                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              November 14, 2012
                                   PUBLISH                    Elisabeth A. Shumaker
                                                                  Clerk of Court
                  UNITED STATES COURT OF APPEALS

                         FOR THE TENTH CIRCUIT


 UNITED STATES OF AMERICA,
       Plaintiff–Appellee,                      No. 11-2198
       v.
 BRAD AHRENSFIELD,

       Defendant–Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. 09-CR-3457)


Jason Bowles (B.J. Crow and Monica L. Garcia with him on the brief), of Bowles
and Crow, Albuquerque, New Mexico, for Defendant–Appellant.

Gregory J. Fouratt, Assistant United States Attorney (Kenneth J. Gonzales, United
States Attorney, and Tara C. Neda, Assistant United States Attorney, with him on
the brief), Albuquerque, New Mexico, for Plaintiff–Appellee.


Before BRISCOE, Chief Judge, McKAY and GORSUCH, Circuit Judges.


McKAY, Circuit Judge.


      Following a jury trial, Defendant was convicted of obstructing justice in

violation of 18 U.S.C. § 1512(c)(2). He was sentenced to a term of imprisonment

of six months and one day, followed by six months of home confinement and a
term of supervised release. This appeal followed.

                                   B ACKGROUND

      Defendant’s conviction stems from his disclosure of the existence of an

ongoing undercover investigation to one of the targets of that investigation. In

September 2009, Operation Safe Streets, a task force funded by the Federal

Bureau of Investigation, acting in connection with the Albuquerque Police

Department (APD), was investigating possible criminal activity at the

Albuquerque business Car Shop. The investigation was focused specifically on

alleged drug dealing and trafficking of stolen property by Car Shop employees

and the role, if any, of Car Shop’s owner, Shawn Bryan. At the time, Car Shop

had a contract with the APD under which it provided and serviced undercover

cars for the department.

      The investigation began after a sergeant with the APD who was then

assigned to the task force received a tip from a confidential informant that illegal

activity was taking place at Car Shop. The confidential informant, who had been

arrested for residential burglary while using a vehicle registered to Car Shop,

provided the following information: he would use Car Shop vehicles to commit

burglaries and store the stolen merchandise; Car Shop employees would purchase

his stolen merchandise; a Car Shop mechanic dealt marijuana and cocaine; and

Mr. Bryan was the leader of these criminal activities. This caused the sergeant

particular concern because of Car Shop’s relationship with the APD. As a result,

                                         -2-
the task force, which included members of the APD and FBI, initiated the

undercover investigation of Car Shop and Mr. Bryan. Although Defendant was,

at that time, an APD officer, he was not a part of the task force and was not aware

of or involved in the investigation.

      As part of the investigation, the task force used the confidential informant

to make controlled drug purchases from the mechanic. The purpose of these

purchases was two-fold. First, they were designed to verify the information

provided by the confidential informant. Second, assuming the information was

true, the task force intended to arrest the mechanic and attempt to “roll” him to

obtain information about Mr. Bryan’s alleged criminal activity. The task force

anticipated presenting the confidential informant’s testimony to a federal grand

jury in order to obtain an indictment against the mechanic as an incentive for him

to work as an informant. In addition to the controlled purchases, the task force

intended to investigate Mr. Bryan’s finances. It had sent requests for financial

information to various institutions and received responses characterizing Mr.

Bryan’s accounts as suspicious. The task force planned to use federal grand jury

subpoenas to obtain further information on Mr. Bryan’s bank accounts.

      On September 18 and 21, 2009, members of the task force monitored the

confidential informant as he made controlled purchases of marijuana from the

mechanic. Task force members then arranged for the confidential informant to

make a controlled purchase of crack cocaine on the afternoon of the 21st. Prior to

                                         -3-
this purchase, the task force sought surveillance assistance from undercover

detectives with APD’s Special Investigations Division (SID), including Officer

Ron Olivas. During that surveillance, Officer Olivas learned that Defendant’s

teenage son was working at Car Shop. This was noteworthy to Officer Olivas

because he was friends with Defendant. However, he and the other task force

members were specifically instructed not to tell Defendant about the investigation

because it was considered to be a need-to-know investigation. After monitoring

the third controlled purchase, the detectives were debriefed and given details of

the investigation.

      Later that evening, Officer Olivas met with Defendant because he felt

Defendant’s son would potentially be in danger if he continued to work at Car

Shop. Despite having been instructed not to inform Defendant of the

investigation, Officer Olivas did just that. He provided Defendant with the details

of the investigation he had learned, including that Car Shop was being

investigated for drug dealing and trafficking of stolen property, a confidential

informant was making controlled purchases of drugs from the mechanic, “that

potentially the owner of The Car Shop [sic] was going to be a criminal target of

the investigation” (Supplemental App. at 1039), there was a potential financial

investigation of Mr. Bryan, and the FBI and SID were involved in the

investigation. After sharing this information, Officer Olivas and Defendant

discussed ways to ensure Defendant’s son no longer worked for Car Shop without

                                         -4-
raising Mr. Bryan’s suspicions. Ultimately, they decided Defendant would tell

Mr. Bryan his son needed to focus on his schoolwork and athletics.

      The following afternoon, September 22, Defendant called Mr. Bryan to

advise him that his son could no longer work at Car Shop. In accordance with the

plan Defendant and Officer Olivas discussed the night before, Defendant told Mr.

Bryan his son needed to focus on his responsibilities at school. Mr. Bryan

understood and did not find this to be suspicious. Later that night, Defendant

called Mr. Bryan a second time. This time, however, Defendant called Mr. Bryan

from a payphone. He asked Mr. Bryan to meet him on the street outside of Mr.

Bryan’s gated community and told him to walk east along the street and to wear a

baseball cap. Rather than driving his own car, Defendant drove his girlfriend’s

car, which was not registered to him. 1 Defendant met Mr. Bryan on the street,

picked him up, and drove around the area.

      Once Mr. Bryan was in the car, Defendant proceeded to tell him about the

undercover investigation of Car Shop. There is some disagreement as to precisely

what Defendant told Mr. Bryan. The jury did, however, hear testimony that

Defendant shared certain details of the investigation. He informed Mr. Bryan the


      1
        During the trial, Defendant testified that he called from a payphone
because he had accidentally left his cell phone at home, that he asked Mr. Bryan
to meet him on the street because he did not want to have to go through the gate
to the community, that he asked Mr. Bryan to put on a hat because it was cold
outside, and that he drove his girlfriend’s car because it was parked behind his in
the driveway.

                                        -5-
APD and FBI were conducting an undercover operation at Car Shop, Mr. Bryan

was suspected of being the “sergeant major,” or leader, of a criminal organization

(Supplemental App. at 950), a Car Shop mechanic was dealing drugs and was

“going away” (id. at 1178), and Mr. Bryan “was being looked into” (id. at 946).

Later that night, after hearing this information, Mr. Bryan contacted the then-

Bernalillo County Sheriff to inquire about why he was under investigation.

      The next morning, Mr. Bryan met with the then-commander of the APD and

asked him about the undercover investigation. During the meeting, it became

clear to the commander that Mr. Bryan was aware of a number of details of the

investigation. Mr. Bryan informed the commander he had learned about the

investigation from Defendant. Later that morning, the commander and Mr. Bryan

met with a lieutenant from the APD. Mr. Bryan again disclosed a number of

details about the covert operation. Mr. Bryan then returned to Car Shop and met

individually with each of his employees, including the mechanic. He questioned

them about whether “they had done something wrong . . . something that would

compromise [Mr. Bryan’s] business, [his] family.” (Id. at 966.)

      Because of Mr. Bryan’s awareness of the ongoing investigation, the task

force decided it was necessary to shut down the investigation. As a result, the

confidential informant was unable to make the final planned controlled drug

purchase. The task force was, however, still able to arrest and interrogate the

mechanic. Ultimately, the mechanic did not provide any information that

                                         -6-
implicated Mr. Bryan in criminal activity. The task force decided not to use a

federal grand jury to obtain an indictment against the mechanic or to issue

subpoenas for Mr. Bryan’s financial information, as had been planned. The task

force felt doing so would have “been fruitless” because Mr. Bryan was already

aware of what was intended to be an undercover, covert investigation. (Id. at

823.)

        Once the task force learned Mr. Bryan was aware of the investigation, two

FBI agents were assigned to investigate the circumstances surrounding the

compromise. By this point, Officer Olivas had learned SID had been removed

from the investigation, although he did not know why. He spoke with Defendant

to confirm Defendant had not raised Mr. Bryan’s suspicions by having his son

stop working at Car Shop. Defendant assured Officer Olivas this was the

case—all had gone according to plan.

        Late in the evening on September 23, the FBI agents went to Defendant’s

home to interview him about the allegation that he had informed Mr. Bryan of the

undercover investigation of Car Shop. Defendant denied knowing about the Car

Shop investigation, denied speaking with any SID detectives about the

investigation, and denied discussing the investigation with Mr. Bryan. That same

evening, Mr. Bryan called Defendant using his neighbor’s phone, and the two had

a conversation “in code.” (Id. at 1026.) Defendant later called the neighbor and

asked her to relay a coded message to Mr. Bryan.

                                         -7-
      In the early hours the following morning, September 24, Defendant sent a

text message to a former APD officer and friend stating he needed help. He asked

the officer to contact Officer Olivas via Officer Olivas’s wife’s cell phone. The

officer was uncomfortable doing this, and instead contacted Officer Olivas

directly. Officer Olivas told the officer Defendant could call him directly, which

the officer passed on to Defendant. When Defendant finally spoke with Officer

Olivas, he told Officer Olivas that members of the APD and FBI had been at his

house the night before to talk with him about the Car Shop investigation. He said

the FBI had asked about the investigation and he had responded that he had no

knowledge of the investigation and that no one from SID, including Officer

Olivas, had told Defendant about the investigation. Defendant also assured

Officer Olivas he had not told Mr. Bryan about the investigation.

      Defendant was ultimately arrested and charged with one count of

obstruction of justice and one count of making false statements to the FBI agents

who investigated the compromise of the investigation. The obstruction of justice

charge was based on Defendant’s obstruction or attempted obstruction of the

anticipated federal grand jury proceedings that would have been used in

connection with the undercover investigation of Car Shop and Mr. Bryan. The

case first went to trial in April 2010. At the conclusion of that trial, the jury

found Defendant not guilty of making false statements but was unable to reach a

verdict on the obstruction of justice charge. As a result, the trial was ultimately

                                          -8-
reset for December 13, 2010, on the remaining obstruction of justice charge.

      Before the second trial began, Defendant filed a motion to exclude

testimony and evidence regarding the false statements he allegedly made to the

FBI agents. He argued the Double Jeopardy Clause precluded the government

from introducing any evidence regarding the false statements because he had been

acquitted of that charge by the jury in the first trial. In a memorandum opinion

and order, the district court denied Defendant’s motion. Evidence regarding the

false statements was introduced during the second trial through the testimony of

one of the interviewing FBI agents, Officer Olivas, and Defendant.

      During direct examination of Mr. Bryan at the second trial, the government

impeached Mr. Bryan’s testimony by reading from a transcript of an interview the

FBI had conducted with Mr. Bryan after Defendant’s first trial. During this

interview, the FBI asked Mr. Bryan about his conversation with Defendant on

September 22 and what Defendant had told him about the investigation. Mr.

Bryan claimed Defendant only told him about a rumor and that the APD

commander was the one to provide the details of the investigation during their

meetings on September 23. He also claimed he received several details from the

sheriff, whose wife 2 had text-messaged the information to his wife.

      Counsel for Defendant advised the district court he had not been provided a


      2
        At the time the text messages were sent, the sheriff and his girlfriend were
not yet married.

                                        -9-
copy of the transcript or a recording of the interview, and he was unaware the FBI

had interviewed Mr. Bryan following the first trial. 3 At that point, the

government provided Defendant with a copy of the transcript of Mr. Bryan’s

interview. Defense counsel read through the transcript during the lunch hour and


      3
         However, in a May 5, 2010, email later discovered by the government,
defense counsel informed the government:
       I received some information that I have not verified that Darren White
       [(the then-Sheriff of Bernalillo County)] through his girlfriend may
       have passed information regarding the investigation onto [sic] Shawn
       Bryan. I understand that [FBI] Agents McCandless and Washington
       may have been informed of this. I stress that I have not verified any of
       that and I do not know if it is true or not but wanted to see if the FBI
       was looking into the matter. I understand that there may be numerous
       text messages between [Mr. Bryan’s wife] and Darren White’s
       girlfriend or fiancée. Will you let me know if you are aware of this
       matter and whether the FBI is looking into it? I am not suggesting in
       the slightest that Darren did anything wrong, I just believe if it
       happened it could tend to exculpate Brad.
(Supplemental App. at 102.)
       The government responded:
       Bryan apparently fired [his lawyer] and came into FBI for an interview
       (I just got cd and have a copy for you, as well). During the interview,
       Bryan made a number of strange allegations (as he is prone to do) [sic]
       it was taped and I will disclose. For example, he claimed APD
       burglarized his home - though, he claimed to the APD that the FBI did
       so. He also mentioned that Darren and his girlfriend talked to [sic]
       about the investigation - but, he claimed this happened well after Sept.
       22. The fbi [sic] did interview Darren after Bryan’s visit to the FBI, but
       he said he has had no such conversation with Bryan. Bryan and Darren
       state that Darren was unaware of investigation before Bryan told Darren
       on Sept. 22. This is corroborated by APD.
(Supplemental App. at 102.)
       The government brought these emails to the district court’s attention after
the district court had issued its memorandum opinion and order denying
Defendant’s motion to dismiss for Brady violations. During oral argument,
defense counsel represented that he had forgotten about the email exchange.

                                         -10-
informed the district court there was a significant amount of what he believed to

be Brady material in the transcript. As a result, he requested additional time to

highlight relevant portions of the transcript that could be used during the cross-

examination of Mr. Bryan. He also made an oral motion to dismiss the case due

to the government’s alleged Brady violation. The district court allowed counsel

to take a break to review the transcript, and the trial continued later that

afternoon. Defendant then engaged in extensive cross-examination of Mr. Bryan

using the transcript.

      The following morning, Defendant filed his motion to dismiss, arguing the

case should be dismissed as a result of the alleged Brady violation. That same

morning, the government produced—for the first time—a transcript of a phone

call between Mr. Bryan and the FBI agents that took place prior to the interview.

After reviewing the transcript, Defendant again moved to dismiss. He requested

that, in the alternative, the district court strike the testimony of the FBI agent,

which had been given at the end of the day before. The district court instead

allowed Defendant to recall the FBI agent for further cross-examination as part of

the government’s case. Defendant did so and effectively cross-examined the FBI

agent using the transcript.

      At the close of the government’s case, Defendant made a Rule 29 motion

for judgment of acquittal. He renewed this motion at the conclusion of the trial.

The district court deferred ruling on the motion. After deliberating for

                                          -11-
approximately seven to eight hours and receiving a modified Allen charge, the

jury returned a guilty verdict.

      Shortly after the conclusion of the trial, Defendant discovered he had not

received a copy of a laboratory report disclosing the results of a chemical analysis

of the drugs purchased by the confidential informant from the Car Shop mechanic.

In an email discussing the report, the government informed defense counsel that

the substance tested positive for cocaine, but had not been tested to determine

whether it was crack cocaine. The government had yet to produce a copy of the

report. Defendant argued this was a further Brady violation requiring dismissal.

      After holding an evidentiary hearing on the alleged Brady violations and

reviewing briefs from both parties, the district court issued a memorandum

opinion and order denying Defendant’s motions to dismiss. The district court

held that although the evidence had been suppressed, it was not material and there

was, therefore, no Brady violation. The district court then issued a memorandum

opinion and order denying Defendant’s motion for judgment of acquittal.

Defendant was sentenced to a term of imprisonment of six months and one day,

followed by six months of home confinement and a period of supervised release.

Defendant now appeals.

                                    D ISCUSSION

      Defendant raises three issues on appeal. First, he argues the district court

erred in denying his motion for a new trial based on alleged Brady violations.

                                        -12-
Second, he argues the district court erred by allowing the government to introduce

evidence that he allegedly made false statements to the FBI because he had been

acquitted of that charge in the first trial. Finally, Defendant argues the district

court erred in denying his motion for judgment of acquittal.

                                 I. Brady Violation

      Defendant argues the district court erred in concluding there was no Brady

violation. He argues the government violated Brady by failing to disclose the

transcript of the FBI interview of Mr. Bryan until the second day of trial, failing

to disclose the transcript of the phone call between Mr. Bryan and the FBI until

the morning of the third day of trial, failing to disclose the corresponding

recordings until after trial, and failing entirely to disclose the laboratory report

containing results of a chemical analysis of the drugs purchased by the

confidential informant.

      We review the district court’s decision to deny a motion for a new trial

based on a Brady violation de novo. United States v. Ford, 550 F.3d 975, 981

(10th Cir. 2008). “A defendant who seeks a new trial based on an alleged Brady

violation must show by a preponderance of the evidence that ‘(1) the prosecution

suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the

evidence was material.’” Id. (quoting United States v. Velarde, 485 F.3d 553, 558

(10th Cir. 2007)). The government does not dispute that the evidence was

suppressed. It also does not dispute that the transcripts and recordings were

                                         -13-
favorable to Defendant. The questions before us then are whether the suppressed

evidence was material and whether the laboratory report was favorable.

       “[E]vidence is material only if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would

have been different. A ‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667,

682 (1985). In making this determination, we evaluate the withheld evidence “in

light of the entire record in order to determine if the omitted evidence creates a

reasonable doubt that did not otherwise exist.” Banks v. Reynolds, 54 F.3d 1508,

1518 (10th Cir. 1995) (internal quotation marks omitted). We do not, however,

resort to speculation. Id. at 1519. “‘The mere possibility that evidence is

exculpatory does not satisfy the constitutional materiality standard.’” Id. (quoting

United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994)).

      Defendant first claims the government violated Brady by failing to disclose

transcripts of the FBI interview of Mr. Bryan and the preceding phone call

between Mr. Bryan and the FBI until during trial, and by failing to disclose the

corresponding recordings until after trial. Because the transcripts were produced

during trial, our materiality inquiry focuses on “whether there is a reasonable

probability that the outcome of [the trial] would have been different had the




                                         -14-
[government] disclosed th[e] information earlier.” 4 Knighton v. Mullin, 293 F.3d

1165, 1172-73 (10th Cir. 2002). Defendant identifies three ways in which he

would have used the transcripts and recordings had they been provided earlier:

(1) he would have prepared extensive cross-examination of Mr. Bryan and the

FBI agent, which would have included playing clips from the recordings; (2) after

learning of Mr. Bryan’s statement regarding the text messages between Mr.

Bryan’s wife and the sheriff’s wife, he would have issued a subpoena for the cell

phones to obtain the text message information and issued a subpoena for the trial

testimony of Ms. Bryan and the sheriff’s wife; and (3) he would have been fully

prepared to use portions of the transcript during the testimony of the APD

commander and the sheriff to show they, not Defendant, provided Mr. Bryan with

the details of the investigation. 5 He argues each of these proposed uses

establishes the evidence was material. We disagree. Defendant has failed to


      4
        Although the recordings were not produced during trial, this does not
affect our analysis. As discussed below, we conclude there would have been no
added benefit to having the recordings in addition to the transcripts.
      5
        Defendant additionally argues the late disclosure of the transcripts
prevented him from “incorporat[ing] them into the defense strategy.”
(Appellant’s Corrected Reply Br. at 9.) During oral argument, counsel for
Defendant expounded on this argument, explaining that he would have
incorporated the suppressed evidence into his opening statement. However,
without greater detail, we are unable to evaluate whether there is a reasonable
probability that, had Defendant incorporated the suppressed evidence into his
opening statement, the outcome of the trial would have been different. This is
particularly so given the problems underlying Defendant’s proposed uses of the
evidence during trial, which are discussed below.

                                        -15-
demonstrate that, had he had the opportunity to employ these tactics, there is a

reasonable probability the outcome of the trial would have been different.

      First, he offers no explanation as to how his cross-examination of Mr.

Bryan or the FBI agent would have been different had the government disclosed

the transcripts earlier. Defendant conducted extensive and effective cross-

examination of Mr. Bryan after the district court provided him additional time to

review and highlight the interview transcript. Similarly, after Defendant received

the transcript of the telephone call, the district court allowed him to recall the FBI

agent for further cross-examination. This took place during the government’s

case-in-chief and first thing in the morning following the FBI agent’s testimony

the day before. And we are not persuaded by Defendant’s argument that it would

have been more effective to use the recordings for impeachment. Defendant was

able to impeach Mr. Bryan and the FBI agent by reading directly from the

transcripts, as was done with other witnesses throughout trial.

      Second, Defendant offers only the mere possibility that, had he subpoenaed

the phones and testimony of Ms. Bryan and the sheriff’s wife, the text messages

and testimony would have shown that Mr. Bryan learned details of the

investigation from people other than Defendant. This assertion fails—for several

reasons—to establish the suppressed evidence was material. As an initial matter,

we have nothing from which we can conclude what the evidence might have

shown. Defendant has not demonstrated the text messages would have been

                                         -16-
available 6 or what the witnesses’ testimony would have been. See Leyja v.

Parker, 404 F. App’x 291, 296 (10th Cir. 2010) (rejecting the defendant’s Brady

claim because the defendant had not shown how the suppressed evidence would

have been used as impeachment to further his defense); Sandoval v. Ulibarri, 548

F.3d 902, 915 (10th Cir. 2008) (concluding the defendant had failed to establish a

Brady violation because he had not shown that, had the suppressed evidence been

produced, “admissible evidence could have been adduced that would have

supported his [defense]”). Even assuming the text messages and testimony would

support Defendant’s argument that a significant number of details came from

sources other than Defendant, the jury heard similar testimony from Mr. Bryan.

He repeatedly testified that Defendant provided only vague information about a

rumor and that the details came from the APD commander. Our confidence in the

verdict is not undermined because the jury already considered, and rejected, the

assertion that Defendant did not have the intent to obstruct justice because he did

not provide all of the details of the investigation to Mr. Bryan. Finally, we note



      6
        The only evidence in the record is to the contrary. During the FBI
interview, Mr. Bryan informed the agents that his wife no longer had the text
messages. And the government provided interview reports from one of the FBI
agents who had contacted the phone providers establishing that the messages
would have been purged by the phone providers before Mr. Bryan’s interview
took place: the Verizon Wireless representative informed the agent that text
message content is held by the company for only three to five days; the T-Mobile
representative informed the agent that the company does not store text message
data absent a court order in effect at the time the messages were sent.

                                        -17-
that more than six months before trial, Defendant was aware of Mr. Bryan’s

assertion he had learned details of the investigation from the sheriff through text

messages between their wives. Defense counsel informed the government of this

very fact in an email sent on May 5, 2010, further demonstrating the evidence was

not material. See United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009)

(“[A] defendant is not denied due process by the government's nondisclosure of

evidence if the defendant knew of the evidence anyway.”); United States v.

Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999) (“[A] defendant’s independent

awareness of the exculpatory evidence is critical in determining whether a Brady

violation has occurred. If a defendant already has a particular piece of evidence,

the prosecution’s disclosure of that evidence is considered cumulative, rendering

the suppressed evidence immaterial.”).

      Third, and finally, Defendant is unable to explain how having the transcript

earlier would have affected his ability to question the APD commander and the

sheriff about whether they, and not Defendant, were the ones to provide the

details of the investigation to Mr. Bryan. Although Defendant did not have the

interview transcript at the time he cross-examined the APD commander, he had

learned from Mr. Bryan’s testimony during the first trial, which was similar to his

answers during the FBI interview, that Mr. Bryan claimed the commander

provided him with some of the details of the investigation on September 23, after

he had met with Defendant. Because the information contained in the transcript

                                         -18-
duplicated information Defendant already had, it was not material. See Erickson,

561 F.3d at 1163; Quintanilla, 193 F.3d at 1149. And, with respect to the sheriff,

the government did not call him as a witness during trial, so there was no

opportunity for Defendant to cross-examine him. Furthermore, despite the fact

Defendant had subpoenaed the sheriff and received and reviewed the transcript,

he deliberately chose not to call the sheriff to testify. Defendant now argues

doing so would have been ineffective unless he was also able to call Ms. Bryan

and the sheriff’s wife and to impeach the sheriff with the text messages. But, as

previously discussed, there is nothing from which we can conclude the sheriff’s

testimony would have been effectively impeached. Nor is there anything from

which we can conclude the sheriff’s testimony would have supported Defendant’s

theory. To the contrary, an FBI interview report from an interview with the

sheriff indicates he adamantly denied Mr. Bryan’s assertions. For each of these

reasons, Defendant has failed to show a Brady violation based on the delayed

production of the transcripts and the suppression of the recordings.

      Defendant’s second Brady claim is based on the government’s complete

suppression of the laboratory report indicating the drug purchased from the

mechanic tested positive only for cocaine not crack cocaine. Defendant argues

the report was favorable and material because it could have created reasonable

doubt that it was foreseeable the investigation would lead to a federal grand jury

proceeding, since a higher quantity of cocaine is required to trigger a federal

                                        -19-
prosecution. However, contrary to Defendant’s argument, the report does not

establish the drug was not crack cocaine, but rather only that confirmatory testing

to determine whether the cocaine also consisted of cocaine base was not done.

Evidence the drug purchased was crack cocaine came from the testimony of the

APD sergeant. He testified the substance appeared to his trained eye to be crack,

the substance was packaged in a manner consistent with crack, crack is what the

confidential informant had bargained for, and the undercover recording of the

controlled purchase included a discussion of “rocking it up” and making it “a

little harder” next time. (Supplemental App. at 796.) When cross-examined by

Defendant, the sergeant admitted the drug tested positive for cocaine and not

necessarily crack cocaine. But he emphasized the drug was nevertheless

“consistent with” crack cocaine. (Id. at 795.) Even if the report tended to show

the drug was not crack cocaine, our confidence in the jury verdict is not

undermined. An FBI agent with the Operation Safe Streets task force testified

that the decision whether to prosecute drug offenses through that program was

made on a case-by-case basis and was not strictly dependent on the quantity of the

drug. And the likely success of an underlying proceeding against the mechanic or

Mr. Bryan was not at issue; the jury need only have found one was foreseeable to

Defendant. For these reasons, we conclude that the laboratory report showing the

substance was only tested to determine if it contained cocaine was neither

favorable nor material. There was, therefore, no Brady violation.

                                        -20-
      For the foregoing reasons, we affirm the district court’s denial of

Defendant’s motion for a new trial based on alleged Brady violations. Because

we conclude there was no Brady violation, we need not address Defendant’s

argument that any such violation was intentional.

                                II. Double Jeopardy

      We review the district court’s ultimate determination regarding double

jeopardy de novo. United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1025 (10th

Cir. 1996). The Double Jeopardy Clause “embodies two vitally important

interests.” Yeager v. United States, 557 U.S. 110, 117 (2009). The first is the

principle that the state is not permitted to make repeated attempts to convict an

individual for the same offense. Id. at 117-18. “The second interest is the

preservation of the finality of judgments.” Id. at 118 (internal quotation marks

omitted). Defendant argues the second principle precluded the government from

introducing evidence he allegedly made false statements to the FBI because he

had been acquitted of that charge in the first trial.

      The second principle, referred to as the collateral-estoppel component of

the Double Jeopardy Clause, “precludes the Government from relitigating any

issue that was necessarily decided by a jury’s acquittal in a prior trial.” Id. at

119. This is because “when an issue of ultimate fact has once been determined by

a valid and final judgment” of acquittal, “that issue cannot again be litigated

between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436,

                                         -21-
443 (1970). However, the Supreme Court has expressly “decline[d] to extend

Ashe v. Swenson and the collateral-estoppel component of the Double Jeopardy

Clause to exclude in all circumstances . . . relevant and probative evidence that is

otherwise admissible under the Rules of Evidence simply because it relates to the

alleged criminal conduct for which a defendant has been acquitted.” Dowling v.

United States, 493 U.S. 342, 348 (1990). Where the government is not required

to prove the offered evidence relating to the prior acquittal beyond a reasonable

doubt, “the collateral-estoppel component of the Double Jeopardy Clause is

inapposite.” Id. at 348-49.

      Here, the crime of obstruction of justice does not share any of the same

elements with the crime of making false statements, of which Defendant was

acquitted. The government introduced evidence that Defendant lied to the FBI as

“proof of the defendant’s guilty knowledge” (App. at 51), not because it was a

required element of the offense of obstruction of justice. The government,

therefore, was not required to prove beyond a reasonable doubt that Defendant

lied to the FBI. See Rossetti v. Curran, 80 F.3d 1, 5 (1st Cir. 1996) (“No

intermediate fact need be proved beyond a reasonable doubt, so long as the crime

itself is proved beyond a reasonable doubt.”). As explained by the Supreme Court

in Dowling, the “jury might reasonably conclude that [Defendant lied to the FBI],

even if it did not believe beyond a reasonable doubt that [Defendant] committed

the crime[] charged at the first trial.” Dowling, 493 U.S. at 348-49. Accordingly,

                                        -22-
the district court correctly concluded that the collateral-estoppel component of the

Double Jeopardy Clause does not apply.

      Defendant argues the district court further erred in refusing to instruct the

jury he had previously been acquitted of the false statements charge. “We review

the district court’s decision to give or to refuse a particular jury instruction for

abuse of discretion.” United States v. Diaz, 679 F.3d 1183, 1188 (10th Cir. 2012)

(internal quotation marks omitted). Defendant requested this instruction after the

district court had denied his motion and in the event the trial proceeded before

Defendant was able to appeal the district court’s ruling. He argued that a jury

instruction, “at a minimum, is necessary in order to preserve [his] double

jeopardy rights” and to “mitigate the prejudice at this juncture.” (App. at 126,

127.) Because we agree with the district court’s conclusion that the Double

Jeopardy Clause did not bar admission of the false statement evidence, we

conclude the district court did not abuse its discretion in refusing to give

Defendant’s proposed instruction regarding his acquittal on the false statements

charge. Defendant offers no authority for his position that such an instruction is

required. 7 Cf. United States v. De La Rosa, 171 F.3d 215, 220 (5th Cir. 1999)


      7
        Defendant relies entirely upon United States v. Rey, No. CR 07-1761,
2010 WL 1141369 (D.N.M. Mar. 2, 2010) (unpublished), in which the district
court gave the defendant’s proposed instruction that the marijuana seized from his
yurt was for personal use and not for distribution. However, the district court did
not instruct the jury the defendant had previously been acquitted of possession
                                                                      (continued...)

                                          -23-
(holding “that an acquittal instruction is not required merely because evidence of

acquitted conduct is introduced”); United States v. Smith, 145 F.3d 458, 462 (1st

Cir. 1998) (same).

      For the foregoing reasons, we affirm the district court’s denial of

Defendant’s motion to exclude evidence regarding the false statements he

allegedly made to the FBI agents.

                      III. Motion for Judgment of Acquittal

      We review the denial of Defendant’s motion for judgment of acquittal de

novo, viewing the evidence in the light most favorable to the government. United

States v. Austin, 231 F.3d 1278, 1283 (10th Cir. 2000). “[R]eversal is only

appropriate if no rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted).

“[W]hile the evidence supporting the conviction must be substantial and do more

than raise a mere suspicion of guilt, it need not conclusively exclude every other

reasonable hypothesis and it need not negate all possibilities except guilt.”

United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (internal citations

and quotation marks omitted).

      Defendant was charged with obstruction of justice in violation of 18 U.S.C.



      7
        (...continued)
with the intent to distribute. In fact, the district court specifically ordered the
parties to avoid revealing to the jury the existence of the defendant’s prior trial.

                                         -24-
§ 1512(c)(2), which makes it a crime to corruptly obstruct, influence, or impede

an official proceeding, or attempt to do so. 18 U.S.C. § 1512(c)(2). To sustain a

conviction under § 1512(c)(2), the government does not need to prove the

defendant knew of the existence of an ongoing official proceeding. United States

v. Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009) (citing 18 U.S.C. § 1512(f)(1)).

Nor does the government need to “prove the defendant knew that the official

proceeding at issue was a federal proceeding such as a grand jury investigation.”

Id. at 1264-65 (citing 18 U.S.C. § 1512(g)(1)). “Rather, a conviction under the

statute is proper if it is foreseeable that the defendant’s conduct will interfere

with an official proceeding.” Id. at 1264. This has been referred to as the

“nexus” requirement. Id.; United States v. Aguilar, 515 U.S. 593, 599-600 (1995)

(discussing the similar crime of obstructing or impeding the due administration of

justice, 18 U.S.C. § 1503). A conviction is proper if there exists a nexus between

the defendant’s conduct and interference with the official proceeding—“if

interference with the official proceeding is the ‘natural and probable effect’ of the

defendant’s conduct.” Phillips, 583 F.3d at 1264 (quoting Aguilar, 515 U.S. at

601).

        Defendant argues there was insufficient evidence to establish each of the

elements required for a conviction. 8 We conclude a reasonable jury could


        8
            The district court instructed the jury:
                                                                          (continued...)

                                             -25-
conclude Defendant obstructed, or attempted to obstruct, justice, in violation of

18 U.S.C. § 1512(c)(2), when he disclosed the existence of the ongoing

undercover investigation of Car Shop to Mr. Bryan.

      The jury heard testimony from Mr. Bryan that Defendant called him on the

evening of September 22, 2009, and asked him to meet. Defendant told Mr.

Bryan to walk outside of his gated community, walk east along the street, and put

on a ball cap. Once Mr. Bryan was inside Defendant’s vehicle, Defendant told

Mr. Bryan he had “heard a rumor that [Mr. Bryan was] a sergeant major of a

crime ring.” (Supplemental App. at 942.) Defendant himself testified that at first

Mr. Bryan did not believe what Defendant was telling him—that one of his

mechanics was dealing drugs. It took Defendant “a little bit to convince him.”


      8
        (...continued)
       To find the defendant guilty of this crime, you must be convinced
       beyond a reasonable doubt: First: The defendant acted knowingly;
       Second: The defendant obstructed, influenced, or impeded, or
       attempted to obstruct, influence or impede, an official proceeding;
       Third: The defendant acted corruptly, that is, the defendant acted
       knowingly and dishonestly with the wrongful purpose to obstruct,
       influence, or impede the due administration of justice; Fourth: The
       defendant’s alleged actions had a relationship in time, causation, or
       logic with the proceeding such that it was foreseeable that defendant’s
       conduct would interfere with the proceeding. In other words, the
       government must prove to you beyond a reasonable doubt that
       obstruction of an official proceeding was the natural and probable
       outcome of defendant’s conduct.
(Supplemental App. at 1220-21 (paragraph breaks omitted).) Although the
instruction may be somewhat redundant, neither party challenged the instruction
as given. We, therefore, do not have occasion to review the correctness of this
instruction.

                                        -26-
(Id. at 1178.) Although there was conflicting testimony about what exactly

Defendant told Mr. Bryan, the jury heard testimony that Defendant informed Mr.

Bryan the APD and FBI were conducting an undercover operation at Car Shop,

Mr. Bryan was suspected of being the “sergeant major,” or leader, of a criminal

organization (id. at 954), a Car Shop mechanic was dealing drugs and was “going

away” (id. at 1178), and Mr. Bryan “was being looked into” (id. at 946). The jury

also heard testimony from Officer Olivas that he had shared many of these details

with Defendant the night before. A rational juror could, therefore, find Defendant

obstructed or attempted to obstruct justice by disclosing details of the

investigation to Mr. Bryan.

      The government offered evidence that, following Defendant’s conversation

with Mr. Bryan, Defendant engaged in various acts demonstrating a guilty

conscience. These included lying to the FBI, lying to Officer Olivas, asking for a

former APD officer’s help in contacting Officer Olivas through his wife’s phone,

and speaking in code with Mr. Bryan on Mr. Bryan’s neighbor’s phone. 9 From



      9
         We emphasize that this evidence was introduced as proof of Defendant’s
guilty conscience, to support a finding that he acted corruptly and with the intent
to obstruct justice. Defendant’s actions in lying to the FBI are not the basis of the
obstruction charge itself. See Aguilar, 515 U.S. at 600 (“We do not believe that
uttering false statements to an investigating agent . . . who might or might not
testify before a grand jury is sufficient to make out a violation of the [similar]
provision of § 1503.”). Rather, the government charged Defendant with
obstructing justice by disclosing to Mr. Bryan the existence of the ongoing
undercover investigation of Car Shop and Mr. Bryan.

                                        -27-
this evidence, a rational juror could infer Defendant acted corruptly, that is with

“‘the purpose of obstructing justice.’” Erickson, 561 F.3d at 1160 (quoting

United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981)). Further supporting

this inference is the fact Defendant and Officer Olivas had previously discussed

how Defendant could tell Mr. Bryan that his son could no longer work at Car

Shop without raising suspicions. Although he was able to do so using the story

he and Officer Olivas had prepared, Defendant felt it necessary to meet with Mr.

Bryan and inform him of the investigation because Defendant felt his friend was

“going to lose his whole business because he hired some less-than-credible guys.”

(Supplemental App. at 1164.)

      A rational juror could likewise conclude the natural and probable effect of

disclosing the existence of the ongoing undercover investigation of Car Shop to

Mr. Bryan was to impede a potential grand jury investigation. The evidence and

reasonable inferences therefrom tended to show Defendant knew: (1) the APD

and FBI were involved in the investigation of Car Shop; (2) the task force had

successfully purchased drugs from the Car Shop mechanic; (3) the task force was

using a confidential informant in the investigation; (4) there was a potential

financial investigation of Mr. Bryan; (5) “something was going to go down” soon

(id. at 956); and (6) the mechanic was “going away” (id. at 1178). From this

evidence, a rational juror could conclude that there was the required nexus

between Defendant’s conduct and a potential grand jury investigation. See

                                         -28-
Phillips, 583 F.3d at 1265 (holding nexus requirement satisfied where defendant

knew the person making drug purchases was an undercover law enforcement

officer, the officer had been or would be attempting to make controlled purchases,

and at least two other drug distributers in the area had been arrested in the ten

preceding months). That commencement of a grand jury proceeding was

foreseeable to Defendant is further supported by the government’s evidence

regarding Defendant’s law enforcement experience and law enforcement officers’

familiarity with grand jury proceedings.

      We agree with the district court’s conclusion that the government presented

sufficient evidence from which the jury could find Defendant obstructed justice

when he informed Mr. Bryan of the ongoing undercover investigation.

                                    C ONCLUSION

      For the foregoing reasons, we reject each of the challenges Defendant

raises on appeal. His conviction and sentence are AFFIRMED.




                                         -29-
