                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 4 2003
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                   No. 01-2357
           v.                                        (D. New Mexico)
 RACHEL HERDER,                                 (D.C. No. CR-00-1533-LH)

                Defendant - Appellant.
 --------------------------------------------
 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                   No. 01-2358
           v.                                        (D. New Mexico)
 CYNTHIA REDHOUSE,                              (D.C. No. CR-00-1533-LH)

                Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before SEYMOUR, HOLLOWAY, and ANDERSON, 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       This order and judgment is not binding precedent, except under the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.
      Cynthia Redhouse and Rachel Herder appeal their convictions, following a

jury trial, for assaulting Sheila James with a deadly weapon (a baseball bat, a

metal broom handle, or a car jack) with intent to do bodily harm, in violation of

18 U.S.C. §§ 1153, 113(a)(3) and 2, and assault resulting in serious bodily injury,

in violation of 18 U.S.C. §§ 1153, 113(a)(6) and 2. Both defendants were

sentenced to concurrent terms of forty-six months in prison. Because both

appeals largely raise identical issues, we have combined them for purposes of

disposition.

      The appellants contend that the district court abused its discretion,

committing reversible error, by: (a) not allowing defense counsel to question the

victim, Sheila James, on her opinion about whether she had a reputation for

violence; (b) striking the testimony of Laura Yazzie regarding Sheila’s reputation

for violence; (c) not allowing evidence of two prior acts of violence by Sheila;

and (d) not allowing Michael Prendergast to testify that three to four weeks prior

to the incident he saw Sheila swinging a bat around at the trailer where the

incident occurred and claiming that she would “protect herself if anybody messes

with her.” Additionally, the appellants contend that the district court committed

plain error by failing to instruct the jury to consider Sheila’s reputation for

violence in determining whether she was the first aggressor.




                                          -2-
      Appellant Herder separately argues that plain error occurred when the

government introduced evidence regarding Cynthia Redhouse’s reputation for

violence. And, both appellants claim cumulative error warrants reversal.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm both convictions.



                                 BACKGROUND

      The charges in this case arose out of a fight in a trailer located on Navajo

land at Shiprock, New Mexico, 1 where the victim, 17-year-old Sheila James, was

living with Mary Jane Redhouse’s son, Wilfred. On July 28, 2000, 62-year-old

Mary Jane Redhouse, her daughter, 40-year-old appellant Cynthia Redhouse, and

Cynthia’s two daughters, 23-year-old appellant Rachel Herder, and 14-year-old

Candace Prendergast, drove to Wilfred’s trailer to retrieve from Sheila keys to a

car owned by Mary Jane but being used by Wilfred. Earlier that day Mary Jane

and the three other women had seen Sheila with Mary Jane’s car stopped by

police for a traffic violation. Apparently Mary Jane had not known Wilfred was

allowing Sheila to drive Mary Jane’s car, and she disapproved.




      1
        The parties stipulated to the statutory elements, 18 U.S.C. § 1153, that the
parties involved are Indians, enrolled members of the Navajo nation, and that the
altercation occurred in Indian Country. Tr. of Trial, R. Vol. VI at 867. The
stipulation was read to the jury. Id.

                                         -3-
      When Mary Jane, Cynthia, Rachel and Candace arrived at the trailer, Sheila

James and her friend, 20-year-old Greta Mark, along with Mark’s infant son, were

just leaving. However, when Sheila saw the women, she had a “bad feeling”

about encountering them, so she and Greta reentered the trailer and went to the

bedroom at the south end of the single-wide trailer.

      Mary Jane went to the trailer, knocked on the door, and Sheila eventually

came out of the bedroom and answered. The testimony differs as to the nature of

Mary Jane’s encounter with Sheila (Mary Jane did not testify), but there is general

agreement that Mary Jane demanded the car keys and ordered Sheila out of the

trailer. It is also uncontested that Sheila then returned to the bedroom and began

to pack up her belongings, and that Rachel subsequently went to and entered the

bedroom.

      At this point the testimony sharply differs. Sheila testified that Rachel

carried with her the aluminum baseball bat Wilfred kept in the living room, and

struck Sheila on the left side of the head with the bat. Greta, who was looking

out from the bathroom, confirmed that Rachel brought the bat in and swung it at

Sheila. Rachel, on the other hand, testified that she was simply going back to the

bedroom to get the car keys and that when she entered, Sheila struck her in the

legs with a baseball bat.




                                         -4-
      In any event, a fight erupted in which Cynthia and then Candace joined

with Rachel in fighting Sheila. It is also undisputed that the bat was used as a

weapon, that it changed hands several times as the parties fought for possession

of it and used it, and that Sheila was knocked to the floor with Cynthia on top of

her and Rachel either partly on top or at the side. The testimony most favorable

to the jury’s verdict indicated that when Candace joined in, she had a broom with

a metal handle which broke, leaving a jagged edge.

      The three women kicked, punched, and grabbed Sheila, as well as hitting

her with the bat, and Candace and Rachel took turns hitting Sheila with the metal

broom handle. Sheila, at the least, hit Cynthia and Rachel in the chest with the

bat and probably struck both Cynthia and Rachel in other spots with the bat, as

well as striking them with her fists and feet.

      As indicated above, not too far into the fight Sheila was knocked to the

floor where she remained until Cynthia, Rachel and Candace broke off the

altercation. They testified that they did so when Sheila, who was then on the

ground crying and screaming out as if in excruciating pain (R. Vol. VII at 492),

exclaimed she was pregnant. Sheila testified that she had already given that

information to Mary Jane while they talked in the living room, and Greta Mark

testified that she heard Mary Jane tell Rachel to “wash out the baby” before

Rachel went to the bedroom.


                                          -5-
      During the fight Greta left and, toward the end, Candace, who was told by

Cynthia to “call the cops,” apparently left. However, Sheila testified that Rachel

and Cynthia returned to the bedroom immediately after leaving and forced open

the door which Sheila, after getting to her feet, was trying to hold shut, reentered

the room, grabbed the bat and part of the broom handle and took them away.

Officers later checked Mary Jane’s truck and the area immediately around

Cynthia’s residence, but did not see the bat or part of the metal broomstick.

      After the altercation Mary Jane, Cynthia, Rachel and Candace left in their

truck. Sheila, worried about a miscarriage due to the kicks she had received in

her abdomen, went into the bathroom to see if there was blood in her urine. It

was then that she discovered severe bleeding from a wound in her back, which

she then examined by looking in a mirror. At first she thought the wound was

caused by one of the women hitting her with a car jack that was on the bedroom

floor, and she reported that in her initial account to the police. That report led to

the inclusion of the jack as a weapon in the indictment.

      The injury consisted of a rounded gouge out of her flesh, about three inches

in length, and a puncture wound at least three to four inches deep in the lower

right side of her back. The defendants claimed she fell on the jack, and that is

what caused the wound in her lower back. However, based on his investigation,

FBI Agent Frank Chimitz testified that the injury was consistent with the


                                          -6-
cylindrical metal broomstick, and that the car jack could not have caused a wound

of the type and dimensions in question. That testimony, which was not refuted in

any significant way (and was not objected to on grounds of his qualification to

give an expert opinion), was corroborated by medical and other testimony from

officers who saw the size and shape of the wound. Additionally, the jury had for

inspection a piece of the broom handle and pictures of the car jack to compare

with, among other things, Agent Chimitz’ testimony, including his description of

the blood on the jack appearing only in the form of drops.

        Cynthia, Rachel and Sheila all suffered bruises and contusions, and

Candace (who did not testify) complained to an investigator that she had a sore

left shoulder. However, Sheila was clearly the most injured, with bruises and

contusions all over her body, including severe bruising and swelling on the left

side of her head where she said Rachel first hit her with the bat. Her face and lips

were swollen and she was bleeding from her nose and from the wound in her right

side.

        Bleeding and injured, Sheila picked up the car keys from where they were

lying on the bed (the appellants did not take them), got into the car she had been

driving earlier, and drove directly to the police station. According to officers at

the station, Sheila was trembling, moaning and crying, and left a trail of blood

down the hall to the room where she was interviewed, reporting that she had been


                                          -7-
attacked. Officers at the station called an ambulance, which took Sheila to the

hospital. She was hospitalized for three days due to the potentially life

threatening stab wound in her lower back; although, as it turned out, the wound

was not life threatening.

      The four other women saw Sheila drive into the police station parking lot,

but did not follow. Instead, they drove to Cynthia’s residence, ostensibly to get

Albuterol because Rachel was having an asthma attack. They called the police

from there, about twenty minutes after Sheila had arrived at the station. The

police had also received an earlier call, at about the time Sheila arrived, reporting

the altercation. The caller was not identified.

      Police officers proceeded to Wilfred’s trailer and secured the scene. Other

officers, Mark Scott and Alesia Barber, went to Cynthia’s residence where they

interviewed Mary Jane, Cynthia, Rachel and Candace. They then arrested Cynthia

and Rachel.

      Later the same evening, Agent Chimitz and Criminal Investigator Monique

Maria examined Wilfred’s trailer. They observed no signs of a struggle in the

living room, where Mary Jane first confronted Sheila. They then inspected the

bedroom, where the fight occurred, and adjoining bathroom, taking notes, and

pictures of blood and other items. The pictures were introduced in evidence at

trial. The examination included an inspection of the car jack and the entire


                                          -8-
bedroom for blood and weapons. They found and took into evidence one end of a

broken metal broom handle, which had no blood or flesh on it. However, the

other end of the handle and the bat were not on or around the premises. They

were never found.



                                  DISCUSSION

I.    Exclusion of Specific Instances of Conduct/Character Evidence

      At trial, the appellants relied on a claim of self-defense. Thus, it was

important to the defense to establish that Sheila was the aggressor in the fight.

To help prove that point, defense counsel proposed to introduce evidence of three

prior instances of conduct from which the jury could infer that Sheila had a

violent character and, acting in conformity therewith, started the fight.

      The three instances proffered by the defense were as follows: (1) Laura

Yazzie would testify that about a year before the fight Sheila hit Laura’s husband,

Herbert, on the head with brass knuckles; (2) Laura would also testify that about

eight months before the fight she saw Sheila throw a liter bottle of Coke which

struck an elderly woman, Grace Yazzie, on the arm; and (3) Michael Prendergast,

Rachel’s 16-year-old brother, would testify that three or four weeks before the

fight he saw Sheila at her trailer swinging the bat used in the fight and saying that

“she will protect herself if anybody messes with her.” R. Vol VII at 389.


                                         -9-
      When making this proffer to the court, during a bench conference, defense

counsel made a passing reference to Federal Rule of Evidence 404(b) as a ground

for admissibility of all three incidents, but clearly and repeatedly referred the

court to Rules 404(a)(2) and 405 as the basis upon which the testimony was being

proffered. Id. at 390-94. Counsel summed up his position, and the court ruled, as

follows:

            MR. DAVIS: I’m offering the evidence pursuant to 404(a)(2).
      And the question is how I prove that. I’d like to inquire into specific
      incidents of conduct.

Id. at 392 (emphasis added).

      The court then ruled as follows:

            THE COURT: The evidence of a person’s character is not
      admissible for the purpose of proving action and conformity
      therewith on a particular occasion, except that character of the victim
      under 404(a)(2) may be shown, but this has to be shown according to
      the Tenth Circuit in its decision in United States v. Telemonte [sic],
      981 F.2d 1153, approved again in United States v. Yazzi [sic], 188
      F.3d 1178. Those cases also held that specific instances of violent
      acts may not be used to show character.

Id. at 392-93 (emphasis added).

      As indicated by the ruling, the court prohibited counsel from asking

witnesses about the specific incidents in question. The court’s ruling likewise

prohibited counsel from questioning Sheila on cross-examination about her own

opinion of her reputation:



                                         -10-
            So the objection is sustained. I will tell the jury to disregard
      the question. You may cross-examine, but you cannot introduce her
      [Sheila]—you cannot introduce evidence of her reputation through
      her.

Id. at 393.

      These rulings form the basis of three of the issues raised by the appellants

on appeal. In general, the appellants contend that the district court erred in ruling

that they could not offer testimony regarding the three specific instances of

conduct described above as evidence of Sheila’s allegedly violent character

because such testimony would permit the defense to pursue the inference that

Sheila was the aggressor. As indicated, at trial defense counsel cited Federal

Rules of Evidence 404(a)(2) and 405 as grounds for the admissibility of that

evidence. Those rules, as relevant, provide as follows:

      Rule 404. Character Evidence Not Admissible To Prove Conduct;
      Exceptions; Other Crimes
             (a) Character Evidence Generally.—Evidence of a person’s
      character or a trait of character is not admissible for the purpose of
      proving action in conformity therewith on a particular occasion,
      except:
             ...
                    (2) Character of Alleged Victim.—Evidence of a
      pertinent trait of character of the alleged victim of the crime offered
      by an accused, or by the prosecution to rebut the same, or evidence
      of a character trait of peacefulness of the alleged victim offered by
      the prosecution in a homicide case to rebut evidence that the alleged
      victim was the first aggressor.

Fed R. Evid. 404(a)(2).



                                         -11-
             Rule 405. Methods of Proving Character
             (a) Reputation or opinion. In all cases in which evidence of
      character or a trait of character of a person is admissible, proof may
      be made by testimony as to reputation or by testimony in the form of
      an opinion. On cross-examination, inquiry is allowable into relevant
      specific instances of conduct.
             (b) Specific instances of conduct. In cases in which
      character or a trait of character of a person is an essential element of
      a charge, claim, or defense, proof may also be made of specific
      instances of that person’s conduct.

Fed. R. Evid. 405(a) and (b).

      In reviewing the appellants’ claims of error on the issues in question, we

apply the highly deferential abuse of discretion standard with respect to the

district court’s rulings. United States v. Talamante, 981 F.2d 1153, 1155 (10th

Cir. 1992). A court abuses its discretion when its decision is “arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Combs, 267

F.3d 1167, 1176 (10th Cir. 2001) (quotation and citation omitted).



      A.     Exclusion of Testimony Regarding Specific Instances of
             Conduct Alleged to be an “Essential Element” of the
             Defense Under Rule 405(b)

      Under Fed. R. Evid. 404(a)(2), specific instances of conduct may be

relevant to the subject of character. But, as the district court correctly observed,

“[F]ederal Rule of Evidence 405 establishes the permissible methods of proving

character under Rule 402(a)(2).” Talamante, 981 F.2d at 1156 (citing Perrin v.

Anderson, 784 F.2d 1040, 1045 (10th Cir. 1986)).

                                         -12-
      Accordingly, the appellants rely on Rule 405(b) which permits proof of

specific instances of a person’s conduct when character or a trait of character is

an essential element of the defense. They argue that when a defendant claims self

defense, the allegedly violent character of the purported victim is clearly an

essential element of the defense, permitting an inference that the alleged victim

was the first aggressor.

      However, it is the law of this circuit that “a party may present testimony

concerning specific instances of conduct only when ‘character is in issue in the

strict sense.’” Talamante, 981 F.2d at 1156 (quoting Perrin, 784 F.2d at 1045).

“Character is directly in issue in the strict sense when . . . the existence or

nonexistence of the character trait itself determines the rights and liabilities of the

parties.” Perrin, 784 F.2d at 1045 (quotation omitted); see also United States v.

Keiser, 57 F.3d 847 (9th Cir. 1995) (“The relevant question should be: would

proof, or failure of proof, of the character trait by itself actually satisfy an

element of the charge, claim, or defense? If not, then character is not essential

and evidence should be limited to opinion or reputation.”); Weinstein’s Fed. Evid.

(2d Ed. § 405.05[3]); W. Strong, McCormick on Evidence, §§ 187, 193 (5th ed.

1999). 2 Thus, “[w]hen character evidence is used circumstantially to create an


      2
       For a contrary view relating to cases involving claims of self defense, the
appellants cite three state court cases, the most representative of which is Heidel
                                                                       (continued...)

                                           -13-
inference that a person acted in conformity with his or her character, Rule 405

allows proof of character only by reputation and opinion.” Talamante, 981 F.2d

at 1156.

      Since character was not directly in issue in the strict sense in this case, the

district court properly ruled that character evidence regarding Sheila was limited

to reputation or opinion evidence. Cynthia concedes the point, seeking only to

preserve the issue for possible en banc review, or appeal to the Supreme Court.

Redhouse’s Br. at 34.



      B.     Preclusion of Cross-Examination of Sheila by Defense Counsel
             About Sheila’s Opinion as to Her Reputation for Violence

      The government called the victim, Sheila, to testify about the fight. None

of the questions asked related to Sheila’s reputation. At the beginning of cross-

examination by Rachel’s counsel, Michael Davis, Davis asked: “It’s true, is it

not, that you [Sheila] have a reputation in the Shiprock area for violence?” R.

Vol. VII at 388. Sheila answered, “No,” id., at which point government counsel

requested a bench conference during which he objected to the question, leading to

the court’s ruling, quoted above, sustaining the objection and striking the

question.


      2
        (...continued)
v. State, 587 So. 2d 835 (Miss. 1991). They, of course, do not control here.

                                         -14-
      The appellants contend that the district court erred in precluding them from

cross-examining Sheila as to her character. They cite no authority which would

support that argument under these circumstances. Rule 405(a) only permits cross-

examination relating to specific instances of conduct when the opposing side

introduces evidence regarding the reputation of the witness. Cf., e.g., United

States v. McHorse, 179 F.3d 889, 901-02 (10th Cir. 1999) (holding that Rule

405(a) provides that “once evidence of defendant’s character is offered by the

defendant . . . the government may counter that evidence on cross-examination by

referencing relevant specific instances of conduct”); see also W. Strong,

McCormick on Evidence, § 191 (5th ed. 1999); Weinstein’s Fed. Evid. (2d Ed.

§ 405.03[2][a]). That was not the case here.

      As for the limited question regarding the witness’s opinion as to her own

reputation, it was already clear that she denied having a reputation for violence,

so a repeat of that answer would not have assisted the defense. And, cross-

examination of that answer in the form of specific instances of conduct would

only be a tactic to do what the rules themselves do not contemplate. In short,

defense counsel’s tactic would amount to bootstrapping to get into a prohibited

line of questioning. See, e.g., United States v. Gilliand, 586 F.2d 1384, 1389

(10th Cir. 1978).




                                         -15-
      The district court did not abuse its discretion by precluding defense counsel

from cross-examining Sheila on reputation.



      C.     Preclusion of Testimony by Michael Prendergast That he Saw
             Sheila With the Bat and Heard Her Say She Would Protect
             Herself if Anybody Messes with Her

      As indicated above, when defense counsel made his initial proffer with

respect to three alleged incidents of violent conduct, he referred once to Fed. R.

Evid. 404(b) without differentiating among the incidents. When the defendants

put on their case, counsel called Michael Prendergast, Rachel’s 16-year-old

brother, who was permitted to testify that Sheila had a reputation for violence and

untruthfulness. The district court cut off the witness when it appeared he might

get into details about the baseball bat incident and Sheila’s statement. Defense

counsel remained silent on the point. He did not make any proffer or argument to

the court with respect to permissible grounds for admissibility, whether under

Fed. R. Evid. 404(b), as impeachment of answers given by Sheila during her

testimony, or otherwise.

      The appellants now contend that the district court erred in not permitting

testimony by Michael on this subject. They argue that under Rule 404(b) 3 the


      3
        (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or
acts is not admissible to prove the character of a person in order to show action in
                                                                       (continued...)

                                        -16-
proffered evidence that Michael saw Sheila swinging the bat and “claiming she

will protect herself if anybody messes with her,” R. Vol. VII at 389, would be

admissible to show motive, opportunity, intent, preparation, plan and knowledge.

Herder’s Br. at 25. 4

      The rule in this circuit is clear that a party offering evidence under Fed. R.

Evid. 404(b) has the responsibility to “precisely articulate the purpose” for which

the evidence is to be admitted. See United States v. Birch, 39 F.3d 1089, 1093

(10th Cir. 1994); United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985).

A broad statement invoking rule 404(b) is not enough. See United States v.

Youts, 229 F.3d 1312, 1317 (10th Cir. 2000). Defense counsel failed to articulate

any basis for admissibility of the alleged incident, and the district court had no

obligation to guess at or formulate some ground for admission, and then rule on

that formulation. 5 Indeed, as the record shows, counsel’s arguments for


      3
       (...continued)
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, . . . .

Fed. R. Evid. 404.

      The appellants do not contend that any of this, or other specific act,
      4

evidence was admissible for purposes of showing the defendants’ state of mind.
      5
       Even if counsel had argued some basis for admissibility of the challenged
evidence, that would still leave unanswered the outcome of applying the test
required by Fed. R. Evid. 403, which would include the possibility of confusion
                                                                     (continued...)

                                        -17-
admissibility actively steered the court away from any consideration under Rule

404(b), and stressed only Rule 404(a)(2).

          In stating the general rule, the Birch court did acknowledge an exception

where the 404(b) purpose of the evidence is “apparent from the record.” Birch,

39 F.3d at 1094. Appellants argue for the first time in their reply briefs that they

are entitled to invoke this exception because the 404(b) purpose of this evidence

was apparent from the record. See Redhouse’s Reply Br. at 6; Herder’s Reply Br.

at 1-2.

          Arguments raised for the first time in a reply brief need not be addressed.

Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Nevertheless, we point out

that Birch is clearly distinguishable on its facts. In that case, the government

informed the court and defense counsel prior to the trial that it intended to

introduce Rule 404(b) evidence for the purpose of proving the defendant’s

“knowledge, identity and absence of mistake or accident.” Birch, 39 F.3d at

1093. Notwithstanding this explanation of the purpose for the evidence, we found

that the government failed sufficiently to articulate the “relevant purpose and

specific inferences” to be drawn from the evidence. Id. In contrast, here the




        (...continued)
          5

arising from potential mini trials at least with respect to the brass knuckles and
the Coke bottle incidents. See Talamante, 981 F.2d at 1156 n.5.

                                            -18-
appellants provided no statement—not even a deficient one—of the 404(b)

purpose of the evidence. 6

         In any event, Birch does not require, as appellants’ argument implies, that

we comb the record in search of a permissible 404(b) purpose, which the

appellants did not identify at trial, that might justify the admission of the

evidence.

         Finally, with respect to the appellants’ arguments regarding other grounds

for admissibility, such as impeachment of Sheila’s direct testimony, we point out

again that defense counsel made no arguments below which led to a ruling

reviewable on appeal.

         The district court’s failure to admit the evidence under Rule 404(b) was not

error.



II.      Laura Yazzie’s Reputation Testimony

         The defense presented Laura Yazzie as a reputation witness who would

testify that Sheila had a reputation for violence in the community. When asked if

she knew Sheila James, Yazzie responded, “no.” R. Vol. II at 451. Later she

testified that she did not know who Sheila James was. Id. at 452. After she was



       Furthermore, the statement that “I will protect myself” hardly presents an
         6

unambiguous reason, apparent from the record, for admission to prove a first
aggressor argument.

                                          -19-
provided with an interpreter she again testified that she did not really know

Sheila. See id. at 467. She also testified that she did not know how many people

she knew who knew Sheila. See id.

      After hearing the government’s cross-examination, in which Yazzie again

denied knowing Sheila, the district court struck Yazzie’s testimony for lack of

foundation. 7 Appellants argue that this was error because any deficiencies in

Yazzie’s testimony went to the weight of, and not the foundation for, her

testimony. We disagree.

      “The admission of reputation evidence is left to the sound discretion of the

district court.” United States v. Ruiz-Castro, 92 F.3d 1519, 1529 (10th Cir.

1996). A reputation witness must have “such acquaintance with the [person], the

community in which he has lived and the circles in which he has moved as to




      7
       The Appellants also argue that the testimony was excluded not because it
lacked foundation but because the court made an impermissible credibility
judgment. We disagree. It is apparent from reading the testimony and the
objections that the court’s ruling was based upon grounds of insufficient
foundation which went directly to admissibility. See R. Vol. VII at 465-67.

                                        -20-
speak with authority on the terms in which generally he is regarded.” 8 Michelson

v. United States, 335 U.S. 469, 478 (1948); Ruiz-Castro, 92 F.3d at 1529 (same).

       Yazzie’s testimony, which was rife with equivocations and inconsistencies,

evidenced her lack of familiarity with Sheila and her reputation in the community.

The appellants did not give the court any additional evidence to suggest that

Yazzie was familiar with Sheila or her community. The record supports the trial

court’s conclusion that there was insufficient foundation for Yazzie’s testimony.

“Particularly in light of the abuse of discretion standard applicable . . . we decline

to second-guess the district court's conclusion on the record before us.” United

States v. McVeigh, 119 F.3d 806, 814 (10th Cir. 1997).



III.   Jury Instructions

       Appellants next argue that the instructions to the jury were erroneous.

They point to two alleged mistakes: (1) the court illogically instructed the jury to



       8
        Appellants also argue that Yazzie’s testimony should be evaluated as
opinion, rather than reputation, character evidence. Herder’s Br. at 28-29.
Opinion testimony need not have the same foundation as reputation evidence; it
requires only that the witness have personal knowledge and an opinion—not that
the witness know the person and her community. However, this argument is not
supported by the record. Yazzie was never asked her opinion of Sheila’s
character. Rather, defense counsel asked Yazzie if she knew Sheila’s reputation
in the community. R. Vol. VII at 464-66. Since the defense never solicited
opinion testimony, we will evaluate the adequacy of the foundation for Yazzie’s
testimony under the reputation standard.

                                         -21-
consider Sheila’s reputation for violence when considering her credibility; and (2)

the district court failed to include a separate instruction directing the jury to

consider Sheila’s reputation for violence when determining who was the first

aggressor.

      The district court instructed the jury as follows:

      Instruction No. 12
              The Defendants have offered evidence of having acted in self-
      defense.
              Use of force is justified when a person reasonably believes that
      it is necessary for the defense of oneself or another against the
      immediate use of unlawful force. However, a person must use no
      more force than appears reasonably necessary in the circumstances.
              ....
              The Government has the burden of proving beyond a
      reasonable doubt that the defendant did not act in self-defense as it
      has been described in this instruction.

      Instruction No. 13
             You have heard the testimony of Sheila James. You also heard
      testimony from Michael Prendergast concerning his opinion about
      whether that witness is a truthful person and the witness’s reputation,
      in the community where the witness lives, for telling the truth and for
      violence. It is up to you to decide from what you heard here whether
      Sheila James was telling the truth in this trial. In deciding this, you
      should bear in mind the testimony concerning the witness’s
      reputation for truthfulness and violence as well as all the other
      factors already mentioned.

R. Vol. I, Court’s Instructions to the Jury, Instructions No. 12, 13.

      There was no objection to these instructions. Absent an objection at trial,

we review jury instructions for plain error. See United States v. Fabiano, 169

F.3d 1299, 1302 (10th Cir. 1999). Under the plain error standard Appellants

                                          -22-
“must show: (1) an ‘error,’ (2) that is ‘plain,’ which means ‘clear’ or ‘obvious’

under current law, and (3) that ‘affects substantial rights.’” Id. 1303 (citing

United States v. Olano, 507 U.S. 725, 732 (1993)). Under this standard we may

correct an error only if it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Olano, 507 U.S. at 732 (quotation and

citation omitted). “[W]e examine [instructions] as a whole to determine whether

the jury may have been misled, upholding the judgment in the absence of

substantial doubt that the jury was fairly guided.” United States v. Wiktor, 146

F.3d 815, 817 (10th Cir. 1998) (quotation omitted).

      According to appellant Herder, at trial “the only disputed issue [was] who

was the first aggressor.” Herder’s Reply Br. at 1. Sheila testified that she was

not the first aggressor. In considering her credibility on this topic, her reputation

for violence was relevant information for the jury to weigh. The instruction to

consider her reputation for violence when determining her credibility was neither

“illogical” nor “nonsensical” as the appellants argue. Instead, it directed the jury

to consider all available evidence when evaluating Sheila’s credibility.

      Appellants’ second contention is that the district court should have given a

separate instruction directing the jury to consider Sheila’s reputation for violence

when considering who was the first aggressor. Appellants do not argue that

Instruction No. 12 was an incomplete or inaccurate statement of the law, rather


                                          -23-
they argue that it was insufficient. Appellants, however, did not offer any

alternate instruction at trial. In the presence of a proper statement of the law of

self-defense, mere failure to give an additional instruction telling the jury to

consider the parties’ reputations for violence when evaluating the self-defense

claim does not create “substantial doubt that the jury was fairly guided.” Wiktor,

146 F.3d at 817. The court’s instruction did not constitute plain error.



IV.   Rachel Herder’s Plain Error Contention as to Evidence
      Regarding Cynthia Redhouse’s Reputation for Violence

      At trial, counsel for Rachel Herder elicited testimony from Michael

Prendergast that Sheila had a reputation in the community as a violent and

untruthful person. R. Vol. VII at 456-57. The purpose of the evidence was to

support the claim—asserted by both defendants—that Sheila was the first

aggressor and that the defendants were acting in self-defense.

      On rebuttal, the government called Officer Dwayne Vigil who testified that

the defendant, Cynthia Redhouse (Rachel’s mother), had a reputation in the

community as a person “prone to violence.” Id. at 560. Neither counsel for

Cynthia nor counsel for Rachel objected to that testimony.

      Rule 404(a)(1) of the Federal Rules of Evidence, set out more fully above,

provides, as relevant:




                                         -24-
                     (1) Character of Accused. — . . . if evidence of
             a trait of character of the alleged victim of the crime is
             offered by an accused and admitted under Rule
             404(a)(2), evidence of the same trait of character of the
             accused offered by the prosecution;

Fed. R. Evid. 404(a)(1) (emphasis added).

      Rachel contends that under a plain language reading of Rule 404(a)(1), the

government can only introduce character evidence against “the accused” who

offered character evidence against the victim. Thus, since Cynthia was not “the

accused” who offered character evidence against Sheila, the court committed

plain error by admitting rebuttal evidence about Cynthia’s character. Put another

way, since Rachel was the one who elicited reputation testimony against Sheila,

then Rachel was the only defendant against whom the government could offer

rebuttal character evidence.

      In response, the government argues that “the accused” can be read

collectively to apply to all co-defendants or, in any case, the drafters did not think

of a co-defendant situation and could not have intended the limitation envisioned

by Rachel since it would allow counsel for co-defendants to manipulate the Rules.

Because the present wording of the Rule in question has only been in effect since

the year 2000, it has not been interpreted in any prior case; but, in any event, the

issue here falls into a unique category which neither party addresses at any length.




                                         -25-
      First, it is notable that Cynthia, the defendant whose character was

attacked, not only did not object at trial, she also does not join in raising the issue

on appeal. This is particularly significant since, according to Rachel’s view, the

Rule allegedly violated here relates solely to Cynthia and her protection against

adverse character evidence. See, e.g., Rachel’s reliance in her reply brief on

Michelson v. United States, 335 U.S. 469, 475-79 (1948). So, at the very least,

the issue at the outset must be modified to whether a co-defendant has any right to

object at all, or to claim plain error, when the accused, whose immunity under

Rule 404(a) from character evidence has been violated, has no objection to the

introduction by the prosecution of character evidence against her.

      However, the issue is even more fundamentally altered when looked at from

the standpoint of Rachel’s burden to show prejudice under the plain error rule.

She contends she was prejudiced by evidence of Cynthia’s character trait of being

“prone to violence” since the jury could draw the inference of “like mother, like

daughter.” Herder’s Br. at 34. 9 But the problem with the issue as thus distilled is

that the alleged prejudice to Rachel remains the same whether or not Rule


      9
       Rachel also argues that the character evidence would suggest that Cynthia,
not Sheila, was the first aggressor, thus casting doubt on the self-defense position
upon which Cynthia and Rachel jointly relied. But no one disputed at trial that
Rachel entered the bedroom first, that the fight began between Sheila and Rachel,
and that the first aggressor question was solely between them. So Rachel’s
argument that Cynthia might be seen as the first aggressor is wholly lacking in
support.

                                          -26-
404(a)(1) was violated. So, it seems irrelevant whether there was or was not error

under Rule 404(a)(1). Under these circumstances, it is highly doubtful whether

Rule 404(a)(1) was violated as to Rachel, and, if any error exists, it is hardly

plain.

         Regardless, assuming, arguendo, that Rule 404(a)(1) was plainly violated,

at least as to Cynthia, Rachel still must show prejudice under the plain error rule.

The admission of Cynthia’s character trait—“prone to violence”—does not

constitute plain error as to Rachel unless the “error” substantially affected the

fairness, integrity, or public reputation of her trial. See Olano, 507 U.S. at 732.

We are unpersuaded that this demanding test has been met here.

         The district court instructed the jury that it should weigh the evidence

separately against Rachel and Cynthia; in other words, not to speculate that

Rachel was prone to violence just because her mother, Cynthia, was. The court

instructed the jury as follows:

         Instruction No. 7
                A separate crime is charged against one or more of the
         defendants in each count of the indictment. Each count, and the
         evidence pertaining to it, should be considered separately and
         individually, the fact that you may find one or more of the accused
         guilty or not guilty of any of the crimes charges should not control
         your verdict as to any other crime or any other defendant. You must
         give separate consideration to the evidence as to each defendant.

R. Vol. I, Court’s Instructions to the Jury, Instruction No. 7 (emphasis added).

We presume that a jury follows the court’s instructions. See Weeks v. Angelone,

                                           -27-
528 U.S. 225, 234 (2000); Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir.

2001). The court’s instruction, when followed, was sufficient to avoid any

prejudice to Rachel.

      Rachel contends that she was prejudiced because in this context the jury

would not be “capable of using the evidence of Cynthia Redhouse’s violent

character as proof in the case against Cynthia . . . but not using it in this way in

the case against Rachel Herder.” Herder’s Reply Br. at 4. She argues that in the

context of multiple, related defendants, the task of considering the evidence

separately is simply too difficult to assume that an instruction could properly

guide the jury. See Bruton v. United States, 391 U.S. 123, 131-36 (1968).

Bruton, the case Herder cites for this proposition, is clearly inapposite. To avoid

the harm Rachel alleges, the jury need not have done the kind of “mental

gymnastics” the Bruton jury faced—considering a confession with regard to one

defendant but ignoring it with regard to a co-defendant implicated by the

confession. This case is far from a Bruton situation. Bruton, as well as all of the

cases the Bruton court cited as examples of contexts in which it is unreasonable to

believe that the jury could follow a court’s instructions, involved the admission of

the confession of a co-defendant which directly implicated the defendant. See id.

at 135; Holt v. United States, 94 F.2d 90 (10th Cir. 1937); Mora v. United States,




                                          -28-
190 F.2d 749 (5th Cir. 1951). The reputation evidence that Rachel argues was

improperly admitted did not directly incriminate either Cynthia or Rachel.

      To avoid the harm Rachel alleges, all that was required was that the jury

not speculate that because Cynthia was “prone to violence,” Rachel must also be

prone to violence, and then further speculate that, as a result, she was the first

aggressor. Considering the instructions given to the jury, and an examination of

the full record, we are unconvinced that the evidence that Cynthia was “prone to

violence” seriously affected the fairness or outcome of the trial as to Rachel.

      Despite the appellants’ contention that this was simply a case of Rachel’s

word against Sheila as to who was the first aggressor, the jury had far more

evidence before it than that to consider. It is undisputed that Rachel went to

where Sheila was packing in the back bedroom, rather than Sheila approaching

Rachel or any of the others. It is also undisputed that a fight which began as one

on one quickly evolved into three against one and that a new weapon, the

broomstick, and then the jagged end of the broom handle, was introduced by one

of the three fighting with Sheila. Sheila clearly received the most serious

wounds, and the major wound was consistent with having been inflicted by the

jagged end of the broken broom handle. The jury also had the testimony of

officers who observed all the participants shortly after the fight, noted their

demeanor and reported on their activities. The jury was also in a position to


                                          -29-
listen to the testimony of Sheila, Greta Mark, Rachel and Cynthia and to assess

the credibility of each in connection with the foregoing facts, as well as the

attendant circumstances. In short, we reiterate that the demanding standards set

out in Olano were not violated as to Rachel.



V.    Cumulative Error

      We have considered all of the arguments raised by the appellants and

addressed the main issues, and we conclude that no error was committed in this

trial. It follows that the appellants’ assertion of cumulative error also fails. See

United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990).



                                  CONCLUSION

      For the foregoing reasons, the district court judgment is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -30-
