                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 5 2004
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 01-8096
                                                       (D. Wyoming)
 DONNIE COLLINS,                                (D.Ct. No. 00-CR-176-03-B)

          Defendant-Appellant.



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 01-8097
 v.                                                    (D. Wyoming)
                                                (D.Ct. No. 00-CR-176-04-B)
 GORDON SHAFFER,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, McWILLIAMS, and ANDERSON, Senior
Circuit Judges.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      In a superseding indictment (indictment) filed May 23, 2001, Donnie

Collins and Gordon Shaffer, together with three other individuals (Paula Friend,

Rebecca Stout and Paul Levasseur), were charged with conspiracy to possess with

intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)-(C), and 846. The charged conspiracy was alleged to have

occurred between the approximate dates of November 1998 and June 2000.

Collins and Shaffer were convicted by a jury on August 23, 2001. 1 In each case,

the jury found the amount of methamphetamine involved in the conspiracy was 50

grams or more, but less than 500 grams, triggering the penalty provisions of 21

U.S.C. § 841(b)(1)(B), which include imprisonment for not less than five or more

than forty years. Collins was sentenced to eighty-four months imprisonment;

Shaffer was sentenced to ninety-seven months imprisonment. They appeal their

convictions and sentences. Exercising jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we affirm in part and dismiss in part.



      1
       The three other defendants pled guilty to the charges before trial under
plea agreements.

                                         -2-
Background

      The charged coconspirators, together with others, received and redistributed

methamphetamine in northeastern Wyoming and southeastern Montana. As the

Government stated in the “Prosecutor’s Statement” submitted to the U.S.

Probation Office in aid of preparation of each presentence investigation report

(PIR), “over time, the Defendants and their coconspirators each acted as both a

source and a customer for each other.” (Shaffer Appellant App. at 265.) “[M]ost

of the methamphetamine involved in this case flowed from Friend’s source, to

Friend, to her codefendants, to her unindicted coconspirators, and to the group’s

customers.” (Id. at 266.) “[W]hen Friend could not obtain methamphetamine

from her source the ‘group’ relied on each other to supply use and distribution

quantities of methamphetamine.” (Id. at 267.) Collins agrees in his brief,

describing the group as one that “bought and sold methamphetamine to and from

each other, depending solely on who had methamphetamine at the particular point

in time.” (Appellant Br. at 4.) 2 In short, the ring was a clearinghouse for the

distribution of small but regular amounts of methamphetamine.

      For Shaffer, the PIR evidenced relevant conduct involving 560 to 1109.5

grams of methamphetamine, resulting in a base offense level of 32 for purposes of



      2
       References to Collins’ Appellant’s Brief are to Collins’ Appellant’s
Corrected Opening Brief.

                                         -3-
sentencing. United States Sentencing Commission, Guidelines Manual, §

2D1.1(c)(4) (Nov. 1998). Nonetheless, the district court hewed to the jury’s

finding that 50 to 500 grams of methamphetamine were involved in the conspiracy

and found by a preponderance of the evidence that Shaffer’s relevant conduct

involved 350 to 500 grams of methamphetamine, resulting in a base offense level

of 30. Id. at § 2D1.1(c)(5). With no further adjustments and a criminal history

category of I, Shaffer’s guideline range was 97 to 121 months. Id. at Ch.5, Pt.A,

Sentencing Table. The court sentenced at the low end of the range. 3

      For Collins, the PIR evidenced relevant conduct involving 306.6 to 360.1

grams of methamphetamine, resulting in a base offense level of 28. Id. at §

2D1.1(c)(6). The district court, though, found by a preponderance of the evidence

that the relevant conduct involved at least 50 but less than 200 grams of

methamphetamine, resulting in a base offense level of 26. Id. at § 2D1.1(c)(7).

Collins’ level was then adjusted upward by two for obstruction of justice. Id. at §

3C1.1. With a total offense level of 28 and a criminal history category of I,

Collins fell into a guideline range of seventy-eight to ninety-seven months. Id. at

Ch.5, Pt.A, Sentencing Table. The court denied safety valve relief, USSG §

5C1.2, and sentenced mid-range.


      3
        When Shaffer and Collins were sentenced, it was the policy of the U.S.
Probation Office, in cases involving a range of drug quantity, to use the low end
of the range in calculating the base offense level.

                                        -4-
      In this consolidated appeal, Collins and Shaffer, in turn jointly and

individually, challenge their convictions on the grounds of evidentiary errors,

prosecutorial misconduct and ineffective assistance of counsel, and their

sentences on the grounds of a miscalculation of relevant conduct and failure to

accord safety valve relief under the sentencing guidelines. We take up these

issues seriatim.

Discussion

                         I. Challenges to the Convictions

      A.     Evidentiary Issues

      We review evidentiary rulings for abuse of discretion. United States v.

Jenkins, 313 F.3d 549, 559 (10th Cir. 2002), cert. denied, 538 U.S. 1006 (2003).

Under this standard, “we will not disturb an evidentiary ruling absent a distinct

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

conclusion of law or manifests a clear error in judgment.” Id. Even if we

identify error, we will not reverse if the error is harmless. United States v.

Wittgenstein, 163 F.3d 1164, 1172 (10th Cir. 1998), cert. denied, 527 U.S. 1012

(1999). Error is harmless unless it affects substantial rights. Fed. R. Crim. P.

52(a); 28 U.S.C. § 2111. Evidentiary error is non-constitutional. United States v.

Magleby, 241 F.3d 1306, 1317 (10th Cir. 2001). We deem non-constitutional

error harmless “unless it had a substantial influence on the outcome or leaves one


                                         -5-
in grave doubt as to whether it had such an effect.” United States v. Richardson,

86 F.3d 1537, 1550 (10th Cir. 1996) (quotation marks omitted), cert. denied, 519

U.S. 1030 (1996). We determine de novo whether error is harmless. Id.

      Absent objection, we review instructional misstatement or omission for

plain error. Fed. R. Crim. P. 30(d). To qualify for relief, plain error must affect

substantial rights. Fed. R. Crim. P. 52(b); United States v. Bailey, 286 F.3d 1219,

1222 (10th Cir.), cert. denied, 537 U.S. 877 (2002). “An appellate court should

exercise its discretion to correct plain error only if it seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

marks omitted).

             1.     Inextricably Intertwined Evidence

      The Government called a number of witnesses at trial who testified to

methamphetamine dealing activities of Collins and Shaffer which pre-dated the

period of the charged conspiracy by, in some instances, several years. 4 In an

effort to assure this testimony would be allowed at trial, the Government filed a

“Notice of Intent to Use ‘Inextricably Intertwined’ Evidence of Methamphetamine

Transactions.” In this notice, the Government contended any testimony its


      4
        At trial, the Government acknowledged its error in failing to seek an
indictment based on a broader conspiracy time frame. On appeal, it again
expresses repentance that “the superseding indictment erroneously alleges the
conspiracy began in November 1998, not in 1995 as it should have.” (Appellee
Br. at 12.)

                                           -6-
witnesses might provide as to methamphetamine transactions outside the time

frame of the charged conspiracy constituted direct evidence of the conspiracy. It

stated the witnesses would testify to transactions involving the same controlled

substance, the same parties, and the same modus operandi as those occurring

within the charged time frame. Put another way, the Government characterized

the evidence as intrinsic to the charged crime or inextricably intertwined with it,

as “reasonably necessary to complete a witness’s story regarding the charged

conspiracy.” (Shaffer Appellant App. at 50.) In the alternative, the Government

argued the testimony was evidence of “other acts” under Fed. R. Evid. 404(b). 5

Collins and Shaffer filed a joint response opposing the characterization of the

testimony as inextricably intertwined and decrying it as not meeting the test for

admission under Rule 404(b). The parties make the same arguments on appeal.

      The court conducted a hearing in limine and allowed the testimony as

inextricably intertwined with proof of the conspiracy itself. As the court put it,

the testimony “may be necessary to explain the relationship of the parties . . . .”

(Shaffer Appellant App. at 150.) However, it requested defense counsel to

prepare an instruction emphasizing the testimony should not be considered as

evidence of guilt but only as “explanatory of the predisposition, if you want to



      5
       Since we conclude the evidence was properly admitted as inextricably
intertwined with the charged crime, we do not reach the alternative argument.

                                         -7-
call it that, of the defendants, if any, toward the drug market.” (Id.) 6

      Rule 404(b) only applies to evidence of acts extrinsic to the charged
      crime. An uncharged act may not be extrinsic if it was part of the
      scheme for which a defendant is being prosecuted, or if it was
      inextricably intertwined with the charged crime such that a witness’
      testimony would have been confusing and incomplete without
      mention of the prior act.

United States v. Record, 873 F.2d 1363, 1372 n.5 (10th Cir. 1989) (citations and

quotation marks omitted). “Other act evidence is intrinsic when the evidence of

the other act and the evidence of the crime charged are inextricably intertwined or

both acts are part of a single criminal episode or the other acts were necessary

preliminaries to the crime charged.” United States v. Lambert, 995 F.2d 1006,

1007 (10th Cir.) (quotation marks and citation omitted), cert. denied, 510 U.S.

926 (1993). Intrinsic other act evidence, although by definition relevant to the

crime charged, is still subject to exclusion “if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .” Fed. R. Evid. 403; see also

Lambert, 995 F.2d at 1007-08. 7

      6
        The record reflects Shaffer’s trial counsel submitted a proposed instruction
on inextricably intertwined evidence that the court delivered to the jury as
Instruction No. 26A (“The Defendants are not on trial for any act or any conduct
not alleged in the indictment.” (Collins R. Vol. I, Doc. 180)). Moreover, trial
counsel for Shaffer and Collins relied upon Instruction No. 26A in their closing
arguments. (Collins R. Second Supplemental Vol. I at 25, 30, 40-41.)
      7
       One treatise has described the rule of inextricably intertwined evidence as
one of “contextual relevance,” the purpose of which is “to complete a picture by
providing context and meaning for the central events . . . .” Christopher B.
Mueller & Laird C. Kirkpatrick, Federal Evidence § 111(B) (2d ed. 2003).

                                           -8-
      With these principles in mind, and after an exhaustive review of the record,

we conclude the challenged testimony about methamphetamine-dealing activities

of Shaffer and Collins outside the window of the charged conspiracy is intrinsic

to the crime charged and the court did not clearly err in admitting it. We first

observe that although the indictment temporally frames the charged conspiracy, it

does not preclude the existence of an uncharged conspiracy or putative conspiracy

prior to the charged term. And this is precisely what the testimony established.

Prior to 1998, Collins and Shaffer had known each other for several years, dealt

methamphetamine between themselves and with at least two of the indicted co-

conspirators, and did so according to a pattern replicated during the term of the

charged conspiracy. While the Grand Jury could easily have expanded the

conspiracy window to include most if not all of the prior acts (if the Government

had presented the appropriate evidence), it did not. Nevertheless, testimony about

the pre-1998 acts clarified and completed for the trial jury the picture of the




Although such evidence should be approached with caution,

      [i]n cases that approve use of other crimes to provide context, some
      clear utility can be seen when the other crimes show concerted or
      cooperative action by several defendants, which may support
      inferences that they planned the venture and inferences about the
      roles that each played, and may explain relationships and transactions
      that would otherwise be harder to understand.

Id.

                                         -9-
interrelationship of the conspirators. Record, 873 F.2d at 1372 n.5. As the

Government argues in its brief, the evidence was offered “to prove the beginning

stages of the conspiracy, how it developed, and how it continued.” (Appellee Br.

at 13.) Viewed in this light, the prior acts were admissible as “preliminar[y] to

the crime charged.” Lambert, 995 F.2d at 1007. Or, as the district court aptly put

it, the parties were “warming up for the big acts[.]” (Shaffer Appellant App. at

143.)

        In United States v. Wacker, 72 F.3d 1453 (10th Cir. 1996), a case in which

defendants were charged with multiple drug trafficking offenses alleged to have

occurred around 1990, including conspiracy, we allowed admission of prior bad

acts against one of the defendants (under Fed. R. Evid. 404(b)) dating from 1977,

1980, 1981, 1982 and 1984. Although the prior acts were similar to the 1990

charged crime in that they all involved marijuana, they were materially dissimilar

from the charged crime in that they (a) involved persons not named in the 1990

indictment as co-defendants, and (b) evidenced activity significantly different in

kind from that charged in the 1990 indictment. Nonetheless, we held:

        Although the bad acts testified to at trial occurred well before the
        offenses charged in the indictment, the prosecution used this
        testimony to show a long-standing pattern of drug activity from the
        late 1970s up until the time of appellants' arrest in 1990. Viewed in
        this light, the evidence is not unrelated and remote, but is integrally
        related to the criminal activity charged in the indictment.

Id. at 1469 (citing to Record, 873 F.2d at 1372 n.5, and noting that “uncharged

                                          -10-
prior acts that are ‘inextricably intertwined’ with the charged crime are

admissible”); see also United States v. O’Brien, 131 F.3d 1428, 1432 (10th Cir.

1997) (allowing other acts as evidence relating to a period outside that charged in

a conspiracy indictment because the evidence was “intertwined” with acts

charged). By comparison, the instant case involves prior acts that are virtually

indistinguishable in kind from the charged activity and for the most part involve

the same parties. Based on our precedent, then, the court did not abuse its

discretion in admitting them as inextricably intertwined evidence.

      Finally, the evidence does not violate Rule 403. While admission of the

disputed evidence was prejudicial, as is true of all evidence adduced against a

defendant, it was not unfairly so. It merely replicated evidence of acts that

occurred during the temporal frame of the charged conspiracy, evidence that was

compelling and sufficient on its own to sustain the convictions. 8

             2.    Admission of Kitty Riggs Testimony Under Rule 404(b)

      Kitty Riggs testified to the following. She first met Collins in 1994 or

1995, when she was a fifteen-year-old high school student and he was twenty-six

years old. At their first meeting, he introduced her to methamphetamine and she



      8
        Neither Shaffer nor Collins argues the evidence within the temporal frame
of the charged conspiracy was insufficient to support conviction. This being so,
and in light of the strength of that evidence, even if we were to find admission of
the disputed testimony was error, it was harmless. Richardson, 86 F.3d at 1550.

                                         -11-
became addicted. Within a few months, she moved in with him, and the two had

a sexual relationship. She continued to use methamphetamine, provided by

Collins, at a rate of about a gram a day. She was a witness to methamphetamine

transactions involving Collins, Shaffer and Friend. She observed Collins measure

out methamphetamine, weigh it and package it for distribution. She witnessed

him deliver the drug to friends her age, some of whom were still in high school.

Their relationship lasted about two years, ending before the time frame of the

charged conspiracy.

      The Government proffered Riggs’ testimony under Rule 404(b). At the

conclusion of a two-part hearing in limine to consider the evidence, and over

objection that it was remote, cumulative and prejudicial, the court allowed the

testimony and orally gave this limiting instruction to the jury before the testimony

was adduced:

      And in connection with the testimony of Miss Riggs, the Court
      instructs the jury that you’re going to hear some testimony that does
      not refer to the specific times of this conspiracy, which was
      November ’98 to June 1, 2000, but concerns a prior time frame. And
      this is evidence of an act or acts that were done at some other time,
      but the evidence is received because the Court thinks it may or may
      not show a propensity to have performed a similar act or a similar
      offense during the times charged in the superseding indictment.

      The evidence of a similar act or offense may not be considered by the jury
      in determining whether the defendants actually performed physical acts
      charged in this superseding indictment, and such evidence also may not be
      considered for any other purpose whatsoever, unless the jury first finds
      beyond reasonable doubt, from other evidence in the case standing alone

                                        -12-
      that the defendants physically did the acts charged in [the] superseding
      indictment.

      If the jury should find beyond a reasonable doubt from other
      evidence in the case that the defendants did the act or acts alleged in
      the particular superseding indictment under consideration in this
      case, the jury may then consider evidence as to an alleged earlier act
      of a like nature in determining the state of mind or intent with which
      the defendants actually may have done the act or acts charged in the
      superseding indictment.

      And, of course, I must add that the defendants are not on trial for any
      acts or crimes not alleged in the superseding indictment, nor may a
      defendant be convicted of the crimes charged, even if you were to
      find that they committed other crimes, even crimes similar to the
      ones charged in the superseding indictment.


(Shaffer Appellant App. at 154-55) (emphasis added).

      Neither Collins nor Shaffer objected to the oral instruction before or after it

was given. Other than Instruction 26A, 9 no part of the quoted instruction was

repeated in the court's charge to the jury (written and oral) at the close of the

case. Neither Collins nor Shaffer objected to this omission or offered a 404(b)

instruction. Nevertheless, they now complain the court erred in its choice of

language in the oral instruction and they link that error to the admission of Riggs’

testimony, to which they did object.

      Prior bad acts are, of course, inadmissible to “prove the character of a

person in order to show action in conformity therewith.” Fed. R. Evid. 404(b). In


      9
          See n.6.

                                         -13-
other words, they are inadmissible to show propensity to commit a crime. Prior

bad acts are admissible, however, “for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident . . . .” Id. (emphasis added). Excluding identity, it was for each of

these stated purposes that the Government offered Riggs’ testimony. The test for

404(b) admission is this:

      (1) the evidence is offered for a proper purpose under Fed.R.Evid.
      404(b); (2) the evidence is relevant under Fed.R.Evid. 401; (3) the
      probative value of the evidence is not substantially outweighed by its
      potential for unfair prejudice under Fed.R.Evid. 403; and (4) the
      district court, upon request, instructs the jury to consider the
      evidence only for the purpose for which it was admitted.

United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001).

      Collins concedes the testimony was offered for a proper purpose. However,

he contends the district court admitted it for an additional, improper purpose, that

being to show propensity. He also argues the evidence was not relevant because

it was remote in time. Finally, he argues it was inflammatory and prejudicial.

Shaffer joins in arguing this last point.

      In arguing Riggs’ testimony was admitted for an improper purpose (in

addition to a concededly proper one), Collins points to this remark by the court at

the conclusion of the liminal hearing on the admissibility of the testimony:

      I’m inclined to think that the evidence under 404(b) may be
      admissible for the purpose of proving a propensity and to proving a
      prior involvement of the Defendant Collins with the Defendant

                                            -14-
      Shaffer, and also with Paula Friend, and that that tends to show the
      likelihood of this having continued during the period of the
      conspiracy.

(Shaffer Appellant App. at 200.) The choice of the word “propensity” was error,

but the error is more technical than real. 10 From the record as a whole it appears

the court employed the word “propensity” in the same sense it employed the word

“predisposition” in admitting the inextricably intertwined evidence. There, the

court explained it was admitting the evidence because it “may be necessary to

explain the relationship of the parties . . . .” (Id. at 150.) Clearly, the court

intended, in its use of the word “propensity,” as it did in its earlier use of the

word “predisposition,” to convey the thought that the evidence was admissible for

the purpose of explaining the relationship of the parties in the context of the drug

market, not for the purpose of proving the bad character of the defendants in

order to show they acted in conformity therewith. Viewed in context, the

evidence was properly admitted.

      We are bolstered in our conclusion by the fact that the Government did not

offer Riggs’ testimony as an artifact of propensity; nor did it serve this purpose.

To the contrary, it served the admittedly proper purposes for which it was offered

(motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or




       We observe the court’s phraseology was of such minor moment that it
      10

passed unremarked at the time.

                                          -15-
accident) and was consistent with other evidence the Government introduced as

inextricably intertwined (see infra. pp. 6-11). Riggs' testimony fits comfortably

within our observation that Rule 404(b) “is one of inclusion, rather than exclusion

. . . .” United States v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997), cert.

denied, 523 U.S. 1024 (1998). In the absence of an avowed purpose by the

Government to show propensity or a surreptitious use of the testimony as an

artifact therefor, as proscribed by Rule 404(b), we identify no error.

      As to Collins’ claim that Riggs’ testimony was not relevant under Rule 401

because it was remote in time, we disagree. The testimony evidenced a modus

operandi and interrelationship with other players “integrally related to the

criminal activity charged in the indictment.” Wacker, 72 F.3d at 1469. We are

more troubled by the claim that it was unfairly prejudicial under Rule 403.

“Evidence is unfairly prejudicial when it has an undue tendency to suggest

decision on an improper basis, commonly, though not necessarily an emotional

one.” Magleby, 241 F.3d at 1315 (quotation marks and citation omitted). At the

first liminal hearing on the admissibility of Riggs’ testimony, the court had

understandable misgivings about the prejudicial effect of the testimony: “Looks

like that’s just trying to smear him . . . . [I]t looks like it’s just designed to make

him look like a bad person for chasing after high school girls.” (Shaffer

Appellant App at 151-52.) Exercising caution, the court withheld ruling on the


                                           -16-
admissibility of the testimony until it heard the balance of the Government’s case.

After it did, and after additional liminal argument, the court changed its mind and

decided to allow the testimony. The court’s considered approach to the evidence

manifests the careful weighing process Rule 403 requires. “The district court has

broad discretion to determine whether prejudice inherent in otherwise relevant

evidence outweighs its probative value.” Magleby at 1315 (quotation marks and

citation omitted). When we review for abuse of discretion, “we defer to the trial

court's judgment because of its first-hand ability to view the witness or evidence

and assess credibility and probative value.” Id. Exercising this deference, we

identify no abuse of discretion in the admission of Riggs’ testimony. It was

consistent with the testimony of other witnesses, and showing the established pace

and pattern of drug sales among conspirators is a purpose permitted under Rule

404(b). The district court could reasonably conclude the probative value

outweighed the risk of unfair prejudice.

      Having concluded the testimony was properly admitted, we now turn to the

court’s oral instruction to the jury as it prepared to hear Riggs’ testimony, which

we review for plain error. Fed. R. Crim. P. 30(d). There is some dispute in the

briefs as to whether the first paragraph of the instruction was actually part of the

instruction or only a preamble. For purposes of our discussion, the distinction is

immaterial. The use of the term “propensity” in the context of explaining an


                                         -17-
explicit purpose for the evidence is contrary to Rule 404(b). We are not

concerned with an unintentional misuse of the term during liminal proceedings

when we are otherwise able to discern the true intent of the court. But the use of

the term in an instruction to the jury is another matter. A jury, unversed in legal

theory and semantics, is not equipped, let alone likely, to recognize and

accommodate the misuse of a term of art. It is more likely to accept an

instruction in its literal form.

       Even so, we do not believe that error in one sentence of a lengthy (and

otherwise correct) oral instruction, although plain, affected substantial rights,

Fed. R. Crim. P. 52(b), for it did not “seriously affect[] the fairness, integrity, or

public reputation of [the] judicial proceedings.” Bailey, 286 F.3d at 1222

(quotation marks omitted). The record as a whole, sans Riggs’ testimony and the

erroneous instruction, abundantly supports the convictions. Moreover, the correct

language in the instruction, which constitutes the bulk of it, contradicts the

erroneous phrase and substantially tracks the pattern instruction on the proper use

of Rule 404(b) evidence. See 1A Kevin F. O’Malley, Jay E. Grenig & Hon.

William C. Lee, Federal Jury Practice and Instructions § 17.08 (5th ed. 2000).

Finally, the offending language was orally conveyed to the jury and never matured

into a written instruction, thus diminishing any eventual influence it may have

had. Notably, counsel did not object at the time or seek a curative instruction


                                          -18-
when the jury was finally charged, 11 possibly because they did not wish to further

spotlight Riggs’ testimony or because the magnitude of the error is merely a

product of cultivated retrospection.

      B.     Prosecutorial Misconduct

      Collins gave a proffer to the Government on July 2, 2001. But the

Government terminated the interview when it concluded Collins was not being

truthful. Collins’ counsel was present. At trial, Collins testified. In redirect

examination, he claimed he told the truth in his proffer, although he indicated he

wished to amend some of the dates contained in it. In doing so, and in confirming

other dates, he sought to remove himself from drug activity during the term of the

charged conspiracy, while admitting drug activity at earlier times.

      During re-cross examination, Collins testified his defense was that while he

was involved in drug transactions between 1989 and 1998, he was not involved in

drug transactions during the term of the charged conspiracy (November 1998 to

June 2000). At this point, the Government attempted to impeach Collins with

respect to his truthfulness in the proffer, pointing out that even his own counsel

did not believe the statements he gave on July 2, 2001: “Q. Well, in that proffer,

seemed to me that your lawyer didn’t believe you either, did she? Did she? A.



      11
         The defendants did rely on the limiting language of Instruction 26A in
their closings. See n.6.

                                        -19-
Most of it, yeah. Q. She didn’t believe you were telling the whole truth, right?”

(Collins R. Vol. Twelve at 884.) This elicited an objection on the grounds the

question called for speculation. The court sustained the objection. The

Government continued: “Q. She [defense counsel] told you in front of me and

the agents that she didn’t believe you, didn’t she? A. I don’t recall that.” (Id. at

884-85.) This last question and answer elicited no contemporaneous objection.

The next day, defense counsel lodged an objection to the entire colloquy and

requested the court to admonish the Government “to refrain [in closing argument]

from any comments that would either attack my representation or my belief in my

client’s defense or his statements.” (Collins R. Vol. Thirteen at 923.) While not

necessarily agreeing with defense counsel’s characterization of the previous day’s

examination, the court provided the defense with the full measure of relief

requested by admonishing the Government, which complied—it made no

reference to defense counsel in its closing.

      Based on the challenged colloquy, defense counsel did not move for a

mistrial or a new trial. Nor did she move to strike the tainted colloquy or request

a curative instruction. 12 On appeal, Collins argues the Government’s suggestion

that his counsel did not believe him amounted to prosecutorial misconduct



       Instruction No. 5 in the general charge to the jury included this stock
      12

language: “Questions, objections, statements, and arguments of counsel are not
evidence in the case . . . .” (Shaffer R. Vol. One, Doc. 180.)

                                         -20-
depriving him of both a fair trial under the Fifth Amendment and his right to

effective assistance of counsel under the Sixth Amendment.

      We review for abuse of discretion the denial of a motion for mistrial or a

new trial based on prosecutorial misconduct to which defense counsel has

contemporaneously objected. United States v. Gabaldon, 91 F.3d 91, 93-94 (10th

Cir. 1996). Where there is objection but no request for a mistrial or new trial, we

review de novo the question whether prosecutorial misconduct has occurred. It is

a mixed question of law and fact. Id. at 94. If we determine misconduct

occurred, we apply harmless error analysis. Id.

      A prosecutor's improper statement to the jury is harmless unless there
      is reason to believe that it influenced the jury's verdict. In assessing
      whether the misconduct had such an impact, we consider the trial as
      a whole, including the curative acts of the district court, the extent of
      the misconduct, and the role of the misconduct within the case. We
      ordinarily will not reverse if the misconduct was merely singular and
      isolated. Rather, to warrant reversal, the misconduct must have been
      flagrant enough to influence the jury to convict on grounds other than
      the evidence presented.

United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir.) (quotation marks and

citations omitted), cert. denied, 519 U.S. 901 (1996). Where there is no objection

to prosecutorial misconduct, we review for plain error affecting substantial rights.

Fed. R. Crim. P. 52(b). The same standard applies in the case of omitted

instructions where no objection is lodged. Fed. R. Crim. P. 30(d).

      Generously assuming Collins’ belated objection to the alleged prosecutorial


                                        -21-
misconduct preserved review, and further assuming, without deciding, that the

challenged colloquy amounted to misconduct, we conclude any error was

harmless. In United States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002),

summarizing our holding in an earlier case, United States v. Short, 947 F.2d 1445

(10th Cir. 1991), cert. denied, 503 U.S. 989 (1992), we noted: “In view of the

overwhelming evidence of the defendant’s guilt, the solitary, isolated nature of

the prosecutor’s remark, and the defense counsel’s decision not to seek a limiting

instruction or have the statement stricken . . . the remark did not substantially

influence the verdict.” So too in this case, where, as we noted earlier, the

evidence presented to the jury was otherwise abundant and more than sufficient to

sustain the convictions. Viewing the trial record as a whole, including the court’s

curative admonition, which was the precise relief requested by defense counsel

and was heeded by the Government, we conclude any overzealousness was

isolated and without significant effect on the verdict. The trial court's failure to

sua sponte give a curative jury instruction was harmless, if error at all.

      C.     Ineffective Assistance of Counsel

      Now represented by new counsel on appeal, Shaffer claims his trial counsel

was ineffective. His claims revolve around failure to cross-examine or

meaningfully cross-examine Government witnesses, a flawed opening statement

and failure to present a defense.


                                         -22-
      “Ineffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995); see also Massaro v. United

States, 123 S. Ct. 1690, 1693-94 (2003) (raising ineffective assistance of counsel

claims through collateral review is the preferred procedure). This rule enables

development of a factual record, where necessary, and permits challenged counsel

to offer his or her reasons for decisions made at trial; it also enables the district

court, often the same court to have observed the trial proceedings, to first rule on

the claim. Galloway, 56 F.3d at 1240. These factors are inestimable aids to

appellate review. “[I]n rare instances an ineffectiveness of counsel claim may

need no further development prior to review on direct appeal.” Id. The claims

Shaffer asserts do not fall into this exceptional category and are thus dismissed

without prejudice to a later motion brought under 28 U.S.C. § 2255.

                           II. Challenges to the Sentences

      We review de novo the district court’s interpretation and application of the

U.S. Sentencing Guidelines, United States v. Tisdale, 248 F.3d 964, 975 (10th

Cir. 2001), cert. denied, 534 U.S. 1153 (2002), and we review its findings of fact

for clear error. 18 U.S.C. § 3742(e). Failure to object to factual inaccuracies at

sentencing waives appellate review. United States v. Green, 175 F.3d 822, 837-


                                          -23-
38 (10th Cir.), cert. denied, 528 U.S. 852 (1999). Nor is there safe haven in plain

error, since “factual disputes not brought to the attention of the court do not rise

to the level of plain error.” United States v. Castorena-Jaime, 285 F.3d 916, 926-

27 (10th Cir. 2002).

      A.     Safety Valve Relief

      Collins asserts as error the failure of the court to grant him safety valve

relief under USSG §§ 5C1.2 and 2D1.1(b)(6). Safety valve relief refers to

statutory and guideline authority for the sentencing court to sentence beneath a

statutory mandatory minimum sentence. 18 U.S.C. § 3553(f); USSG § 5C1.2.

The language of § 2D1.1(b)(6) permits a two-level decrease in offense level if the

defendant meets all of the prerequisites of § 5C1.2. The disputed prerequisite is

stated in subsection (a)(5):

      not later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence
      the defendant has concerning the offense or offenses that were part
      of the same course of conduct or of a common scheme or plan, but
      the fact that the defendant has no relevant or useful other information
      to provide or that the Government is already aware of the information
      shall not preclude a determination by the court that the defendant has
      complied with this requirement.

USSG § 5C1.2(a)(5). The question is whether Collins satisfied this prerequisite.

We conclude he did not.

      The record demonstrates that Collins prevaricated in his July 2, 2001

proffer to the Government. Furthermore, his testimony at trial was at clear

                                         -24-
variance with the testimony of his confederates. As the court noted in

considering the request for safety valve relief, “I think the evidence in the case

clearly shows that Mr. Collins was buying, selling and sharing methamphetamine

between November ’98 and June 1, 2000. There’s just no gainsaying that in my

mind.” (Collins R. Vol. Two at 23.) Yet, Collins testified to the contrary,

apparently in an effort to avoid responsibility for criminal acts within the

temporal frame of the charged conspiracy. This scenario does not paint a picture,

prior to sentencing, of Collins having “truthfully provided to the Government all

information and evidence the defendant has concerning the offense.” USSG §

5C1.2(a)(5). Therefore, the court’s determination that Collins did not meet the

disputed prerequisite for safety valve relief is not clearly erroneous.

      B.     Drug Quantity

      The Government must establish by a preponderance of the evidence the

quantity of drugs for which a defendant should be held accountable as relevant

conduct under USSG § 1B1.3. Green, 175 F.3d at 836-37.

      Collins objected to the base offense level of 28 set by the PIR. It was set

on the basis of relevant conduct of 306.6 to 360.1 grams of methamphetamine.

Instead, he argued for a base offense level of 26 on the basis of relevant conduct

of at least 50 but not more than 200 grams of methamphetamine. He restated his

objection at sentencing. The court sustained his objection and set a base offense


                                         -25-
level of 26. 13 As might be expected, Collins did not object. Notwithstanding this

record, on appeal Collins adopts Shaffer’s argument that the court erred in setting

the base offense level. This argument is both perplexing and without merit given

the fact that the court acceded to Collins’ initial objection. There being no record

of other objection, the issue is not preserved for appeal and we decline to review

it. Id. at 837-38. Plain error does not lie. Castorena-Jaime, 285 F.3d at 926-27.

      In Shaffer’s case, the PIR set his base offense level at 32 on the basis of

relevant conduct involving 560 to 1109.5 grams of methamphetamine. At

sentencing, Shaffer objected and requested the court set an amount equivalent to

that set in Collins’ case. The court, on the basis of its notes of testimony adduced

at trial, found by a preponderance of the evidence that the relevant conduct

involved 350 to 500 grams of methamphetamine and thus reduced the base

offense level to 30. Shaffer contends there was no basis for this finding. We beg

to differ. Our review of the testimony adduced at trial suggests substantial


      13
         The colloquy between Collins’ counsel and the court is confusing and
calls to mind the adage “two ships passing in the night.” Collins’ counsel begins
her argument by suggesting the PIR set a base offense level of 30 on the basis of
at least 350 grams but less than 500 grams of methamphetamine. This is
incorrect. The PIR set a base offense level of 28 on the basis of at least 200
grams but less than 350 grams of methamphetamine. It was the total offense level
that was set by the PIR at 30 (it included a two-level enhancement for obstruction
of justice under USSG § 3C1.1). When the court agreed to reduce the base
offense level by two, it effectively reduced it to 26, exactly as requested by
Collins. Since the court declined to remove the two-level enhancement for
obstruction of justice, the total offense level resolved at 28.

                                        -26-
evidence to support the district court’s decision, and it was thus not clearly

erroneous.

Conclusion

      Accordingly, we DISMISS without prejudice Shaffer’s claim of ineffective

assistance of counsel and AFFIRM the judgment of the district court in all other

respects.



                                       Entered by the Court:

                                       TERRENCE L. O’BRIEN
                                       United States Circuit Judge




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