                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               April 28, 2014
                                    PUBLISH                 Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
 v.                                                   No. 12-2145
 PAUL OTHELLO SMALLS,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 2:06-CR-02403-RB-1)


Amy Sirignano, Albuquerque, New Mexico, for Appellant.*

Richard C. Williams, Assistant United States Attorney (Kenneth J. Gonzales,
United States Attorney, with him on the brief), Las Cruces, New Mexico, for
Appellee.


Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.


TYMKOVICH, Circuit Judge.



______________
      * The Court<s April 16, 2014 Order granted Ms. Sirignano<s withdrawal,
and on April 25, 2014, the Court accepted a notice of appearance by Howard A.
Pincus of the Colorado and Wyoming Federal Public Defender<s Office for the
Appellant.
      After a suspicious death in a New Mexico prison cell, police eventually

identified Paul Smalls, the victim’s cellmate, and two other men as the

perpetrators of murder. Their scheme was to smother the victim, and then claim

he died of an asthma attack. At trial, the government pointed to “signature

quality” evidence that Smalls had threatened his asthmatic ex-wife in a similar

fashion five months before the murder. Smalls and the other men were found

guilty of the murder of Phil Gantz, who at the time was cooperating with federal

and state authorities against members of a drug trafficking ring.

      Smalls appeals his conviction, arguing that he received a fundamentally

unfair trial because (1) the district court erred in several of its evidentiary rulings,

including allowing the testimony of his ex-wife about his prior statement; (2) the

government committed prosecutorial misconduct; (3) the court abused its

discretion in denying certain jury instructions; and (4) there was insufficient

evidence to sustain his convictions. Smalls asserts that he is entitled to a new

trial because the aggregate effect of these errors amounts to cumulative error.

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

the district court did not abuse its discretion or plainly err in admitting the

challenged pieces of evidence; the government did not commit prosecutorial

misconduct by introducing co-conspirator testimony or vouching for the

witnesses; the court did not abuse its discretion denying Smalls’s proposed jury

                                          -2-
instructions because the instructions adequately conveyed the law and Smalls’s

theory of the case; and there was sufficient evidence to sustain the convictions.

Because the district court did not commit error, a cumulative error analysis is

unwarranted.

                                 I. Background

      At the time of Gantz’s murder, Smalls was being held in pre-trial custody at

the Doña Ana County Detention Center in New Mexico, where he was formerly a

corrections officer. He was awaiting trial on state charges for an August 2004

assault on his then-wife.

      Smalls shared a medical unit cell with three other prisoners. One cellmate,

Gantz, had been arrested in May 2003 as part of an investigation into

methamphetamine trafficking in Roswell, New Mexico. After being charged in

federal court, he decided to cooperate with law enforcement. His plea agreement

stipulated that he would testify as a witness for the government in the future.

Based in part on the information Gantz provided, law enforcement approached,

and eventually indicted, an alleged drug trafficker. Another cellmate was Glenn

Dell Cook, who had been placed in the cell after fighting with his former

cellmate. Cook was in pre-trial custody on charges of methamphetamine

trafficking. The fourth cellmate was Walter Melgar-Diaz (Melgar), who was in

pre-trial custody for illegal reentry into the United States and had moved into the



                                         -3-
cell only a week before the murder. Although Melgar spoke only Spanish, he was

nevertheless able to communicate to some extent with his cellmates.

      Before Smalls’s murder trial, Cook and Melgar made agreements with

federal prosecutors and testified against Smalls. According to them, Smalls was

the ringleader of the plot to kill Gantz. Melgar testified that Smalls had told him

that Gantz was a “rat” and had to be killed. He also described how Smalls

pressured him into committing the murder by explaining that Gantz had helped

capture four “Michoacanos,” who Smalls referred to as Melgar’s “people.” R.,

Vol. V at 648. Melgar further testified that Smalls said that no one would

suspect anything because Gantz had asthma, and the death would look like a

result of natural causes.

      Cook testified that Smalls told him about Gantz’s cooperation with

authorities, that certain people wanted Gantz dead, and there was a hit on Gantz.

Cook did not like Gantz because he was a “snitch” and bragged about getting a

reduced sentence. Cook also testified that he did not know they were going to kill

Gantz—he thought they were just going to hurt him and that Melgar and Smalls

planned the murder.

      According to Melgar, at 1:30 a.m. on December 30, 2004, Smalls woke up

Melgar, and Cook handed Melgar a plastic bag. Then, Smalls instructed Melgar

to put the bag over Gantz’s face, which he did using closed fists. Smalls held

down Gantz’s legs and Cook restrained Gantz’s chest and arms. After the murder,

                                         -4-
according to Melgar, Smalls instructed the other two not to talk about the murder

because “they” would think Gantz suffocated because of the asthma. Cook’s

description of the murder was almost identical, and he explained that the murder

took about twenty seconds and there were only eight seconds of silent struggle.

Smalls testified that he slept through the murder.

      The next morning, Gantz’s body was found, but there were no apparent

signs of foul play. On December 31, an autopsy revealed a hemorrhage in three

layers of the neck, indicating that Gantz had died by carotid strangulation, not by

suffocation. There were also no defensive wounds found on the body, which was

consistent with being restrained. According to expert testimony offered by the

government at trial, the assailant could have caused the strangulation by holding a

plastic bag with two fists and wrapping it around the bottom of the jaw.

      The sheriff’s office initially investigated the murder, and federal

investigators joined in April 2005. That summer, Cook told a fellow inmate about

the murder. Unbeknownst to Cook, the inmate was cooperating with investigators

and wearing a wire. Meanwhile, Melgar suffered severe mental turmoil after the

murder. He claimed to have seen Gantz’s ghost and began to cut himself. He was

transferred to a treatment facility in Missouri and, upon his return, received

medication and was declared competent by the court. In February 2006, Melgar

met with his attorney after the government informed her it was interested in

talking to Melgar about Gantz’s murder. In a conversation with his attorney, he

                                         -5-
confessed to killing Gantz along with Smalls and Cook and gave a videotaped

statement to the FBI on February 24, 2006.

      After a trial in which Melgar and Cook testified against Smalls, Smalls was

found guilty of five federal offenses:

      •      Conspiracy to retaliate against a witness, victim, or informant in
                    violation of 18 U.S.C. § 1513(f);
      •      Retaliating against a witness, victim or informant in violation of 18
                    U.S.C. § 1513(a)(1)(B);
      •      Conspiracy to tamper with a witness, victim, or informant in
                    violation of 18 U.S.C. § 1512(k);
      •      Tampering with a witness, victim, or informant in violation of 18
                    U.S.C. § 1512(a)(1)(A) and (C);
      •      K illing a person aiding in a federal investigation in violation of 18
                    U.S.C. § 1121(a)(2).

      On appeal, Smalls argues that the district court’s numerous errors constitute

cumulative error and warrant a new trial.

                                   II. Analysis

      Smalls asserts four classes of errors relating to (1) evidence that was

admitted at trial; (2) prosecutorial misconduct; (3) the jury instructions; and (4)

sufficiency of the evidence. As we explain, none of these contentions amounts to

reversible error, nor is there any basis for finding cumulative error.

      A. Evidentiary Issues

      Smalls asserts the district court erroneously admitted a number of pieces of

evidence relating to his conduct and the conduct of the other persons involved in

the murder: (1) Smalls’s statement to his wife during her asthma attack admitted


                                         -6-
as “signature quality” evidence pursuant to Rule 404(b) of the Federal Rules of

Evidence; (2) his prior felony convictions admitted as impeachment evidence

pursuant to Rule 609(a)(1); (3) statements by Cook and Melgar admitted as

statements by co-conspirators pursuant to Rule 801(d)(2)(E); (4) statements by

Cook and Melgar admitted as prior consistent statements pursuant to Rule

801(d)(1)(B); and (5) video surveillance, still photos, and accompanying

testimony related to Smalls’s conversations with a fellow inmate. 1

      As long as there was an objection to the admission of evidence, “[w]e

review for abuse of discretion the district court’s evidentiary rulings, considering

the record as a whole.” United States v. Becker, 230 F.3d 1224, 1228 (10th Cir.

2000). We will not reverse a district court’s decision if it “falls within the bounds

of permissible choice in the circumstances.” United States v. Cardinas Garcia,

596 F.3d 788, 797 (10th Cir. 2010). Nor will we reverse that decision “absent a

distinct showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment.” United

States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005).

      If there was no objection, we review for plain error. “We find plain error

only when there is (1) error, (2) that is plain, (3) which affects substantial rights,

and (4) which seriously affects the fairness, integrity, or public reputation of

      1
         At oral argument, Smalls abandoned his claim that the district court
improperly admitted evidence under the forfeiture by wrongdoing exception to the
rule against hearsay. Fed. R. Evid. 804(b)(6).

                                          -7-
judicial proceedings.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.

2007). “The plain error standard presents a heavy burden for an appellant” and

“is to be used sparingly.” Id. at 1178–79.

      We evaluate the evidentiary claims under these standards.

             1. Signature Quality Evidence Under Rule 404(b)

      Smalls had a tumultuous relationship with his ex-wife, which included a

domestic assault that took place in 2004. The district court allowed evidence of

the assault to be admitted at trial, and, in particular, testimony that elements of

the attack on his ex-wife bore a strong resemblance to the plan to kill Gantz.

      Under Rule 404(b) of the Federal Rules of Evidence, “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove a person’s character in order to

show action in conformity therewith. It may, however, be admissible for another

purpose, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. . . .” 2 This rule “is one of

inclusion, rather than exclusion, unless the evidence is introduced for the

impermissible purpose or is unduly prejudicial.” United States v. Segien, 114

F.3d 1014, 1022 (10th Cir. 1997), overruled on other grounds as recognized in

United States v. Hathaway, 318 F.3d 1001, 1006 (10th Cir. 2003).


      2
         Smalls was tried under the version of the Federal Rules of Evidence in
place in November 2011, which has subsequently been amended for style only.
All citations to the Rules of Evidence will be to the version in place at the time of
Smalls’s trial.

                                         -8-
      We consider a four-part test when determining whether evidence is

admissible under Rule 404(b):

             (1) the evidence must be offered for a proper purpose;
             (2) the evidence must be relevant; (3) the trial court
             must make a Rule 403 determination of whether the
             probative value of the similar acts is substantially
             outweighed by its potential for unfair prejudice; and (4)
             pursuant to Fed. R. Evid. 105, the trial court shall, upon
             request, instruct the jury that evidence of similar acts is
             to be considered only for the proper purpose for which it
             was admitted.

United States v. Davis, 636 F.3d 1281, 1297 (10th Cir. 2011) (citation omitted);

see also Huddleston v. United States, 485 U.S. 681, 691–92 (1988) (discussing

the four sources of “protection against . . . unfair prejudice” when admitting

evidence under Rule 404(b)).

      The district court admitted evidence that Smalls pleaded guilty to a

domestic assault against his ex-wife, 3 which took place about five months before

Gantz’s murder, and allowed his ex-wife to testify about a statement Smalls made

during the altercation underlying the assault conviction. The objected-to

testimony goes like this. When his wife began having an asthma attack during the

altercation, Smalls prevented her from accessing her inhaler and said to her: “Go

ahead and just die. And that way, I won’t have to—it will just be natural causes

      3
        He was convicted of Aggravated Battery Against a Household Member
with a Deadly Weapon and Criminal Sexual Penetration. For Rule 404(b)
purposes, only evidence of the battery conviction was admitted. The district court
allowed admission of the Criminal Sexual Penetration conviction for
impeachment purposes under Rule 609(a)(1). See infra at 14.

                                         -9-
and I’ll be done with you.” R., Vol. V at 607. Smalls eventually gave her the

inhaler. The district court held that the evidence was admissible for the proper

purposes of showing common identity and plan under Rule 404(b). The court

reasoned that Smalls’s verbalized intent to use the victim’s asthma as a means to

cover up the victim’s anticipated death in both the assault on his wife and in the

alleged murder of Gantz was “signature quality” evidence that showed common

identity of the assailant.

      Smalls argues that “an offhand comment during a lengthy domestic

violence incident, not followed through on by Smalls” does not prove “that he is

the same person who planned a cold-blooded murder by a different means for the

benefit of a drug-trafficking organization” to which he had no ties. Reply Br. at




                                        -10-
11. 4 He points to cases in which there were more pervasive similarities among

the crimes at issue.

      Our cases interpreting Rule 404(b) allow evidence that tends to show the

defendant’s identity as the perpetrator of the charged offense because the

defendant proceeded by a unique modus operandi evident in prior crimes. For

example, in United States v. Gutierrez, we held that “[i]f the crimes share

elements that possess ‘signature quality,’ evidence of the ‘other crime’ may be

admitted.” 696 F.2d 753, 755 (10th Cir. 1982). We concluded that the

defendant’s driving the getaway car and using her children as cover during the

getaway in two robberies constituted signature quality evidence. Id. “Elements

relevant to a ‘signature quality’ determination include the following: geographic

location; the unusual quality of the crime; the skill necessary to commit the acts;


      4
        Smalls also argues that the evidence was unduly prejudicial under Rule
403. At the time of trial, Rule 403 provided that relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.”
Exclusion of otherwise admissible evidence under Rule 403 “is an extraordinary
remedy and should be used sparingly.” United States v. Tan, 254 F.3d 1204, 1211
(10th Cir. 2001).

       The district court did not abuse its discretion in concluding that the risk of
undue prejudice did not substantially outweigh the evidence’s probative value.
Smalls’s statement does not show how Smalls actually behaved throughout the
domestic dispute; it concerned only his plans to cover up the death and thus
helped establish his identity as a conspirator in Gantz’s murder, where he used a
similar excuse. And the crimes were sufficiently dissimilar to reduce the
likelihood that the jury would convict Smalls on the basis of conformity evidence.

                                        -11-
or use of a distinctive device.” United States v. Shumway, 112 F.3d 1413, 1420

(10th Cir. 1997) (citations omitted). This list is not exhaustive, but it does

underscore the requirement that the characteristics of the crimes “be so unusual

and distinctive as to be like a signature.” United States v. Connelly, 874 F.2d

412, 417 (7th Cir. 1989) (emphasis omitted).

      A court’s assessment of the number and pervasiveness of similarities

between the crimes may help determine whether they possess signature qualities,

but the distinctiveness of common characteristics is also relevant to the inquiry.

In Shumway, we stated,

             the weight to be given to any one element and the
             number of elements necessary to constitute a “signature”
             are highly dependent on the elements’ uniqueness in the
             context of a particular case. In other words, a few
             highly unique factors may constitute a “signature,”
             while a number of lesser unique factors “although
             insufficient to generate a strong inference of identity if
             considered separately, may be of significant probative
             value when considered together.”

112 F.3d at 1420 (quoting United States v. Myers, 550 F.2d 1036, 1045 (5th Cir.

1977)). Where only one common characteristic of two crimes is particularly

distinctive, that similarity may be sufficient on its own to show signature quality.

Compare United States v. Howe, 538 F.3d 842, 849 (8th Cir. 2008) (stripping

victim naked at gunpoint during robberies was so “unusual and distinctive enough

as to be like a signature”), abrogated on other grounds by United States v.

Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009), with United States v. Thomas,

                                         -12-
321 F.3d 627, 635 (7th Cir. 2003) (pattern of dropping contraband and fleeing

police was too “garden variety” to constitute signature quality evidence). See

also United States v. Andrini, 685 F.2d 1094, 1096–97 (9th Cir. 1982) (testimony

about defendant’s description during a camping trip of a distinctive fire-starting

device later used in an arson was admissible to prove the identity of the arsonist).

      The district court’s finding of identity is based on Smalls’s verbalized

intent to use asthma as an explanation for a victim’s anticipated death on two

separate occasions within a five-month span. Although the circumstances,

outcomes, and motivations of Smalls’s two crimes were different, they contained

a certain distinctive and shared signature quality—Smalls’s professed willingness

to use the victim’s asthma to explain a death for which he was (or would have

been) responsible. A plan to use asthma as an excuse to cover up a victim’s true

cause of death is sufficiently “unusual and distinctive” to constitute a signature

quality.

      Smalls also argues that even if the intended use of asthma as a cover-up can

by itself constitute signature quality evidence, the fact that Gantz was ultimately

strangled, and not suffocated, means Smalls’s statement to his wife was unrelated

to the murder. But this fact does not render the evidence improper under Rule

404(b). Evidence introduced at trial showed that Smalls, Cook, and Melgar

planned to suffocate Gantz and use the victim’s asthma as a way to cover up their

crime. Smalls expressed precisely the same idea during the altercation with his

                                         -13-
wife, which tends to show similar plans of action. That Gantz’s murder did not

go according to plan does not render the evidence improper for Rule 404(b)

purposes.

      Smalls’s prior conviction and his wife’s testimony were admitted for a

proper purpose under Rule 404(b) and the district court limited the admissible

information to avoid unfair prejudice. 5 The court did not abuse its discretion in

admitting this evidence.

             2. Prior Felony Convictions Under Rule 609(a)(1)

      In a pre-trial order, the district court allowed the admission of Smalls’s

2005 felony convictions as impeachment evidence if Smalls testified at trial. He

was convicted pursuant to two guilty pleas related to the altercation with his

wife. 6 The court determined that the evidence was admissible because the

convictions occurred within the previous ten years, the prior convictions and

current charges were sufficiently dissimilar to limit the risk of the jury using the

prior convictions as evidence of Smalls’s propensity to commit the charged

      5
        Smalls is correct that this evidence does not constitute evidence of a
common plan under Rule 404(b). Plan evidence is offered to show that the crime
for which the defendant is accused is actually part of a pre-arranged plan or
scheme. See, e.g., United States v. Roberts, 88 F.3d 872, 880–81 (10th Cir.
1996). The domestic violence episode and Gantz’s murder were not related to a
common scheme. Smalls’s plan to invoke the same cover-up in each crime is
more accurately characterized as identity evidence rather than plan evidence.
      6
        As stated previously, Smalls was convicted of Aggravated Battery
Against a Household Member with a Deadly Weapon and Criminal Sexual
Penetration in connection with the altercation with his wife.

                                         -14-
crimes, and Smalls’s credibility would be a central issue for the jury in the event

Smalls testifies. The district court also acknowledged the inflammatory nature of

the prior crimes but nevertheless concluded that the names and nature of the

crimes could come in without additional detail.

         When the defendant is a witness in his own trial, the prosecution may

introduce evidence of the defendant’s past felony conviction to attack his

character for truthfulness “if the court determines that the probative value of

admitting this evidence outweighs its prejudicial effect to the accused.” Fed. R.

Evid. 609(a)(1). This “special balancing test” is used because “the defendant

faces a unique risk of prejudice—i.e., the danger that convictions that would be

excluded under [Rule 404] will be misused by a jury as propensity evidence

despite their introduction solely for impeachment purposes.” Fed. R. Evid. 609,

advisory committee’s notes (1990 Amendments).

         In the context of Rule 609(a)(1), courts have identified the following five

factors for consideration: (1) the impeachment value of the defendant’s prior

crimes; (2) the dates of the convictions and the defendant’s subsequent history;

(3) the similarity between the past crime and charged crime; (4) the importance of

the defendant’s testimony; and (5) the centrality of the defendant’s credibility at

trial. See 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal

Evidence, § 609.05[3][a] (Joseph M. McLaughlin, ed., Matthew Bender, 2d ed.

2013).

                                           -15-
      Smalls does not contest the admission of the fact that he had two prior

felony convictions. He argues only that the district court abused its discretion in

admitting the names and nature of the prior convictions without a special finding

that the probative value of the names of the convictions outweighed their

obviously prejudicial nature. Smalls cites United States v. Yazzie, 188 F.3d 1178

(10th Cir. 1999), for the proposition that a court may limit Rule 609 evidence

under Rule 403 to the mere fact of a felony conviction when the prejudice of the

other information is too great.

      Yazzie does not help Smalls because the case did not involve a witness at

trial. The defendant in Yazzie sought to introduce evidence of the murdered

victim’s past felonies to impeach the credibility of the victim’s out-of-court

statement introduced through a witness at trial. We held that the district court did

not err in refusing to introduce this evidence on Rule 403 grounds. But because

the source of the out-of-court statements was not a witness at trial, “[t]here was

no testimony . . . subject to impeachment” that would implicate Rule 609. Yazzie,

188 F.3d at 1191.

      The well-settled rule in this circuit is that the permissible scope of

cross-examination under Rule 609 extends to the essential facts of convictions,

the nature of the crimes, and the punishment. See United States v. Commanche,

577 F.3d 1261, 1270–71 (10th Cir. 2009) (quoting United States v. Wolf, 561 F.2d

1376, 1381 (10th Cir. 1977)). Indeed, the failure to include the names and nature

                                         -16-
of prior offenses may prejudice the defendant because the jury is left to speculate

as to the essential facts of prior convictions. See United States v. Burston, 159

F.3d 1328, 1335 (11th Cir. 1998) (“The implicit assumption of Rule 609 is that

prior felony convictions have probative value. Their probative value, however,

necessarily varies with their nature and number.”). The district court admitted

only presumptively admissible information about Smalls’s prior convictions and

properly determined that they were dissimilar enough from the murder charge

such that a jury would not convict Smalls on the basis of propensity reasoning.

      We find no abuse of discretion in the district court’s decision.

             3. Co-Conspirator Statements Under Rule 801(d)(2)(E)

      Smalls next argues the district court erred in admitting out-of-court

statements made by Melgar because the district court wrongly concluded that

Smalls was a member of the conspiracy to kill Gantz. But the pre-trial ruling on

the co-conspirator issue addressed only whether Smalls and Cook were co-

conspirators.

      A statement made by a co-conspirator “during the course and in furtherance

of the conspiracy” is not hearsay. Fed. R. Evid. 801(d)(2)(E). To admit a

co-conspirator’s statements, the district court must find: “(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




                                        -17-
of and in furtherance of the conspiracy.” United States v. Patterson, 713 F.3d

1237, 1245 (10th Cir. 2013).

      At the time of the James 7 hearing on this issue and the district court’s

order, Melgar had reached a plea agreement with the government, but Cook had

not. The government intended to offer co-conspirator statements against Smalls

and Cook through Melgar’s testimony. Consequently, there was never an

objection or a ruling on whether Melgar’s out-of-court statements were admissible

under the co-conspirator rule. The only example of an introduction of Melgar’s

out-of-court statements that we can find in the record is Melgar’s videotaped

testimony to the FBI. 8 Smalls did not object to the admission of the video at trial;

in fact, he introduced it as impeachment evidence against Melgar immediately

after Melgar testified. Although Smalls may have an argument that the video

should not have been introduced under the co-conspirator rule, he cannot attack

evidence that he brought in to impeach Melgar.

      Smalls also suggests that the court erred in permitting Melgar to testify as

to out-of-court statements made by Smalls under the co-conspirator rule. But

such statements are not hearsay because they are statements of a party opponent

and do not implicate the co-conspirator rule. Fed. R. Evid. 801(d)(2)(A).

      7
          United States v. James, 590 F.2d 575 (5th Cir. 1979).
      8
        Melgar’s attorney also testified to out-of-court statements made by
Melgar, but these statements were admitted as prior consistent statements under
Rule 801(d)(1)(B).

                                        -18-
             4. Prior Consistent Statements Under Rule 801(d)(1)(B)

      Smalls argues against the admission of certain out-of-court statements made

by Cook and Melgar under the prior-consistent-statement rule.

      A statement is not hearsay if the declarant testifies and is subject to

cross-examination about a prior statement when the statement “is consistent with

the declarant’s testimony and is offered to rebut an express or implied charge

against the declarant of recent fabrication or improper influence or motive.” Fed.

R. Evid. 801(d)(1)(B); see also Tome v. United States, 513 U.S. 150, 167 (1995)

(“The Rule permits the introduction of a declarant’s consistent out-of-court

statements to rebut a charge of recent fabrication or improper influence or motive

only when those statements were made before the charged recent fabrication or

improper influence or motive.”). These statements are admitted as substantive

evidence, not just to rebut an attack on the witness’s credibility. Id. at 157.

      Under our precedent, a declarant has a motive to lie as soon as he is

arrested. United States v. Moreno, 94 F.3d 1453, 1455 (10th Cir. 1996); see also

United States v. Powell, 220 F. App’x 805, 812 (10th Cir. 2007) (unpublished)

(“Gabriel Davis’s prior consistent statements followed his arrest, however,

meaning that, according to the logic of our precedent, the statements came after

Mr. Davis had acquired a motive to lie.”) (emphasis omitted). But we have also

found that an improper motive may arise even before the declarant’s arrest. For

example, in United States v. Albers, we held that the pre-motive requirement was

                                         -19-
not met when a declarant made the prior statement to an investigator only after he

had become afraid that his co-conspirators would testify against him. 93 F.3d

1469, 1482–83 (10th Cir. 1996).

      The district court admitted Cook’s recorded statement to fellow inmate,

Larry Green, in which Cook described the three defendants’ roles in Gantz’s

murder. Cook made this statement to Green following news that federal

authorities were investigating Gantz’s death as a homicide. The court found that

Cook had no motive to lie because he was not charged for another year and his

plea bargain was not made for another five years. Smalls argues that the motive

to lie had arisen by the time Cook made the statement because Gantz’s death was

being investigated as a homicide and Cook needed a story to minimize his role

and have someone against whom to cooperate. Although the latter assertion is

pure speculation, the fact is that Cook was unaware that he was in the presence of

a government agent. Cook could not have been motivated to curry favor with the

government because Cook was unaware that the government was recording him.

The district court did not abuse its discretion in admitting the recorded

statements.

      Smalls also argues that for a prior consistent statement to be admissible

under the Confrontation Clause, it must meet pre-Crawford 9 standards of

reliability. But the “Confrontation Clause has no application to [nontestimonial]

      9
          Crawford v. Washington, 541 U.S. 36 (2004).

                                         -20-
statements and therefore permits their admission even if they lack indicia of

reliability.” Whorton v. Bockting, 549 U.S. 406, 420 (2007); see also United

States v. Smalls, 605 F.3d 765, 780 (10th Cir. 2010) (“[T]he only question

pertinent to the admissibility of a nontestimonial statement is whether it meets the

requirements of the Federal Rules of Evidence.”). We previously held that

Cook’s statement was nontestimonial, see id. at 778, and thus the Confrontation

Clause does not apply.

      The district court admitted a statement made by Melgar to his attorney that

implicated the three cellmates in Gantz’s murder. The statement was made while

Melgar was being held for illegal reentry into the United States and after his

attorney informed Melgar that the United States was interested in debriefing about

Gantz’s murder. The district court held that the statement was made before any

motive to fabricate arose because it was made in the context of the attorney-client

relationship in an unrelated case, prior to debriefing with the FBI, and well before

Melgar was charged with Gantz’s murder. In opposition, Smalls argues that the

motive to fabricate arose before Melgar made the statement to his attorney.

Melgar made the statement only after being told of the government’s interest in

debriefing. Smalls argues that Melgar’s attorney had informed Melgar that the

government was seeking his cooperation and was advised of the potential benefits

to him. Melgar was thus motivated to tell a “good story” and his attorney was the

“test audience.” Aplt. Br. at 21.

                                        -21-
      The Second Circuit has allowed prior consistent statements made to a

declarant’s attorney after the attorney informed him of a co-conspirator’s

probable cooperation with the government. In United States v. Caracappa, 614

F.3d 30 (2d Cir. 2010), the defendant argued that the declarant’s motive to lie

arose immediately upon an accomplice’s arrest and thus a statement the declarant

subsequently made to his attorney was inadmissible as a prior consistent

statement. The district court had reasoned in Caracappa that for the defendant’s

theory to hold, the declarant “must have believed in 1994 that he would

eventually cooperate with the government, hoping that his testimony against the

defendants would be called into question and knowing that if he told [his

attorney] of his involvement, his account would have increased merit.” Id. at 40.

This, the court held, was far-fetched.

      Smalls essentially makes the same argument. According to Smalls’s

theory, Melgar would have had to make an on-the-spot decision to fabricate a

story to his attorney so that his version of events would have increased merit in

future proceedings. We also find this argument speculative and far-fetched.

      The district court did not abuse its discretion in admitting Melgar’s prior

statement.

             5. Video Surveillance, Still Photos, and Accompanying Testimony

      Investigators discovered video footage from December 25, 2004 that

showed Smalls walking through the medical unit and stopping to speak with an

                                         -22-
inmate outside his cell. Cook testified that the same inmate had previously told

him Gantz was a government informant. The footage showed Smalls making

several gestures, including clenching his fists and pointing to his neck. Smalls

also slid a bag under the door. Three days later, he spent ten minutes with the

same inmate in the recreation yard.

      Video surveillance, still photos, and testimony regarding Smalls’s

interactions with the inmate outside the inmate’s cell were admitted without

objection, so their admission is reviewed for plain error. The district court

originally denied the government’s motion to admit the video footage of Smalls

interacting with the inmate because the videos were not available for viewing at

that time, but the denial of the motion was subject to reconsideration in the event

of an additional hearing. During trial, still photos of Smalls at the inmate’s cell

were introduced without objection. Upon the district court’s sua sponte raising of

the Best Evidence Rule, Fed. R. Evid. 1002, Smalls withdrew his objection to

playing the video surveillance footage, which was shown to the jury.

      On appeal, Smalls advances several arguments against the admission of this

evidence. First, he argues he was prejudiced by the misleading presentation of

the evidence. The still photos amounted to “editorialized” evidence, where the

witness, a government agent, described what she believed the still photos showed.

Aplt. Br. at 38. And the video format, which displayed images that were captured

in six-second intervals and in fast-forward speed, prejudiced Smalls because his

                                         -23-
movements appeared violent and jerky. Smalls also argues that the evidence was

irrelevant and the government’s descriptions of it speculative. In its closing

argument, the government had asserted that Smalls’s movements were

descriptions to the inmate of how the conspirators would murder Gantz.

      As to his first argument, the admission of “editorialized” still photos was

not plain error because it did not prejudice Smalls. During her testimony, the

government agent described Smalls in one still photo as pressing his clenched

fists downward and, in another photo, gesturing toward his neck. Smalls points to

a district court case in which the court prohibited admission of selected portions

of a chat room conversation because the “cut-and-paste” document did “not

accurately represent the entire conversations that took place between the

defendant and [the victim].” United States v. Jackson, 488 F. Supp. 2d 866, 871

(D. Neb. 2007). But the district court here cured any prejudice that could have

occurred through the admission of still photos derived from video surveillance

and the agent’s commentary. The court raised the Best Evidence Rule, and

Smalls removed his objection to showing the video surveillance footage. Thus,

the jury was able to see the video free from editing and commentary.

      The admission of the video surveillance footage was likewise not plainly

erroneous. Smalls makes no argument besides speculating that the video’s

format, which made Smalls’s movements appear violent and jerky, prejudiced the

jury. This unsupported assertion is not sufficient to establish error, let alone plain

                                         -24-
error. And any prejudice to Smalls was minimized when a witness explained how

the prison’s video surveillance system captures and displays images in such a way

as to present Smalls’s movements in six-second intervals.

      Smalls also alleges that the evidence pertaining to his interaction with the

inmate was irrelevant. The government argues that because Smalls asserted in his

opening statement that the inmate told Cook about Gantz being an informant,

Smalls made these interactions relevant to combat the defense’s theory that only

Cook had a motive to kill Gantz. Smalls responds that it was the government that

expressed before trial its intent to make the inmate an issue in the case.

      Regardless of whether the evidence was introduced to attack the

defendant’s theory of the case or simply as evidence of Smalls’s involvement in

the planning of the murder, it is clearly relevant. Cook testified that the inmate

had told him about the hit on Gantz. Smalls’s conversation with the source of this

information is relevant to establishing that Smalls was aware of the hit and thus

may have had a motive to participate.

      Smalls also argues the government, in its closing arguments, improperly

speculated that Smalls’s actions at the inmate’s cell indicated that he was

describing the murder to the inmate. Whether a statement constitutes improper

speculation, however, is a narrower inquiry than Smalls suggests. See Thornburg

v. Mullin, 422 F.3d 1113, 1134 (10th Cir. 2005) (“A prosecutor is allowed to

comment on the evidence and draw inferences therefrom, but he may not

                                         -25-
speculate or refer to evidence never presented to the jury.”). The government

never speculated or referred to evidence not presented to the jury. The

government properly presented evidence of Smalls talking with the inmate in the

days leading up to the murder and offered reasonable inferences as to the meaning

of his gestures.

      In sum, the district court did not err in admitting the evidence.

      B. Prosecutorial Misconduct

      Smalls next argues that the government knowingly solicited false testimony

from Melgar and Cook. He alleges that Cook and Melgar’s testimony that they

used a bag to suffocate Gantz contradicted the uncontroverted medical evidence

that Gantz was strangled. The government was aware of this information, yet

allowed the two witnesses to testify without correction and a government agent to

corroborate their testimony. Smalls also argues that the government improperly

vouched for Melgar in its opening and closing statements by arguing that his

testimony was reliable because Cook had corroborated it.

      “A conviction obtained by the introduction of perjured testimony violates

due process if (1) the prosecution knowingly solicited the perjured testimony or

(2) the prosecution failed to correct testimony it knew was perjured.” United

States v. Vaziri, 164 F.3d 556, 563 (10th Cir. 1999). The appellant bears the

burden of establishing the presentation of false evidence. Smith v. Gibson, 197

F.3d 454, 458 (10th Cir. 1999).

                                        -26-
      The government did not elicit false testimony. The government, of course,

recognized that Gantz died as a result of strangulation. But the purpose of Melgar

and Cook’s testimony was to support their theory that the conspirators intended to

suffocate Gantz and ended up strangling him instead. There was expert testimony

that the results of the autopsy were consistent with Melgar and Cook’s testimony

—that Melgar placed the plastic bag over Gantz’s head and then pushed down

with his clenched fists. That Melgar continued to believe he did not touch

Gantz’s neck does not render the testimony false. He may not recollect whether

he touched Gantz’s neck or may be convinced he did not. Regardless, this is an

issue of credibility for the jury and is not definitively false testimony. And the

government agent’s testimony simply confirms that Cook and Melgar believed

that they suffocated Gantz before they were arrested and charged.

      The government did not engage in impermissible vouching. The

prosecution engages in impermissible vouching “only if the jury could reasonably

believe that the prosecutor is indicating a personal belief in the witness’

credibility, either through explicit personal assurances of the witness’ veracity or

by implicitly indicating that information not presented to the jury supports the

witness’ testimony.” United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.

1990). In this case, the prosecutor asked the jury to credit Melgar’s testimony on

the basis of Cook’s corroborating testimony, which was before the jury to

consider. The prosecutor did not make personal assurances of the veracity of

                                        -27-
either witness or suggest that he had information not before the jury to support

the testimony.

      C. Jury Instructions

      Smalls challenges the district court’s decisions regarding four jury

instructions. He argues the district court abused its discretion in declining to

adopt instructions that (1) Smalls’s mere presence in the cell was not evidence of

guilt, (2) the truthfulness provisions in Cook and Melgar’s plea agreements did

not verify the truth of their testimony, and (3) testimony by co-conspirators

should be weighed with greater care than other testimony. He also argues the

court plainly erred in failing to give a curative instruction for the government’s

vouching of Cook and Melgar’s testimony.

      We review the decision to give or refuse a particular jury instruction for

abuse of discretion. United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir.

2008). But where a party does not object to the inclusion or exclusion of a

particular instruction, we review for plain error. United States v. Romero, 491

F.3d 1173, 1178 (10th Cir. 2007).

             1. Presence in Cell

      The court declined to instruct the jury that Smalls’s mere presence in the

cell was not evidence of guilt. It denied the instruction because the court gave

the instruction that mere knowledge is not enough for a conspiracy and that mere

presence is not enough for aiding and abetting liability, which were contained in

                                        -28-
the instructions for three separate counts. Smalls argues that a stand-alone mere

presence instruction was necessary because instructing the jury on mere

knowledge and mere presence in connection with only three counts implied that it

may consider mere presence in connection with the other two counts.

      The district court did not abuse its discretion in declining to adopt a mere

presence instruction. “It is not error to refuse to give a requested instruction if

the same subject matter is adequately covered” elsewhere. United States v.

Miller, 460 F.2d 582, 588 (10th Cir. 1972). In each of the counts, the jury was

instructed that conviction required agreement or knowing conduct or both. No

stand-alone mere presence instruction was necessary as the jury was explicitly

instructed of the requirement that Smalls have some active involvement in the

conspiracy or the act. That the mere presence instruction was given in other

counts does not alter this conclusion. A mere presence instruction simply

emphasizes the active involvement requirement to the jury. Failure to give the

instruction on some counts does not transform the express meaning of

“agreement” or “knowing conduct” and thus would not confuse the ordinary juror.

             2. Truthfulness

      The district court also declined to instruct the jury that the government had

no greater ability to verify Cook and Melgar’s truthfulness than the jury. Smalls

argues this curative instruction was necessary because the truthfulness provisions

in Cook and Melgar’s plea agreements—which conditioned the receipt of certain

                                         -29-
government benefits on a finding that they testified truthfully— were entered into

evidence and thus had the effect of vouching for the witnesses’ truthfulness. He

cites to United States v. Harlow, 444 F.3d 1255, 1265 (10th Cir. 2006), in which

we held that to the extent that any impermissible vouching occurred by the

admission of plea agreements with truthfulness provisions, the district court’s

credibility instructions cured any error.

      Harlow is distinguishable. We held in Harlow that submission of the

witnesses’ plea agreements, which also contained provisions conditioning

government benefits on a finding of truthful testimony, was erroneous because

they were submitted “in conjunction with the evidence that the prosecutor moved

for the benefits thereunder and the judge issued his approval.” Id. at 1262. It was

the additional evidence of the government’s finding that the testimony was

truthful, not the truthfulness provisions on their own, that had the effect of

improper government vouching. Here, by contrast, the government introduced

only the plea agreements, which does not constitute improper vouching. See

United States v. Claycomb, 372 F. App’x 832, 840 (10th Cir. 2010) (“[I]t is

permissible for a prosecutor to introduce a witness’s plea agreement including a

truthfulness provision and to discuss that provision to make sure the witness is

aware of the consequences of failing to tell the truth and for the purpose of

heading off any claim the witness’s testimony is suspect because of the plea

agreement.”).

                                            -30-
      The district court did not abuse its discretion in declining to issue a

credibility instruction.

             3. Weighing Testimony

      Smalls also argues the district court abused its discretion in declining to

give an instruction on the care required to weigh the testimony of Melgar and

Cook. Smalls had asked the district court to instruct the jury that Melgar and

Cook’s testimony should be weighed with greater care than the testimony of a

witness who did not commit a crime. Contrary to Smalls’s assertions, the district

court did give an instruction that the jury should “receive this type of testimony

with caution and weigh it with great care,” as well as other instructions

emphasizing this notion. Supp. R., Vol. IV at 323. The district court did not

abuse its discretion in declining to use the precise language from Smalls’s

proposed instruction.

             4. Curative Instruction for Vouching

      Finally, Smalls argues the district court plainly erred in failing to give a

curative instruction for the government’s alleged improper vouching of Cook and

Melgar’s testimony. Smalls acknowledges that improper vouching can be cured

by an appropriate instruction. See Harlow, 444 F.3d at 1265. But the government

did not improperly vouch for any testimony because it did not make “personal

assurances of the witness’ veracity” or “implicitly indicat[e] that information not




                                         -31-
presented to the jury supports the witness’ testimony.” Bowie, 892 F.2d at 1498.

Thus, a curative instruction was not necessary.

      D. Sufficiency of the Evidence

      Whether there is sufficient evidence to support a conviction is a legal

question that is reviewed de novo. United States v. Hasan, 609 F.3d 1121, 1132

(10th Cir. 2010). We view the evidence in the light most favorable to the

government and must draw all reasonable inferences in favor of the government.

United States v. King, 632 F.3d 646, 650 (10th Cir. 2011). It is not our job to

“weigh conflicting evidence or consider witness credibility, as that duty is

delegated exclusively to the jury.” United States v. Hien Van Tieu, 279 F.3d 917,

921 (10th Cir. 2002).

      Smalls was convicted of five federal offenses: retaliation against a

government witness or informant, conspiracy to retaliate, tampering with a

government witness or informant, conspiracy to tamper, and killing an assistant in

a federal investigation. Smalls argues that the government presented insufficient

evidence to sustain his convictions. Specifically, he contends there was

insufficient evidence of his participation in Gantz’s murder and of the specific

intent required by the statutes. He also argues that the government did not

establish it was reasonably likely that, had Gantz communicated with a law

enforcement officer, it would have been a federal officer. Because the




                                        -32-
government presented sufficient evidence to sustain the convictions, we affirm the

judgment of the district court.

             1. Participation in the Murder

      Smalls first argues that the jury had insufficient evidence to establish he

participated in Gantz’s murder. According to Smalls, no reasonable juror could

find that the murder happened as Melgar described because Melgar’s testimony

that he suffocated Gantz contradicted the medical evidence that Gantz died by

strangulation. Further, Cook was unable to articulate his precise role in the

murder and it remained unanswered how Smalls restrained Gantz’s feet.

      Each of these points concerns how the jury resolved conflicting testimony,

which is not within the scope of our review and is exclusively a jury function.

The government presented sufficient evidence that Smalls participated in the

murder: his cellmates testified that all three individuals participated in the

murder and an expert opined that the lack of defensive wounds on Gantz’s body

was consistent with being restrained.

             2. Intent to Retaliate

      A defendant is guilty of retaliating against a witness if he knowingly kills a

person with intent to retaliate against that person for being a witness at an official

proceeding or “for providing to a law enforcement officer any information

relating to the commission or possible commission of a Federal offense.” 18

U.S.C. § 1513(a)(1)(A), (B). A defendant who conspires to commit the offense of

                                         -33-
retaliation is subject to the same penalties. § 1513(f). “[T]he government need

not adduce direct evidence of Appellant’s knowledge of a witness’s informant

status in order for the jury to infer his intent to retaliate.” United States v.

Ashley, 606 F.3d 135, 140 (4th Cir. 2010) (internal quotation marks omitted).

         Smalls argues that there was insufficient evidence presented to sustain his

convictions for retaliation and conspiracy to retaliate because the government did

not introduce evidence of intent to retaliate. No witness testified as to Smalls’s

intent to retaliate against Gantz for his cooperation as a federal informant. To

reach this conclusion, Smalls maintains, the jury had to infer that Smalls was

connected to drug traffickers or had a particular dislike of informants, which the

evidence did not establish. While a jury may have inferred that Smalls acted in

expectation of a reward payment for a hit on Gantz, there was no evidence that he

acted out of a hatred of informants or to satisfy drug traffickers. To make such a

finding, says Smalls, the jury would have had to impermissibly pile “inference

upon inference.” United States v. Summers, 414 F.3d 1287, 1294 (10th Cir.

2005).

         The government points to three pieces of evidence as support for the

verdict: (1) Melgar testified that Smalls told him Gantz was a “rat” and had

provided information about others in a federal case, R., Vol. V at 619; (2) Melgar

testified that Smalls had told him that a letter about Gantz had been passed around

prison and said Gantz was to be killed because he’s a rat, id. at 643–44, 647–48;

                                          -34-
and (3) Cook testified that Smalls told him Gantz was cooperating with the

government, others wanted him dead, and there was a hit on him, id. at 1094–95,

1098. Melgar also testified that Smalls encouraged him to participate based on

Gantz’s past cooperation that resulted in the capture of four “Michoacanos,” who

Smalls described as Melgar’s “people.” Id. at 648.

      The evidence allows for a reasonable inference that Smalls killed Gantz in

retaliation for Gantz’s previous cooperation with the government. The fact that

Smalls discussed Gantz’s cooperation with the government in the murder’s

planning stages is enough to infer that Gantz’s cooperation was a substantial

motive in the murder. Based on Smalls’s knowledge and discussion of Gantz’s

cooperation, his pressure on Melgar to participate based on Gantz’s previous

cooperating activities, and his knowledge of the hit on Gantz, a reasonable juror

could infer an intent to retaliate. Smalls’s theory that it was more likely that he

committed the murder for his own monetary benefit is not inconsistent with being

motivated by an intent to retaliate. In Ashley, the court upheld a defendant’s

conviction under § 1513 where the defendant was paid for his attempt to have an

informant killed in retaliation for giving information to law enforcement about a

fellow inmate. Ashley, 606 F.3d at 139–40. Smalls’s ultimate purpose may have

been to collect a reward for killing Gantz, but the purpose of the bounty was to

encourage a retaliatory attack.

             3. Intent to Tamper

                                        -35-
      A defendant is guilty of tampering with a witness if he knowingly kills

another person with intent to “prevent the attendance or testimony of any person

in an official proceeding” or “prevent the communication by any person to a law

enforcement officer or judge of the United States of information relating to the

commission or possible commission of a Federal offense.” 18 U.S.C.

§ 1512(a)(1)(A), (C). A defendant who conspires to commit the offense of

tampering is subject to the same penalties. § 1512(k). “To sustain a conviction

under [§ 1512] the government does not need to prove the defendant knew of the

existence of an ongoing official proceeding.” United States v. Ahrensfield, 698

F.3d 1310, 1324 (10th Cir. 2012) (citing § 1512(c)(2)). Rather, “a conviction is

proper under the statute if interference with the official proceeding is the ‘natural

and probable effect’ of the defendant’s conduct.” United States v. Phillips, 583

F.3d 1261, 1264 (10th Cir. 2009) (quoting United States v. Aguilar, 515 U.S. 593,

601 (1995)). 10

      10
          In Aguilar, the Supreme Court addressed the intent element under 18
U.S.C. § 1503(a), which criminalizes “corruptly endeavor[ing] to influence,
obstruct, or impede” the due administration of justice. The Court announced the
“natural and probable effect” test (or the “nexus” requirement) as the correct
approach to determining whether a defendant acts with the requisite intent under
the statute. Aguilar, 515 U.S. at 601. In Arthur Andersen LLP v. United States,
544 U.S. 696, 708 (2005), the Court applied this test to the intent element under
18 U.S.C. § 1512(b), which prohibits knowingly and corruptly persuading another
person to withhold documents in an official proceeding. Based on the similar
language of §§ 1503(a) and 1512(c)(2), and the Supreme Court’s application of
the Aguilar test to another section of § 1512, we held the “natural and probable
effect” test applies to § 1512(c)(2). Phillips, 583 F.3d at 1264. For substantially
                                                                       (continued...)

                                         -36-
      Smalls argues that there was insufficient evidence to establish the requisite

specific intent. The only evidence that Gantz was still assisting federal

investigators was that he was a potential witness in the government’s case against

a reneging cooperator. And Gantz had last provided information to the

government nearly a year before the murder; thus, an inference of intent to hinder

attendance or communication cannot be reasonably derived from these

circumstances.

      But the government introduced sufficient evidence for a jury to infer that

interference was the “natural and probable effect” of Smalls’s conduct. Smalls

was aware that Gantz had cooperated with federal authorities in the past and

manifested a belief that Gantz was still cooperating. 11 Gantz also was, at the time

of the murder, a potential witness in the upcoming trial of the reneging

government cooperator. Even if Smalls was not specifically aware of this

information, preventing a witness’s testimony in a federal proceeding is a natural

and probable effect of killing a known government informant. See Ashley, 606

F.3d at 140 (“We are mindful that retaliation against informants and witness

tampering are distinct offenses. While the difference between them should not be

      10
        (...continued)
the same reasons we described in Phillips, the Aguilar test is the correct approach
to determining whether the defendant acted with the requisite intent under
§ 1512(a)(1)(A) and (C).
      11
          Cook testified that Smalls said, “Gantz was cooperating with the federal
authorities or whatever.” R., Vol. V at 1098.

                                        -37-
blurred, the two offenses are often related. Providing information and serving as

a witness often go hand-in-hand, and the proof used to support a conviction on

one offense will frequently underlie a conviction on another, notwithstanding the

differences between the two statutes.”).

      Viewed in a light most favorable to the government, a reasonable juror

could infer from this evidence that Smalls killed Gantz to prevent him from

testifying in a federal proceeding. 12

             4. Communication with Federal Law Enforcement Authorities

      Finally, Smalls contends that there was insufficient evidence to show that

Gantz would have had a future relevant communication with federal law

enforcement. He points to a recent Supreme Court case, Fowler v. United States,

131 S. Ct. 2045 (2011), to support his claim that there was insufficient evidence

to sustain his conviction under the federal witness tampering statute. The Court

in that case held the government must show a “reasonable likelihood” that had the

victim communicated with a law enforcement official, at least one relevant

communication would have been made to a federal official. Id. at 2052. The

Court stressed that the government “need not show that such a communication,

had it occurred, would have been federal beyond a reasonable doubt, nor even that

      12
          Smalls offers the same intent argument to challenge his conviction of
killing Gantz for aiding a federal investigation in violation of 18 U.S.C.
§ 1121(a)(2). But, as with the retaliation and tampering counts, the government
introduced sufficient evidence that Smalls was motivated by Gantz’s assistance in
a federal investigation, which was ongoing at the time of Gantz’s murder.

                                           -38-
it is more likely than not.” Id. But it “must show that the likelihood of

communication to a federal officer was more than remote, outlandish, or simply

hypothetical.” Id.

      The government submitted enough evidence from which a jury could infer

that it was reasonably likely that had Gantz communicated with a law

enforcement officer, he would have communicated with a federal officer. Gantz

was cooperating with the FBI, had debriefed twice with the FBI regarding drug

trafficking in Roswell, pleaded guilty to a plea agreement with cooperation

language, and was a potential witness in a future trial of a reneging cooperator in

a federal investigation. Melgar also testified that Gantz was giving out

information about other people in a federal case.

      Because there was sufficient evidence that Smalls killed Gantz to prevent

his communication with a law enforcement officer, and it was reasonably likely

that this communication would have been to a federal officer, there is sufficient

evidence to sustain his conviction under § 1512.

      E. Cumulative Error

      A cumulative error analysis evaluates “only the effect of matters

determined to be error, not the cumulative effect of non-errors.” United States v.

Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) (en banc). Because the district

court did not commit error, there is no need to conduct a cumulative error

analysis.

                                        -39-
                             III. Conclusion

     For the foregoing reasons, we AFFIRM the judgment of the district court.

The appellee’s motion to supplement the record is GRANTED.




                                     -40-
