                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 21 2002
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.
                                                     Nos. 00-6284, 00-6341
                                                    (D.C. No. CR-99-216-M)
 CHRISTOPHER JAMES TYLER and
                                                       (W.D. Oklahoma)
 DARRELL WAYNE COLLINS,

          Defendant - Appellants.


                             ORDER AND JUDGMENT *


Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


      Defendants-Appellants Christopher Tyler and Darrell Collins raise a

multitude of issues arising from their convictions and sentences for their part in a

cocaine distribution ring. The only error in the proceedings below stems from the

district court’s finding that Collins qualifies as a career offender, as the record

does not adequately establish the violent nature of the crime relied on as a




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
predicate offense by the district court. All of the remaining issues raised by Tyler

and Collins are without merit.



I.    Bill of Particulars

      Tyler challenges the district court’s denial of his motion for a bill of

particulars and argues that his trial was rendered fundamentally unfair when the

Government changed its theory of the case during trial. He claims that the

Government’s key witness, Darrell James, testified that the drug transactions at

issue occurred at locations different from those alleged in discovery. Because of

this change, Tyler contends that he was unable to defend himself. “We review the

denial of a motion for a bill of particulars for abuse of discretion,” United States

v. Ivy, 83 F.3d 1266, 1281 (10th Cir. 1996), and will not disturb it “unless the

defendant shows that he was actually surprised at trial and thereby incurred

prejudice to his substantial rights.” United States v. Kunzman, 54 F.3d 1522,

1526 (10th Cir. 1995) (internal quotation marks omitted).

      In response to Tyler’s motion for a bill of particulars, the Government

referred to the materials already provided to Tyler through discovery, including

the FBI 302 evidence forms. Although Tyler failed to include those forms in the

record, he contends that one of the forms indicated that James had told the FBI

that he gave Tyler two ounces of crack cocaine on October 7, 1999, when “the


                                         -2-
two met riding horses.” Also, an FBI agent apparently testified before the grand

jury that James had told the agent that, after Tyler had used the telephone to order

crack cocaine at 5:53 p.m. on October 7, James delivered the drugs to Tyler later

that same evening. Based on this evidence, Tyler had constructed his defense to

show that he had not been riding horses on October 7.

      At trial, however, James testified that the exchange of crack cocaine on

October 7 took place at “the center, Minnis Lakeview; it is a basketball

gymnasium in Spencer.” Tyler objected, and the prosecutor admitted that “I, for

the first time today have heard this. I am stuck with the witness’s answer, as

well.” Tyler requested: 1) that James be prohibited from testifying about the new

location and whatever events allegedly happened there; 2) that the Government

respond to the bill of particulars on this point, and for additional time; or 3) that

the court declare a mistrial. The district court instructed the jury to “disregard

any testimony of this witness pertaining to anything that happened at a Minnis

Lakeview location.” Because the district court granted Tyler’s requested relief, it

is unclear what ground he has for urging that the court abused its discretion.

      According to Tyler, however, the unfair surprises continued, as James

testified that the transaction occurred “later on [October 7] or that next morning.”

And because the Government phrased its questions to James regarding location in

the most general terms – given that James was prohibited from testifying about


                                          -3-
the Minnis Lakeview location – Tyler argues that he could not defend against the

vague assertion that the transaction occurred somewhere within the Western

District of Oklahoma.

      “The purpose of a bill of particulars is to inform the defendant of the

charge against him with sufficient precision to allow him to prepare his defense.”

Ivy, 83 F.3d at 1281 (internal quotation marks omitted). If “the indictment sets

forth the elements of the offense charged and sufficiently apprised the defendant

of the charges to enable him to prepare for trial,” a bill of particulars is not

necessary. Id. (internal quotation marks omitted). Significantly, a defendant “is

not entitled to notice of all of the evidence the government intends to produce, but

only the theory of the government’s case,” id. (internal quotation marks omitted),

for a bill of particulars “is not a discovery device.” United States v. Dunn, 841

F.2d 1026, 1029 (10th Cir. 1988).

      Tyler does not argue that the vagueness of the indictment mandated a bill of

particulars. In any event, the indictment’s substance precludes such an argument,

as it charges a group of defendants with drug crimes, and includes several

allegations targeting Tyler specifically. The indictment:

•     alleges that James provided cocaine to Tyler, and that Tyler re-distributed
      the cocaine to customers;

•     lists some of the customers’ names;

•     lists several of the storage and distribution locations;

                                          -4-
•     alleges that Tyler used a telephone in Choctaw, Oklahoma, to facilitate
      drug distribution on October 7, 1999 at about 5:53 p.m., on October 26,
      1999 at about 9:16 p.m., on November 2, 1999 at about 1:47 p.m., and on
      November 16, 1999 at about 7:07 p.m.;

•     alleges that Tyler possessed with intent to distribute two ounces of crack on
      October 7, 1999, three ounces on October 27, 1999, and one ounce on
      November 2, 1999, all in Choctaw, Oklahoma.

      Tyler did not include his motion for a bill of particulars in the record, so we

have no way of knowing what additional information he requested. Nevertheless,

case law establishes that, in light of the information set forth in the indictment,

the district court did not abuse its discretion in denying the motion. In United

States v. Barbieri, 614 F.2d 715 (10th Cir. 1980), for example, the defendant

moved for a bill of particulars setting forth “[t]he specific event, facts, conduct,

or circumstances upon which the allegations in the indictment are based.” Id. at

719. This court upheld the district court’s denial of the motion, reasoning that,

because “[t]he indictment was sufficiently complete and precise to enable Barbieri

to prepare a defense and avoid prejudicial surprise at trial,” the motion “appears

to be an improper request for evidentiary detail.” Id.

      Similarly, in Wyatt v. United States, 388 F.2d 395 (10th Cir. 1968), a

defendant charged with liquor law violations moved for a bill of particulars

setting forth “information as to whom the non-tax-paid whiskey was sold to, who

sold it to this person, and also where the whiskey was manufactured.” Id. at 397.


                                         -5-
The district court did not abuse its discretion in denying the motion, this court

held, because “the charges in the indictment set out the specific date, the specific

amount of non-tax-paid whiskey involved and that the event occurred on or about

a public street in Guthrie, Logan County.” Id. The failure to identify the

purchaser of the whiskey did not render “the indictment so vague” as to require a

bill of particulars. Id. Likewise, the indictment in this case identified the

quantity of drugs, the dates of the alleged offenses, and the general location of the

offenses. A bill of particulars was not required.

      Tyler, however, is not simply arguing that the indictment’s deficiency

warranted a bill of particulars. Rather, he seems to claim that the surprise

testimony offered by James somehow renders erroneous the district court’s earlier

denial of the motion for a bill of particulars. However, the alleged change in

testimony did not go to a key allegation or to a central theory of the Government’s

case. James’s trial testimony that the October 7 drug transaction occurred at a

basketball court allegedly contradicted James’s earlier statement to the FBI that

the transaction occurred riding horses. It is true that Tyler did not have an

opportunity to refute directly James’s basketball court reference, but the district

court remedied that potential prejudice by instructing the jury not to consider the

reference. As for the fact that James’s abandonment of the “riding horses”




                                         -6-
allegation rendered Tyler’s planned defense to that allegation irrelevant, Tyler

could have attempted to take strategic advantage of James’s changing testimony.

       The same analysis applies to the extent that James contradicted earlier

statements as to timing by testifying that the October 7 transaction occurred “later

on that day or that next morning.” The district court did not abuse its discretion

in denying the motion for a bill of particulars simply because the trial testimony

of a witness for the Government contradicted his earlier statements.



II.    The Admission of Tape Recordings

       Tyler vaguely objects to the district court’s ruling that certain tape

recordings offered by Tyler were inadmissible. The recordings were intended to

impeach James, but they apparently were no longer impeaching given the change

in James’s testimony. If the tapes were no longer impeaching – a fact Tyler does

not seem to dispute – then they were not admissible for impeachment purposes.



III.   Prosecutorial Misconduct

       Tyler argues that his right to a fair trial was violated by four types of

prosecutorial misconduct: improper leading questions, improperly shifting the

burden of proof, vouching for witnesses, and cumulative misconduct. We review

the district court’s denial of Tyler’s motion for a new trial based on prosecutorial


                                          -7-
misconduct for abuse of discretion. United States v. Maynard, 236 F.3d 601, 605

(10th Cir. 2000), cert. denied, 121 S. Ct. 1642 (2001).



       A.     Improper Leading Questions

       According to Tyler, the prosecutor’s leading questions caused undue

prejudice to Tyler because the prosecutor “ended up, in essence, testifying,” and

the questions “enabled the witnesses to mold their testimony in exact accordance

with the government’s theory of the case.”

       Appellate courts have shown “an almost total unwillingness to reverse for

infractions” of the rule against leading questions. United States v. DeFiore, 720

F.2d 757, 764 (2d Cir. 1983) (internal quotation marks and brackets omitted).

Federal Rule of Evidence 611(c) prohibits the use of leading questions on direct

examination of a witness “except as may be necessary to develop his testimony.”

This Rule vests broad discretion in trial courts. Accordingly, we reverse on the

basis of improper leading questions only if the judge’s action amounted to, or

contributed to, the denial of a fair trial.

       Against this background, Tyler has failed to show that his trial was

rendered unfair by the Government’s leading questions. Tyler contends that the

direct examination of James was full of leading questions, and cites two questions

as especially prejudicial to Tyler’s defense:


                                              -8-
      Q:     Did [Tyler] talk to you about other people in fact coming in from out
             of town?

      ....

      Q:     That crack cocaine that you were going to supply him would be for
             the people that [Tyler] had coming in.

The court sustained Tyler’s objections to both questions, but Tyler claims that

James was already tipped off to link his supply to Tyler with Tyler’s subsequent

re-distribution to out-of-town customers.

      The context of these questions shows that they caused Tyler little prejudice.

James knew that customers came from out of town, and it would not have

required a leading question for him to divulge that information. After the court

sustained Tyler’s leading objection, the Government asked where the customers

came from, and James identified another city where he thought at least one

customer came from. The previous leading question certainly did not provide

James with that specific information. The fact that a previous question was

improperly leading does not somehow taint all of the information independently

obtained through subsequent non-leading questions.

      As for the question leading James to link his supply to Tyler with “the

people that [Tyler] had coming in,” there was already properly elicited testimony

suggesting as much. The following exchanges drew no objections from Tyler,

and occurred before the question at issue:


                                        -9-
      Q:     Did [Tyler] have some concerns that he voiced towards the end of the
             conversation with regard to some of his people?

      A:     Yes, he was mentioning his buddies coming, that he had people
             coming down here that he would like to be ready for.
      ....

      Q:     Based upon what [Tyler] told you about these people coming, did
             you, at your end of the conversation, believe he needed crack
             cocaine?

      A:     Yes, ma’am.

The question at issue did not add much to this testimony.

      The frequency of other leading questions in the direct examination of

James, while perhaps indicative of less-than-exemplary examination skills, do not

appear too far out of the ordinary. The district court sustained Tyler’s objections

– Tyler claims that he made 18 such objections – and in several instances,

admonished the Government. Such actions cannot be considered an abuse of

discretion on the district court’s part.

      Finally, Tyler claims that he was prejudiced by the Government’s comment

in the following exchange before the jury:

      Q:     In your debriefings, you were the one that has informed the
             Government of these other transactions; is that correct?

             [Objection, Leading]

      A:     Yes.

             The Court: Ms. Maye, this witness does not need to be led.


                                           - 10 -
      Q:     Mr. Owens, have you told the Government about your other drug
             transactions?

             The Court: Why don’t you ask, “What have you told the
                        Government?”

             Ms. Maye: We would be here all day.

             The Court: Well, that’s all right; don’t ask leading questions.

Tyler then requested a bench conference, and expressed his concern that the

comment, “We would be here all day,” might suggest to the jury that the facts

contained in the leading questions are true and that the Government was simply

trying to save time. Tyler asked “that the jury be admonished that leading

questions are improper.” The court admonished the jury as requested. There is

no basis for concluding that Tyler’s right to a fair trial was violated.



      B.     Shifting the Burden of Proof

      Tyler argues that the Government improperly shifted the burden of proof

with the following comment in closing arguments:

      The only interpretation of that deuce – and it is uncontroverted – is that
      it was two ounces of crack cocaine that then Darrell James delivered to
      Chris Tyler. That came from Christopher Tyler’s mouth, not from a
      snitch.

Tyler’s objection to the comment was sustained. He also contends that two other

comments shifted the burden of proof. First, the Government argued that “[t]here

is no evidence that [Tyler] used crack cocaine so anything and everything that he

                                         - 11 -
bought from Darrell James was resold.” Second, the Government argued that

“there is no evidence that [James] did not deliver that three ounces and put it in

the feed bucket for Chris Tyler.” Tyler did not object to these comments, but he

contends that they amount to plain error.

       Because the Government, according to Tyler, changed its theory of the case

during trial, the only evidence available to refute the changed theory was Tyler’s

own testimony. By commenting on the “uncontroverted” evidence and the lack of

evidence, Tyler insists that the Government was improperly commenting on

Tyler’s failure to testify.

       The test to determine whether a prosecutor’s remarks constitute an

impermissible comment on the accused’s failure to testify is “whether the

language used was manifestly intended or was of such character that the jury

would naturally and necessarily take it to be a comment on the failure of the

accused to testify.” United States v. Hooks, 780 F.2d 1526, 1533 (10th Cir. 1986)

(internal quotation marks omitted). The reviewing court “must examine the

prosecutor’s remarks in the context of the entire record” to determine if they

constitute prejudicial error. Id.

       None of the three comments challenged by Tyler would lead the jury to

“naturally and necessarily” conclude that the Government was commenting on

Tyler’s failure to testify. The first comment – asserting that the interpretation of


                                        - 12 -
“deuce” as two ounces of crack was “uncontroverted” – is based on a tape

recording of a phone call between Tyler and James. Tyler was not the only person

who could have cast doubt on the Government’s interpretation – James could have

as well, whether on direct or through cross-examination. In any event, Tyler’s

objection was sustained, and the comment was rephrased. Second, the assertion

that there was “no evidence” that Tyler used cocaine personally could have come

from anyone who knew or observed Tyler, including James, and did not require an

admission from Tyler himself. Finally, evidence that the cocaine was not left in

the feed bucket could have been supplied by James on cross-examination, by other

participants in the drug scheme, or by other eyewitnesses. Whether or not Tyler

was the most logical person to refute all of the Government’s assertions does not

mean that the Government was commenting on his failure to testify by making the

assertions in the first place.

       In any event, the district court instructed the jury that “[t]he fact that a

defendant did not testify must not be discussed or considered by the jury in any

way when deliberating and in arriving at your verdict,” and that “[n]o inference of

any kind may be drawn from the fact a defendant decided to exercise his privilege

under the Constitution and did not testify.” This cured any prejudice resulting

from the prosecutor’s comments.




                                          - 13 -
      C.     Improper Vouching

      Tyler contends that the prosecutor committed plain error in his closing

argument by telling the jury that the Government’s witnesses: (1) had given

“truthful testimony”; (2) did not “lie”; and (3) were “credible and believable.” In

addition, in her second closing argument, the prosecutor argued that the witnesses

“have provided honest and truthful testimony of their drug dealing and they have

personal knowledge because they dealt with Darrell Collins and Christopher

Tyler.” Tyler objected to this final comment, but was overruled. According to

Tyler, these comments improperly vouch for the credibility of the Government’s

witnesses. “[V]ouching by an attorney as to the veracity of a witness is improper

conduct and an error which this court will carefully review.” United States v.

Swafford, 766 F.2d 426, 428 (10th Cir. 1985).

      The Government was attempting to rebut Defendants’ arguments that the

Government’s witnesses were lying in order to benefit themselves. For example,

Collins’s counsel stated in his opening that “[t]he Government will rely primarily

on testimony of charged co-defendants who have cut a deal. Listen to their

testimony carefully and evaluate what is in it for them.” Tyler’s counsel cross-

examined James by focusing on the benefit he would receive from the

Government by gaining convictions through his testimony, and in his closing, he

focused on the self-serving nature of the witnesses’s testimony. One factor in


                                       - 14 -
determining whether improper vouching has occurred “is the extent to which the

witness’s credibility was attacked.” See, e.g., United States v. Rudberg, 122 F.3d

1199, 1204 (9th Cir. 1997) (internal quotation marks omitted). Here, attacking

the credibility of the Government’s witnesses was a focus of Defendants’ case.

      Further, any vouching statements must be judged against the context of the

entire proceeding. In her closing argument, the prosecutor told the jury that

“[y]ou saw [the witnesses] on stand. You can determine their honesty.” And the

court instructed the jury extensively on evaluating witnesses’ credibility, and told

them that “[y]ou, as jurors, are the sole and exclusive judges of the credibility of

each of the witnesses called to testify in this case and only you determine the

importance or the weight that their testimony deserves.” The jury was also

cautioned that the statements of the lawyers are not evidence. Even assuming that

the prosecutor’s statements were improper, these measures were sufficient to cure

any error. United States v. Roberts, 185 F.3d 1125, 1144 (10th Cir. 1999) (noting

that “the prosecutor explicitly disclaimed any ability to vouch for witness

credibility, and the judge’s instructions to the jury cured any error”).



      D.     Cumulative Misconduct

      We find meritless Tyler’s assertion that the prosecutor’s cumulative

misconduct entitles him to a new trial.


                                          - 15 -
IV.   Admission of Title III Evidence

      Both Tyler and Collins argue that the district court erred by denying their

motion to suppress certain Title III evidence – specifically, tape recorded

telephone conversations. Defendants contend that the Government’s failure to

provide them with copies of the court order and accompanying application

authorizing the recording more than ten days prior to trial requires suppression of

the recordings. On a review of a motion to suppress, the district court’s factual

findings will be accepted unless clearly erroneous, questions of law are reviewed

de novo, and the evidence must be viewed in the light most favorable to the

prevailing party. United States v. Edwards, 69 F.3d 419, 428 (10th Cir. 1995).

      The statute at issue provides that:

      The contents of any wire, oral, or electronic communication intercepted
      pursuant to this chapter or evidence derived therefrom shall not be
      received in evidence or otherwise disclosed in any trial, hearing, or
      other proceeding in a Federal or State court unless each party, not less
      than ten days before the trial, hearing, or proceeding, has been
      furnished with a copy of the court order, and accompanying application,
      under which the interception was authorized or approved. This ten-day
      period may be waived by the judge if he finds that it was not possible
      to furnish the party with the above information ten days before the trial,
      hearing, or proceeding and that the party will not be prejudiced by the
      delay in receiving such information.

18 U.S.C. § 2518(9).

      The purpose of the 10-day requirement “is to give the defendant an

opportunity to make a pretrial motion to suppress wiretap evidence.” United


                                        - 16 -
States v. Caro, 965 F.2d 1548, 1554 (10th Cir. 1992). In order to justify the

reversal of a conviction, the violation of § 2518(9) must have caused the

defendant prejudice. United States v. Winter, 663 F.2d 1120, 1154 (1st Cir.

1981).

         In this case, the district court agreed with Defendants’ contention that the

Government had failed to comply with § 2518(9)’s 10-day requirement. On the

first day of trial, during the first witness’s direct examination, Defendants

objected to the introduction of the tape recordings. The court ruled that the

statute had been violated, and ordered a continuance of the trial to allow

Defendants to file a motion to suppress. The motion was ultimately denied, and

trial was resumed six weeks later.

         Defendants contend that they were prejudiced simply by the fact that, at the

time their trial began, they had not been provided with the required materials

more than ten days previously. Defendants knew that wiretap evidence was going

to be used against them – they simply had not been given copies of the wiretap

application or the court order authorizing the wiretap. The district court stopped

the trial before any of the wiretap evidence was introduced and gave Defendants

more than ten days to file their motions to suppress based on the materials

disclosed by the Government. Trial did not resume until weeks later, when the

motions had been fully briefed and ruled upon. Defendants’ position would not


                                          - 17 -
only convert § 2518(9) into a strict liability statute, but it would mean that once

the provision is violated, the underlying evidence could never be used.

Defendants offer no legal support for such an interpretation, and we reject it.

      In a cursory statement, Tyler also contends that the Title III intercepts from

Darrell James’s mobile phone should have been suppressed because the

Government failed to prove necessity. In its order denying the motion to

suppress, the district court devoted five pages to detailed findings as to why the

wiretaps were necessary. The district court’s analysis is more than sufficient,

especially given Tyler’s failure even to hint at how the court might have erred.



V.    Sufficiency of the Evidence

      Tyler argues that the district court erred in denying his motion for acquittal

because the evidence was insufficient to support Tyler’s convictions. After

reviewing the record in this case, we find this argument meritless.



VI.   Right to Confront Witnesses

      Tyler argues that his Sixth Amendment right to confront witnesses was

violated when the district court restricted his ability to cross-examine Darrell

James by precluding Tyler’s use of two tape recordings. Because Tyler failed to




                                        - 18 -
raise adequately this issue below, we review for plain error, and find that both

tapes were properly excluded.



VII.   Government’s Use of Tyler’s “Mug Shot” and Admission of Cocaine

       In its opening statement, the Government used a demonstrative chart

labeled “Organization Drug Flow Chart,” which included photos of the alleged

co-conspirators, including Tyler. Tyler objected to the chart’s use of the word

“drug,” and to the photographs, which he argued were “mug shots,” and thus

unduly prejudicial. The district court ordered the Government to cover the words

“Organization Drug Flow Chart,” but allowed use of the chart because it could

not determine whether the photos were mug shots, rather than simply “close-up

face shot[s].” Because Tyler did not include a copy of the chart in the record,

there is no reason to question the district court’s conclusion.

       Tyler also objects to the admission of seized crack cocaine, contending that

it was “never connected to Tyler.” There is no dispute, however, that it was

seized from participants in the conspiracy during the course of the conspiracy.

Given that the Government established that Tyler was part of the conspiracy, he

has no ground to object to the evidence’s admission.




                                        - 19 -
VIII. Evidence of Previous Drug Activities

      Collins contends that the district court abused its discretion under Federal

Rule of Civil Procedure 404(b) by allowing co-conspirator Herman Owens to

testify about the nature of his relationship with Collins in the years before the

period covered by the indictment. Specifically, the Government questioned

Owens about his past involvement with Collins in the distribution of drugs. After

Collins objected, the Government argued that the line of questioning “provides a

background and the basis for this witness to have the knowledge of the facts that

he is going to be testifying about,” and that, through discovery, Collins had notice

that these prior acts would be introduced. The court allowed the questioning, but

warned the Government not to “dwell on it.”

      On appeal, the Government first contends that Collins waived this issue by

not objecting at trial in specific enough terms. The basis of Collins’s argument

on appeal is Rule 404(b), which allows evidence of other crimes, wrongs or acts

where offered to establish proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Fed. R. Evid. 404(b).

However, Collins objected to the line of questioning at trial on the grounds of

relevance and that “[a]ny probative value is extremely outweighed by prejudice.”

Because Collins did not invoke Rule 404(b) or otherwise refer to its substance,

the district court’s ruling is subject to plain error review. See Smith v. Atlantic


                                        - 20 -
Richfield Co., 814 F.2d 1481, 1486 (10th Cir. 1987) (“[A] specific overruled

objection protects the record to the extent of the ground specified, but does not

avail the party of other grounds that could have been raised but were not.”). In

any event, whether the district court’s ruling is reviewed for abuse of discretion

or plain error, Collins’s argument fails.

      Collins focuses on determining whether the testimony was admissible under

Rule 404(b). That determination is governed by four factors: whether the

evidence is offered for a proper purpose; whether the evidence is relevant;

whether the probative value is substantially outweighed by the potential for unfair

prejudice; and whether the district court offered a limiting instruction.

Huddleston v. United States, 485 U.S. 681, 691-92 (1988).

      First, it is not clear whether Rule 404(b) even applies to the line of

questioning at issue, for evidence “relevant to establish how the conspiracy came

about, how it was structured, and how each appellant became a member,” is “not

extrinsic to the conspiracy charged,” even if it predates the time period set forth

in the indictment. United States v. Lokey, 945 F.2d 825, 834 (5th Cir. 1991). See

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

(recognizing that Rule 404(b) is inapplicable where uncharged act is “is

inextricably intertwined with the charged crime such that a witness’ testimony

would have been confusing and incomplete without mention of the prior act”


                                        - 21 -
(internal quotation marks omitted)). The testimony at issue concerned how

Owens and Collins established their relationship and began to distribute drugs

together, which led to their involvement in the conspiracy charged in the

indictment.

      Even if Rule 404(b) applies, the Rule is satisfied because the evidence “was

relevant for purposes other than to show criminal character; as permitted by Rule

404(b), it was relevant to show the formation of the conspiracy and its operating

procedures,” as well as “appellants’ knowledge of the conspiracy and their intent

to engage in the transactions listed in the time frame of the conspiracy.” Lokey,

945 F.2d at 835. Collins has offered no basis for concluding that the district

court abused its discretion in finding that the testimony’s probative value

outweighed its potential for unfair prejudice.



IX.   Exclusion of Tyler’s Investigator From Defense Table

      Tyler argues that he was unduly prejudiced by the district court’s refusal to

allow Tyler’s investigator to sit at the defense table during trial. The court

excluded the investigator because Tyler planned on calling him to testify. Federal

Rule of Evidence 615 provides:

      At the request of a party the court shall order witnesses excluded so that
      they cannot hear the testimony of other witnesses, and it may make the
      order of its own motion. This rule does not authorize exclusion of (1)
      a party who is a natural person, or (2) an officer or employee of a party

                                        - 22 -
      which is not a natural person designated as its representative by its
      attorney, or (3) a person whose presence is shown by a party to be
      essential to the presentation of the party’s cause, or (4) a person
      authorized by statute to be present.

Tyler contends that the investigator was “essential to the presentation of Tyler’s

case” because he had worked with Tyler and the defense counsel in sorting

through the Government’s telephone recordings and could have helped with

impeachment efforts based on some of those recordings.

      There is no basis for concluding that the district court abused its discretion

in determining that the danger of the investigator shaping his testimony based on

the testimony of other witnesses outweighed Tyler’s need to have the investigator

at the defense table. Presumably, the investigator would have helped identify the

potentially impeaching recordings prior to trial. There is no reason to doubt the

ability of Tyler’s counsel to utilize those recordings as needed during the trial.



X.    Firearm Sentencing Enhancement

      Tyler argues that the district court committed clear error by finding that “a

non working, old shot gun with missing parts found in the crawl space in the attic

qualified as an enhancement” under section 2D1.1 of the Sentencing Guidelines.

The crawl space apparently adjoined the bedroom where Tyler stored drugs.

      In applying the firearm enhancement, the “initial burden is on the

government to prove possession of the weapon by a preponderance of the

                                         - 23 -
evidence, which may be satisfied by showing mere proximity to the offense.”

United States v. Humphrey, 208 F.3d 1190, 1210 (10th Cir. 2000) (internal

quotation marks omitted). The burden then shifts to the defendant to “prove that

it is clearly improbable that the weapon was connected to the offense.” Id.

      At the sentencing hearing, the district court ruled that Tyler failed to carry

his burden of showing that the firearm enhancement was inappropriate:

      [P]ursuant to Section 2D1.1 of the Guidelines, particularly Application
      Note 3, which cites that this application should be applied unless it is
      clearly improbable that the weapon was connected with the offense, it
      is certainly the Defendant’s burden to prove otherwise and the Court
      finds that whether or not the shotgun was working is not known; that
      there certainly is a sufficient nexus between where the marijuana was
      found in the home and the location of the gun, even though the gun was
      upstairs, behind a bedroom door, up in an attic, but that attic was
      connected to a bedroom where the marijuana was found, both in that
      bedroom and in the purse of Mrs. Tyler. The Court finds that this
      enhancement certainly appears to be warranted.

      Tyler insists that the enhancement is inappropriate in light of the example

offered by Note 3 of section 2D1.1, which provides that “[t]he adjustment should

be applied if the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense. For example, the enhancement would

not be applied if the defendant, arrested at his residence, had an unloaded hunting

rifle in the closet.” According to Tyler, the facts of this case mirror the example

of the unloaded hunting rifle.




                                        - 24 -
      Tyler overlooks the fact that his wife – who provided the only testimony on

the issue – stated that she did not know whether the shotgun worked or not.

There is no other evidence that the shotgun was unusable, nor is there any

indication that the shotgun was intended for recreational use (in contrast to the

hunting rifle referenced in the Guidelines’ example). And Tyler offers no

evidence to counter the district court’s conclusion that the shotgun’s location was

sufficiently connected to the bedroom where Tyler stored drugs. The district

court’s findings on this issue cannot be considered clearly erroneous. Humphrey,

208 F.3d at 1211 (applying clearly erroneous standard to factual findings

underlying firearm enhancement).



XI.   Career Offender Sentencing Enhancement

      Collins challenges the district court’s finding that he was a career offender

for purposes of sentencing. The Sentencing Guidelines provide that a defendant

shall be sentenced as a career offender if: “(1) [he] was at least eighteen years old

at the time he committed the instant offense of conviction; (2) the instant offense

of conviction is a felony that is either a crime of violence or a controlled

substance offense; and (3) [he] has at least two prior felony convictions of either

a crime of violence or a controlled substances offense.” U.S.S.G. § 4B1.1.

Collins contends that the third requirement was not met because his previous


                                        - 25 -
burglary conviction does not constitute a crime of violence. “Crime of violence”

is defined as an offense punishable by more than one year in prison that:

      (1)    has as an element the use, attempted use, or threatened use of
             physical force against the person of another; or

      (2)    is burglary of a dwelling, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a serious
             potential risk of physical injury to another.

U.S.S.G. § 4B1.2.

      The district court relied on a second-degree burglary conviction in

Oklahoma state court to classify Collins as a career offender. The only evidence

that the offense qualified as a violent crime came in the indictment, which alleged

that Collins broke into a person’s house. The district court found that Collins

“has a conviction for the burglary of a dwelling and that there is sufficient

information for this Court that has been made a part of this record to support the

enhancement for career offender status.”

      Collins does not dispute that the indictment alleges a violent crime, but

argues that, in light of his subsequent plea bargain, the indictment is not evidence

that he was ultimately convicted for a violent crime. He contends that the

indictment charged him with both first- and second-degree burglary, but since he

ultimately pled guilty only to second-degree burglary, the indictment’s factual

allegations are irrelevant to determining the nature of the offense for which he

was convicted. He also argues that the statutory elements of second-degree

                                        - 26 -
burglary do not qualify as a violent crime. Collins thus contends that the

Government failed to carry its burden of proving the applicability of the career

offender provision.

      “Whether a defendant was erroneously classified as a career offender is a

question of law subject to de novo review.” United States v. Bennett, 108 F.3d

1315, 1316 (10th Cir. 1997). The Government bears the burden of proving that

sentence increases are appropriate, and the career offender provisions are to be

interpreted narrowly. Id. “In determining whether a predicate offense qualifies

as a crime of violence, courts in this circuit are limited to examining the statutory

elements of the crime and the record of the prior proceeding.” Id. at 1317.

      Collins rests his argument on Bennett, in which the court held that the fact

that a defendant was charged with first-degree burglary, which qualifies as a

violent crime, does not mean that he was convicted of a violent crime for

purposes of career offender status. The court observed that whether a defendant

“was charged with a crime of violence . . . is not dispositive for sentencing

purposes.” Id. Rather, the focus must be placed on the conduct that was the

subject of the conviction. Because, like Collins, the defendant in Bennett pled

guilty to second-degree burglary – not the first-degree burglary charged in the

indictment – the allegations of the indictment were of limited relevance unless the

indictment was amended to reflect the allegations to which the defendant pled


                                        - 27 -
guilty. See id. at 1317-18. The court observed that, because the record was

ambiguous as to whether the indictment was amended, and because the statutory

elements of second-degree burglary encompass non-violent forms of burglary, the

defendant should not have been sentenced as a career offender. See id. at 1319.

      The Government does not dispute that the indictment charged Collins with

first-degree burglary, nor that Collins pled guilty to second-degree burglary.

Nevertheless, the Government insists that the indictment’s allegations are

sufficient to establish the offense’s violent nature. The Government does not

attempt to distinguish Bennett from this case, but simply looks to the Bennett

court’s statement that “charging papers” from the previous conviction could be

considered by a sentencing court in determining career offender status. Id. at

1317. Under this reasoning, according to the Government, the district court was

justified in looking to the first-degree burglary indictment in finding that Collins

was convicted of a violent crime. The Government is only partially correct – as a

general rule, courts can look to the indictment as evidence of a crime’s violent

nature. But the question here is whether the indictment is even relevant, as it

apparently set forth an offense (first-degree burglary) of which Collins was not

ultimately convicted. See United States v. Hill, 131 F.3d 1056, 1061 (D.C. Cir.

1997) (“[W]hen a defendant pleads guilty to a lesser included offense of the

offense charged in the indictment and the statutory definition of the lesser offense


                                        - 28 -
allows conviction for conduct that does not meet the definition of a ‘crime of

violence,’ the indictment alone does not provide a sufficient basis for designating

an offense a ‘crime of violence.’”). The Government implicitly concedes that

second-degree burglary is not necessarily a violent crime under Oklahoma law.

       The Government has not carried its burden of proving that Collins qualifies

as a career offender. The underlying indictment was not included in the record,

so we have no way of determining whether the original or superseding

indictments alleged – as part of the second-degree burglary charge – that Collins

broke into a dwelling. If such an allegation was not included in the second-

degree charge, then there is no apparent basis for applying the enhancement to

Collins. We therefore vacate Collins’s sentence and remand for resentencing.



XII.   Cumulative Error

       Tyler argues that all of the errors discussed above cumulatively deprived

him of a fair trial. For the reasons noted above, we find this argument meritless.



                                 CONCLUSION

       We REMAND with instructions that the district court vacate the sentence

of Collins and resentence Collins consistent with this opinion. Collins’s and

Tyler’s convictions and Tyler’s sentence are AFFIRMED in all other respects.


                                       - 29 -
Collins’s Motion to Supplement Appellant’s Brief In Light of the United States

Supreme Court’s Decision in Apprendi v. New Jersey and Jones v. United States

is DENIED.


                                     ENTERED FOR THE COURT



                                     David M. Ebel
                                     Circuit Judge




                                      - 30 -
