                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 5, 2013
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
       v.                                               No. 11-3258
 ADRIAN PATTERSON,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. NO. 6:09-CR-10099-JTM-4)


Submitted on the briefs

William H. Campbell, Oklahoma City, Oklahoma, on opening brief, and Kenneth
Scott Williamson, Goodlettsville, Tennessee, on supplemental opening brief and
reply for Appellant.

Debra L. Barnett, Assistant United States Attorney, with Barry R. Grissom,
United States Attorney, Wichita, Kansas, on brief for Appellee.


Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Adrian Patterson was convicted by jury trial of a number of drug charges,

including conspiracy to possess with intent to distribute five kilograms or more of
cocaine. On appeal, Patterson raises a number of challenges to his conviction and

sentence. As we explain below, none of the pretrial, trial, and sentencing claims

have merit. We hold, among other things, that the district court did not err in

denying a competency hearing; declining to exclude evidence at trial on Fourth

Amendment and hearsay grounds; conducting and instructing the jury; and

sentencing Patterson.

      Exercising jurisdiction under 28 U.S.C. § 1291, we accordingly AFFIRM .

                                I. Background

      The events that gave rise to Patterson’s indictment stem from a Drug

Enforcement Administration (DEA) investigation into whether Bernard Redd was

distributing cocaine in Wichita, Kansas. The DEA agents began to suspect Redd

was involved in a cocaine distribution conspiracy after they linked him to Richard

Smart, whom the agents believed to be a large-scale cocaine distributor in Dallas,

Texas, and who was already the subject of DEA surveillance. The agents had

placed wiretaps on phones used by Smart and overheard a series of calls made

between Smart and Redd that the agents interpreted to involve illegal drug

dealing. Based in part on these communications, the agents obtained a wiretap on

Redd’s phone.

      The agents also connected Redd to Fredrick Bradley, whose home was

searched by police after neighbors reported that it had been the site of a shooting.

This search revealed that the home was filled with cocaine and implements to

                                         -2-
manufacture and distribute cocaine. Bradley was subsequently arrested in

Louisiana after attempting to evade the authorities. Prior to his arrest, Bradley

had a series of conversations with Redd. And after Bradley’s arrest, DEA agents

recorded wiretapped phone conversations in which Redd discussed whether

Bradley would cooperate with police.

      The DEA wiretap on Redd’s phone also revealed that Redd was in

communication with his cousin, Adrian Patterson. Based on their interpretation

of the calls between Patterson and Redd, the DEA agents concluded that the

cousins were discussing the possibility of selling cocaine.

      The government ultimately indicted Patterson and a number of other

individuals for their roles in a cocaine distribution operation that extended

throughout Kansas, Oklahoma, and Texas. 1 As is relevant to this appeal, the

government alleged Smart was a large-scale cocaine distributor who agreed to sell

his product to Redd, who in turn agreed to sell it to Patterson. The government

further alleged that Redd had previously sold cocaine to Bradley. Redd

essentially functioned as a middleman connecting Smart to Patterson.

      Redd and Patterson were initially tried together on the drug conspiracy

charges. During the trial, however, Redd pleaded guilty, leaving Patterson as the

      1
         Although Patterson was charged with a number of other crimes, including
conspiracy to distribute marijuana, his involvement in the cocaine distribution
conspiracy is the principal matter relevant to this appeal. Aside from a challenge
to the sufficiency of the indictment issued against him, Patterson raises no
challenges to his other convictions.

                                         -3-
sole defendant. Meanwhile, Smart and Bradley became cooperating witnesses and

testified against Patterson and Redd at trial.

      A substantial portion of the evidence presented against the co-conspirators

was obtained through wiretaps of their telephone conversations. 2 In these

recorded conversations, the government argued that the co-conspirators spoke in

coded language to arrange drug deals. For example, in analyzing one

conversation between Redd and Patterson, the government suggested that when

Patterson told Redd he was “light” or “like sevens” or “close to eight,” and then

stated “they won’t unloosen the screws, huh,” R., Vol. II, at 672, these were

references to the fact that Patterson did not have enough money to purchase

cocaine and wanted to purchase some quantity on credit. Similarly, the

government argued that the co-conspirators, including Patterson, used specific

code words for certain matters related to the conspiracy: for example, the

government suggested that “Tanisha” was a code word for Smart or Smart’s drug

dealing, while a reference to the size in inches of certain tires at a used car lot run

by Smart was in fact a reference to the price in thousands of dollars of a kilo of

cocaine.

      The government presented much of the wiretap evidence through the

testimony of DEA Special Agent Erik Smith, who provided his interpretation of a


      2
        Additional recordings were facilitated by Smart, who wore a body wire
during conversations he had with Redd.

                                          -4-
number of these conversations, based on his experience as a DEA agent and his

surveillance of the members of the conspiracy. Agent Smith also provided

context to the wiretapped conversations by showing how certain discussions

between Redd and Patterson were linked to ones that Redd had with Smart. For

example, Agent Smith interpreted a series of conversations between Patterson and

Redd and then Redd and Smart, in which Agent Smith alleged that Patterson

implored Redd to allow him to buy cocaine on credit, Redd tried to make this

purchase with Smart on behalf of Patterson, and Smart did not accept the offer.

      Finally, Smart and Bradley, as cooperating witnesses for the government,

provided context to the coded conversations they had with Redd and confirmed

that they were in fact using coded language to discuss drug dealing. For example,

Bradley testified that he and Redd “really didn’t use numbers on the phone, so we

talk[ed] about it in person” and then would confirm the order over the phone with

phrases such as “had he seen those hos, or were those hos in town, and [Redd]

would say yay or nay [to confirm the order].” R., Vol. II, at 483–84. Similarly,

Smart confirmed that when Redd asked to speak to “Tanisha,” it was a code that

meant he wanted to buy drugs or negotiate a drug deal at Smart’s mom’s house,

[id. at 768–69], and when Smart told Redd about the size of tires for sale at his

car lot, he was in fact suggesting the price for a kilo of cocaine.

      Although both of the cooperating witnesses admitted they had never

directly agreed to sell drugs to Patterson and had not had recent direct contact

                                         -5-
with Patterson, they did provide other evidence linking Patterson to the cocaine

conspiracy. For example, Bradley identified Patterson in court and noted Redd

had complained that Patterson was “short with money.” Id. at 494. From the

context of this conversation, Bradley thought Redd was saying Patterson was not

good at managing money related to his drug sales. Likewise, Smart provided no

evidence of direct dealings with Patterson (and could not identify him in court)

but referenced conversations he had with Redd in which Redd said that “his

cousin,” a rapper, would buy cocaine supplied by Redd and was having troubles

with money. Id. at 831. Patterson was in fact an aspiring rapper, and, as noted

above, Redd and Patterson are cousins.

      Finally, the government elicited testimony from Sajcha Hobbs, a jailhouse

informant. Hobbs and Patterson had been in custody together while both men

were awaiting their trials on federal drug charges. Hobbs testified that Patterson

made a number of incriminating statements to him while they were in jail

together. As relevant to this appeal, Hobbs testified that Patterson had told him

that he received cocaine from a cousin, who provided him with two to four kilos

of cocaine. Hobbs also provided a letter to prosecutors in which he appears to

have explained in greater detail what he had learned about the cocaine conspiracy.

The letter itself does not appear to be part of the record on appeal but was

introduced at trial.




                                         -6-
         Patterson was convicted after a five-day jury trial and sentenced to 160

months’ imprisonment for the cocaine conspiracy charge. Patterson then timely

filed this appeal challenging his conviction and sentence. We provide further

factual and procedural background below as it becomes relevant to resolving each

of Patterson’s claims.

                                     II. Analysis

         Patterson challenges a wide range of the pretrial, trial, and sentencing

decisions of the district court. He contends:

         (1) the district court erred in denying his request for a pretrial hearing to

determine his competency to stand trial;

         (2) the evidence offered by the government was insufficient both to support

his conviction and to provide a basis for the admission of testimony under the co-

conspirator exception to the hearsay rule;

         (3) his Sixth Amendment rights under the Confrontation Clause were

violated when hearsay testimony linking him to the conspiracy was introduced at

trial;

         (4) the district court improperly instructed the jury;

         (5) the district court’s finding at sentencing that he was responsible for the

distribution of fifteen kilos of cocaine is clearly erroneous;

         (6) the indictment was insufficiently specific as to the counts charged

against him; and

                                            -7-
      (7) the district court erred in failing to exclude evidence obtained in

violation of his Fourth Amendment rights.

      We address in turn the reasons we affirm the district court.

      A. Pretrial Competency Hearing

      Patterson’s first challenge is to the district court’s decision to deny him a

hearing to determine whether he was competent to stand trial. We review the

district court’s decision for abuse of discretion. United States v. Martinez-Haro,

645 F.3d 1228, 1232 (10th Cir. 2011). We will not reverse the district court if its

decision falls within the bounds of permissible choice under the circumstances

and is not arbitrary, capricious, or whimsical. United States v. Davis, 636 F.3d

1281, 1297 (10th Cir. 2011).

      A defendant’s right to a competency hearing is governed in part by 18

U.S.C. § 4241(a), which requires a district court to grant a motion for a hearing in

limited circumstances. These include “if there is reasonable cause to believe that

the defendant may presently be suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he is unable to understand

the nature and consequences of the proceedings against him or to assist properly

in his defense.” Id. (emphasis added). 3

      3
        The Due Process Clause of the Fifth Amendment also requires an
adequate hearing under essentially the same standard as the one described in
§ 4241. See Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S.
375 (1966); United States v. Cornejo-Sandoval, 564 F.3d 1225, 1233–34 (10th
                                                                    (continued...)

                                           -8-
      “The issue of whether there is reasonable cause under 18 U.S.C. § 4241(a)

rests in the discretion of the [district] court. As such, a district court may

consider many factors when determining whether reasonable cause to order a

competency hearing exists, including (but not limited to) its observations of the

defendant’s demeanor during the proceeding.” United States v. Arenburg, 605

F.3d 164, 169 (2d Cir. 2010) (citations and internal quotations omitted); see also

United States v. Landers, 564 F.3d 1217, 1221 (10th Cir. 2009) (denying a claim

that the district court erred in failing to order a competency hearing based in part

on the court’s observation of the defendant and a review of his writings); United

States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001) (noting that in

determining a defendant’s competency to stand trial, after a competency

evaluation has been performed, the district court “may rely on a number of

factors, including . . . the court’s observations of the defendant’s comportment”).

      In reviewing a district court’s decision as to mental competency, we

“stress that the observations and conclusions of the district court observing [the

defendant’s] behavior and demeanor [in determining reasonable cause to grant a

competency hearing] are crucial to any proper evaluation of a cold appellate

record.” United States v. Cornejo-Sandoval, 564 F.3d 1225, 1234 (10th Cir.

2009); see also United States v. Rickert, 685 F.3d 760, 767 (8th Cir. 2012)

      3
       (...continued)
Cir. 2009) (noting that the standard announced in Pate and § 4241 are essentially
the same).

                                          -9-
(noting “the district court’s institutional advantage over the court of appeals in

evaluating the demeanor of the defendant and the statements of counsel about the

defendant’s mental state”), cert denied, No. 12-8613, 2013 WL 506825 (U.S.

Mar. 18, 2013).

      And we note “[t]he requirement of § 4241(a) that the district court grant a

competency hearing when reasonable cause exists cannot be expanded to require

such a hearing any time that a defendant engages in disruptive tactics or pursues a

frivolous legal strategy.” United States v. Banks, 482 F.3d 733, 743 (4th Cir.

2007); see also Cornejo-Sandoval, 564 F.3d 1225 (affirming the denial of a

motion for a competency hearing where defendant was only found to be a difficult

client who engaged in disruptive behavior); Landers, 564 F.3d at 1222 (affirming

a district court’s denial of a competency hearing in part because the defendant,

though he engaged in disruptive behavior during the trial, did not do so because

of any mental incompetency).

      In Patterson’s pretrial motion for a competency hearing, his attorney

asserted that Patterson had trouble paying attention for long periods of time and

had previously been diagnosed as suffering from Attention Deficit Disorder

(ADD). Based on these observations, Patterson’s attorney raised concerns in the

motion about his client’s ability to concentrate or control himself during pretrial

preparations or during the trial itself.




                                           -10-
      The district court denied Patterson’s motion, concluding the allegations did

not suffice to establish reasonable cause for a competency hearing. Among other

reasons, the court based its decision on its prior observations of Patterson in

court, where he “appeared alert, responsive, knowledgeable[,] and understanding

of what was happening.” R., Vol I, at 194. The court further determined that

Patterson’s ADD had apparently been successfully treated and, notwithstanding

this condition, Patterson had proved himself to be a competent businessman and

manager of property before his arrest. Finally, the court noted that Patterson had

filed his own pro se motion to limit the evidence that could be used against him at

trial. While the court noted that the motion was lacking in legal merit, the court

reasoned that the motion “demonstrates a valid general understanding of the

charges and the issues involved in the case.” Id.

      On appeal, Patterson contends the district court erred in three ways in

denying his motion. First, he argues the district court unjustifiably discounted the

fact that the pro se motion he filed was so incoherent as to raise questions about

Patterson’s mental competency. Second, he suggests that a court “should not be

the final arbiter as to the competence of any defendant” and implies that when any

doubt exists as to whether a defendant is incompetent, a court should defer to a

mental health expert to obtain a definitive evaluation. Aplt. Br. at 12; 4 see also

      4
         Patterson submitted two opening briefs in this case, which he referred to
as his opening brief and his supplemental opening brief. We only have occasion
                                                                     (continued...)

                                         -11-
Rep. Br. at 7 (“[It] is the very purpose of §[ ]4241(a) to allow a trained person to

determine a defendant’s mental competency.”). Finally, his appellate counsel,

who did not represent Patterson at the district court, suggests that Patterson may

have been suffering from Asperger’s Syndrome or Obsessive Compulsive

Disorder during the trial and that on this basis alone he would have been entitled

to an evaluation under § 4241.

       None of these arguments convince us that Patterson has satisfied the high

standard required for finding that the district court abused its discretion. As to

Patterson’s first contention, we have reviewed the content of Patterson’s pro se

motion and agree with the district court that the structure and legal reasoning of

the document would fall below the level we would expect from competent

counsel. But we disagree with Patterson that this document is reliable evidence

of his incompetence to stand trial or that it would even entitle him to a

competency hearing. To the contrary, the motion shows that Patterson both

understands the nature of the evidence to be presented against him and the

consequences of certain litigation strategies that were in fact employed by his

attorney. 5

       4
        (...continued)
to cite the first brief he submitted, which we refer to as “Aplt. Br.”
       5
        For example, Patterson argues in the motion that certain forms of hearsay
evidence to be presented against him might be inadmissible and that incriminatory
evidence obtained in violation of his Fourth Amendment rights might be similarly
                                                                     (continued...)

                                         -12-
      We also reject Patterson’s apparent contention that the district court cannot

provide a gate keeping determination of whether to grant a competency hearing.

Allowing defendants to obtain a competency hearing absent reasonable cause

would invite defendants to initiate disruptions to delay their cases and make it

more difficult to identify legitimate allegations of incompetency.

      Finally, we note that even if Patterson had Asperger’s Syndrome or

Obsessive Compulsive Disorder, this alone might not be sufficient to warrant a

competency hearing. To the contrary, as § 4241(a) dictates, Patterson would still

need to show reasonable cause that his disorder made “him mentally incompetent

to the extent that he is unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense” (emphasis added);

see also United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986) (“It is

well-established that some degree of mental illness cannot be equated with

incompetence to stand trial.”), cert. denied, 479 U.S. 1036 (1987).

      In sum, there was nothing arbitrary about the district court’s denial of

Patterson’s motion. Rather, it was based on the district court’s direct

observations of the defendant and a reasoned review of the evidence known about

the defendant at the time the motion was made.

      5
       (...continued)
excluded. These are the same types of claims raised by Patterson on appeal,
though they are presented by his lawyer in a more coherent form. Thus, rather
than supporting Patterson’s argument that he was entitled to a pretrial competency
hearing, the pro se motion in fact undermines it.

                                        -13-
      B. Sufficiency of the Evidence

      Patterson next raises two challenges to the sufficiency of the evidence used

by the government at various stages of its case against him. First, he challenges

the district court’s finding at a pretrial James hearing that the government had

established, by a preponderance of the evidence, the existence of a conspiracy to

distribute cocaine, such that statements made between the co-conspirators in

furtherance of the conspiracy could be admitted under this exception to the

hearsay rule. See Fed. R. Evid. 801(d)(2)(E). Patterson alleges this finding was

clearly erroneous. Second, Patterson challenges the sufficiency of the evidence

used to convict him of the cocaine conspiracy charge.

      Our evaluation of these two claims implicates different standards of review.

First, as to the challenge related to the James hearing, in order to admit

statements under the co-conspirator exception to the hearsay rule, the district

court had to determine: “(1) by a preponderance of the evidence, a conspiracy

existed, (2) the declarant and the defendant were both members of the conspiracy,

and (3) the statements were made in the course of and in furtherance of the

conspiracy.” United States v. Urena, 27 F.3d 1487, 1490 (10th Cir. 1994)

(citation omitted). We review the district court’s findings of fact with respect to

these three matters for clear error. United States v. Caro, 965 F.2d 1548, 1557

(10th Cir. 1992).




                                        -14-
      Second, as to the evidence used to convict Patterson of the cocaine

conspiracy charge, the government was required to show: (1) Patterson and at

least one other person agreed to distribute cocaine, (2) Patterson knew the

essential objectives of the conspiracy, (3) Patterson knowingly and voluntarily

became a part of the conspiracy, and (4) there was interdependence among the

members of the conspiracy. See, e.g., United States v. Hernandez, 509 F.3d 1290,

1295 (10th Cir. 2007). Because Patterson was convicted on this charge, we

review the evidence presented at trial in the light most favorable to the

government to determine if a reasonable juror could find beyond a reasonable

doubt from the evidence, along with reasonable inferences therefrom, that

Patterson was guilty. See, e.g., United States v. Earls, 42 F.3d 1321, 1324 (10th

Cir. 1994).

      The evidence presented at the James hearing comprised testimony from

Special Agent Smith, who discussed both his interpretation of a number of

wiretapped phone calls between various co-conspirators and his surveillance of

the co-conspirators’ movements during the course of the conspiracy. From this

evidence, the district court made the following factual finding:

      By a preponderance of the evidence, the intercepted calls
      demonstrate the existence of an agreement among Redd, Patterson
      and others to obtain and distribute narcotics. Redd, Patterson and
      other persons worked together to obtain drugs, obtain payment or
      financing for the sale of drugs, discussed how to use cell phones and
      coded language to avoid police investigations, how the drugs should
      be priced, and identif[ied] unreliable customers. Contrary to the

                                     -15-
      suggestions of Patterson, the telephone calls are neither the
      innocuous conversations of casual acquaintances, nor unnecessarily
      redundant or repetitive, since the collective nature of the evidence is
      necessary to demonstrate the nature, context, and duration of the
      conspiratorial agreement.

R., Vol. I, at 265. Our review of the record, especially the detailed evidence

regarding coded exchanges submitted by the government at the James hearing,

convinces us that this factual finding as to the existence of a conspiracy was not

clearly erroneous. Patterson’s attacks on this finding mainly involve conclusory

allegations about how the above finding was a foregone conclusion and how

Agent Smith’s testimony was unsubstantiated. He also renews the suggestions he

made in the district court that the only possible interpretation of the wiretapped

conversations is that they were unrelated to drug dealing. None of these

contentions persuade us that the district court reached the incorrect result,

especially on review for clear error.

      Patterson also suggests the government failed to disprove that the

conspiracy only involved a mere buyer-seller relationship between Redd and

Patterson. As Patterson notes, in United States v. McIntyre, 836 F.2d 467 (10th

Cir. 1987), we reversed a conviction for a drug distribution conspiracy where the

government failed to show that a defendant was not merely at the end of a drug

distribution chain and had no intention to distribute the cocaine for profit.

      Yet McIntyre is distinguishable from the facts of this case: in contrast to

the defendant in McIntyre, there is substantial evidence that Patterson was

                                         -16-
involved in and knew about the wider drug conspiracy scheme and intended to

further distribute the drugs. For example, Patterson contacted Redd and

attempted to arrange to purchase large quantities of cocaine, on credit, to finance

continued drug-dealing operations. Moreover, unlike in McIntyre, Patterson was

also convicted for his involvement in a related marijuana distribution scheme, a

conviction he does not challenge on appeal. In any case, it was not clearly

erroneous for the district court to conclude that Patterson was more than a buyer

of cocaine. See also United States v. Cornelius, 696 F.3d 1307, 1330 n.5 (10th

Cir. 2012) (distinguishing McIntyre on similar grounds).

      Likewise, Patterson’s attack on the sufficiency of the evidence used to

convict him of the cocaine conspiracy charge also fails. As noted above, the

evidence presented at trial against Patterson comprised much of the same

evidence used at the James hearing, including many of the same wiretapped

conversations and similar testimony from Special Agent Smith. In addition, the

government offered the testimony of two cooperating witnesses and a jailhouse

informant who all provided testimony implicating Patterson in the cocaine

distribution operation.

      Patterson resists this conclusion mainly by attempting to reassert the same

arguments that failed to convince the jury: he attacks the credibility of Agent

Smith and the cooperating witnesses, he selectively cites the record in an attempt

to point to purported weaknesses in the government’s case, he alleges myriad

                                        -17-
injustices visited upon him by the DEA and prosecutors, and he suggests that all

of these abuses undermined his due process rights. None of these largely

conclusory allegations convince us to disturb the jury’s verdict.

      Viewed in the light most favorable to the government, a rational juror could

draw the conclusion from this evidence that Patterson was involved in a

conspiracy to distribute cocaine. 6

      C. Confrontation Clause

      Patterson next raises a challenge under the Confrontation Clause to two

statements from Smart and Bradley admitted at trial. As noted above, these

witnesses testified that Redd told them Patterson was involved in the drug

conspiracy. Patterson argues that the admission of such testimony violates

principles established by the Supreme Court in Crawford v. Washington, 541 U.S.

36 (2004), and Bruton v. United States, 391 U.S. 123 (1968). In Crawford, the

Supreme Court held that the Sixth Amendment precluded the admission of

out-of-court statements that are testimonial, unless the witness is unavailable and

the defendant had a prior opportunity to cross-examine the witness. In Bruton,

the Court held that it would violate the Confrontation Clause to allow the


      6
         Patterson also alleges that Agent Smith’s testimony was so unreliable it
constitutes structural error meriting invalidation of his conviction. The Supreme
Court has only identified a few errors, such as the total deprivation of the right to
counsel or a trial by a biased judge, that constitute structural errors. See, e.g.,
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). We find no error in the type of
testimony Agent Smith offered at trial, let alone structural error.

                                        -18-
confession of a non-testifying co-defendant that implicated the defendant to be

used against that defendant.

      The admission of these two statements violated neither Crawford nor

Bruton because both statements were made in furtherance of a conspiracy and

were therefore nontestimonial. First, as we explained above, there was sufficient

evidence presented at the James hearing to establish the basis for the admission of

co-conspirator statements under this exception to the hearsay rule. Second, the

statements at issue here, which related to concerns about how to finance the

conspiracy and identify the members of the conspiracy, were made “in

furtherance of the conspiracy” for purposes of this hearsay exception. See United

States v. Roberts, 14 F.3d 502, 515 (10th Cir. 1993) (“Statements made . . . to

keep co-conspirators abreast of an ongoing conspiracy’s activities satisfy the ‘in

furtherance’ . . . requirement [under Rule 801(d)(2)(E)].”) (quoting United States

v. Yarbrough, 852 F.2d 1522, 1535–36 (9th Cir.), cert. denied, 488 U.S. 866

(1988)).

      Third, because these statements were made in furtherance of a conspiracy,

they are nontestimonial and present no Sixth Amendment problem. See

Crawford, 541 U.S. at 56 (noting that a statement in furtherance of a conspiracy

is not testimonial); United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir.




                                        -19-
2010) (noting that the Bruton rule does not apply to nontestimonial hearsay). The

claim therefore fails. 7

       D. Improper Statements by the Trial Judge

       Patterson next suggests that comments made by the district court at the

close of trial improperly influenced the jury. Specifically, Patterson alleges that

comments made by the district court judge in which the judge noted that he would

be out of town the week after the trial concluded, and that a different judge would

have to handle the jury verdict, if a verdict was not reached before the end of the

week, combined to exert undue coercion on the jury. No objection to the court’s

comments was lodged below, so we review for plain error. See United States v.

Lewis, 594 F.3d 1270, 1288 (10th Cir. 2010).




       7
         Patterson also suggests that testimony from Agent Smith about telephone
records obtained from Patterson’s cell phone carrier, Sprint, was admitted at trial
in violation of his Sixth Amendment rights. In advancing this position, Patterson
relies upon Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in which the
Supreme Court held that “affidavits” issued regarding the results of drug analyses
“are ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s
right of confrontation under the Sixth Amendment.” Id. at 307. Patterson,
however, does not point to anywhere in the record where this testimony was
introduced and even incorrectly represents that the phone records were entirely
admitted through Agent Smith (when, in fact, a Sprint technician was called by
the government on the first day of the trial to testify about how the company
compiled the cell phone information requested by the government). But even
with an adequate record, this claim fails. We have previously held that admitting
cell phone records of the type at issue here does not raise a Sixth Amendment
problem. See United States v. Yeley-Davis, 632 F.3d 673, 678 (10th Cir.), cert.
denied, 131 S. Ct. 2172 (2011).

                                        -20-
      Patterson points to two statements made by the trial judge in support of his

argument. The first is a statement from the third day of the trial, in which the

court noted that because of scheduling needs, the trial would start earlier and end

later on certain days. In passing, the district court also noted that the court and

the jury “have to” adopt this modified schedule due to other responsibilities of the

court. R., Vol. II, at 610. The district court concluded by stating, “I appreciate

any help that you can give us in accommodating our schedule here and your

patience.” Id. at 611.

      The trial concluded two days later on a Friday at around 5 p.m. At this

time, the district court told the jury: “I am going to leave it to you whether you

wish to commence [y]our deliberations today or whether you would prefer to

come back on Monday and begin at 9 o’clock in the morning.” Id. at 1245. The

plain meaning of the court’s statements is that the jury had the choice to continue

deliberating into the evening on Friday or return on Monday morning to

commence deliberations. Further, all parties were on notice that a different judge

would handle the verdict in the event that deliberations extended to Monday. The

jury chose to begin deliberations on Friday and returned a verdict at 7:30 p.m.

      Patterson’s interpretation of the court’s comments as coercive is

unpersuasive. He characterizes the district court’s remarks as the equivalent of an




                                         -21-
impermissible Allen charge: 8 a command that “imposes such pressure on the jury

such that the accuracy and integrity of their verdict becomes uncertain, thereby

violating a defendant’s rights to due process, Sixth Amendment rights to an

impartial jury trial and to a unanimous verdict.” United States v. Zabriskie, 415

F.3d 1139, 1148 (10th Cir. 2005).

      Patterson’s contention has no basis in the record or in the law. The one

case he cites where we reversed a verdict because of an impermissible Allen

charge, United States v. McElhiney, 275 F.3d 928 (10th Cir. 2001), is easily

distinguishable. In that case, the district court judge explained, in the presence of

the jury, that he had received “a note from the jury here that is very distressing to

me because this has been one of the greatest major efforts made in time and

attention and money that I have noted in my 24 years as being a judge.” Id. at

934. He asked the jury, specifically the jury’s foreperson, to continue

deliberating by stating, in part: “I’d be very happy to have a verdict one way or

the other. . . . [T]he time and attention and the danger of this case has been, you


      8
          The term “Allen charge” derives from Allen v. United States, 164 U.S.
492 (1896), in which the Supreme Court upheld the legality of a supplemental
instruction to a jury unable to reach a consensus. “The instruction at issue in
Allen directed those jurors holding minority views to reconsider their views in
light of the contrary views held by the majority of jurors, but stated that the
verdict must be that of each individual juror.” Darks v. Mullin, 327 F.3d 1001,
1013 (10th Cir. 2003) (citing Allen, 164 U.S. at 501). We have frequently upheld
the use of supplemental instructions that conform to the purposes of the
instruction considered by the Supreme Court. See, e.g., Cornelius, 696 F.3d at
1321–22.

                                        -22-
know, a problem. . . . [T]he Court would certainly like to have you try to reach a

verdict in this case. And why don’t you continue your deliberations for a while

and see if there’s any possibility you can reach a verdict in this case.” Id. The

court concluded by stating: “[I]f you find that you’re absolutely hopelessly

deadlocked, why then I would have nothing else I can do except dismiss you with

the thanks of the Court.” Id.

      Here, the district court gave a notice about scheduling, which was followed

two days later by a largely unrelated inquiry about when the jury wanted to

deliberate. In contrast to McElhiney, the district court did not pressure the jury

by emphasizing the expense of the trial, nor did the court suggest that the jury

must reach a verdict. Indeed, the jury had yet to even begin deliberating when the

district court made this comment.

      In sum, the district court did not plainly err in its interaction with the jury

over scheduling matters.

      E. Sentencing

      Patterson next challenges the district court’s factual finding at sentencing

that he was responsible for distributing fifteen kilograms of cocaine. We review

the district court’s calculation of drug quantities at sentencing for clear error and

“will reverse only if the district court’s finding was without factual support in the

record or we are left with the definite and firm conviction that a mistake has been

made.” United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001).

                                         -23-
      The district court determined that Patterson was responsible for distributing

fifteen kilos of cocaine based on the testimony of Agent Smith, who recounted the

quantities of cocaine that the various co-conspirators sought to distribute. In turn,

Agent Smith based his testimony on surveillance of the co-conspirators and his

analysis of their wire-tapped conversations. The testimony supported a finding

that up to sixty kilograms of cocaine was actually or intended to be distributed

during the conspiracy. Patterson offers nothing more than conclusory allegations

in contesting this factual finding.

      He has not met his burden of showing clear error.

      F. Sufficiency of the Indictment

      Patterson next contends the indictment issued against him was defective in

that it did not put him on sufficient notice as to the charges against him.

Patterson did not raise this claim below, so we review it for plain error. See

United States v. Barrett, 496 F.3d 1079, 1091 (10th Cir. 2007).

      There are a number of problems with Patterson’s attack on the indictment.

As an initial matter, Patterson erroneously cites to the original indictment filed in

this case, not the superseding indictment that served as the basis for the jury

verdict. Citing the original indictment, Patterson argues that the lack of precise

dates for the criminal activities that Patterson was alleged to have committed in

the indictment somehow raises double jeopardy problems. But the superseding

indictment in fact provides such dates to almost all of the drug crimes Patterson

                                         -24-
was alleged to have committed. Only the cocaine and marijuana conspiracy

charges did not contain a precise start date: the superseding indictment notes that

the date is unknown to the grand jury. We therefore interpret Patterson’s main

argument concerning the indictment to be related to the lack of a start date for

these conspiracies.

      The two principal criteria by which we assess the sufficiency of an

indictment are “first, whether the indictment contains the elements of the offense

intended to be charged, and sufficiently apprises the defendant of what he must be

prepared to meet, and, secondly, in case any other proceedings are taken against

him for a similar offense[,] whether the record shows with accuracy to what

extent he may plead a former acquittal or conviction.” United States v.

Washington, 653 F.3d 1251, 1259 (10th Cir. 2011) (quoting Russell v. United

States, 369 U.S. 749, 763–64 (1962)), cert. denied, 132 S. Ct. 1039 (2012).

      Based on this standard, we find no error, let alone plain error. We have

reviewed the content of the superseding indictment and are convinced that it

sufficiently notifies Patterson of the charges against which he had to defend. We

are also satisfied that the indictment and the record provide Patterson with

sufficient protection from the risk that he will be placed in jeopardy a second time

for the same conduct for which he was convicted, given the specificity with which

the government identified at trial the members and goals of the drug conspiracies,

the conspiracies’ geographic scopes, the drugs distributed in the conspiracies, and

                                        -25-
the conspiracies’ termination dates. See also United States v. Young, 862 F.2d

815, 819 (10th Cir. 1988) (“[K]eeping in mind that reference may be had to the

entire record in a subsequent proceeding, the indictment is sufficient to protect

the defendant against double jeopardy.” (citing Russell, 369 U.S. at 763)); United

States v. Pease, 240 F.3d 938, 942–43 (11th Cir. 2001) (per curium) (holding that

an indictment charging a cocaine distribution conspiracy with a start date

unknown to the grand jury was sufficiently specific to allow the defendant to

plead double jeopardy if charged again for the same conduct). This claim

therefore fails.

      G. Evidence Used for the Wiretap Affidavit

      Patterson’s last claim is that the district court erred in not granting his

motion to suppress evidence obtained from the government’s alleged “illegal use

of cell site location information.” Aplt. Br. at 20. The entire basis for this claim

is a paragraph-long portion of Patterson’s opening brief, in which he states that he

“adopts and specifically incorporates herein by reference” the motion to suppress

he filed in the district court. Id.

      By failing to develop any argument on this claim at this court, Patterson

has waived the claim. Under Rule 28(a)(9)(A) of the Federal Rules of Appellate

Procedure, an appellant must present in his brief his “contentions and reasons for

them, with citations to the authorities and parts of the record on which the

appellant relies.” Further, parties appearing before this court cannot satisfy Rule

                                         -26-
28 by incorporating their claims by reference to either appendices or records from

the court below. See 10th Cir. R. 28.4 (“Incorporating by reference portions of

lower court . . . briefs or pleadings is disapproved and does not satisfy the

requirements of Fed. R. App. P. 28(a) and (b).”). To the contrary, “[a]llowing

litigants to adopt district court filings would provide an effective means of

circumventing the page limitations on briefs set forth in the appellate rules and

unnecessarily complicate the task of an appellate judge. Consequently, we adhere

to our rule that arguments not set forth fully in the opening brief are waived.”

Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998)

(citing Fed. R. App. P. 28(g); 10th Cir. R. 28.3); see also Wardell v. Duncan, 470

F.3d 954, 963–64 (10th Cir. 2006).

      Patterson has not satisfied the requirement for developing an argument set

by Rule 28. We therefore do not consider this claim.

                                 III. Conclusion

      Based on the foregoing analysis, we AFFIRM the district court’s judgment

and sentence.




                                         -27-
