                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           April 9, 2014

                                                                            Elisabeth A. Shumaker
                                   TENTH CIRCUIT                                Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.
                                                   No. 12-1408, 12-1442, 13-1032
 TRACY MORGAN, a/k/a Tre Dog,
 KILLIU FORD, a/k/a Caveman,
 AUGUSTUS SANFORD, a/k/a Turk,

       Defendants - Appellants.



         APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLORADO
 (D.C. NO. 1:11-CR-00303-REB-1; 1:11-CR-00303-REB-2; 1:11-CR-00303-REB-3)


Richard A. Hostetler, Law Office of Richard A. Hostetler, Denver, Colorado, appearing
for Appellant Tracy Morgan.

Ronald Fujino, Salt Lake City, Utah, appearing for Appellant Killiu Ford.

Jeffrey S. Pagliuca, Haddon, Morgan, and Foreman, P.C., Denver, Colorado, appearing
for Appellant Augustus Sanford.

John F. Walsh, United States Attorney, and Paul Farley, Assistant United States
Attorney, Office of the United States Attorney for the District of Colorado, Denver,
Colorado, appearing for Appellee.


Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
MATHESON, Circuit Judge.


       Tracy Morgan, Killiu Ford, and Augustus Sanford (the “Defendants”) were

indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap,

and possession of a firearm during a crime of violence. Each defendant brought a

separate appeal, raising overlapping but not identical issues. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm as to each defendant.

                                    I. BACKGROUND
                                       A. Factual History1

       In August 2009, Mr. Morgan and his friend, Marvin Tabor,2 plotted to kidnap and

rob Mario Armendariz. Pursuant to their plan, Mr. Morgan attached a GPS tracking

device to Mr. Armendariz’s car while Mr. Armendariz was visiting Mr. Tabor’s home.

Mr. Tabor then tracked Mr. Armendariz’s location on the Internet using Google Maps,

enabling Mr. Morgan and Mr. Ford to follow Mr. Armendariz in their vehicle.




       1
           This factual history is based on evidence presented at trial.
       2
        Mr. Tabor was a co-conspirator who testified for the Government at trial. Xallier
Patterson, Mr. Tabor’s stepbrother, was also a co-conspirator who testified for the
Government at trial. Mr. Patterson’s exact involvement in the crime is unclear from the
record.


                                                   -2-
         Also in late summer 2009, Mr. Tabor’s brother-in-law, Mr. Sanford, persuaded a

police officer’s minor child to steal four weapons and parts of a police uniform—

including cargo pants, a black police shirt, and an orange reflective vest—from his father

in exchange for two ounces of marijuana. Mr. Sanford also painted his Chevrolet Tahoe

black.

         Around 11:00 p.m. on September 22, 2009, the Defendants and Mr. Tabor met at

Mr. Tabor’s house. Mr. Sanford wore the stolen police gear. The Defendants then

departed to locate Mr. Armendariz. Mr. Tabor remained at his home and tracked Mr.

Armendariz using the GPS device and Google Maps, speaking with the Defendants on a

cell phone to update them with Mr. Armendariz’s location.

         That night, Mr. Armendariz and his wife, Perla Flores, were getting into their car

with their two young daughters outside of a cousin’s house when they saw two armed

men exit a black Chevrolet Tahoe and at least one other man arrive from across the street.

The men announced they were police officers and ordered Ms. Flores and Mr.

Armendariz to lie on the ground. One of the men was wearing a reflective police vest.

Evidence at trial established the Defendants were present.

         Two of the men zip-tied Mr. Armendariz’s arms and legs together, covered his

head, and put him into the back of the Tahoe. Mr. Ford got into the Tahoe and

questioned Mr. Armendariz about where he kept his money while an unknown co-




                                                 -3-
conspirator drove the Tahoe around. Eventually the Tahoe dropped off Mr. Ford at Mr.

Armendariz’s home. The Tahoe drove away and parked in a different location.

       Meanwhile, Mr. Sanford drove Ms. Flores and her daughters in her car to the

Flores-Armendariz home. Mr. Ford and Mr. Morgan3 met him there. The Defendants

confronted Ms. Flores, demanding to know where Mr. Armendariz kept his money. Ms.

Flores refused to tell them.

       Mr. Morgan put a gun to the three-year-old daughter’s head, and Ms. Flores then

told them the money was under her daughter’s dresser. Mr. Morgan retrieved $30,000

from under the dresser and left the home. Mr. Sanford and Mr. Ford continued to search

the house, but after realizing Mr. Morgan had already left with the money, they also

exited the home.

       Ms. Flores left the house looking for help. She saw a black sport utility vehicle

pick up Mr. Sanford and Mr. Ford. The driver then drove away from the home, stopped

several miles away, and dropped off Mr. Armendariz on the side of the road.

       Later that night or early the next morning, Mr. Ford and Mr. Sanford looked for

Mr. Morgan and found him at a Taco Bell. They divided the money Mr. Morgan took

from Mr. Armendariz’s home.




       3
      The record is not clear how Mr. Morgan travelled to or from the Flores-
Armendariz home.


                                               -4-
      Mr. Sanford returned to Mr. Tabor’s home and complained to Mr. Tabor and Mr.

Patterson about Mr. Morgan’s keeping too much of the proceeds. Mr. Ford called Mr.

Tabor’s home to discuss the kidnapping and robbery with Mr. Tabor and Mr. Patterson.

He also complained that Mr. Morgan kept more than his share of the money.4 Mr.

Morgan joined the phone call for a brief moment and told the others he would arrive at

Mr. Tabor’s house within several hours. The group met at Mr. Tabor’s house and

redistributed the proceeds from the kidnapping and robbery.

                                   B. Procedural History

      A grand jury indicted the Defendants on two counts of kidnapping in violation of

18 U.S.C. § 1201(a)(1) for kidnapping Mr. Armendariz and Ms. Flores; two counts of

kidnapping in violation of 18 U.S.C. §§ 1201(a)(1) and 3559(f)(2) for kidnapping the

couple’s two minor children; one count of conspiracy to kidnap in violation of 18 U.S.C.

§ 1201(c); and one count of use of a firearm during a crime of violence in violation of 18

U.S.C. § 924(c).

      The Defendants were tried together. The jury found each of them guilty on all

counts. Mr. Morgan and Mr. Ford were each sentenced to 600 months in prison, and Mr.




      4
        Law enforcement intercepted and recorded this phone call as part of an ongoing
wiretap in a separate drug investigation. The recorded phone call was admitted as
Exhibit 14A at trial. A transcript of the phone call was admitted as Exhibit 14B.


                                               -5-
Sanford was sentenced to 384 months. Each defendant timely filed his notice of appeal.

We will discuss additional procedural history as it pertains to each issue addressed below.

         Although the appeals were not formally consolidated, the Government filed only

one answer brief, and the cases were argued consecutively at oral argument.

                                   II. DISCUSSION
         The Defendants raise seven issues. Only one applies to all three Defendants.

First, Mr. Sanford and Mr. Ford challenge the constitutionality of the federal kidnapping

statute. Second, Mr. Ford challenges the district court’s jury instructions. Third, the

Defendants all argue the district court violated Federal Rule of Evidence 801(d)(2)(E)

and the Sixth Amendment in admitting the post-kidnapping phone call. Fourth, Mr.

Morgan contends the district court erred by not declaring a mistrial after the jury heard

the post-kidnapping phone call based on a violation of Federal Rule of Evidence 404(b).

Fifth, Mr. Sanford and Mr. Morgan argue the district court erred in denying their motions

for mistrial after Ms. Flores testified she could identify one of the perpetrators but did not

make the identification. Sixth, Mr. Sanford alleges the district court erred in denying his

motion for severance. Seventh, Mr. Morgan contends there was reversible cumulative

error.

                      A. Constitutionality of Federal Kidnapping Statute

         Mr. Sanford and Mr. Ford argue the district court should have dismissed the

indictment because (1) Congress lacked Commerce Clause authority to enact the Federal

Kidnapping Statute, 18 U.S.C. § 1201(a)(1), as amended in 2006; and (2) the statute was

                                                 -6-
unconstitutionally applied here.5 We review the as-applied challenge de novo. See

United States v. Carel, 668 F.3d 1211, 1216 (10th Cir. 2011). Because we conclude the

as-applied challenge fails, we need not and do not address the facial challenge. See

Renne v. Geary, 501 U.S. 312, 324 (1991) (endorsing the practice of (1) deciding an as-

applied challenge first, thus (2) obviating the need to address a facial challenge); Colo.

Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1155-56 (10th Cir. 2007).

       Congress enacted the Federal Kidnapping Act in 1932 to outlaw interstate

kidnapping in response to the widely publicized abduction of aviator Charles Lindbergh’s

son. See Chatwin v. United States, 326 U.S. 455, 462-63 (1946). A 2006 amendment

expanded the crime to include intrastate activity when an “offender . . . uses . . . any . . .

instrumentality of interstate . . . commerce in committing or in furtherance of the




       5
         Mr. Sanford argues this issue in his opening brief. Aplt. Sanford Br. at 1-24.
Mr. Ford devotes most of his opening brief to challenging the district court’s jury
instructions regarding whether a cell phone, the Internet, and a GPS device are
instrumentalities of interstate commerce and whether kidnapping is a crime of violence.
But a few pages address the Commerce Clause issue, Aplt. Ford Br. at 28-32, and he
incorporates by reference his co-defendants’ opening briefs, including Mr. Sanford’s
Commerce Clause arguments, id. at 33.
        Mr. Morgan, by contrast, did not raise this issue in his opening brief or at oral
argument. In his reply brief, he attempts to adopt the Commerce Clause arguments
appearing in Mr. Sanford’s brief. Because Mr. Morgan raises this issue for the first time
in his reply brief, we address the issue only as to Mr. Sanford and Mr. Ford. See Hill v.
Kemp, 478 F.3d 1236, 1250 (10th Cir. 2007) (“It is our general rule . . . that arguments
and issues presented at such a late stage are waived.”).


                                                  -7-
offense.” Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248,

120 Stat. 616 (codified at 18 U.S.C. § 1201(a)(1)).

       In accordance with this amended statute, each of the four kidnapping counts

alleged the Defendants “use[d] a means, facility, and instrumentality of interstate and

foreign commerce, those being cellular telephone(s), the internet[,] and a Global

Positioning System, in committing and in furtherance of the commission of the offense.”

Ford ROA, Vol. I at 15-17.

       The Defendants do not appeal the jury’s determination that they used a cell phone,

the Internet, or a GPS device to accomplish the abductions.6 Instead, Mr. Sanford and

Mr. Ford argue the indictment’s reliance on their use of any of these devices violates the

Commerce Clause because the charged criminal activity all occurred intrastate. We

disagree based on Supreme Court precedent.

       In United States v. Lopez, 514 U.S. 549 (1995), Chief Justice Rehnquist, writing

for the majority, identified “three broad categories of activity that Congress may regulate

under its commerce power”: (1) “use of the channels of interstate commerce,” (2) “the




       6
         Mr. Sanford’s argument he personally did not use an instrumentality is
unavailing because he was a member of the conspiracy. See Smith v. United States, 133
S.Ct. 714, 721 (2013) (holding it is an “established proposition that a defendant's
membership in the conspiracy, and his responsibility for its acts, endures even if he is
entirely inactive after joining it.”).



                                                -8-
instrumentalities of interstate commerce,” and (3) “activities having a substantial relation

to interstate commerce.” Id. at 558-59.

       Based on the language of the federal kidnapping statute and the indictment, this

case falls in the second category, which includes regulation aimed at local, in-state

activity involving instrumentalities of commerce. Lopez cited the Shreveport Rate Cases,

234 U.S. 342 (1914), as an example. See 514 U.S. at 558. In Shreveport, the Court

upheld Congress’s authorizing the Interstate Commerce Commission to regulate

intrastate rates charged by railroads providing interstate service. 234 U.S. at 351. Lopez

also mentioned Southern Railway Co. v. United States, 222 U.S. 20 (1911), which upheld

penalties under the Safety Appliance Act for operating defective railroad cars in intrastate

traffic that were also part of interstate traffic. Lopez, 514 U.S. at 558.

       Nowhere in Lopez or any other case has the Supreme Court limited Congress’s

regulatory authority to prevent the harmful use of an instrumentality of interstate

commerce. Indeed, the Lopez Court said “Congress is empowered to regulate and protect

the instrumentalities of interstate commerce . . . even though the threat may come only

from intrastate activities.” Id.7




       7
        See United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (“Plainly,
congressional power to regulate the channels and instrumentalities of commerce includes
the power to prohibit their use for harmful purposes, even if the targeted harm itself
occurs outside the flow of commerce and is purely local in nature.”)
       Continued . . .

                                                 -9-
       In the 2006 amendment to the Federal Kidnapping Act, Congress prohibited the

use of instrumentalities of interstate commerce to commit the offense of kidnapping. The

Supreme Court in Shreveport upheld a federal law that prohibited the use of an

instrumentality of interstate commerce—a railroad—to charge discriminatory intrastate

rail rates. See Shreveport, 234 U.S. at 351. Here we have a federal law that prohibits the

use of an instrumentality to engage in kidnapping.8 The indictment in this case charged

and the evidence proved that Defendants used an instrumentality of interstate commerce

to commit a kidnapping.

       Federal prosecution for such conduct comports with the Commerce Clause. We

conclude Mr. Sanford’s and Mr. Ford’s as-applied Commerce Clause challenge fails. As

previously noted, we need not and do not address their facial challenge. See Colo. Right

to Life Comm., 498 F.3d at 1155-56.9


       ______________________________________

       8
        The district court instructed the jury that cell phones, the Internet, and GPS
tracking devices are instrumentalities of interstate commerce. Ford ROA, Vol. I at 1414.
As discussed below, we affirm that instruction on plain error review.
       9
        Although we are the first circuit court to address a constitutional challenge to the
2006 amendment, every district court to consider the issue has held 18 U.S.C.
§ 1201(a)(1) fits Lopez’s second category and is constitutional under Commerce Clause.
See United States v. Ramos, No. 12 Cr. 556 (LTS), 2013 WL 1932110 (S.D.N.Y. May 8,
2013) (facial and as-applied challenges); United States v. Taylor, No. 12–0056-WS, 2012
WL 3522528 (S.D. Ala. Aug. 14, 2012) (facial challenge); United States v. Jacques, No.
2:08–cr–117, 2011 WL 1706765 (D. Vt. May 4, 2011) (facial and as-applied); United
       Continued . . .

                                               -10-
                                      B. Jury Instructions

       Mr. Ford challenges jury instructions 11 and 13 and argues the trial court plainly

erred by not submitting to the jury two issues: (1) whether cell phones, GPS tracking

devices, and the Internet are “instrumentalities of interstate commerce” and (2) whether

kidnapping is a “crime of violence” under 18 U.S.C. § 924(c)(1), which imposes a

sentence for the use of a firearm during the commission of such a crime.10 He contends

the jury should have been given the opportunity to determine these matters because they

concern necessary elements the prosecution must prove. Keeping these questions from

the jury, he says, violated his Sixth Amendment right to a fair jury trial. He cites United

States v. Keeling, 235 F.3d 533, 537 (10th Cir. 2000) (holding that an element “must be

charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its

verdict” (quotations omitted)). The Government argues these are questions of law for the

judge to determine, not questions of fact for the jury to decide.

       Because Mr. Ford did not object at trial to the jury instructions or propose

alternate jury instructions, we review for plain error. See United States v. Gonzalez-


       ______________________________________

States v. Augustin, No. 1:09–CR–187, 2010 WL 2639966 (E.D. Tenn. June 28, 2010)
(facial); United States v. Ochoa, No. 8–CR–1980, 2009 WL 3878520 (D.N.M. Nov. 12,
2009) (as-applied, did not reach facial).
       10
            Mr. Sanford and Mr. Morgan do not raise this issue.



                                                -11-
Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). Mr. Ford must show “(1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. We find no plain

error and affirm.

1. Jury Instruction 11—Instrumentality of Interstate Commerce

       18 U.S.C. § 1201(a)(1) prohibits a person from using an “instrumentality of

interstate or foreign commerce in committing or in furtherance of the commission of the

offense [of kidnapping].” Jury instruction 11—the instruction on counts 1, 2, 3, and 4 for

kidnapping in violation of 18 U.S.C. § 1201(a)(1)—stated the jury must find that “the

defendant whose case you are considering used or caused to be used an instrumentality of

interstate commerce in committing or in furtherance of the kidnapping.” Ford ROA, Vol.

I at 1413. The instruction defined “[a]n ‘instrumentality of interstate commerce’ [to]

include[] a cellphone, the internet[,] and a Global Positioning System ‘GPS’ tracker.” Id.

at 1414.

       We have decided the Internet is an instrumentality of interstate commerce. See

Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045,

1054 (10th Cir. 2008). We have not, however, determined whether a cell phone or GPS




                                                 -12-
tracking device is an instrumentality of interstate commerce.11 In addition to the Internet,

the district court instructed the jury that cell phones and GPS tracking devices are

instrumentalities of interstate commerce. Mr. Ford contends the jury must make those

determinations, not the court. The question before us is whether the district court plainly

erred by not submitting these determinations to the jury.12

       By giving instruction 11 to the jury, the district court concluded it must decide as a

matter of law whether cell phones, the Internet, and GPS devices are instrumentalities of


       11
         We have held that telephones are instrumentalities of interstate commerce. See
Kerbs v. Fall River Indus., 502 F.2d 731, 738 (10th Cir. 1974), abrogated on other
grounds by Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.
164 (1994). Other circuits have held that cell phones are instrumentalities. See, e.g.,
United States v. Willoughby, 724 F.3d 229, 240 (6th Cir. 2014); United States v. Mandel,
647 F.3d 710, 716 (7th Cir. 2011); United States v. Evans, 476 F.3d 1176, 1180 (11th Cir.
2007); United States v. Giordano, 442 F.3d 30, 40 (2d Cir. 2006); United States v.
Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997). We said in an unpublished opinion that
cell phones are instrumentalities. See United States v. Means, 297 F. App’x 755, 759 n.5
(10th Cir. 2008) (unpublished) (citing United States v. Evans, 476 F.3d 1176, 1180 (11th
Cir. 2007) for authority that cell phones are instrumentalities of interstate commerce).
But we have not done so in a published opinion, nor have we or any other circuit
addressed GPS devices.
       12
         Mr. Ford does not directly challenge the district court’s determination that cell
phones and GPS tracking devices are instrumentalities of interstate commerce, but his
appeal would fail under the plain error standard of review even if he did. “To be plain, an
error must be clear or obvious under well-settled law.” United States v. Trujillo-
Terrazas, 405 F.3d 814, 818 (10th Cir. 2005) (quotations omitted). As for cell phones,
five other circuits have held they are instrumentalities of commerce, and we have done so
in an unpublished opinion. See supra note 11. No circuit has addressed GPS devices.
Under these circumstances, jury instruction 11 can hardly be considered plainly
erroneous under well-settled law.


                                               -13-
interstate commerce. The court’s choice to decide this issue rather than asking the jury to

do so was not plainly erroneous because there is no contrary Supreme Court or Tenth

Circuit precedent and courts from other jurisdictions have decided similarly. See United

States v. Pierce, 70 M.J. 391, 394 (C.A.A.F 2011) (determining whether the Internet is a

facility or means of interstate commerce “is a question of law, to be answered by the . . .

judge”); see also United States v. Giordano, 442 F.3d 30, 40 (2d Cir. 2006) (holding, as a

matter of statutory interpretation, that intrastate telephone use constitutes the use of a

facility or means of interstate commerce).

       Mr. Ford argues that because the jury was required to determine whether Mr.

Armendariz’s young daughters were under 18 years of age for him to be convicted under

18 U.S.C. § 3559(f)(2) (increasing mandatory minimum sentence for kidnapping those

under 18 years of age), the jury should also be required to find that cell phones, the

Internet, and GPS devices are instrumentalities of interstate commerce as a matter of fact.

This comparison is inapt. A victim’s age is a question of fact under the circumstances of

a given case.

       When, as here, certain items have been deemed instrumentalities as a matter of

law, the only fact question left for the jury is whether the Defendants used them. To hold

otherwise would allow one jury, for example, to find that the Internet is an

instrumentality of interstate commerce, and another jury to find in a substantially similar

case that the Internet is not an instrumentality of interstate commerce. The district court


                                                 -14-
here correctly instructed the jury to determine whether the Defendants used an

instrumentality of interstate commerce—a cell phone, the Internet, or a GPS device—in

committing the crime. See Pierce, 70 M.J. at 394.

2. Jury Instruction 13—Crime of Violence

       18 U.S.C. § 924(c)(1) prohibits the use or carrying of a firearm “during and in

relation to any crime of violence or drug trafficking crime.” Section 924(c)(3) defines

“crime of violence” as “an offense that is a felony and . . . has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another, or . . . that by its nature, involves a substantial risk that physical force against the

person or property of another may be used in the course of committing the offense.”

       In jury instruction 13—the instruction on count 6 for using a firearm in

furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)—the district

court instructed that to convict, the jury must find “the defendant whose case you are

considering committed the crime of kidnapping or conspiracy to kidnap, which are

crimes of violence.” Ford ROA, Vol. I at 1418.

       Whether a crime fits the § 924(c) definition of a “crime of violence” is a question

of law. See United States v. Munro, 394 F.3d 865, 870 (10th Cir. 2005) (calling the

district court’s determination of whether a crime is a crime of violence under § 924(c) a

“legal conclusion”). The answer requires examination of the legal elements of the crime,

not an exploration of the underlying facts. See Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)


                                                  -15-
(holding that whether a crime is a crime of violence under 18 U.S.C. § 16—which uses

nearly identical language to § 924(c)(3)—“requires us to look to the elements and the

nature of the offense of conviction, rather than the particular facts relating to [the

Defendants’] crime”). Accordingly, whether kidnapping is a crime of violence turns not

on whether the Defendants committed violent acts, but whether the offense itself is a

crime of violence.

       The Supreme Court has recognized kidnapping as a crime of violence under 18

U.S.C. § 924(c). See United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999). The

United States Sentencing Commission Guidelines Manual also lists kidnapping as a

crime of violence. U.S. Sentencing Guidelines Manual § 4B1.2(a) & cmt. n.1 (2013)

(defining “crime of violence” using similar language to § 924(c)(3)).

       We have held that conspiracy to commit a federal crime of violence also is a

§ 924(c) crime of violence. See United States v. Brown, 200 F.3d 700, 705-06 (10th Cir.

1999) (holding that a conspiracy to carjack is a crime of violence under § 924(c) because

“an agreement to accomplish the statutory elements of carjacking necessarily involves a

substantial risk of physical force”); see also United States v. Patino, 962 F.2d 263, 267

(2d Cir.1992).

       Because kidnapping and conspiracy to kidnap are crimes of violence as a matter of

law, the district court was correct in not submitting this question to the jury. See Sparf v.

United States, 156 U.S. 51, 64-65 (1895).


                                                 -16-
                             C. Statements of Co-Conspirators

       All three Defendants argue the district court erred in admitting, under Federal Rule

of Evidence 801(d)(2)(E), an intercepted phone call during which Mr. Patterson, Mr.

Tabor, Mr. Ford, and Mr. Morgan (though only briefly) spoke about dividing the

proceeds of the crime. They contend the statements were not made in the course of or in

furtherance of the conspiracy. They also contend admitting the statements violated their

Sixth Amendment right to confront their accusers under Bruton v. United States, 391 U.S.

123 (1968).13

       The phone call at issue14 started at 3:19 a.m. on September 23, 2009, a few hours

after the kidnapping and robbery, and lasted 42 minutes. Before the call, several of the

co-conspirators—Defendants Ford, Sanford, and Morgan—had already met to share the

proceeds. On the call, Mr. Ford complained that Mr. Morgan had taken more than his


       13
          At the district court, all three defendants objected on Rule 801(d)(2)(E) and
Sixth Amendment grounds. Both Mr. Sanford and Mr. Morgan argue in their opening
briefs the phone call’s admission violated Rule 801(d)(2)(E) and the Sixth Amendment.
But Mr. Ford did not raise this question in his opening brief. Instead, he attempted to join
the entirety of the other Defendants’ briefs without explaining how the arguments apply
to him. Generally, “[t]his is problematic because it requires the court to sift through the
briefing and record and imagine which arguments might apply to which Defendants.”
United States v. Renteria, 720 F.3d 1245, 1251 (10th Cir. 2013). In this instance,
however, because Mr. Sanford’s and Mr. Morgan’s arguments can apply to Mr. Ford, we
consider this issue as to him.
       14
        The recorded phone call was admitted as Exhibit 14A. A transcript of this
conversation was admitted as Exhibit 14B.


                                               -17-
share. Mr. Morgan then joined the call and stated he would come to Mr. Tabor’s house in

the morning. A short time later, Mr. Morgan arrived at Mr. Tabor’s house, and the co-

conspirators finished dividing up the proceeds.

       The Defendants filed pretrial motions in limine to exclude this intercepted phone

call based on both Rule 801(d)(2)(E) and the Sixth Amendment. The district court

denied the motion based on Rule 801(d)(2)(E), subject to the Government proving the

foundational predicates before admitting the phone call. The Defendants again

unsuccessfully objected on both grounds just before jury selection. The district court said

the statements were made in the course of and in furtherance of the conspiracy, thereby

satisfying Rule 801(d)(2)(E), and admitting them would not violate the Sixth Amendment

because the statements were not testimonial. When the Government sought to admit the

call in its case-in-chief, Defendants renewed their Rule 801(d)(2)(E) objection, which the

district court overruled.

       The Defendants argue on appeal the district court’s admission of the phone call

violated Rule 801(d)(2)(E) and the Sixth Amendment. As explained below, we review

the issue raised under Rule 801(d)(2)(E) for clear error and abuse of discretion, and the

Sixth Amendment issue de novo.

1. Rule 801(d)(2)(E)

       Under Rule 801(d)(2)(E), co-conspirators’ statements that would otherwise be

hearsay may be introduced as evidence against a defendant co-conspirator if they were


                                               -18-
made “during and in furtherance of the conspiracy.” Before admitting such evidence, the

court must determine “(1) by a preponderance of the evidence, a conspiracy existed, (2)

the declarant and the defendant were both members of the conspiracy, and (3) the

statements were made in the course of and in furtherance of the conspiracy.” United

States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). The Defendants contest the third

element.

       “[W]hile the ultimate issue of the admission or exclusion of evidence is reviewed

for an abuse of discretion, preliminary foundational determinations, such as whether

statements offered under Rule 801(d)(2)(E) were made [in] the course of and in

furtherance of a conspiracy, are factual findings, reviewed for clear error.” United States

v. Williamson, 53 F.3d 1500, 1517 (10th Cir. 1995) (quotations omitted). Clear error

review “ask[s] whether, on the entire evidence, [the court] is left with the definite and

firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234,

242 (2001) (quotations omitted).

       We conclude that the district court’s factual determination that the call was made

in the course of and in furtherance of the conspiracy was not clearly erroneous, and that

admission of the phone call under Rule 801(d)(2)(E) was not an abuse of discretion.

       A conspiracy continues until its central purpose has been attained. See Grunewald

v. United States, 353 U.S. 391, 401-02 (1957) (rejecting an implied subsidiary conspiracy

to conceal the crimes because the original purpose had been accomplished); Krulewitch v.


                                                -19-
United States, 336 U.S. 440, 442-43 (1949) (same). “To determine the scope of the

alleged conspiratorial agreement, the court is bound by the language of the indictment.”

United States v. Qayyum, 451 F.3d 1214, 1218 (10th Cir. 2006) (quotations omitted).

       As evident from the call and other evidence, the central purpose of kidnapping and

robbing Mr. Armendariz was to obtain money and divide it among the co-conspirators.

The co-conspirators on the call discussed concerns about an unfair distribution of the

proceeds, which furthered their purpose to kidnap for money. After the call, the co-

conspirators met again to redistribute proceeds.

       “It is well settled that the distribution of the proceeds of a conspiracy is an act

occurring during the pendency of the conspiracy.” United States v. Davis, 766 F.2d

1452, 1458 (10th Cir. 1985); see also United States v. Knowles, 66 F.3d 1146, 1156-57

(11th Cir. 1995) (distribution of proceeds is in furtherance of conspiracy); United States

v. Turner, 871 F.2d 1574, 1581 (11th Cir. 1989) (admitting under Rule 801(d)(2)(E)

conversations of co-conspirators about how proceeds of theft would be distributed);

United States v. Knuckles, 581 F.2d 305, 313 (2d Cir. 1978) (“[I]t is fair to say that where

a general objective of the conspirators is money, the conspiracy does not end, of

necessity, before the spoils are divided among the miscreants.”).15




       15
        The Defendants argue the district court erred in how it applied United States v.
Dynalectric, Co., 859 F.2d 1559 (11th Cir. 1988). Dynalectric was a bid-rigging case
      Continued . . .

                                                 -20-
       The indictment lists the Defendants’ multiple meetings to divide the proceeds—

which would include the meeting at Mr. Tabor’s house following the phone call—as one

of the 21 overt acts in furtherance of the conspiracy. Ford ROA, Vol. I at 21. Based on

the record, we cannot hold the district court clearly erred in finding the call was made in

the course of and in furtherance of the conspiracy.16




       ______________________________________

holding that the conspiracy continued until all the proceeds were procured and
distributed. Id. at 1563. The Defendants argue their case is distinguishable because,
unlike in Dynalectric, the conspiracy to kidnap here did not involve a plan for future
receipt of monies over time. But Dynalectric can reasonably stand for the proposition
that the conspiracy does not end until all the money has been distributed, which is
consistent with this case. Apart from Dynalectric, our own precedent is controlling. See
Davis, 766 F.2d at 1458.
       16
          The Defendants also argue the phone call is inadmissible because it is a mere
narrative of past events. They cite United States v. Roberts, 14 F.3d 502, 514-15 (10th
Cir. 1993) (“In general, mere narratives between coconspirators or narrative declarations
of past events are not ‘in furtherance,’ while statements of future intent that set
transactions integral to the conspiracy in motion and maintain the information flow
among coconspirators meet the ‘in furtherance’ requirement.”).
        This argument fails for the same reasons we conclude the phone call was made in
furtherance of the conspiracy. Although part of the call recounted past events, the
purpose of the call was to discuss future actions, including Mr. Morgan’s suggestion to
meet again. Indeed, Roberts works against them: “Statements made to induce enlistment
or further participation in the group's activities, to prompt further action on the part of
conspirators, to reassure members of a conspiracy's continued existence, to allay a
coconspirator's fears, or to keep coconspirators abreast of an ongoing conspiracy's
activities satisfy the ‘in furtherance of’ requirement.” Id. at 515 (quotations omitted).


                                               -21-
       The Defendants also argue Mr. Morgan withdrew from the conspiracy before the

phone call, so the call could not have been in the course of the conspiracy. But the record

indicates otherwise.

       The defendant has the burden to show withdrawal by proving he or she

“attempt[ed] to undo the wrong that has been done in one of two ways”: (1) “give

authorities information with sufficient particularity to enable the authorities to take some

action to end the conspiracy”; or (2) “communicate his [or her] withdrawal directly to his

[or her] coconspirators in a manner that reasonably and effectively notifies the

conspirators that he [or she] will no longer be included in the conspiracy.” United States

v. Randall, 661 F.3d 1291, 1294-95 (2011). The second method “requires more than

implied dissociation. It must be sufficiently clear and delivered to those with authority in

the conspiracy such that a jury could conclude that it was reasonably calculated to make

the dissociation known to the organization.” Id.

       The district court did not clearly err in finding Mr. Morgan had not withdrawn

from the conspiracy. The record shows Mr. Morgan had not withdrawn or frustrated the

purpose of the conspiracy at the time of the phone call. Although Mr. Morgan left the

crime scene with the money, he met with his co-conspirators to divide the proceeds, he

joined the phone call about the proceeds to say he was coming to Mr. Tabor’s house, and

he then redistributed the proceeds. Rather than showing withdrawal, these actions

demonstrate his continued participation in the conspiracy.


                                                -22-
2. Sixth Amendment Bruton Claim

       The Defendants contend the admitted phone call violated their Sixth Amendment

right to confront their accusers under Bruton. See Bruton, 391 U.S. at 124-26. We

review de novo any alleged Sixth Amendment Bruton errors. See United States v. Nash,

482 F.3d 1209, 1218 (10th Cir. 2007).

       Bruton holds that admission of a non-testifying co-defendant’s confession

implicating another defendant violates the latter’s Sixth Amendment Confrontation

Clause protection because it deprives the right to cross-examine the declarant. See 391

U.S. at 124-26. A jury instruction to consider the statement only against the declarant

and not any co-defendant is not sufficient to cure a Bruton error. See United States v.

Hill, 901 F.2d 880, 883 (10th Cir. 1990).

       The Defendants’ claim fails because Bruton applies only to testimonial statements.

See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010). A testimonial

statement is a “formal declaration made by the declarant that, when objectively

considered, indicates” that the “primary purpose of the [statement is] to establish or prove

past events potentially relevant to later criminal prosecution.” Id. at 777-78 (quoting

Davis v. Washington, 547 U.S. 813, 822 (2006)).

       In overruling the Defendants’ Confrontation Clause objection to Exhibit 14A, the

district court said “the Sixth Amendment applies only to statements that are testimonial”




                                               -23-
and “[t]here is absolutely no indication that the statements in the telephone call” are

testimonial. Ford ROA, Vol. II at 42. We agree.

       The statements in the contested phone call were not made to be used for

investigation or prosecution of a crime. See Smalls, 605 F.3d at 777. The parties on the

call were speaking on a private phone line to co-conspirators. No law enforcement

official or any other third party participated in the conversation.17 Mr. Ford recounted

events from the crime to his fellow conspirators, who in turn made inculpatory statements

during the call. No one referenced any pending or future prosecution. The record does

not support a conclusion that the primary purpose of the statements in the phone call was

to “establish or prove past events potentially relevant to later criminal prosecution.” Id.

The statements, in short, were not testimonial.

       Because Bruton does not apply to non-testimonial statements, see id. at 768 n.2,

the district court did not violate the Defendants’ Sixth Amendment rights by admitting

the phone call into evidence.




       17
          Although law enforcement wiretapped the phone call, there is no evidence the
Defendants knew of the wiretap. See United States v. Ramirez, 479 F.3d 1229, 1249
(10th Cir. 2007) (holding statements of co-conspirators procured through a wiretap are
not testimonial because they were made in furtherance of a conspiracy) abrogated on
other grounds as recognized in United States v. Bagby, 696 F.3d 1074, 1081 (10th Cir.
2012); see also United States v. Crawford, 541 U.S. 36, 56 (2004) (holding that
“statements in furtherance of a conspiracy” are by nature not testimonial).



                                                  -24-
                             D. Rule 404(b) Evidence and Mistrial

       Mr. Morgan argues the district court erred by failing to order a mistrial after the

jury heard evidence of Mr. Morgan’s prior bad acts in the same phone call discussed

above.18 As noted below, even if Mr. Morgan preserved this issue for appeal, we affirm

under the abuse of discretion standard of review.

       At a pretrial motions hearing, Mr. Morgan objected to the phone call’s admission

under Rule 404(b).19 The district court did not rule at that time. As noted above, all

Defendants objected at trial to admission of the phone call. After the phone call was

admitted, Mr. Morgan complained the call included two statements that should have been

excluded under Rule 404(b) because they implicated him in prior criminal activity.20 Mr.




       18
          Mr. Ford attempts to join this issue as part of the blanket statement in his brief
joining the other briefs. He did not make this objection in the district court and provides
no argument as to how this evidence affects him. We do not consider this issue as to Mr.
Ford. See Renteria, 720 F.3d at 1251. Mr. Sanford does not attempt to join this issue.
       19
          Rule 404(b)(1) prohibits the admission of “[e]vidence of a crime, wrong, or
other act . . . to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.”
       20
            The first reference was Mr. Ford’s statement about a prior dealing with Mr.
Morgan:
     That's just like when we had got Cortino. You know what I'm saying? The
     n[word] was supposed to come back in with ten. This n[word] don't come
     back at all. He done went from California to Dallas to Atlanta to New
     York. Then he comes back three weeks later with $200 n[word].
     Continued . . .

                                                -25-
Morgan’s counsel said he did not “know how that can be cured by any type of limiting

instruction at this time.” Ford ROA, Vol. II. at 685. The court agreed that admitting the

statements violated Rule 404(b), ordered the statements stricken from the record, and

instructed the jury not to consider them.21 Mr. Morgan did not object to these curative

measures.

       Mr. Morgan’s failure to ask explicitly for a mistrial before or after the district

court acted on the Rule 404(b) concern suggests he forfeited this issue. Assuming

without deciding he raised the mistrial issue when he said no limiting instruction could

cure the Rule 404(b) problem, the district court did not abuse its discretion by not

ordering a mistrial. See United States v. Peveto, 881 F.2d 844, 859 (10th Cir. 1989) (we

review the district court’s denial of a mistrial motion for abuse of discretion).




       ______________________________________

Ford ROA, Vol. II at 681-82. Mr. Morgan’s counsel explained that Mr. Ford was
referencing a crime Mr. Morgan allegedly committed for which Mr. Morgan was
paid $10,000 but only returned with $200 to share. Id.
       The second reference was from Mr. Patterson. Mr. Morgan’s counsel
explained Mr. Patterson was talking about when Mr. Morgan committed a crime
with others and split the proceeds right away. Mr. Patterson stated, “Check this
out though, Cave [Mr. Ford]. Check this out though, Cave. I'm just saying, okay.
You all had a shootout and some more shit the other time and you all shot straight
over here. That was the whole lot going on right there.” Id. at 682-83.
       21
         Because the district court decided the evidence was inadmissible, Mr. Morgan
only challenges the district court’s not declaring a mistrial.


                                                -26-
       “Where [admitted] evidence is later ruled inadmissible, a cautionary instruction is

ordinarily sufficient to cure any alleged prejudice to the defendant and declaring a

mistrial is only appropriate where a cautionary instruction is unlikely to cure the

prejudicial effect of an error.” Id. “However, as an exception to the general rule, where

the character of the testimony is such that it will create so strong an impression on the

minds of the jurors that they will be unable to disregard it in their consideration of the

case, although admonished to do so, a mistrial should be ordered.” Maestas v. United

States, 341 F.2d 493, 496 (10th Cir. 1965).

       Here, the district court gave the jury a cautionary instruction and redacted the

challenged statements.22 Mr. Morgan failed to show before the district court and now on

appeal why this evidence was so prejudicial that the curative jury instruction was not

sufficient. The statements were street slang, vague, and a small fraction of a 42-minute

audio conversation. They were therefore difficult to understand.

       In the first statement, Mr. Ford recalled the time they “got Cortino” and “the

n[word] was supposed to come back in with ten.” Ford ROA,Vol. II at 681-82. It is not

clear to whom Mr. Ford is referring, who or what Cortino is, or what “got” means.




       22
         The district court told the jury the remarks about prior acts had been stricken
and the jury “may not consider or use this stricken material as evidence or for any other
purpose during the trial. And the written transcript will be redacted to exclude any
reference to this stricken material.” Ford ROA, Vol. II at 714.


                                                -27-
       The second statement by Mr. Patterson is virtually incomprehensible: “You all

had a shootout and some more shit the other time and you all shot straight over here.

That was the whole lot going on right there.” Id. at 682-83. It is not clear who “you all”

refers to, or what the “shootout” or “some more shit the other time” was, or what “shot

straight over here” means.

       Mr. Morgan relies on Maestas, where we reversed the denial of a mistrial when at

trial the objectionable statement was made a second time after the court warned the

witness not to say it. See 341 F.2d at 496. Here, the tape was played once for the jury.

Although the jury had an unredacted transcript at the time the call was played, the

transcript the jury had in deliberations was redacted, and the district court instructed the

jury to not consider the stricken statements. No witnesses were questioned about those

statements, and the Government did not use them in closing argument. Unlike Maestas,

this is not a case where the statements created so “strong an impression on the minds of

the jurors that they will be unable to disregard it in their consideration of the case.” Id.

       Even if Mr. Morgan preserved his mistrial issue for appeal, the district court did

not abuse its discretion in failing to order a mistrial.




                                                  -28-
                          E. Ms. Flores’s Identification Testimony

       Mr. Sanford and Mr. Morgan argue the district court erred by denying a mistrial

based on Ms. Flores’s testimony.23 Until Ms. Flores testified, she had not been able to

identify any of the perpetrators. The Defendants expected she would not be asked to do

so at trial. On cross-examination by Mr. Morgan’s counsel, Ms. Flores confirmed she

had excluded a photo of Mr. Morgan from a photo array. Ford ROA, Vol. II at 164-72.

After this cross-examination, Ms. Flores appeared emotional and the court took a recess.

Mr. Sanford’s counsel then cross-examined Ms. Flores.

       On redirect, the Government asked:

       Q: Ms. Flores, I know you’ve gotten upset a few times. Do you recognize
       any of the men who were at your house in the courtroom today?
       A: Yes.

Ford ROA, Vol. II at 187.

       All three Defendants immediately objected to this questioning as beyond the scope

of cross-examination. The district court dismissed the jury, and all three defense counsel

continued to argue that none of them had asked Ms. Flores to identify the Defendants,


       23
          Mr. Morgan and Mr. Sanford argue this issue in their opening briefs. Mr. Ford
attempts to join this issue as part of his blanket statement in his brief joining the other
briefs, but he does not make any argument on appeal about why he was prejudiced. Mr.
Sanford and Mr. Morgan each argue this testimony specifically prejudiced each of them
in unique ways. Their arguments do not apply to Mr. Ford. He did not present any
arguments as to why Ms. Flores’s identifying statement prejudiced him specifically. We
therefore do not consider this issue as to him. See Renteria, 720 F.3d at 1251.


                                               -29-
and that the Government’s question broached an entirely new topic in a manner that was

unduly prejudicial. The Defendants also argued Ms. Flores’s identification testimony

was improper because the Government had not provided them during discovery any

indication Ms. Flores could identify a defendant. Mr. Sanford then moved for mistrial.

The Government moved to withdraw the question.

      The district court next heard argument on Mr. Sanford’s motion for mistrial, which

the other defendants joined. The district court denied the motion because a cautionary

instruction would ameliorate any prejudice. The court said it could better evaluate

prejudice at the end of the Government’s case-in-chief. The court instructed the jury to

disregard the question and Ms. Flores’s answer and not consider them as evidence:

      [You are instructed t]hat the last question yesterday afternoon by [the
      Government] and the answer of Ms. Flores to that last question have been
      stricken by the Court. Thus, this question and answer are not evidence in
      this trial and may not be used as such by you, the jury.

      I rehearse or reiterate that any verdict you return must be based on the
      evidence presented properly during the trial and may not be based on
      anything that I have stricken, which must be disregarded entirely.

Ford ROA, Vol. II at 225.

      We review the district court’s denial of the mistrial motion for abuse of discretion.

See Peveto, 881 F.2d at 859. We reverse only if we have a “definite and firm conviction

that the lower court has made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d 1237,

1248 (10th Cir. 2000) (quotations omitted).

                                              -30-
       “[A] cautionary instruction is ordinarily sufficient to cure any alleged prejudice to

the defendant and declaring a mistrial is only appropriate where a cautionary instruction

is unlikely to cure the prejudicial effect of an error.” Peveto, 881 F.2d at 859. We look

to see if the evidence “will create so strong an impression” on the jurors that they could

not “disregard it in their consideration of the case” despite cautionary instructions.

Maestas, 341 F.2d at 496. “[M]otions for mistrial . . . call for an examination of the

prejudicial impact of an error or errors when viewed in the context of an entire case.”

United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996).

       Based on our review of the record, we do not think Ms. Flores’s uncompleted

identification testimony was so prejudicial that the district court abused its discretion by

denying the motion for mistrial and opting instead for a curative instruction. Ms. Flores’s

testimony was one short moment in a seven-day trial. Again, unlike in Maestas, the

question here was posed only once. She did not identify anyone. The district court

advised the jury to disregard the statement, and juries are presumed to follow curative

instructions. See United States v. Muessig, 427 F.3d 856, 865 (10th Cir. 2005).

       Mr. Sanford argues this evidence prejudiced him because his main defense was

that he did not commit any crime and therefore could not be identified as one of the

perpetrators. He further argues that Ms. Flores’s statement that she could identify a

perpetrator undermined his defense because the jury could speculate Ms. Flores saw Mr.

Sanford. These arguments fail because there was ample evidence placing him as a


                                                -31-
perpetrator at the scene. Mr. Tabor testified that Mr. Sanford was part of the conspiracy,

and the wiretap recorded a phone call in which Mr. Ford discussed Mr. Sanford’s role in

the crime. The police officer’s son, from whom Mr. Sanford procured the police gear,

also identified Mr. Sanford. In the face of this evidence, Mr. Sanford fails to show how

the uncompleted identification was so prejudicial as to necessitate a mistrial.

       Like Mr. Sanford, Mr. Morgan argues prejudice because the jurors would believe

that Ms. Flores could identify one of the Defendants but were left to speculate which

one.24 He also contends the only other evidence linking him to the crime was the biased

testimony of the unindicted co-conspirators, Mr. Patterson and Mr. Tabor. These

arguments also fail because the evidence against Mr. Morgan was overwhelming. Mr.

Tabor and Mr. Patterson testified about Mr. Morgan’s involvement. Mr. Ford spoke on

the phone call about Mr. Morgan’s involvement, and Mr. Morgan’s participation in the

phone call bolsters that conclusion.




       24
         Mr. Morgan asserts this problem was compounded by a recorded phone call
played for the jury in which Mr. Ford stated that Ms. Flores saw Mr. Sanford’s and Mr.
Morgan’s faces. Upon hearing this statement later in the trial, Mr. Morgan argues, the
jury would be reminded of Ms. Flores’s uncompleted identification and speculate as to
which of these two men Ms. Flores had intended to identify in court.
      Mr. Morgan did not make this argument in the district court. Because we do not
review issues for the first time on appeal, Mr. Morgan has waived this argument. See
United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002).


                                               -32-
       Furthermore, any prejudice was ameliorated because Mr. Morgan’s counsel

extensively cross-examined Ms. Flores about her previous attempts to identify Mr.

Morgan and established she had at one point ruled him out as one of the perpetrators.

Although the question may have invited the jury to speculate, Ms. Flores had not

identified Mr. Morgan at any time up to and after that point in trial.

       Ms. Flores’s uncompleted identification did not impair Mr. Sanford’s or Mr.

Morgan’s right to a fair trial or warrant the “drastic action of declaring a mistrial.”

Gabaldon, 91 F.3d at 95 (quotations omitted). The district court’s refusal to declare a

mistrial was not an abuse of discretion.

                                           F. Severance

       Mr. Sanford appeals the district court’s denial of his severance motion.25 All three

Defendants were indicted together and slated for a joint trial. Before trial, Mr. Sanford

moved to sever, and the district court denied his motion. Mr. Sanford renewed his

motion after Ms. Flores stated she could identify one of the perpetrators. The district

court denied Mr. Sanford’s motion again. Mr. Sanford argues the district court abused its


       25
          We address this issue only as to Mr. Sanford. Mr. Ford also moved for
severance at the district court, and he now attempts to join this issue as part of his blanket
statement joining the other briefs. He does not provide any arguments on appeal as to
why the denial of his severance motion prejudiced him. Mr. Sanford’s arguments are
specifically about why the joint trial prejudiced him because he was less involved than
the other defendants. These arguments do not apply to Mr. Ford, and we do not consider
this issue as to him. See Renteria, 720 F.3d at 1251.


                                                 -33-
discretion as to both rulings because he suffered prejudice from being tried with the other

Defendants, against whom the evidence was much stronger.

         “We review the district court's denial of a motion to sever for an abuse of

discretion.” United States v. Hall, 473 F.3d 1295, 1302 (10th Cir. 2007).

         Federal Rule of Criminal Procedure 14(a) states: “If the joinder of offenses or

defendants in an indictment, an information, or a consolidation for trial appears to

prejudice a defendant or the government, the court may order separate trials of counts,

sever the defendants’ trials, or provide any other relief that justice requires.” The

Supreme Court has expressed a “preference in the federal system for joint trials of

defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993).

“[W]hen defendants properly have been joined under Rule 8(b), a district court should

grant a severance under Rule 14 only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” Id. “Inasmuch as severance is a

matter of discretion and not of right, the defendant must bear a heavy burden of showing

real prejudice to his case.” United States v. McConnell, 749 F.2d 1441, 1444 (10th Cir.

1984).

         To establish “real prejudice, the defendant must demonstrate that the alleged

prejudice he suffered outweighed the expense and inconvenience of separate trials.”

United States v. Martin, 18 F.3d 1515, 1518 (10th Cir. 1994) (quotations omitted). The


                                                 -34-
requisite showing of prejudice “is not made by a complaint that one defendant is less

culpable than another, or by an allegation that a defendant would have a better chance of

acquittal in a separate trial, or by a complaint of the ‘spill-over’ effect of damaging

evidence presented against a codefendant.” United States v. Iiland, 254 F.3d 1264, 1270

(10th Cir. 2001) (citations omitted). “Rather, a defendant must show that he was

deprived of his right to a fair trial.” United States v. Zapata, 546 F.3d 1179, 1191 (10th

Cir. 2008).

       Mr. Sanford failed to meet his heavy burden both before the district court and now

on appeal. Although some elements of the Government’s case implicated only the other

defendants, Mr. Sanford had the opportunity to point this out to the jury through cross-

examination and again during closing argument. The jury was instructed to examine the

evidence for each individual defendant, and juries are presumed to follow instructions.

See Weeks v. Angelone, 528 U.S. 225, 234 (2000). Mr. Sanford asserts only that the spill-

over effect of damaging evidence about the other defendants prejudiced him. This

assertion is not sufficient to support the requisite showing of prejudice. See Iiland, 254

F.3d at 1270.

       We conclude the district court did not abuse its discretion by denying Mr.

Sanford’s motion for severance.




                                                -35-
                                     G. Cumulative Error

       Mr. Morgan argues we should reverse because all the errors combined deprived

him of his right to a fair trial. “To analyze cumulative error, we aggregate all the errors

that we have found to be harmless and determine whether their cumulative effect on the

outcome of the trial mandates reversal.” United States v. Anaya, 727 F.3d 1043, 1060-61

(10th Cir. 2013) (quotations omitted). This “applies only if true errors occurred.” Id. at

1061. We deny Mr. Morgan’s cumulative error appeal because we find no error among

the appealed issues.

                                  III. CONCLUSION

       For the foregoing reasons, we affirm the district court.




                                                -36-
12-1408, 12-1442, 13-1032; United States v. Morgan, et al.

HOLMES, Circuit Judge, concurring.

      I respectfully concur. I agree with the outcome of the majority’s opinion

and, with one exception, endorse its reasoning. The exception involves Part II.D.

In particular, I write separately to express my view that Mr. Morgan forfeited his

claim that the district court should have declared a mistrial after the jury heard

potentially improper Rule 404(b) evidence. Thus, rather than affirming under the

abuse-of-discretion standard, I would review this claim for plain error and affirm

under that rubric.

      The majority correctly notes that we generally review the refusal to grant a

mistrial for an abuse of discretion. See United States v. Stiger, 413 F.3d 1185,

1194 (10th Cir. 2005). But we do so only when the mistrial decision is “squarely

presented” to the district court. United States v. Taylor, 514 F.3d 1092, 1096

(10th Cir. 2008). As I read our precedent, there can be no abuse of discretion in

this regard if the defendant never requested a mistrial. See United States v.

Meienberg, 263 F.3d 1177, 1180 (10th Cir. 2001) (“Where there has been no

motion for a mistrial . . . , the district court has not exercised its discretion, and

therefore it is meaningless to look for an abuse of discretion.” (quoting United

States v. Gabaldon, 91 F.3d 91, 94 (1996)) (internal quotation marks omitted)).

The record indicates that Mr. Morgan never gave the district court an opportunity

to exercise its discretion by seeking a mistrial on the alleged 404(b) issue.

      Nonetheless, Mr. Morgan contends that “[he] implied that there was a
motion for a mistrial,” Oral Argument at 14:55, United States v. Morgan (No. 12-

1408), and the majority seems willing to entertain this possibility. See Majority

Op. at 25–26 (noting that Mr. Morgan failed to “ask explicitly for a mistrial

before or after the district court acted” but “[a]ssuming without deciding he raised

the mistrial issue when he said no limiting instruction could cure the Rule 404(b)

problem”). However, I believe the more prudent course is not to countenance,

even tacitly, “implied-mistrial” arguments, lest in so doing, we suggest that

district courts should act as advocates for defendants—obliged to apprehend and

respond to such implied arguments. That would be error, for “the court cannot

take on the responsibility of serving as the litigant’s attorney in constructing

arguments.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th

Cir. 2005).

      In my opinion, our precedent makes clear that (1) mounting a vague

objection to the evidence in question does not “squarely present” a mistrial

request; and (2) in this case, Mr. Morgan forfeited his 404(b)-mistrial challenge in

prototypical fashion and, accordingly, he is entitled to no more than plain-error

review. See United States v. Anaya, 727 F.3d 1043, 1059 (10th Cir. 2013) (“[The

defendant] did not request a mistrial. We therefore review the district court’s

failure to grant a mistrial sua sponte . . . for plain error . . . [and conclude that]

the district court was not clearly obligated to grant a mistrial sua sponte.”);

Taylor, 514 F.3d at 1096 (applying plain-error review when the defendant “did

                                            2
not [expressly] move for a mistrial and the court rapidly responded with a

curative instruction”); id. at 1100 (finding “no authority for the proposition that

the district court was clearly obliged . . . to grant a mistrial sua sponte”); United

States v. Devous, 764 F.2d 1349, 1356 (10th Cir. 1985) (“The court sustained the

defense’s objection [to an alleged error]. [The defendant] now contends that

. . . the court should have granted a mistrial sua sponte. We disagree.”); United

States v. Crawford, 707 F.2d 447, 450 (10th Cir. 1983) (“[I]n the absence of a

motion for mistrial, we must weigh the prejudicial effect of the [error] with the

weight of the evidence pointing to . . . guilt.”).

      Under the plain-error standard, even assuming arguendo that the court’s

alleged error on this score was “clear or obvious under current law,” United

States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (internal quotation marks

omitted), I would affirm the district court’s judgment because any error did not

impact Mr. Morgan’s substantial rights. Mr. Morgan has not argued that, but for

the district court’s inaction, an acquittal was likely—and, given the copious

evidence supporting the verdict (as noted by the majority, supra), I am confident

that he could not have made such a showing. Mr. Morgan also benefitted from

rigorous cross-examination of witnesses and two limiting instructions regarding

the Rule 404(b) evidence, which would belie any suggestion that his substantial

rights were affected. In other words, I would conclude that his claim fails under

the third prong of our plain-error test.

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      In sum, I fully join in the panel’s ultimate decision to affirm. However,

regarding Part II.D—addressing the 404(b)-mistrial challenge—I would affirm on

different grounds, concluding that Mr. Morgan forfeited this challenge and has

not satisfied the plain-error standard.




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