                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   March 1, 2017
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-1311
                                               (D.C. No. 1:14-CR-00327-CMA)
 DERRICK ANTHONY SANDOVAL,                                 D. Colo.

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.



      Derrick Sandoval was convicted of various drug crimes. He contends the

district court made a number of errors that undermined the fairness of his trial.

Because he did not object at the time, we review most of his arguments for plain

error. In sum, we conclude the district court did not plainly err in (1) allowing

opinion testimony from the detectives who investigated the drug ring;




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
(2) allowing an officer to testify both as a fact and expert witness; or (3) failing to

exclude testimony regarding the Miranda warning given to Sandoval.

      We AFFIRM.

                                 I. Background

      Sandoval was subject to an investigation for distribution of

methamphetamine in the Denver area. Based on surveillance and a recorded

conversation from an attempted controlled purchase, Denver detectives obtained

and executed a search warrant on Sandoval’s residence, where they found various

drug paraphernalia. 1 When confronted by officers, Sandoval made several

incriminating statements. For instance, during the course of the search of his

residence, Sandoval asked Detective Loveall about the drugs found and how much

they weighed. Although he later disclaimed any ownership or knowledge of the

guns, Sandoval also asked Detective Gutke if he liked the “MAC 10” found inside



      1
         Items seized included 13.1 grams of methamphetamine, sandwich bags,
rubber bands, a “cutting agent” or “filler” substance allegedly used to increase the
volume of methamphetamine for distribution, a “pay/owe sheet” or “ledger,” a list
of phone numbers, nine cell phones, two different digital scales, five driver’s
licenses belonging to Sandoval, approximately $1,400 in cash, one $20 bill from
the pool of traceable funds given to a confidential informant for use in the
attempted controlled purchase, a baseball hat embroidered with narcotics officer
logos, a marijuana grinder, a Ruger .40 caliber handgun and case, a MasterPiece
Arms 9 mm handgun (modeled after, and occasionally referred to as, an Ingram
MAC 10), a box of .40 caliber ammunition, two handgun magazines, at least
nineteen empty ammunition shell casings inside firework tubes, a black tactical
vest, a ballistics vest, boxes containing surveillance cameras, and a healthcare
identification card belonging to Sandoval.

                                          -2-
a sub-woofer, and admitted there was a handgun inside the house. Nor was

Sandoval shy about his role in narcotics trafficking. He told Detective Gutke that

he had been getting a pound or two of methamphetamine at a time from a person

named “Pices” and selling drugs to earn money because he had a hard time

finding employment. He suggested the detectives would have found more

incriminating evidence if they had searched his house a week earlier, but that he

was stopping drug distribution because he recently obtained a new job.

      During a similar interaction with Detective Dompier, Sandoval said he had

not sold drugs recently and was getting out of the business, planning on a new

career path so he could turn his life around and take care of his eight-year-old

daughter. While in jail pending trial, Sandoval engaged in numerous

conversations regarding the items collected from his residence and, through these

conversations, acknowledged his awareness of the specific firearms and narcotics

recovered.

      Based upon the seized evidence, incriminating statements, and testimony

presented at trial, Sandoval—a previously convicted felon—was convicted by a

jury and sentenced to a total of 240 months’ imprisonment for: (1) possession of

firearms and ammunition by a prohibited person in violation of 18 U.S.C.

§ 922(g)(1); (2) possession of methamphetamine with intent to distribute in

violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a




                                         -3-
drug trafficking offense in violation of 18 U.S.C. § 924(c); and (4) possession of

body armor by a violent felon in violation of 18 U.S.C. § 931.

                                 II. Analysis

      Sandoval raises three issues related to the district court’s trial rulings: (1)

allowing two detectives to testify about linguistics and indicia of narcotics

distribution without first qualifying the detectives as experts; (2) permitting an

officer to testify as both an expert and fact witness without properly cautioning

the jury about these dual roles; and (3) allowing a detective to mention that when

arrested Sandoval invoked his Miranda rights to remain silent and not to

incriminate himself. He also argues that the cumulative effect of these errors

deprived him of a fair trial.

      A. Opinion Testimony

      Sandoval first contends portions of Detective Loveall’s and Detective

Dompier’s testimonies were expert opinion wrongfully admitted in the guise of

lay opinion.

      Sandoval failed to object to the detectives’ testimony at trial and therefore

did not put the district court on notice that the testimony was improper under the

Federal Rules of Evidence. 2 A district court’s decision to admit expert or lay


      2
         Sandoval’s counsel did make a single contemporaneous objection that
Detective Dompier was engaged in “improper opinion testimony” when testifying
as to items he was trained to look for when collecting evidence related to
                                                                           (continued...)

                                          -4-
testimony is ordinarily reviewed for abuse of discretion but, as here, for plain

error when a party fails to contemporaneously object. United States v. Brooks,

736 F.3d 921, 929–30 (10th Cir. 2013). Plain error occurs when there is: (1)

error; (2) that is plain; which (3) affects substantial rights; and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. at 930. An otherwise plain error may be harmless and fail to

constitute adequate grounds for reversal when it is unlikely that the testimony on

a particular issue “had any serious impact on the outcome of the trial”—e.g.,

when the jury has already heard similar testimony, or other evidence of a

defendant’s guilt presented at trial was “substantial” or “strong.” See United

States v. Hinson, 585 F.3d 1328, 1338 (10th Cir. 2009).

       To properly preserve an issue, a party’s contemporaneous objection must be

sufficiently specific. See, e.g., United States v. Battles, 745 F.3d 436, 452 (10th

Cir. 2014) (“[I]n light of Ms. Battles’s failure to ‘offer up a timely and specific

trial objection’ to the evidence, we review her claim for plain error.” (alteration

incorporated)). See also Elonis v. United States, 135 S. Ct. 2001, 2017 (2015)

(Alito, J., concurring in part and dissenting in part) (“[A] defendant [must]

‘inform the court of the specific objection and the grounds for the objection.’ An


(...continued)
narcotics trafficking. See R., Vol. 2, at 473–74. But the challenged testimony
was not lay or expert opinion, nor did the objection notify the court that the
detective was impermissibly offering expert opinion testimony in the guise of lay
opinion.

                                           -5-
objection cannot be vague or open-ended. It must specifically identify the alleged

error. And failure to lodge a sufficient objection ‘precludes appellate review,’

except for plain error.” (citations omitted)). Even if counsel “might ‘not explain

the evidentiary basis of his argument as thoroughly as might ideally be desired,’”

counsel must at least “substantially satisf[y] the requirement of putting the court

on notice as to his concern.” Prager v. Campbell Cty. Mem’l Hosp., 731 F.3d

1046, 1054 (10th Cir. 2013) (citations omitted).

      Sandoval contends the detectives offered improper expert opinion

testimony on linguistics and indicia of narcotics distribution. He argues the

detectives were never endorsed as experts, never disclosed their probable

testimony, and, in any event, were not permitted under the federal rules to offer

expert opinion as lay witnesses.

      Two federal rules explain the admissibility of opinion evidence. Under

Rule 701, a non-expert witness’s testimony “in the form of an opinion” is limited

to (1) an opinion rationally based on the witness’s perception; (2) that is helpful

to clearly understanding the witness’s testimony or to determining a fact in issue;

and (3) is not based on scientific, technical, or other specialized knowledge within

the scope of Rule 702 (pertaining to expert opinion). Fed. R. Evid. 701. If, on

the other hand, a witness’s opinion testimony does not meet the standards of Rule

701, the witness cannot be considered a lay witness and must be qualified as an

expert pursuant to Rule 702. Rule 702 provides, among other things, that an

                                         -6-
expert must have specialized knowledge or expertise that will help the jury

“understand the evidence or [ ] determine a fact in issue.” Fed. R. Evid. 702(a).

Rule 702 requires a district court “to assess proffered expert testimony to ensure

it is both relevant and reliable.” United States v. Avitia-Guillen, 680 F.3d 1253,

1256 (10th Cir. 2012).

      Endorsing a witness as an expert also triggers Federal Rule of Criminal

Procedure 16’s pretrial disclosure requirements, which ensure that an opposing

party will have time to adequately prepare for trial (e.g., to prepare “an effective

cross-examination challenging the experts’ qualifications and conclusions,” or to

obtain a competing expert). See United States v. Banks, 761 F.3d 1163, 1190

(10th Cir. 2014). To this end, Rule 16 provides,

      At the defendant’s request, the government must give to the defendant a
      written summary of any testimony that the government intends to use under
      Rule[] 702 . . . of the Federal Rules of Evidence during its case-in-chief at
      trial. . . . The summary provided under this subparagraph must describe the
      witness’s opinions, the bases and reasons for those opinions, and the
      witness’s qualifications.

Fed. R. Crim. P. 16(a)(1)(G). Failure to comply with a Rule 16 request could

subject the government to sanctions, including exclusion of the expert testimony.

Fed. R. Crim. P. 16(d)(2); Banks, 761 F.3d at 1198. And a party may not

circumvent the heightened requirements of Federal Rule of Evidence 702 and

corresponding Federal Rule of Criminal Procedure 16 disclosure requirements by

offering expert testimony in the guise of lay opinion. See United States v.


                                          -7-
Richter, 796 F.3d 1173, 1195 (10th Cir. 2015), cert. dismissed in part, 136 S. Ct.

1511 (2016), and cert. denied, 136 S. Ct. 2046 (2016); James River Ins. Co. v.

Rapid Funding, LLC, 658 F.3d 1207, 1216 (10th Cir. 2011).

          We have repeatedly explained the contours of lay and expert opinion. A

witness’s conclusions and opinions fell under Rule 701 when underlying

mathematical calculations, for example, were “not so complex a task that litigants

need to hire experts in order to deem the evidence trustworthy,” but rather “well

within the ability of anyone with a grade-school education.” James River, 658

F.3d at 1214 (quoting Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th

Cir. 2005)). In contrast, a CEO’s testimony about his business’s lost profits was

inadmissible under Rule 702 because his results were based on sophisticated

economic models including “moving averages, compounded growth rates, and S-

curves” beyond the ken of an ordinary juror. James River, 658 F.3d at 1214

(quoting LifeWise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir.

2004)).

      In short, Rule 701 “does not permit a lay witness to express an opinion as

to matters which are beyond the realm of common experience and which require

the special skill and knowledge of an expert witness.” See James River, 658 F.3d

at 1214 (quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir.

1979)). A lay witness may offer only “observations that are common enough and

require a limited amount of expertise, if any.” James River, 658 F.3d at 1214

                                         -8-
(alterations incorporated) (quoting United States v. VonWillie, 59 F.3d 922, 929

(9th Cir. 1995)).

      Sandoval claims Detective Loveall improperly relied on his background and

experience in narcotics investigations to opine about the meaning of ostensibly

coded language used in the course of the attempted controlled purchase. For

example, Detective Loveall testified that the word “paper” may refer to “money,”

the number “2” may refer to ounces of methamphetamine, the numbers “1,400”

and “3,700” may refer to “$1,400” and “$3,700,” and the word “heads” may refer

to “customers.” R., Vol. 2, at 312–15, 406.

      Likewise, Sandoval claims Detective Dompier improperly relied on his

background and experience in executing search warrants and narcotics trafficking

to testify about indicia of distribution and drug ledgers. For example, Detective

Dompier testified that when he conducts a search warrant he looks for “indicia of

distribution . . . that would show the business side of narcotics distribution,”

including, “[s]cales, paperwork, photographs, phone numbers, things along those

lines,” and “items of paraphernalia,” including “pipes, scales, baggies, needles,

spoons, cotton balls, on and on.” R., Vol. 2, at 472–74. Detective Dompier also

testified that he collected a “pay/owe sheet” or “ledger” from Sandoval’s

residence, which he described as “one piece of paper that had numerous names

and s [sic] large number of phone numbers on it associated with another piece of

paper, which [he] believed, due to the writing, to be a ledger, due to mathematics

                                         -9-
and some of the terms that were written . . . such as ‘payment,’ ‘balance,’ and

dates written in the form of ‘7-3,’ ‘7-6,’ ‘7-4.’” Id. at 472, 476–77.

      In previous cases, we have considered the admissibility of non-expert

witness testimony regarding the meaning of language used in the drug trade. For

the most part, our cases have allowed witnesses to testify and explain coded

language without first being qualified as experts. See, e.g., Brooks, 736 F.3d at

927, 929 (key government witness explained “code words and drug lingo used”);

United States v. Patterson, 713 F.3d 1237, 1240–41 (10th Cir. 2013) (DEA

special agent interpreted a number of recorded conversations using “coded

language”).

      With this background in mind, the district court did not commit plain error.

First, it is doubtful any error existed let alone that it was plain. Neither the

translations of language from the recorded conversation nor the inferences drawn

from them were beyond the capacity of an ordinary person. Detective Loveall’s

observations (e.g., that the word “paper” may refer to “money” and the word

“heads” may refer to “customers”) were not so complex as to require the special

skill and expertise of an expert. Nor was Detective Dompier’s testimony

concerning evidence related to narcotics trafficking sufficiently specialized to

trigger the requirements of Rule 702. We agree with the government that the

testimony elicited here was “not rocket science” and a reasonable juror “in many




                                         -10-
cases could easily understand what was going on” without the need to invoke the

requirements of Rule 702. See Aple’s Br. at 15.

      Moreover, both detectives were directly involved in the investigation and

gave testimony that rationally could be based on their own perception of the

events and evidence. Even if the detectives relied on some of their background

experience and training, any such reliance was balanced with their personal

experience with the case and evidence at hand. It is neither clear nor obvious that

the challenged testimony falls outside of the scope of Rule 701.

      Finally, Sandoval has not made a showing under the third prong of plain

error that his “substantial rights to a fair trial” were implicated by the unobjected-

to testimony. Sandoval’s counsel suggested “that it would suffice that the

prosecution simply didn’t comply, as they were required to,” [Oral Arg.

Recording at 8:09–8:15.] with Federal Rule of Criminal Procedure 16’s pretrial

disclosure requirements. But this broad allegation of mere noncompliance does

not come close to satisfying the showing required by the third prong of plain error

review, and Sandoval points to no specific prejudice arising from the challenged

testimony, especially in light of the volume of other incriminating and probative

evidence pointing to guilt introduced to the jury.

      In sum, the district court did not commit plain error in admitting the

detectives’ testimony.




                                         -11-
      B. Dual Capacity Testimony

      Sandoval next contends the district court committed plain error when it

allowed Officer Barben to testify as both an expert and as a fact witness without

taking precautionary measures to avoid jury confusion. Sandoval neither

requested any specific measures at trial nor objected to Officer Barben’s

testimony on these grounds.

      We recognize that witnesses who testify in both a lay capacity and an

expert capacity may present special risks at trial. The “aura of special reliability

and trustworthiness surrounding expert testimony,” may give the witness

“unmerited credibility” and “create[] a risk of prejudice ‘because the jury may

infer that the agent’s opinion about the criminal nature of the defendant’s activity

is based on knowledge of the defendant beyond the evidence at trial.’” United

States v. Dukagjini, 326 F.3d 45, 53–54 (2d Cir. 2002) (citations omitted). In

light of this concern, some circuits have encouraged district courts to take

precautionary measures, including warning the jury about the witness’s dual roles

or bifurcating the questioning to clearly demarcate lay and expert testimony

offered by the same witness, to protect against these dangers. See, e.g., United

States v. Rios, 830 F.3d 403, 414–15 (6th Cir. 2016), cert. petition filed, No. 16-

7314 (Dec. 27, 2016); United States v. Moralez, 808 F.3d 362, 365–67 (8th Cir.

2015); United States v. Haines, 803 F.3d 713, 730–32 (5th Cir. 2015); United

States v. Vera, 770 F.3d 1232, 1242–43 (9th Cir. 2014); United States v. Garcia,

                                        -12-
752 F.3d 382, 392 (4th Cir. 2014); United States v. Tucker, 714 F.3d 1006, 1016

(7th Cir. 2013); United States v. Flores-De-Jesus, 569 F.3d 8, 21 (1st Cir. 2009);

Dukagjini, 326 F.3d at 53–56.

      Despite these risks, we have “decline[d] to adopt a per se rule prohibiting

the use of case agents as experts,” choosing instead to rely on determinations

made by “the trial judge who is attuned to the dynamics of the trial.” United

States v. Mendoza, 236 F. App’x 371, 384 (10th Cir. 2007) (unpublished). And

Sandoval has not cited any case from any circuit finding a district court’s failure

to take such measures constitutes reversible error under a plain error standard of

review.

      Sandoval fails to overcome plain error here. Officer Barben was present

during the search of Sandoval’s residence and called to testify about his

participation in the search and observations of materials found in the home. But

in addition, the prosecution went on to qualify Officer Barben as an expert on

whether the items found were consistent with involvement in the drug trade.

Officer Barben thus testified, for example, about “some of the common-known

tools that go with drug dealing,” including: (1) “paraphernalia, such as the

packaging you are going to use to sell; so small baggies, medium baggies, large

baggies”; (2) “the things, like, that you will need for protection of your product;

guns, knives, stun guns, things of that nature”; (3) “scales, because you need

something to weigh it out so the customer knows what they are getting”; (4)

                                        -13-
“surveillance equipment; cameras, especially on residential operations, . . . to

survey what is going on outside of your home” and “thwart robbery attempts of

your product”; and (5) “use of multiple phones that do not come back to the true

identity of that person.” R., Vol. 2, at 623–25. He also gave his opinion, based

on his “experience in street-level narcotics,” that 13.1 grams of methamphetamine

(i.e., the amount recovered from Sandoval’s residence) was a “selling amount”

more consistent with distribution than personal use, which was “typically half a

gram to one-and-a-half grams, not 13.1 grams.” Id. at 628–29. Officer Barben

further testified that the type of “fold-top sandwich bags” recovered from

Sandoval’s residence were “packaging for methamphetamine . . . [i]n a certain

technique,” and that “rock” may mean “crack cocaine.” Id. at 630–31, 653–54.

In both instances, however, the district court clarified that Officer Barben was not

talking about the baggies collected in particular (but about that type of bag in

general) and not saying “rock” meant crack cocaine in the recorded conversation

(but merely that it could have that meaning in general). Id. at 631, 653.

      Both lay and expert aspects of Officer Barben’s testimony were

independently admissible. Given this, Sandoval objects only that the district

court erred by failing to instruct the jury as to the differences between Officer

Barben’s roles in providing the lay and expert testimony. None of our cases

require a blanket instruction in such circumstances, so it is doubtful any error was

plain. Nor has Sandoval pointed to any prejudice arising from the testimony or

                                         -14-
Officer Barben’s dual capacity. To the extent Sandoval claims dual capacity

testimony is presumptively, or at least inherently, prejudicial in the absence of

proper prophylactic measures, Sandoval misunderstands the burdens associated

with plain error review. Even assuming the district court erred in failing to take

sua sponte precautionary measures concerning Officer Barben’s dual role,

Sandoval cannot show a plain error affecting his substantial rights or the integrity

of the judicial process.

      C. Miranda Reference

      Sandoval also challenges the district court’s failure to sua sponte correct

Detective Loveall’s brief reference to Sandoval’s invocation of his constitutional

rights to remain silent and not incriminate himself. He claims the district court

committed plain error by failing to strike the testimony or provide a curative

instruction to the jury.

      It is axiomatic that the government cannot “penalize an individual for

exercising his Fifth Amendment privilege” and the “prosecution may not,

therefore, use at trial the fact that [a defendant] stood mute or claimed his

privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436, 468 &

n.37 (1966). See also Doyle v. Ohio, 426 U.S. 610, 617–19 (1976). But not all

violations of this categorical prohibition constitute reversible error. Any error in

allowing the prosecution to comment on a defendant’s post-Miranda silence or

invocation is likely to fail the third prong of plain error review when a “single,

                                         -15-
isolated reference . . . could not have affected the jury’s verdict, considering the

substantial evidence supporting the verdict.” See Bland v. Sirmons, 459 F.3d 999,

1023 (10th Cir. 2006).

      The only mention of Sandoval’s invocation of his Miranda rights was a one

sentence reference in the midst of several hours of testimony from Detective

Loveall, testimony that spans 123 pages of the voluminous record. The erroneous

reference occurred as follows,

             GOV’T COUNSEL:             Did you transport Mr. Sandoval?
             DET. LOVEALL:              Yes.
             GOV’T COUNSEL:             Did you have any conversations during this
                                        transportation?
             DET. LOVEALL:              I advised him of his Miranda rights.
             GOV’T COUNSEL:             And what did Mr. Sandoval say?
             DET. LOVEALL:              That he didn’t want to speak with me or to
                                        incriminate himself any further.
             GOV’T COUNSEL:             Did Mr. Sandoval make any further
                                        statements?
             DET. LOVEALL:              Not on the way to the jail.

R., Vol. 2, at 324. This single, isolated reference could not have affected

Sandoval’s substantial rights required by the third prong of plain error review.

The ample evidence of Sandoval’s guilt—including the drug paraphernalia and

money seized from his residence; the numerous incriminating statements he made

before and after he invoked his Miranda rights during the course of the

investigation, pretrial preparations, and in jail; and other unchallenged evidence

and trial testimony—confirms the single comment did not have any influence

upon the jury or the outcome of the trial.

                                         -16-
      To the extent Sandoval now complains of the district court’s failure to

correct the error by issuing a curative instruction, that argument is waived. Not

only did Sandoval fail to contemporaneously object, but when Sandoval’s counsel

eventually raised the issue, the district court (1) explained its decision not to

intervene sua sponte; 3 (2) admonished the government to avoid mentioning the

fact; 4 and (3) offered to give a curative instruction which Sandoval’s counsel

declined. 5 Based on our review of the reference, its context, and the district

court’s and defense counsel’s responses, we hold the decision not to bring further

attention to the reference was a calculated strategic decision; not reversible error.

      In sum, the reference to Sandoval’s invocation of his Miranda rights does

not constitute plain error.



      3
          “I could have addressed it at the time. But you did not make an objection
. . . I was not about to insert myself and highlight the testimony any more than I
needed to without the defendant raising the objection. . . . I could have cured it at
the time and said strike it. I didn’t do that on my own because I think it just
highlights it more. I thought maybe it was part of your strategy just to let it go.”
R., Vol. 2, at 445–46.
      4
         “It is inappropriate for the Government or any witness for the
Government to indicate to this jury that he invoked his Fifth Amendment rights.
So I want you to instruct your witnesses that they are not to raise that as an issue
or in testimony. . . . I am instructing the Government, it needs to tell its
witnesses they cannot bring up that type of testimony.” R., Vol. 2, at 447–48.
      5
         “If you want me to do anything at this point to try to correct it, I would
do it.” R., Vol. 2, at 450. But Sandoval’s counsel declined the court’s offer: “I
think that I am going to, for a tactical decision, at this point I am not going to ask
the Court to give any sort of curative or ask the jury to disregard, because I think
that it will highlight that further.” Id.

                                          -17-
      D. Cumulative Error Analysis

      Finally, Sandoval claims that even if each of the three alleged evidentiary

errors were individually harmless, their aggregate negative effect requires

reversal.

      Cumulative error analysis generally “aggregates all errors found to be

harmless and ‘analyzes whether their cumulative effect on the outcome of the trial

is such that collectively they can no longer be determined to be harmless.’”

United States v. Willis, 826 F.3d 1265, 1280 (10th Cir.) (citation omitted), cert

denied, 137 S. Ct. 405 (2016). There “must be at least two errors before we may

find cumulative error,” otherwise “there are not multiple errors to cumulate.” Id.

Each error considered must be an “actual error” (i.e., a matter deemed to be

error); this court does not consider “the cumulative effect of non-errors.” United

States v. Harlow, 444 F.3d 1255, 1269 (10th Cir. 2006). But this court need not

determine there was error in order to dismiss a defendant’s cumulative error

argument; we can assume error for purposes of the analysis. See, e.g., United

States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002).

      Sandoval has established, and the government has conceded, only one

actual error: Detective Loveall’s comment regarding Sandoval’s invocation of his

Fifth Amendment Miranda rights. For this reason, his cumulative error argument

fails. But even if the other claims on appeal had merit, Sandoval was still not

deprived of a fair trial. In the aggregate, none of the claims affected Sandoval’s

                                        -18-
substantial rights. The jury heard unchallenged testimony and evidence from a

variety of witnesses that confirm the correctness of the jury’s verdict. Upon

consideration of all the claimed errors and the record as a whole, cumulative error

analysis does not warrant reversal.

                                III. Conclusion

      We AFFIRM the district court’s judgment.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Chief Judge




                                        -19-
