Rule 801(d)(2)(A) a party’s own statement, when offered against

him, is not hearsay. Defendant asserts that the statements he made during the

prior closing argument do not constitute admissions under Rule 801(d)(2)(A),

because the purpose of closing argument is to persuade, not to express fact. The

district court rejected this argument, concluding that the statements were

admissible admissions because they “represent an inculpatory interpretation of the

kites from a person in the position to know what they meant.” Dist. Ct. Order

(Dec. 11, 2002) at 2. We agree. It is immaterial whether Defendant was

attempting to persuade the jury or to provide the jury with factual information.

      As for Rule 404(b), it provides: “Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith.” Fed. R. Evid. 404(b). But Defendant’s statements relate

directly to the crimes at issue in this case, whereas “‘[o]ther bad acts’ means acts

that are not part of the events giving rise to the present charges.” United States v.

Gorman, 312 F.3d 1159, 1162 (10th Cir. 2002). The district court did not commit

plain error in failing to consider Rule 404(b) or in not excluding the statements

under Rule 404(b).




                                          -6-
      Likewise, Rule 403, which excludes irrelevant or marginally relevant

evidence, does not help Defendant. Although Defendant’s argument appears

primarily to be that the district court improperly failed to consider the rule, he

does not explain why the rule demonstrates that the statements were improperly

admitted. Nor do we see any error, much less plain error.

      Thus, we hold that the district court properly admitted the statements made

by Defendant during closing argument at the second trial.

      C.     Prosecutorial Vindictiveness

      Defendant’s third argument is that the aiding-and-abetting charge was

added (following the reversal of his conviction in the second trial) in retaliation

for his exercise of his right to appeal and in retaliation for his pursuit of a civil

action against the United States.

      We review the district court’s factual findings relating to this argument for

clear error. United States v. Raymer, 941 F.2d 1031, 1039 (10th Cir. 1991). But

“our review of the legal principles which guide the district court is de novo.” Id.

      To prevail on a claim of prosecutorial vindictiveness, a defendant “must

establish either (1) actual vindictiveness, or (2) a realistic likelihood of

vindictiveness which will give rise to a presumption of vindictiveness.” Id. at

1040. Upon such a showing, “the burden shifts to the prosecution to justify its

decision with legitimate, articulable, objective reasons.” Id. “There is no


                                           -7-
vindictiveness as long as the prosecutor’s decision is based upon the normal

factors ordinarily considered in determining what course to pursue, rather than

upon genuine animus against the defendant for an improper reason or in

retaliation for exercise of legal or constitutional rights. In the absence of

procedural unfairness to the defendant, the government may increase charges or

make them more precise based upon new information or further evaluation of the

case.” Id. at 1042 (internal quotation marks and citations omitted).

      Defendant did not raise in the district court his primary argument on

appeal—that the aiding-and-abetting charge was added in retaliation for the

exercise of his right to appeal. We therefore decline to address the argument. See

Smith v. Rogers Galvanizing, 128 F.3d 1380, 1385-86 (10th Cir. 1997).

      As for Defendant’s contention that he was tried for a third time (with the

addition of a second charge) in retaliation for his pursuit of a civil action, the

district court observed that Defendant had been charged with conspiracy prior to

the filing of his civil suit. The court also mentioned that there was “no proof that

the person who made the decision to try this case a third time . . . had any

knowledge of the civil lawsuit.” Dist. Ct. Order (Aug. 2, 2002) at 13. Ultimately,

the court held that Defendant had not demonstrated either actual vindictiveness or

a reasonable likelihood of vindictiveness, instead finding that the prosecutor

considered “factors which may legitimately be considered while making a


                                           -8-
decision to prosecute a case.” Id. at 14. Chief among these factors, in our view, is

that the superseding indictment was issued after Defendant’s admission during

closing argument at his second trial that he had helped a friend obtain heroin. We

accordingly reject Defendant’s argument that “the decision to bring an additional

charge against him after his successful appeal was not based on any new evidence

or change in circumstances.” Aplt. Br. at 18. We affirm the district court’s

denial of the motion to dismiss on the basis of prosecutorial vindictiveness.

      D.     Denial of the Motion for New Trial

      Defendant moved for a new trial on the grounds that there was insufficient

evidence to support the conspiracy conviction and that there was juror

misconduct. The district court properly denied the motion.

      We review the district court’s denial of the motion for new trial for abuse

of discretion. Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1283

(10th Cir. 2003). Sufficiency of the evidence, however, is a question of law,

which we review de novo. United States v. Carter, 130 F.3d 1432, 1439 (10th

Cir. 1997). “Evidence is sufficient to support a conviction if the evidence and

reasonable inferences drawn therefrom, viewed in the light most favorable to the

government, would allow a reasonable jury to find the defendant guilty beyond a

reasonable doubt.” Id.




                                         -9-
      Defendant founds his insufficiency argument on the assertion that inmate

Alan Hawley could not have been a member of the conspiracy because his

participation was coerced. But even assuming the legitimacy of this contention,

Defendant was alleged to have participated in a conspiracy not only with Hawley,

but also with Sahakian and other persons. Regardless of whether Hawley was a

voluntary participant, there was adequate evidence that Defendant participated in

a conspiracy with Sahakian.

      To support his claim of juror misconduct, Defendant points to the

allegation that jurors engaged in premature deliberations. While the government

was still presenting its case in chief, a defense witness (Dr. Lott) reportedly

overheard a conversation among three jurors in which they indicated that they

thought Defendant was guilty of dealing in illegal drugs. Specifically, Dr. Lott

claimed to have overheard one of the jurors state “he’s guilty of drug dealing.”

Mot. for New Trial Hr’g Tr. at 8.

      The district court held an evidentiary hearing at which Dr. Lott testified,

but, complying with Federal Rule of Evidence 606(b), refused to interview the

jurors concerning the matter. Following the hearing the court denied the motion

for three reasons. First, the court concluded that “the evidence [did] not establish

that the juror was speaking about [D]efendant or about the specific charges

against [D]efendant.” Dist. Ct. Order (Dec. 12, 2002) at 2. Second, the court


                                         -10-
held that “there [was] no evidence that the jury’s deliberations were affected by

any premature deliberations or conclusions concerning the charges.” Id. at 2-3.

Finally, the court concluded that Defendant had not “establish[ed] that the jury

acted unfairly or that the deliberative process was unfair even if it may have been

imperfect.” Id. at 3. The court noted that Anderson v. Calderon, 232 F.3d 1053,

1098-99 (9th Cir. 2000), and Szuchon v. Lehman, 273 F.3d 299, 313-14 (3d Cir.

2001), had not required a new trial, despite evidence of premature deliberations.

Dist. Ct. Order (Dec. 12, 2002) at 3. The court did not abuse its discretion.

III.   CONCLUSION

       Having rejected all of Defendant’s arguments, we AFFIRM.


                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                         -11-
