                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 22 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-8032
          v.                                           (D. Wyoming)
 JASON THOMAS ENCINIAS,                            (D.C. No. 02-CR-99-D)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.




      Jason Thomas Encinias, a/k/a “JT,” was convicted, following a three-week

jury trial, of six counts of methamphetamine trafficking and firearms offenses.

He was sentenced to 360 months in prison and a $5600 fine, followed by five

years of supervised release. Encinias challenges his conviction 1 on appeal,


      *
       This order and judgment is not binding precedent, except under the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.
      1
       On September 2, 2004, Encinias filed a “Motion to Withhold Disposition
of Panel Decision Pending Supreme Court Resolution of United States v. Booker
[125 S. Ct. 738 (2005)] and United States v. Fanfan, or in the Alternative, to Set a
                                                                     (continued...)
arguing (1) the case should be dismissed because the federal filing was allegedly

an unconstitutional act of prosecutorial vindictiveness in response to Encinias’s

insistence on his speedy trial rights in state court; (2) the district court erred by

failing to suppress evidence obtained through an allegedly defective search

warrant; (3) the district court erred by admitting coconspirator hearsay statements,

without making findings required under Fed. R. Evid. 801(d)(2)(E); (4) there was

insufficient evidence to support the conspiracy conviction charged in the

Indictment; (5) that assuming proof of a conspiracy lesser in scope, there was a

fatal variance between the Indictment and the proof at trial, which, at most,

established multiple conspiracies; and (6) his right to a fair trial was violated by a

courtroom outburst and inadvertent references to a murder. For the reasons set

forth below, we affirm.

                                   BACKGROUND

      On September 16, 2002, Encinias, Xavier Arriola-Perez, a/k/a “X,” and

Steven Waite 2 were charged in an eleven-count superseding federal Indictment.

      1
       (...continued)
Briefing Schedule on the Question of Whether Appellant’s Sentence Violated the
Sixth Amendment.” On February 9, 2005, Encinias filed an unopposed motion to
withdraw his previous Blakely motion. We grant his February 9 motion, and we
do not consider Encinias’s sentence in this appeal. In addition, Appellant’s
motion of January 22, 2004, to supplement the record on appeal is granted.
      2
       Arriola and Waite each challenge their conviction and sentence in separate
appeals before this court, United States v. Xavier Arriola-Perez, No. 03-8048
                                                                      (continued...)

                                           -2-
The Indictment charged that, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

and 846, they had conspired together and with a number of individuals, including

Samuel Urbigkit, Joseph Thomas, Crystal Siegel, Joseph Dax, Vanessa McQueary,

and Brett Strong, to distribute more than 500 grams of methamphetamine in the

District of Wyoming between March 2000 and December 2001. Waite was

granted a severance, and Encinias and Arriola were tried together in a jury trial

that began January 7, 2003. Most of the other individuals named as conspirators

in the Indictment, including Siegel, Dax, McQueary, and Strong, were charged in

separate proceedings, reached plea agreements with the prosecution, and testified

against Encinias and Arriola at trial.

      In addition to conspiracy (Count 1), Encinias was charged in the Indictment

with seven other counts: (Count 5) possession of an AK-47-type rifle during and

in relation to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) and 18

U.S.C. § 2; (Count 6) possession with intent to distribute 500 or more grams of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18

U.S.C. § 2; (Count 7) distribution of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; (Count 8) unlawful possession of a .45

caliber Hi-Point firearm during and in relation to a drug-trafficking offense, in


      2
       (...continued)
(10th Cir. filed June 10, 2003), and United States v. Steven James Waite, No.
03-8100 (10th Cir. filed Dec. 3, 2003).

                                         -3-
violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2; (Count 9) being a felon in

possession of the Hi-Point firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e)(1); (Count 10) possession with intent to distribute approximately one

pound of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and

18 U.S.C. § 2; and (Count 11) being a felon in possession of a .25 caliber semi-

automatic pistol, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Encinias

was convicted of all charges except Counts 5 and 11. On April 17, 2003, the

district court sentenced Encinias to 300 months on Counts 1, 6, and 10; 240

concurrent months on Count 7; and 60 consecutive months on Counts 8 and 9, for

a total of 360 months in prison.

      Testimony at trial, some of which is challenged on appeal as inadmissible

hearsay, established the following facts. In early 2000, Encinias, Arriola, Waite,

Urbigkit, Strong, Thomas, and Dax were incarcerated together in the Wyoming

State Penitentiary on charges unrelated to this case. Each of them was thereafter

transferred at various times to a halfway house in either Casper or Cheyenne.

While at the Cheyenne halfway house, Dax, Urbigkit, and Waite discussed plans

to distribute methamphetamine when they were released. Encinias was not a party

to these discussions, and the prosecution did not present evidence of specific

conversations about drug trafficking between Encinias and the other prisoners. It




                                         -4-
was established, however, that Encinias was at least acquainted with most of these

individuals while he was in prison.

      Arriola moved to Denver upon release from the halfway house in August

2000 and began supplying distribution quantities of methamphetamine to Urbigkit

when Urbigkit was released two months later. Brett Strong testified that he was

Urbigkit’s roommate at the halfway house and that after he was released, he sold

about an ounce of methamphetamine a week for Urbigkit beginning in September

2000. On at least two different occasions, Strong saw Arriola at Urbigkit’s house,

and Strong recounted seeing Arriola pull out a pound to a pound and a half of

methamphetamine, which was “more than [Strong had] ever seen before.” Tr. of

Jury Trial, R. Vol. 31 at 435. Urbigkit and Arriola used a scale to weigh and

divide the drugs. Strong witnessed Urbigkit at that time give Arriola a “pretty

good sized” stack of hundred-dollar bills. Id. at 436.

      Crystal Siegel testified that she cleaned Urbigkit’s apartment and was paid

in money and drugs. She moved in with Joe Thomas, Urbigkit’s friend, after

Urbigkit told her he would pay her $500 a day to do so. She witnessed Thomas

sell drugs, and saw Thomas receive methamphetamine from Urbigkit. Siegel said

she worked as a “secretary” for the drug-distribution operation by keeping track

of debts and by selling drugs from the apartment when Thomas was away. She

also at one time transported a duffel bag containing three pounds of


                                         -5-
methamphetamine and a firearm from the apartment to Urbigkit’s shop. Siegel

testified that Urbigkit said “X” was his “main [drug] connection.” Id., R. Vol. 33

at 836. Also, while cleaning Urbigkit’s apartment, Siegel said she saw pieces of

paper on which “X” and a phone number were written. She and Thomas on one

occasion met Arriola at a motel room where they all got high together. Adam

Schaff, another drug user and dealer, testified that over the course of several

months, he sold a total of ten and a half pounds of methamphetamine for Thomas

and Urbigkit.

      In February 2001, while Encinias was still in the state penitentiary,

Urbigkit was arrested in Casper after a dramatic shootout with police who were

attempting to search Urbigkit’s shop. Detailed and voluminous testimony from a

number of law enforcement officers about the shootout, search, and arrest of

Urbigkit was admitted at the trial over objections from both defendants. 3 Police

ultimately seized from the shop several firearms, including an AK-47-type gun,

and around four pounds of methamphetamine, which was admitted as evidence at

Encinias’s trial. Joseph Dax, another drug user and dealer, testified that Arriola

told him that he “lost a lot of money when Sam [Urbigkit] got caught” because

the drugs seized from the shop were his. Id., R. Vol. 34 at 981.



      3
        Because most of the testimony about Urbigkit’s arrest is generally
irrelevant to the issues Encinias raises on appeal, we summarize it here.

                                         -6-
      Law enforcement also learned that Urbigkit had murdered Dennis Fisher, a

man who owed him money, and placed his body in a barrel. The district court

ordered that all information about the murder be suppressed at the trial, and

redacted from the Indictment’s conspiracy allegations “Overt Act 6,” which

referenced the murder, before giving the Indictment to the jury. However, at trial,

Dax made a passing reference to Urbigkit as a “murderer” and noted being

interviewed by a “homicide” detective, and Siegel stated that a “murder” had

occurred in her apartment. In state proceedings separate from those relating to

Encinias and Arriola, Urbigkit was sentenced to five consecutive life sentences.

      Dax testified that he shared a cell with Urbigkit and knew Encinias and

Arriola while they were all in prison together. Shortly after Urbigkit was

arrested, Dax received a message at work from Arriola, who posed as his brother-

in-law. The two met for lunch a few days later, at which time Arriola told him he

“needed another source to get rid of some . . . dope” and “things were pretty hot

in Casper.” Id. at 959-60. Dax was still at the halfway house when he had lunch

with Arriola, and, because he was still subject to searches and drug testing, he

delayed becoming involved. However, only a few days after Dax’s release from

the halfway house in March 2001, he, Waite, Arriola, and several of Arriola’s

friends from California met at Waite’s house. Arriola and his friends brought a

pound of methamphetamine with them, which Waite and Dax split.


                                         -7-
      Dax testified that as time went on a pattern developed where he and Waite

would split and sell a pound of methamphetamine delivered by Arriola each week.

Dax would sometimes visit Arriola in Denver to pay him the proceeds from the

sales, or Arriola would come to Wyoming to collect and deliver more drugs. This

activity went on for five months, and Dax testified that he and Waite ultimately

dealt between twenty and twenty-five pounds of methamphetamine for Arriola.

Dax testified that his and Waite’s activities with Arriola ceased in August 2001

after Arriola showed up early to collect and threatened him with a gun.

      Micole Smith, Dax’s live-in girlfriend, testified that Dax said he got his

methamphetamine from Arriola and that Arriola had been to her and Dax’s

apartment several times. She also stated that she traveled with Dax to Denver

throughout the summer of 2001, and on one trip they delivered $3000 in

“[h]undreds, fifties, [and] twenties” to Arriola. Id., R. Vol. 36 at 1122. She also

recalled the August 2001 visit in which Arriola showed up to collect money and

appeared “[v]ery agitated.” Id. at 1132.

      Encinias was the last of the group to be transferred to and then released

from the halfway house. He was released in June 2001. Encinias and Vanessa

McQueary met on July 12, 2001, in Casper. McQueary testified that on that day,

Encinias gave her drugs for personal use. She also witnessed Encinias sell three

grams of “glass” (a stronger form of methamphetamine) to Erny DeWitt, a mutual


                                           -8-
friend, and later saw Encinias count out $3000 in cash. That night, she and

Encinias were stopped by police when they were on their way to a party. Encinias

asked McQueary to hold some marijuana and methamphetamine for him. She

tossed the weed and a needle out the window but hid two grams of

methamphetamine down her pants. Later that night, she and Encinias sold to

DeWitt some of the methamphetamine that had been hidden from police.

      A few days later, McQueary traveled with Encinias and several others to

Denver for the purpose of buying drugs from Arriola. McQueary testified that

after they arrived at the Ramada Inn in Denver, Encinias made several phone calls

and said he was calling Arriola. Records offered into evidence corroborate that

calls were made at this time between phones connected to Encinias and Arriola.

Arriola, Encinias, and McQueary then met in the parking lot of the motel.

Encinias left the motel for an extended period of time and later told McQueary

that he had traveled to Cheyenne with Arriola to pick up some drug money. The

stay at the Ramada Inn during the period in question was corroborated by motel

receipts, entered into evidence, and a picture identification card Encinias allowed

hotel personnel to copy.

      McQueary stated that she and Encinias arrived back in Casper with twenty-

four ounces of methamphetamine. McQueary testified that they checked into the

Parkway Plaza and that she borrowed a scale from a friend so that they could


                                         -9-
weigh out various quantities. Half of the twenty-four ounces was delivered by

Encinias and McQueary to Zeb Carrick, another dealer who had previously given

Encinias money for the drugs and whose sister was romantically involved with

Arriola. Phone records show Encinias had called Arriola after returning to

Casper, and McQueary testified that this call was to get Carrick’s address in

preparation for the delivery.

      Later, McQueary and Encinias got into an argument, and McQueary left the

Parkway Plaza and stayed with friends. It was not long, however, before she

persuaded her friend Aubrey Williams, a cab driver, to take her to Encinias, who

had since shifted his operation to the Motel 6. Encinias sold Williams a sixteenth

of an ounce when he dropped off McQueary, then another sixteenth of an ounce

the next morning when he visited the motel room again. Williams testified that he

saw Encinias cleaning a gun in the motel room. McQueary and Encinias then

borrowed a friend’s vehicle to drive around and sell some more of the drugs. The

two later paid cash for a used truck. Encinias’s stay at the Casper Motel 6 was

corroborated by hotel registration paperwork, entered into evidence, showing that

he checked in on July 18, 2001.

      Meanwhile, on July 17, 2001, the Division of Criminal Investigation

(“DCI”) in Casper received two anonymous phone calls. The callers stated that a

man known as “JT” would be traveling from Colorado to Casper with a kilo of


                                        -10-
methamphetamine. The callers also gave a physical description of “JT” and stated

that he had recently been released from the Wyoming State Penitentiary. This

information was passed on to Casper Police Department Officer Stacia Moeller,

who began investigating the tipsters’ information. Officer Moeller inquired at the

penitentiary and discovered that “JT” was Jason Thomas Encinias. She also

obtained Encinias’s booking photo from the county sheriff’s office.

      Two days after the calls, Moeller and another officer were out looking for

Encinias at his former residence. As the officers were finishing up for the day,

they passed Encinias, who was riding in the passenger seat of a truck. They

followed the truck to the Motel 6 and watched Encinias enter a motel room with a

woman later identified as McQueary. The officers waited until they saw Encinias

and McQueary leave again in the truck. Encinias was driving this time, and the

officers, who had previously learned that he had a suspended license, arrested

him. McQueary was released.

      Officer Moeller testified that as she was heading back to the station after

arresting Encinias, she heard over the police radio that someone had broken into

the Motel 6 room where Encinias and McQueary had been staying. McQueary

testified that as Encinias was being arrested, he “mouthed” her instructions to go

back to the motel and retrieve a black duffel bag containing the .45 caliber

Hi-Point gun and the unsold portion of the methamphetamine they had bought


                                        -11-
from Arriola. McQueary hitched a ride back to the motel, broke the room’s

window, and took the bag.

      While processing the scene of the Motel 6 break-in, officers discovered a

marijuana cigarette in the ashtray. The investigating officer contacted Moeller,

told her of the discovery, and also told her that witnesses had seen a woman

matching McQueary’s description leave the scene with a black duffel bag. The

police department thereafter executed a search warrant for the room and

discovered a triple-beam scale and a large Ziplock bag, both of which later tested

positive for methamphetamine residue, and paperwork bearing Encinias’s name,

the back of which had been used for mathematical figuring of drug quantities. All

of these items were offered as evidence at trial. Officers, however, neglected to

take the marijuana cigarette into evidence.

      In the meantime, McQueary visited the homes of family members and

friends to hide out and to sell as much of the methamphetamine as she could. She

testified, and phone records corroborate, that she called Arriola several times

from a cell phone to seek his advice on bailing Encinias out of jail. Arriola told

her not to call him on a cell phone and said that he could not help because all of

his money was tied up in unsold drugs in Wyoming.

      McQueary ended up at the apartment of Aubrey Williams. The police

visited the apartment but Williams would not let them in. Williams and


                                         -12-
McQueary both testified that while the officers were obtaining a search warrant,

McQueary flushed some of the methamphetamine down the toilet and shot up as

much of it as she could. Police eventually arrested McQueary at the apartment,

where they found $2032 in cash, packaging materials, used syringes, a spoon with

methamphetamine residue, the remaining drugs, which amounted to only three-

tenths of a gram by that time, and the Hi-Point .45 caliber gun concealed in a box

of laundry soap in the duffel bag. The gun and drugs were admitted as exhibits at

trial.

         On August 3, 2001, during a short hiatus from jail, Encinias visited the

apartment of Amanda Hale, who was dating one of Encinias’s friends. Hale

testified that Encinias asked her to hold a pound rock of methamphetamine for

him and also told her that his drug source was in Denver. Encinias came back a

few days later in a drug-induced paranoia, told Hale that the cops were after him,

and dropped a small digital scale and the pound of methamphetamine down a hole

in her closet wall. Hale testified that she later allowed officers to retrieve the

scale, and the state crime lab found Encinias’s fingerprints on the scale’s box.

Officers did not find the pound of methamphetamine in the wall, and Hale

testified that Encinias had previously retrieved it with a coat hanger.

         State drug charges were filed against Encinias on July 20, 2001; an

amended state information was filed July 30, 2001. Trial in state court was set


                                           -13-
for November 13, 2001, but on November 8, 2001, Natrona County Assistant

District Attorney Michael Blonigen, who was also designated as a Special

Assistant United States Attorney (“SAUSA”), and Nadine McLeod, Encinias’s

court-appointed attorney, presented the judge with a stipulated motion for a

continuance. The state judge granted the continuance on the condition that

Encinias sign a waiver of his speedy trial rights. Encinias refused to do so. On

November 9, 2001, federal charges were filed with the assistance of Blonigen,

acting in his dual capacity as a SAUSA, and the state case was dismissed. The

superseding federal Indictment was filed on September 16, 2002.

      A little more than a week before federal charges were filed, Encinias

received a jailhouse visit from Alcohol, Tobacco and Firearms (“ATF”) Agent

Daniel Raponi and state DCI Agent Mark Sellers. Raponi testified that he made

the visit intending only to acquire Encinias’s fingerprints for investigation of

other charges. After Encinias had been fingerprinted, Raponi testified that

Encinias volunteered to speak to him about possible federal gun charges, stating,

“I don’t have anything to hide.” Tr. of Hr’g on Pending Mots., R. Vol. 13 at 52.

Encinias was read his Miranda rights but nonetheless told Raponi and Sellers that

he was a methamphetamine dealer and had purchased a .45 caliber firearm to

protect himself while dealing. Encinias also told the agents he had possessed

several firearms and gave the agents information indicating that Arriola was his


                                         -14-
source of methamphetamine. Encinias sought to suppress his statements before

trial, but the judge denied his motion, and both Raponi and Sellers told the jury

about their conversation with Encinias, including his admissions. He does not

challenge the denial of his suppression motion on appeal.

      Encinias’s counsel also moved to suppress the Motel 6 evidence before trial

because of several defects in the warrant affidavit prepared by Officer Moeller.

Moeller admitted that she mistakenly substituted “cocaine” for

“methamphetamine” in the affidavit and that she forgot to seize the marijuana

cigarette during the search. The court found that despite the warrant’s

“deficiencies,” which were not “insubstantial,” id., R. Vol. 13 at 104, the officers

who executed it acted in good faith.

      Encinias also asked the judge to hold a pretrial hearing to determine the

admissibility of coconspirator testimony when it became apparent that the

government intended to call witnesses who had agreed to plea bargains. The

court declined to do so, but nonetheless allowed testimony from Strong, Dax,

McQueary, Hale, Siegel, and Schaff.

      A jury found Encinias guilty of six of the eight counts, described above,

with which he was charged in the superseding Indictment. He was acquitted of

two of the firearms counts: Count 5, alleging possession of an AK-47-type

weapon, and Count 11, alleging possession of a .25 caliber pistol.


                                         -15-
      We address each of Encinias’s contentions, set forth above, in turn.



                                   DISCUSSION

I.    Prosecutorial Vindictiveness

      Encinias first asserts that his due process rights were violated because

Prosecutor Blonigen allegedly filed the federal charges in this case in response to

Encinias’s refusal to waive his speedy trial rights in state court proceedings

relating to the same drug trafficking. Encinias did not raise this contention

below. We therefore review for plain error, which occurs only when there is “‘(1)

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

affects the fairness, integrity, or public reputation of judicial proceedings.’”

United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.), cert. denied, 125 S.

Ct. 510 (2004) (quoting United States v. Price, 265 F.3d 1097, 1107 (10th Cir.

2001)); United States v. Ray, 370 F.3d 1039, 1044 (10th Cir. 2004), petition for

cert. filed (Sept. 7, 2004) (No. 04-6234).

      A defendant may not be penalized for exercising constitutional or statutory

rights during the course of a criminal proceeding. United States v. Raymer, 941

F.2d 1031,1040 (10th Cir. 1991).

      To punish a person because he has done what the law plainly allows
      him to do is a due process violation of the most basic sort, and for an
      agent of the State to pursue a course of action whose objective is to


                                         -16-
      penalize a person’s reliance on his legal rights is “patently
      unconstitutional.”

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (quoting Chaffin v.

Stynchcombe, 412 U.S. 17, 32-33 (1973) (citation omitted)). A defendant may

demonstrate a due process violation by showing either (1) actual vindictiveness or

(2) a realistic likelihood of vindictiveness which gives rise to a presumption of

vindictiveness. Raymer, 941 F.2d at 1040.

      Encinias argues that the facts of his case establish actual vindictiveness, or,

at the very least, a presumption of vindictiveness. As noted above, Encinias

pleaded not guilty in state court to charges of conspiracy to deliver

methamphetamine and possession of methamphetamine with intent to deliver.

Michael Blonigen, who was prosecuting Encinias’s case in state court but who

also sometimes served as a federal prosecutor, planned to go on vacation during

the week of Encinias’s state trial and therefore asked McLeod, Encinias’s

attorney, to stipulate to a continuance. She stipulated, and the judge granted the

continuance on the condition that Encinias sign a waiver of his speedy trial rights.

Encinias refused to do so. McLeod then learned that Blonigen was considering

federal charges and, in an attempt to avoid the harsher penalties of the federal

system, obtained a change-of-plea hearing for Encinias. But before Encinias

could plead guilty in state court, the federal charges were filed. Blonigen had

refused to engage in any plea negotiations with Encinias at the state court level.

                                         -17-
McLeod understood this as an indication that Blonigen had “preferred to go

federally” all along. Tr. of Hr’g on Pending Mots., R. Vol. 13 at 70. No threats

of federal prosecution were made against Encinias at any time.

      We are unconvinced that these facts plainly constitute either actual

vindictiveness or a presumption of vindictiveness. First, no actual vindictiveness

existed because there is no evidence, other than an inference flowing from the

timing of the events described, indicating that the federal charges were in fact

filed in direct response to Encinias’s refusal to waive his speedy trial rights. See

United States v. Goodwin, 457 U.S. 368, 380-81 (1982) (finding no evidence of

actual vindictiveness where “prosecutor never suggested charge was brought to

influence [defendant’s] conduct”).

      We are equally unpersuaded that a presumption of vindictiveness is

warranted here. While it is sometimes necessary to presume vindictiveness

because a prosecutor’s “[m]otives are complex and difficult to prove,” such a

presumption should be indulged only “in cases in which a reasonable likelihood

of vindictiveness exists.” Id. at 373.

      Blonigen’s decision to charge Encinias federally could have been motivated

by any number of factors. The most plausible explanation is that he had always

planned to file federal charges, as McLeod testified, and with a planned vacation

and a state trial quickly approaching, time was running short. Blonigen’s refusal


                                         -18-
to engage in plea negotiations supports this account. The only support Encinias

gives for his argument is the bare fact that he was charged federally the day after

he refused to sign a speedy trial waiver. We decline to pile inferences, and we

find that this fact, without more, fails to give rise to a reasonable likelihood of

vindictiveness.



II.   Search Warrant

      Encinias next asserts that the district court erred by not suppressing the

evidence seized from the Motel 6 room, including the triple-beam scale, the

Ziplock bag with methamphetamine residue, and the paperwork bearing

Encinias’s name. Encinias argues that the affidavit supporting the Motel 6

warrant (1) was not supported by probable cause and (2) cannot be saved by the

exclusionary rule’s good faith exception announced in United States v. Leon, 468

U.S. 897 (1984).

      Before issuing a search warrant, a magistrate judge must “‘simply . . . make

a practical, common-sense decision whether, given all the circumstances set forth

in the affidavit before him, including the veracity and basis of knowledge of

persons supplying hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.’” United States v.

Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S.


                                          -19-
213, 238 (1983)). Even if a warrant is not supported by probable cause, the

search may still be valid if the Leon good faith exception to the exclusionary rule

applies. United States v. Rice, 358 F.3d 1268, 1274 (10th Cir. 2004), petition for

cert. filed (July 23, 2004) (No. 04-5520).

      Officer Moeller’s affidavit states, in relevant part:

      On July 17, 2001, I was informed by [Special Agent] Al Bennett, that
      he had received a telephone call from an anonymous female who
      advised that a suspect that she knew as “J.T.”, later identified as
      Jason Encinias, was traveling back from Colorado to Casper,
      Wyoming, with a kilo of cocaine.

      On July 17, 2001, I was informed by [Special Agent] Brad Wnuk,
      that he had received a telephone call from an anonymous male who
      advised that a subject that he knew as “J.T.”, later identified as Jason
      Encinias, was traveling back from Colorado to Casper, Wyoming,
      with a kilo of cocaine.

      On July 19, 2001, at 6:30 p.m., Jason Encinias . . . was arrested at 59
      Curtis, Evansville, Natrona, Wyoming, for driving under suspension
      and no insurance.

      On July 19, 2001, at 7:22 p.m., Officer Pat Carr, Casper Police
      Department, received a call at 1150 Wilkens Circle, Room #148, for
      a female that had just broken the window out of the room and
      removed a black duffle bag and then left the area. Officer Carr
      found no one present when he arrived at the room. Officer Carr
      spoke to the manager of Motel 6, and she advised the room was
      registered to Jason Encinias.

      Officer Carr processed the crime scene and during the processing he
      located what he believed, from his training and experience, to be a
      marijuana cigarette.




                                         -20-
Appellant’s Br. at Attach. 1. The remainder of the affidavit contains boilerplate

language generally describing drug-trafficking evidence commonly seized from

motel rooms.

      Encinias argues that the affidavit contains the following deficiencies: it

stated that “JT” would be arriving in town with a kilo of cocaine instead of

methamphetamine; it did not indicate that Officer Moeller took steps to

corroborate the information supplied by the anonymous tipsters, especially the

allegations of illegal activity; it did not include information on how Moeller

determined that he was “JT”; and it failed to state how the presence of the

marijuana cigarette, which was never seized, gave rise to a probability of

methamphetamine dealing.

      The district court noted these shortcomings yet denied Encinias’s motion to

suppress. The court concluded that the warrant was “unquestionably” saved by

Leon without expressly stating whether it was supported by probable cause.

“When reviewing a district court’s denial of a motion to suppress . . ., we accept

the court’s findings of fact unless clearly erroneous and consider the evidence in

the light most favorable to the government.” Rice, 358 F.3d at 1273 (internal

quotation marks omitted). We review de novo the district court’s finding of Leon

good faith. United States v. Vanness, 342 F.3d 1093, 1097 (10th Cir. 2003).




                                         -21-
      We turn first to the question of whether the Leon good-faith exception

applies to the Motel 6 search. “If this court determines that the officers acted in

good faith . . ., it does not need to reach the issue of whether probable cause

existed for the warrant.” Price, 265 F.3d at 1102. The Court in Leon stated that

“suppression of evidence obtained pursuant to a warrant should be ordered only

on a case-by-case basis and only in those unusual cases in which exclusion will

further the purposes of the exclusionary rule.” Leon, 468 U.S. at 918. It is

presumed that when an officer relies on a warrant, the officer is acting in good

faith, United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993), and the

inquiry is confined to “the objectively ascertainable question whether a

reasonably well-trained officer would have known that the search was illegal

despite the magistrate’s authorization.” Id. (internal quotations omitted). An

officer does not exhibit good-faith reliance, however, when the warrant is “based

on an affidavit ‘so lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable.’” Leon, 468 U.S. at 923 (quoting Brown v.

Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part)). Encinias

argues that this situation existed in his case.

      We disagree and find that the affidavit, though far from a “model of

clarity,” Price, 265 F.3d at 1102, is not so fatally flawed as to justify exclusion of

the Motel 6 evidence. A more complete affidavit would have included the steps


                                          -22-
Moeller took to corroborate both the identity of “JT” and the tipsters’ allegations.

We cannot say, however, that the warrant would necessarily fail because of this

deficiency. See United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000)

(despite detective’s failure to outline corroborating information in his affidavit,

good faith found because detective’s investigation into the informant’s allegation

sufficiently linked the defendant’s home to the illegal activity); United States v.

Bishop, 890 F.2d 212, 217 (10th Cir. 1989) (officers acted in good faith despite

relying on an affidavit that did not contain information crediting informant’s

veracity). Even though lacking corroborating information, the affidavit contained

more than merely the assertions of the anonymous tipsters whose veracity and

knowledge had not been tested. The affidavit included the information Moeller

had learned from another officer who was investigating the Motel 6 burglary:

      [A] female . . . had just broken the window out of the room [Encinias
      and McQueary had been staying in] and removed a black duffle bag
      and then left the area. [The officer] then spoke to the manager of
      Motel 6, and she advised the room was registered to Jason Encinias.
      Officer Carr . . . located what he believed, from his training and
      experience, to be a marijuana cigarette.

Appellant’s Br. at Attach. 1.

      Nor does Moeller’s substitution of “cocaine” for “methamphetamine” in the

affidavit warrant suppression of the evidence. Moeller testified that this was

simply a mistake, and we have no contrary evidence of a deliberate attempt to

mislead the magistrate. See United States v. Tisdale, 248 F.3d 964, 973-74 (10th

                                         -23-
Cir. 2001) (no evidence that affiant knowingly or recklessly included false

statements in warrant affidavit, so good-faith exception applied). We therefore

defer to the district court’s finding that “[t]here’s no shenanigans. There’s no

effort to hoodwink a circuit judge into the issuance of a search warrant.” Tr. of

Hr’g on Pending Mots., R. Vol. 13 at 105. The district court properly admitted

the Motel 6 evidence. 4



III.   Coconspirator Hearsay Statements

       Encinias next challenges the district court’s admission of coconspirator

hearsay under Fed. R. Evid. 801(d)(2)(E). We review a district court’s

evidentiary rulings for abuse of discretion. United States v. Davis, 40 F.3d 1069,

1073 (10th Cir. 1994). We give heightened deference to the trial judge’s

decisions when reviewing hearsay determinations. United States v. Jones, 44 F.3d

860, 873 (10th Cir. 1995).

       Rule 801(d)(2)(E) provides that “[a] statement is not hearsay if . . . [t]he

statement is offered against a party and is . . . a statement by a coconspirator of a


       4
        Encinias also argues that if we do not uphold the validity of the Motel 6
search warrant, the evidence seized from Aubrey Williams’ apartment should be
suppressed because it constitutes fruit of the original poisonous search. The
district court ruled before trial that Encinias did not have standing to contest this
second search and admitted the evidence. Because we uphold the Motel 6 search,
and because Encinias does not appeal the district court’s ruling that he lacked
standing to contest the second search, we do not consider this argument.

                                         -24-
party during the course and in furtherance of the conspiracy.” Before admitting

purported coconspirator testimony as non-hearsay, a district court must determine

that the statements fall within 801(d)(2)(E)’s definition. Bourjaily v. United

States, 483 U.S. 171, 175 (1987). A trial court must find that (1) by a

preponderance of the evidence a conspiracy existed, (2) the declarant and the

defendant were both members of the conspiracy, and (3) the statements were

made in the course of and in furtherance of the conspiracy. United States v.

Owens, 70 F.3d 1118, 1123 (10th Cir. 1995) (citing United States v. Urena, 27

F.3d 1487, 1490 (10th Cir. 1994)). These factual determinations can be made in

two ways. The district court may hold a “James” 5 hearing outside the presence of

the jury. Owens, 70 F.3d at 1123. Or, it may provisionally admit the statements

on the condition that the prosecution “connect up” the evidence and prove the

existence of the predicate conspiracy through trial testimony or other evidence.

Id.

      Subject to the narrow exception discussed below, a trial court’s failure to

make Rule 801(d)(2)(E) findings on the record is an abuse of discretion. United

States v. Rascon, 8 F.3d 1537, 1539 (10th Cir. 1993). In such a case, we are to

first assume that the challenged statements are inadmissible, then assess whether


      5
       United States v. James, 590 F.2d 575 (5th Cir. 1979), set forth a pretrial
proceeding enabling the district court to determine whether coconspirator
statements were admissible at trial under Fed. R. Evid. 801(d)(2)(E).

                                        -25-
their admission was harmless error. United States v. Perez, 989 F.2d 1574, 1581

(10th Cir. 1993) (en banc). When a trial court fails to make on-the-record

findings and the admission of the coconspirator hearsay is not harmless, we

remand so the district court can make the 801(d)(2)(E) findings it failed to make

in the first instance. Id.

       [I]f the trial judge determine[s] on remand that the statements were
       made in the course of and in furtherance of the conspiracy, the
       convictions . . . stand and the court of appeals . . . retain[s]
       jurisdiction to review the lower court’s determination on the issue.
       If, on the other hand, the trial court determine[s] that Rule
       801(d)(2)(E) was not satisfied, it . . . set[s] the conviction aside and
       conduct[s] a new trial because the court of appeals ha[s] already
       concluded that the admission was not harmless.

Id.

              Encinias urges us to remand because the district court admitted

       the following testimony at trial without 801(d)(2)(E) findings:

       •      Brett Strong’s testimony that Urbigkit told him about plans to
              distribute methamphetamine after he was released; that Urbigkit said
              “X” was his source of drugs; and that Urbigkit grabbed the throat of
              Strong’s wife and threatened to murder her.

       •      Joe Dax’s testimony that Urbigkit said he wanted to sell
              methamphetamine upon release from prison and that “X” was going
              to be his source.

       •      Vanessa McQueary’s testimony that Encinias asked her to hold his
              drugs for him; that Encinias stated that he intended to trade a firearm
              to “X” as partial payment for a drug debt; that Encinias told her that
              “X” was his “partner”; that Encinias repeatedly told her that he had
              called “X” from Wyoming and from the Denver motel room; that
              Encinias told her to open the trunk of their car in Denver so that he

                                          -26-
             could remove the weapon he was trading to Arriola; that Encinias
             stated while at the Denver motel that “X” had called and the
             methamphetamine had arrived; and numerous other statements
             Encinias made directly to McQueary. Encinias also challenges
             McQueary’s testimony recounting Arriola’s statements to her when
             she called seeking help in bailing Encinias out of jail.

      •      Adam Schaff’s testimony that Urbigkit said the “big guy” was from
             Colorado and that Thomas had put a gun to his head and threatened
             to kill him if he cooperated with authorities.

      •      Amanda Hale’s testimony that Encinias told her that he possessed
             methamphetamine; that he asked her to hold his drugs for him; that
             he told her that he obtained the drugs from a person in Denver; and
             that he told her, while high, that the police were after him.

      Appellant’s Br. at 43-45. 6 Encinias’s trial counsel filed a pre-trial motion

for a James hearing, again requested the hearing at Encinias’s arraignment, and,



      6
        It is apparent that 801(d)(2)(E) is inapplicable to much of the challenged
testimony because it was admissible on other grounds. Thus, for example, the
testimony of McQueary and Hale recalling what Encinias said and did was
admissible under Fed. R. Evid. 801(d)(2)(A), which provides that a statement is
not hearsay if it is “offered against a party and is . . . the party’s own statement,
in either an individual or representative capacity.” The trial judge properly ruled
that McQueary, by relating Encinias’s statements, was “talking about admissions
made by a co-defendant.” Tr. of Jury Trial, R. Vol. 36 at 1185. See United States
v. Gonzalez-Montoya, 161 F.3d 643, 648 (10th Cir. 1998); United States v.
McKinney, 822 F.2d 946, 949 (10th Cir. 1987). Similarly, much of McQueary’s
testimony, as well as Schaff’s statement that Joe Thomas put a gun to his head,
was not hearsay but rather admissible as direct testimony. United States v.
Mobile Materials, Inc., 881 F.2d 866, 871 (10th Cir.1989) (“The direct testimony
of a conspirator . . . describing his participation in the conspiracy and the actions
of others is not hearsay, and the cases concerning co-conspirator hearsay under
Rule 801(d)(2) are inapplicable.”); United States v. Smith, 692 F.2d 693, 697
(10th Cir. 1982) (“Rule 801(d)(2)(E) . . . [is] irrelevant to the direct testimony of
a coconspirator.”).

                                        -27-
after no hearing was held, persistently objected to admission of this testimony

while the coconspirators were on the stand. After the testimony of Brett Strong,

the government’s first coconspirator witness, the district court stated:

      I am concerned that we make sure that the Bourjaily test is complied
      with in every respect before all of this comes in, and I’m not
      disturbed terribly about what has happened thus far ‘cause I think
      counsel made an effort to lay adequate foundation; but, you know, I
      don’t want to have to have James hearing after James hearing, and
      I’d like to figure out some way this can be resolved to the
      satisfaction of everyone.
                                         ...

      I don’t intend to have protracted James hearings, and I don’t think they’re
      necessary; but I do think it’s important that this information be assessed
      before I allow the testimony to come in every time.

Tr. of Jury Trial, R. Vol. 31 at 454-55, 460. Later, the court explained the

procedure it intended to follow in addressing 801(d)(2)(E):

      If, in the course of . . . this trial, if I think on my own, without any motion
      from anybody, that a James hearing is appropriate, out of an abundance of
      caution that’s what I’m going to do. I will err on the side of caution, but
      that’s how I’ll do it. . . . I’ll cut the knees out of the government if I
      determine later that there is no tie-in, and I’ll be very, very blunt in my
      statement to the jury on that point.

Id., R. Vol. 32 at 489-90. The district court then made several formal findings.

The court found that the government had shown, by a preponderance of the

evidence, that a conspiracy existed, that Strong and Arriola were members of the

conspiracy, and that the statements testified to by Strong were made in

furtherance of the conspiracy. Later, the court formally found that McQueary’s


                                         -28-
testimony consisted of statements that were made in furtherance of the

conspiracy. However, to have fully complied with the requirements of

801(d)(2)(E), the trial court should have found that Urbigkit, the declarant of

many recounted statements, and Encinias were members of the conspiracy and

that each challenged statement was made in the course of or in furtherance of the

conspiracy.

      Encinias seeks a remand for findings due to this oversight. Research

reveals that in the eighteen years since the Supreme Court held in Bourjaily that

801(d)(2)(E) was firmly rooted and required no separate inquiry into reliability of

coconspirator statements, Bourjaily, 483 U.S. at 182, only a minuscule number of

the multitude of reported conspiracy cases have been remanded or reversed due to

a trial judge’s failure to make formal 801(d)(2)(E) findings. In our circuit, we

found only one remand case, Rascon, 8 F.3d at 1541, where we remanded for

findings because of the unusual state of the evidence. Notably, there is no report

that the remand affected the conviction. Similarly, of the handful of cases

remanded in the past eighteen years by other circuits for the failure to make

801(d)(2)(E) findings, we did not find one case in which the outcome of the case

was changed as a result. For the following reason, we conclude that remand is

unnecessary in any event.




                                        -29-
      In Perez, we noted that “a case could arise in which the record

demonstrates without any question that the trial court did make the requisite

inquiry even though no formal findings appear. . . . In [this] event, a remand

would not be necessary.” Perez, 989 F.2d at 1582 n.3. This is such a case. We

agree with the government’s argument that because the record shows that the trial

judge engaged in repeated 801(d)(2)(E) colloquies with counsel, expressed

awareness of the Bourjaily requirements, outlined the procedure it would follow

in admitting coconspirator testimony, promised to watch the government closely,

and then overruled the motion for a judgment of acquittal and submitted the case

to the jury on the entire trial record, we can infer that the judge made the

functional equivalent of findings under Rule 801(d)(2)(E).

      Alternatively, even assuming, arguendo, that certain of the challenged

statements should not have been admitted in the absence of findings, we conclude

that the error was harmless because it did not have “a ‘substantial influence’ on

the outcome” or leave us “in ‘grave doubt’ as to whether it had such an effect.”

United States v. Cestnik, 36 F.3d 904, 910 (10th Cir. 1994) (quoting United States

v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc) (further quotation

omitted)). The testimony about Urbigkit’s drug-trafficking activities with Arriola

was not damaging to Encinias because it did not directly implicate him in the drug

conspiracy. Rather, the testimony of McQueary, Hale, and Williams, and of


                                         -30-
agents Raponi and Sellers, was the crux of the government’s conspiracy case

against Encinias. The trial judge instructed jury members that evidence of

Arriola’s guilt was not to be used against Encinias and that they were to “give

separate and individual consideration to each charge against each defendant.” Tr.

of Jury Trial, R. Vol. 41 at 2161.

      Nor do we doubt that the prosecution presented an abundance of evidence

of Encinias’s individual guilt. As detailed above, several witnesses, including

McQueary and Williams, gave firsthand accounts of Encinias’s drug-trafficking

activities. Their testimonies are corroborated by the triple-beam scale with

residue and the paperwork with mathematical figures recovered from the Motel 6,

and the cash, baggies, drugs and Hi-Point firearm seized from Williams’

apartment. Phone and motel records further support McQueary’s account.

Amanda Hale’s direct testimony was also corroborated by the scale recovered

from inside her wall and the fact that Encinias’s fingerprints were found on the

scale’s box. Finally, and importantly, the jury heard Encinias’s confession to

agents that he was a drug dealer who carried guns, including the .45 caliber

Hi-Point pistol, and that his source of drugs was Arriola. Encinias has failed to

persuade us that the admission of the coconspirator testimony warrants a remand.




                                        -31-
IV.   Sufficiency of the Evidence

      Encinias next argues that the evidence was insufficient to support his

conviction on the conspiracy charge. Encinias contends that the evidence, at

most, showed a conspiracy between him, Arriola, and McQueary, and the

government failed to show that he was even remotely connected to the activities

of Urbigkit, Thomas, Strong, Siegel, Dax, and Waite, as charged in the

Indictment. He asserts that the conspiracy between Arriola and Urbigkit’s group

ended in February 2001 when Urbigkit was arrested. Encinias contends a separate

conspiracy, if any, was formed four months later when he was released from

prison. Arguing this multiple-conspiracy theory, Encinias moved for a judgment

of acquittal on the conspiracy count, which the district court implicitly denied by

sending the case to the jury.

      “We review the entire record in the light most favorable to the government

to determine whether the evidence, both direct and circumstantial, together with

the reasonable inferences to be drawn therefrom, is such that a reasonable jury

could find the defendant guilty beyond a reasonable doubt.” United States v. Fox,

902 F.2d 1508, 1513 (10th Cir. 1990). However, the evidence must do more than

“create a suspicion of guilt,” and a conviction must not be a result of “piling

inference on top of inference.” United States v. Evans, 970 F.2d 663, 671 (10th

Cir. 1992) (further citation omitted).


                                         -32-
      The “essence” of a conspiracy is an agreement to commit a crime. United

States v. Recio, 537 U.S. 270, 274 (2003). The government in a conspiracy

prosecution must show, by direct or circumstantial evidence, that (1) two or more

persons agreed to violate the law, (2) the defendants knew at least the essential

objectives of the conspiracy, (3) the defendant knowingly became a part of it, and

(4) the alleged coconspirators were interdependent. Evans, 970 F.2d at 668.

Encinias argues that interdependence between the conspirators named in the

Indictment was not proven at trial.

      Interdependence exists where the activities of each coconspirator constitute

“essential and integral steps toward the realization of a common, illicit goal.”

United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995) (further citation

omitted). A single conspiracy does not exist simply because many individuals

deal with a common player; the individuals must be connected in some way.

Evans, 970 F.2d at 670. The prosecution does not, however, have to show that

each coconspirator knew or had connections with every other coconspirator. Id.

“Rather, where large quantities of drugs are being distributed through a key

distributor, ‘each major buyer may be presumed to know that he is part of a wide-

ranging venture, the success of which depends on performance by others whose

identity he may not even know.’” Edwards, 69 F.3d at 431 (quoting United States

v. Dickey, 736 F.2d 571, 581 (10th Cir. 1984)).


                                         -33-
      The “wheel” conspiracy analogy described in Kotteakos v. United States,

328 U.S. 750, 755 (1946), pertains here. Arriola was the hub, Urbigkit’s group

was one “spoke,” and Encinias and McQueary were another “spoke.” The

evidence was more than sufficient to connect Encinias to Arriola. Whether

Encinias was interdependent with Urbigkit is a much closer call. But by viewing

the evidence and reasonable inferences in the light most favorable to the

government, we find that the jury rationally could have found one conspiracy.

      On the facts of this case, it is reasonable to infer that the agreement to

engage in a drug-trafficking enterprise, or the formation of the “essence” of the

conspiracy, occurred while the coconspirators were in the penitentiary together.

Several coconspirators testified directly about drug-trafficking discussions in the

penitentiary or halfway house. The seamless and natural way in which this

conspiracy operated, with each member smoothly transitioning into the

methamphetamine distribution enterprise only days or weeks after release,

supports a strong inference that the dealing that occurred on the outside fulfilled

the terms of the agreement reached on the inside. We do not know the

circumstances of Encinias’s commencement of drug trafficking when he was

released from the halfway house. But the record does reveal that it was only a

matter of weeks before he had a quantity to sell from Arriola, and we have no

evidence that Encinias protested or exhibited surprise when approached by


                                         -34-
Arriola upon release. Rather, the evidence and reasonable inferences are all to

the contrary. This was sufficient for the jury to find beyond a reasonable doubt

the existence of an initial agreement by and among this group to traffic in drugs,

which was all that was needed to commit the crime of conspiracy.

      The government also produced sufficient evidence that the various

“spokes” of the “wheel” were enclosed by a “rim,” Kotteakos, 328 U.S. at 755, or

common goal of the original agreement: to make an illicit profit by distributing

large quantities of methamphetamine in the Wyoming market. The ability to

make a profit for the venture was dependent upon the success of all members of

the conspiracy. It was necessary for Urbigkit, Thomas, and Strong to have begun

a viable operation with Arriola, and Dax and Waite to have continued that

operation, in order for Encinias to have joined and continued the enterprise when

he was released. This profit-driven end is demonstrated by Arriola’s rush to line

up Dax and Waite after losing money when Urbigkit’s shop was raided. See

United States v. Heath, 580 F.2d 1011, 1022 (10th Cir. 1978) (in a single

conspiracy, the “efforts of each participant affect[] the supplies and profits of the

entire enterprise”).

      The activities of Dax also show that the Urbigkit “spoke” and the Encinias

“spoke” belonged to the same “wheel,” even though the former ceased operating

before the latter began. Dax was Urbigkit’s cellmate in prison and testified that


                                         -35-
he spoke to Urbigkit and other conspirators about dealing drugs when they got

out. And although Dax testified that he had never done business with Encinias,

he established that Arriola and Encinias had visited his house together. Dax

began selling methamphetamine for Arriola in March 2001. This was after

Urbigkit was arrested but before Encinias began dealing in June or July 2001.

This overlap in timing indicates that there was no “first” conspiracy involving

Urbigkit and “second” conspiracy involving Encinias. A single conspiracy does

not split into multiple conspiracies because members come and go. See United

States v. Coleman, 7 F.3d 1500, 1503 (10th Cir. 1993) (sufficient evidence of

defendant’s participation in conspiracy even though she began her participation in

the conspiracy two years after venture had begun, participated for only two

months, and the conspiracy continued for six months after she was arrested);

United States v. Brewer, 630 F.2d 795, 800 (10th Cir. 1980) (“A conspiracy is not

terminated simply by a turnover in personnel.”).

      Finally, the trial court thoroughly instructed the jury on the government’s

burden of proving a single conspiracy. The court even revised the conspiracy

instruction at the request of Encinias’s counsel to include an instruction relevant




                                         -36-
to the defense’s multiple-conspiracy theory. 7 We are satisfied that the record

supports the jury’s verdict of guilty on the conspiracy count.



V.    Variance Between the Indictment and Proof at Trial

      Encinias next asserts that “there was a fatal variance between the

superseding Indictment, which charged a single conspiracy, and the government’s

proof at trial, which established multiple conspiracies.” Appellant’s Br. at 47.

Again, Encinias contends that even if he conspired with Arriola and McQueary,

the government failed to show that he was connected to Urbigkit, Thomas, Strong,

Siegel, Dax, and Waite, as charged in Count One of the Indictment.

      “A variance occurs when the evidence presented at trial establishes facts

which are different from those alleged in the indictment.” Dickey, 736 F.2d at

581. Such a variance is not fatal to the government’s case unless it affects the

“substantial rights” of the accused. Edwards, 69 F.3d at 432. The analysis begins

with the determination of whether a variance occurred, Brewer, 630 F.2d at 800,

followed by an examination of prejudice to the defendant, including whether there

has been a “‘transference of guilt to an accused from incriminating evidence


      7
       The court included the following language: “[A] single conspiracy does
not exist solely because many individuals deal with a common player. They must
be interconnected in some way. What is required in this regard is a shared, single
criminal objective, not just similar or parallel objectives between similarly
situated people.” Tr. of Jury Trial, R. Vol. 41 at 2047; id. at 2171.

                                        -37-
presented in connection with the prosecution of another in the same trial for a

crime in which the accused did not participate.’” Id. at 799 (quoting United

States v. Morris, 623 F.2d 145, 149 (10th Cir. 1980)).

      We therefore first turn to the issue of whether a single conspiracy existed,

which is a fact question for the jury and which we review in the light most

favorable to the government. Edwards, 69 F.3d at 432. The analysis is nearly

identical to the discussion we engaged in to determine whether sufficient

evidence supported the conspiracy conviction. “[T]he focal point of the

[variance] analysis is whether the alleged co-conspirators were united in a

common unlawful goal or purpose,” and “[o]f principal concern is whether the

conduct . . . however diverse and far-ranging, exhibits an interdependence.”

United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990). We have already

determined that one conspiracy existed in this case and do not reach the question

of whether Encinias’s substantial rights were affected. No fatal variance existed

between the superseding Indictment and the government’s evidence at trial.



VI.   Fair Trial

      Encinias’s final argument for reversal is that he was deprived of a fair trial

by several references to the murder of Dennis Fisher and by a courtroom outburst




                                        -38-
by McQueary’s mother. Encinias’s counsel did not raise the issue below, so we

review for plain error.

        Before trial, the district court ruled that evidence about Urbigkit’s murder

of Fisher would not be admitted at the trial of Encinias and Arriola. Yet several

witnesses made inadvertent references to the event: Dax described Urbigkit as a

“murderer” and briefly noted that he had been interviewed by a homicide

detective, Tr. of Jury Trial, R. Vol. 34 at 979, 1003; Siegel stated that a murder

had occurred in her apartment, id., R. Vol. 33 at 830; and McQueary said that

Urbigkit was known as a “murderer.” Id., R. Vol. 37 at 1379. Defense counsel

did not object to any of this testimony at trial for fear of drawing unwarranted

attention to the statements. The court and counsel agreed to remedy the problem

by redacting references to the murder from the Indictment before it went to the

jury.

        Later, McQueary described how she untruthfully told Encinias that she had

lied to the police in hopes of continuing a relationship with him. McQueary’s

mother at that point rose, and while “glaring” at Encinias, stated: “Her baby’s

dead and she was out of her mind. I’m her mother.” Id., R. Vol. 36 at 1302. The

judge told her to sit down and “keep her mouth shut.” Id. at 1302-03. The judge

then instructed the jury:

             The outburst that just occurred in this courtroom, of course, is
        unwarranted; and the reason it’s so objectionable is that the

                                          -39-
      individual who spoke, who I’ll identify here shortly and hold in
      contempt of court, made comments about the status of the evidence
      in this case. It’s the kind of statement, of course, that you as judges
      of the facts must ignore altogether. I don’t know what motivated her
      to make those comments, but they’re not appropriate for you to
      consider.

Id. at 1308. After the jury was excused, the court found McQueary’s mother in

contempt of court, but did not fine or jail her. Again, the defense did not move

for a mistrial and admitted that “the damage [was] done” and the judge

“adequately instructed the jury.” Id. at 1315.

      While “a fair trial is the keystone of our entire judicial system,” United

States v. Cardall, 550 F.2d 604, 606 (10th Cir. 1976), a fair trial is not necessarily

a perfect one. We have reviewed the record and are convinced that Encinias

received a fair, if imperfect, trial despite these events, which were trivial in the

context of more than thirty witnesses who testified over three weeks. See id. at

606 (“unjudicial” comments by judge were minor incidents in four-day trial in

which thirty-two witnesses were called). The judge also properly instructed the

jury after the outburst from McQueary’s mother. We are therefore unpersuaded

that a mistrial is warranted.




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                         CONCLUSION

For all of the foregoing reasons, we AFFIRM Encinias’s conviction.

                                       ENTERED FOR THE COURT


                                       Stephen H. Anderson
                                       Circuit Judge




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