                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                               June 16, 2010

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                              No. 06-3184
 v.                                                             (D. Kan.)
                                                   (D.C. No. 2:03-CR-20192-001-CM)
DEMETRIUS R. HARGROVE,

       Defendant - Appellant.




                               ORDER AND JUDGMENT*


Before MURPHY, O’BRIEN, Circuit Judges, and KANE†, District Court Judge.


       Demetrius Hargrove was convicted of three counts of murder and one count of

conspiracy to kill and attempt to kill a person with the intent of preventing that person

from testifying in an official proceeding. He was spared the death penalty, but sentenced

to life imprisonment without the possibility of release. Hargrove claims the district court



       *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       †
        Honorable John L. Kane, Senior District Court Judge, United States District
Court for the District of Colorado, sitting by designation.
erred by: (1) not permitting sufficient inquiry into the mental status of a government

witness who testified she changed her story about Hargrove’s involvement in two of the

murders because she was “visited” by the victims; (2) allowing the government to read

into evidence the testimony of a critical, but unavailable, adverse witness taken at a state

court preliminary hearing; (3) permitting questioning about and admitting into evidence a

gun which could not be confirmed as the murder weapon; and (4) refusing to dismiss two

counts of the indictment because the government did not properly charge the predicate

offenses and constructively amending the indictment with the jury instructions. We

affirm.

                                       I.   BACKGROUND

          Hargrove and Christopher Trotter were friends1 who engaged in myriad

nefarious activities2 including selling crack cocaine in Kansas City, Kansas. These

murders were a byproduct of their drug dealing.

          In February 1998 Hargrove killed one of his “customers,” Elmer Berg, and Berg’s

sister, Misty Castor, because Berg failed to pay his drug bill. A couple of months later

Hargrove and Trotter kidnapped another drug dealer, Tyrone Richards, who was talking

about Hargrove’s role in the Berg/Castor murders. Both were charged in federal court

with the kidnapping. Trotter was in custody; Hargrove was on the lam. On July 26,

          1
              Their friendship waned during the course of state and federal prosecutions.
          2
         Among other crimes, see infra n.3, Trotter was convicted on July 15, 2003, in
state court of two counts of murder, one count of aggravated robbery and one count of
conspiracy to commit aggravated robbery (all unrelated to these murders). Trotter was
sentenced to life in prison without the possibility of parole for fifty years.


                                                -2-
1998, two days before Trotter’s kidnapping trial was to begin, Hargrove killed Richards.

       On January 1, 1999, an attempt was made to murder Shedrick Kimbrell, a witness

to the Richards kidnapping. Hargrove arranged for the murder to be committed by

Maurice Peters, Trotter’s cousin.

       The arrests and trials did not follow the same chronological order as the crimes.

On May 11, 1998, Hargrove and Trotter were jointly charged in federal court with the

Richards kidnapping, but the proceedings were severed at the government’s request.

Trotter was detained pending trial. After Richards, a key witness, was murdered,

Trotter’s trial was continued until August 1998. The jury returned a verdict of guilty on

August 14, 1998. Hargrove was not arrested until November 4, 1998. On May 28, 1999,

a jury convicted him of kidnapping Richards.

       Hargrove was originally charged with the Berg/Castor murders in state court,

where Trotter was a witness against him. Trotter testified at Hargrove’s preliminary

hearing on March 20, 2000.3 The state charges were dismissed after Hargrove was

indicted in this case (on December 10, 2003).

       At Hargrove’s trial in this case (commencing October 3, 2005), Trotter invoked

his Fifth Amendment right not to testify against Hargrove. Over Hargrove’s objection,

the district court permitted Trotter’s testimony from Hargrove’s preliminary hearing in

the state case to be read to the jury.

       3
       Trotter was convicted in federal court of kidnapping Richards on August 14,
1998. On February 11, 1999, the government filed a motion to dismiss the indictment.
The court granted the motion that same day. The government proceeded to trial against
Hargrove in May 1999. The jury found Hargrove guilty.

                                           -3-
A.    The Berg/Castor Murders

      On February 19, 1998, at approximately 9:30 p.m., the bodies of Elmer Berg and

Misty Castor were found in Berg’s car in Coronado Park in Kansas City, Kansas. The car

was running when the police arrived; Berg was in the driver’s seat and Castor was in the

passenger’s seat. Both Berg and Castor had been shot twice at close range from the

driver’s side of the vehicle. Castor was three months pregnant at the time she was killed.

There was no physical evidence tying Hargrove to their murders, but there was

substantial circumstantial evidence.

      Trotter’s testimony against Hargrove in the state court proceedings (taken from the

transcript of the preliminary hearing) was read to the jury. A summary follows. Berg

owed Hargrove approximately $1500 in February 1998.4 On the day Berg and Castor

were killed, Hargrove called Trotter and told him he had a customer wanting to purchase

a quarter ounce of crack. About twenty minutes later, Hargrove arrived at Trotter’s house

with his girlfriend, Micaela Cross Graham. Berg and Castor also drove to Trotter’s

house. Trotter asked Hargrove why Berg and Castor were there; Hargrove replied he had

arranged to sell the crack to Berg. After Trotter asked Hargrove why he was still dealing

with Berg, Hargrove said: “I’m going to knock him,” which Trotter interpreted to mean

Hargrove was going to kill Berg. (Joint App. at 96.)

      Hargrove and Trotter drove to Coronado Park, followed by Berg and Castor in



      4
      Another witness, Shawn Wright, testified at Hargrove’s federal trial that Berg
owed Hargrove $500 to $600 at the time he was murdered. Trotter’s sister, Lajoh
Thomas, testified she overheard Hargrove tell Berg he owed him $150.

                                           -4-
Berg’s car. Hargrove stopped the car and stepped out carrying a .38 caliber revolver.

Trotter, who remained in the car, heard four gunshots, but did not see Hargrove fire the

gun. After the shots were fired, Hargrove returned to the car and drove away. Hargrove

stopped near Trotter’s house and threw the gun down a sewer.5 Trotter never talked to

Hargrove about what happened.

       Other witnesses testified in person at Hargrove’s trial. Clarence Burnett, a federal

prisoner incarcerated on drug and robbery charges in the same facility where Hargrove

was incarcerated, testified to the following: Hargrove “described in detail [to Burnett]

how he had committed the murders” but wanted to implicate Trotter for them in revenge

for Trotter’s testimony against Hargrove in state court. (R. Vol. 27 at 3715.) Hargrove

offered to sell information about the murders to Burnett in exchange for $40,000 or

$50,000; Burnett could pass the information along to the government for his own

purposes, saying it came from Trotter. Burnett agreed to the plan and Hargrove gave

Burnett a series of letters he wrote, pretending to be Trotter, which described the murders

in detail. Burnett read those letters to the jury.

       Graham, Hargrove’s girlfriend, testified that on the day of the murders, she and

Hargrove drove to a gas station, Hargrove talked to Berg, and then she and Hargrove

drove to Trotter’s house, followed by Berg and Castor. Graham went into Trotter’s

house; Trotter left with Hargrove in Graham’s car. Berg and Castor followed in Berg’s



       5
        The government later found a gun in the sewer system near the place Trotter
mentioned, but ballistics testing revealed it was not the gun used to kill Berg and Castor.
See discussion infra at Section I(B).

                                              -5-
car. Hargrove and Trotter returned approximately fifteen to twenty minutes later. She

overheard Hargrove and Trotter talking about going to a club in order to establish an

alibi. Hargrove went to the club, returning later that night or the next morning. When he

returned, he remarked “he didn’t know why he does the things that he does sometimes”

and he “just can’t help himself.” (R. Vol. 30 at 4153.) Hargrove said he felt bad for

Castor, but Berg should not have brought her along. He said Berg kept “fucking up” and

should have paid his debts. (Id. at 4164.) Graham also saw Hargrove in possession of a

gun wrapped in a green shirt on the day of the murders.

B.    The Richards Murder

      After Berg and Castor were murdered, Tyrone Richards began telling people

Hargrove had committed the murders. Hargrove told Joshua Hunt to tell Bony (a

nickname for Richards) to “keep his mouth shut.” (R. Vol. 19 at 2047.) On April 21,

1998, Hargrove and Trotter kidnapped Richards in an effort to keep him quiet. They

drove Richards across a bridge into Missouri, but they noticed the car was low on gas so

they drove back to Kansas, where they were pulled over by police. Hargrove escaped but

Trotter was arrested.6 Hargrove and Trotter were later charged in federal court with

kidnapping Richards. Richards was subpoenaed to testify at Trotter’s trial, scheduled to

begin on July 28, 1998. On July 26, Richards was found in the back of his car with his

hands and feet bound together, dead from a gunshot wound to his head. Trotter was in

custody at that time; Hargrove was not.



      6
          The basis for Trotter’s arrest is not clear from the record.

                                              -6-
       Graham testified as to her knowledge of the Richards kidnapping/murder. On July

28, Hargrove told Graham he did not think there would be a trial in Trotter’s kidnapping

case. She asked why and he said she should read the newspaper.7 Hargrove told her:

“Bony should have kept his mouth shut.” (R. Vol. 30 at 4180.) He later told Graham he

had set up a fake drug deal to lure Richards to the location where he was murdered.

       Graham said Hargrove incriminated himself in the murders of Berg, Castor and

Richards on multiple occasions between July and November 1998. On one occasion

Graham told Hargrove, in reference to the murder of Berg: “[D]ead men don’t pay their

money.” (R. Vol. 30 at 4187.) He responded: “[D]ead men don’t talk either,” which she

took as a reference to the Richards murder. (Id.)

       Charles Williams was married to one of Trotter’s sisters. He told the jury he gave

Hargrove a .38 revolver on the weekend Richards was murdered.8 He could not recall

whether the gun was loaded but said it was probably loaded because he kept it for

protection. The government attempted to establish the gun recovered in the sewer was

the loaned .38, but Williams could not say for certain they were the same. He did testify,

however, that both guns were “snub nose revolver[s], five shot with . . . wooden

handle[s].” (R. Vol. 22 at 2908.) The sewer gun was the same size and similar weight as

the loaned .38 and the insignia on the handle appeared to match that on the loaned .38.

Hargrove never returned the loaned. 38 but about a week after Richards was killed,


       7
           There was a story about Richards’ murder in the newspaper.
       8
        To distinguish it from the .38 used to kill Berg and Castor, we refer to this
revolver as “the loaned .38.”

                                            -7-
Hargrove gave Williams a machine gun as a replacement.

        The government’s ballistics expert testified the bullet recovered from Richards’

body could have been fired by the sewer gun, based on its general rifling characteristics.

However, the bullet could also have been fired by “millions or tens of millions” of other

guns. (R. Vol. 23 at 3088.) Williams had cartridges for the loaned .38. He provided one

to the government, whose expert testified a bullet from the cartridges was from the same

manufacturer as the bullet that killed Richards and could have been contained in the same

box of ammunition, but was not manufactured on the same machine.

C.      The Kimbrell Attempted Murder

        Shedrick Kimbrell, who was a witness at Trotter’s kidnapping trial in August

1998, testified to the following events. He was riding in the car with Hargrove and

Trotter when Richards was kidnapped. On January 1, 1999, he was accosted by a man

wielding a shotgun while climbing the stairs to his house. When he heard a sound he

believed to be a gun misfiring, he ran for his life. He received money from the FBI to

relocate and moved away. He returned to testify at Hargrove’s kidnapping trial in May

1999.

        Maurice Peters, Trotter’s cousin, was the man who accosted Kimbrell on January

1, 1999. He testified as follows. Hargrove asked him to kill Kimbrell and gave him a

shotgun, mask, shells and gloves for that purpose. The gun did not misfire; he simply

pretended he could not pull the trigger. Hargrove called Peters on January 2, 1999, to

talk about the attempted murder, which they discussed in code. Hargrove asked Peters to




                                            -8-
try again.9

D.     Procedural History

       Hargrove was indicted for five federal crimes: premeditated murder of Elmer Berg

by use of a firearm during a drug trafficking crime in violation of 18 U.S.C. §§ 924(j)(1)

and 1111 (Count 1); premeditated murder of Misty Castor by use of a firearm during a

drug trafficking crime in violation of 18 U.S.C. §§ 924(j)(1) and 1111 (Count 2);

premeditated murder of Tyrone Richards, a federal witness, in violation of 18 U.S.C. §§

1111 and 1512(a)(1)(A) (Count 3); aiding and abetting the attempted murder of Shedrick

Kimbrell, a federal witness, in violation of 18 U.S.C. § 1512(a)(1)(A) (Count 4); and

conspiracy to murder and attempt to murder Shedrick Kimbrell, a federal witness, in

violation of 18 U.S.C. §§ 371, 1512(a)(1)(A) (Count 5). The government subsequently

provided notice of its intent to seek the death penalty in the event of a conviction on

Counts 1, 2, or 3.

       Hargrove filed a motion in limine to prevent the government from reading into

evidence the transcript of Trotter’s testimony at the state court preliminary hearing. The

court denied the motion, concluding the transcript was admissible under Rule 804(b)(1)

of the Federal Rules of Evidence and its admission would not violate Hargrove’s rights

under the Confrontation Clause of the Sixth Amendment. At trial, the court admitted the



       9
         Peters was charged with one count of attempting to kill a federal witness
(maximum sentence of 20 years) and one count of conspiracy to kill a federal witness
(maximum sentence of 5 years). He pled guilty to the conspiracy count in exchange for
dismissal of the attempted murder count and agreed to cooperate with the government in
this and other cases.

                                            -9-
transcript over objection but allowed the defense to present impeachment evidence

against Trotter—his 2003 murder conviction;10 his release from the Richards kidnapping

charges in exchange for his testimony against Hargrove; his receipt of $5,000 from the

FBI for relocation expenses; and his supposed admission to killing Berg and Castor.11

The court told the jury Trotter had invoked his Fifth Amendment right not to testify.

       Hargrove filed another motion in limine to exclude evidence or testimony relating

to the gun recovered in the sewer, arguing it was irrelevant and prejudicial because

ballistics testing revealed it was not the weapon used in the Berg/Castor murders. The

court denied Hargrove’s motion, concluding his objection went to the weight of the

evidence, not its admissibility. The evidence was also relevant to the Richards murder.

At trial, the court permitted questioning about the gun and admitted it into evidence.

       Hargrove moved for various forms of relief based on Graham’s trial testimony.

When first contacted by the police, Graham stated she was with Hargrove on the evening

Berg and Castor were killed. Her testimony at Hargrove’s preliminary hearing in state

court (March 2000) was consistent with her original statements to the police. It was also

consistent with a sworn statement she gave to Hargrove’s counsel in January 2005.

       Graham changed her story in a subsequent interview with FBI agents. She said,

for the first time, that Hargrove told her he killed Berg and Castor. She also said

       10
            The jury heard about Trotter’s state court conviction and sentence. See supra
n.2.
       11
         Shortly after the Berg/Castor murders, Tiffanie Stallings made a tape-recorded
statement to the police, stating Trotter had confessed to her about murdering Berg and
Castor. At trial, she recanted saying everything she told the police “was a lie.” (R. Vol.
32 at 4597.)

                                            - 10 -
Hargrove admitted he set up Richards with a fake drug deal, but did not admit to killing

Richards. She repeated her changed story at trial and explained the change came

“[b]ecause Elmer [Berg] and Misty [Castor] will not leave me alone.” (R. Vol. 30 at

4222-23.) She claimed she was visited by the spirits of Berg and Castor; she denied these

visitations were dreams: “If I explained it to anyone else, they would probably think they

were dreams, but they’re visitings.” (Id. at 4228.) She attributed the “visitings” to her

spiritual connection with Berg, derived from Berg giving her a tattoo of praying hands.

On cross-examination, she acknowledged seeing a psychiatrist for an anxiety disorder

and taking Klonopin, a psychotropic medication which she described as “a non-addictive

form of Xanax.” (Id. at 4306.)

       The defense requested Graham produce her mental health records or submit to a

psychiatric examination. She refused and the court did not require her to do either.

Hargrove then asked permission to recall Graham to question her in front of the jury

regarding her refusal. As an alternative, he requested the court strike her testimony. The

court denied all requested relief, but allowed the defense to seek additional funds to retain

“[its] own mental health person [to] testify in regards to what [Graham] has all ready [sic]

testified to.” (R. Vol. 31 at 4473.) The defense did not pursue that avenue of relief.

       Prior to trial, Hargrove moved to dismiss Counts 1 and 2 arguing the government

failed to establish a federal nexus because there was no evidence Berg and Castor were

killed in the course of a drug trafficking offense or with a weapon that traveled in

interstate commerce. The court denied the motion as premature. During trial, Hargrove

again moved to dismiss Counts 1 and 2, arguing the indictment was fatally flawed

                                           - 11 -
because it did not allege a drug type and quantity. The court denied the motion. At the

close of the government’s case, Hargrove moved for an acquittal, raising this same

argument. The motion was denied. Continuing this theme, Hargrove objected to three

jury instructions (Nos. 22, 23 and 25) arguing they amounted to a constructive

amendment of the indictment because they referred specifically to crack cocaine, even

though the indictment did not allege a drug type. The court overruled the objection.

       At the close of the government’s case, Hargrove moved for dismissal of Count 4

(attempted murder of Kimbrell) due to insufficient evidence. The court granted the

motion.

       After twenty-one days of trial and four days of deliberation, the jury returned a

verdict of guilty on the four remaining counts. The government sought the death penalty,

which the jury rejected.

       Several months after the verdict was rendered, Hargrove moved (for the first time)

to dismiss Counts 1 and 2 for lack of jurisdiction due to the government’s failure to

separately charge an offense under 21 U.S.C. § 841 or 18 U.S.C. § 924(c). The court

denied the motion by order dated April 24, 2006.

       On April 25, 2006, the court sentenced Hargrove to life imprisonment without the

possibility of release on Counts 1, 2 and 3, and 60 months imprisonment on the

remaining count, all to run concurrent with each other.

                                    II. DISCUSSION

       Hargrove summarizes his appeal issues as:

       Point One—Failure to grant relief with respect to Micaela [Cross] Graham

                                           - 12 -
       mental illness issues.

       Point Two—Failure to prohibit use of state court preliminary hearing
       testimony by Christopher Trotter.

       Point Three—Permitting testimony about gun found in storm sewer.

       Point Four—Failure to dismiss counts one and two due to inadequate
       pleading.

(Appellant’s Opening Br. at 2-3.) We discuss them in the order he has chosen.

A.     Graham Testimony

       Hargrove requested various forms of relief after Graham changed her story

because she was “visited” by the spirits of Berg and Castor, was seeing a psychiatrist

because she had been diagnosed with an anxiety disorder, and was taking Klonopin, a

psychotropic medication which she described as “a non-addictive form of Xanax.”12 (R.

Vol. 30 at 4306.) The court refused all requests. Hargrove asserts the rulings violated his

Sixth Amendment right to confrontation. The government contends the court did not

violate the Sixth Amendment because mental health records are privileged and Hargrove

had “an unrestricted opportunity to cross-examine [Graham].” (Appellee’s Br. at 35.)

We review rulings regarding limitations on cross-examination and the striking of witness

testimony for abuse of discretion. United States v. Rosario Fuentez, 231 F.3d 700, 704

(10th Cir. 2000); United States v. McKneely, 69 F.3d 1067, 1074-75 (10th Cir. 1995).

       12
         Though Klonopin differs from Xanax in more ways than its propensity for habit
formation, Graham’s statement is not entirely untrue. Both Xanax, a trade name for
Alprazolam, and Klonopin, a trade name for Clonazepam, may be prescribed for the
treatment of anxiety disorders. Klonopin is also approved for the treatment of seizure
disorders. See Physicians’ Desktop Reference, “Drugs & Supplements: Prescription
Drugs A-Z,” http://www.pdrhealth.com/drugs/rx/rx-a-z.aspx (last visited June 3, 2010).

                                          - 13 -
Whether a violation of the Confrontation Clause arose from evidentiary rulings is a

question we review de novo. United States v. Townley, 472 F.3d 1267, 1271 (10th Cir.

2007).

         1.    Refusal to Order Graham to Produce her Mental Health Records or Submit
               to Questioning Before the Jury Regarding her Refusal

         Under the Federal Rules of Evidence, “[c]ross-examination should be limited to

the subject matter of the direct examination and matters affecting the credibility of the

witness.” Fed. R. Evid. 611(b). “The fact of insanity or mental abnormality [of a

witness] either at the time of observing the facts which he reports in his testimony, or at

the time of testifying, may be provable, on cross-examination or by extrinsic evidence, as

bearing on credibility.” Sinclair v. Turner, 447 F.2d 1158, 1162 (10th Cir. 1971); see

also United States v. Sasso, 59 F.3d 341, 347 (2d Cir. 1995) (“Evidence of a witness’s

psychological history may be admissible when it goes to her credibility.”); United States

v. Partin, 493 F.2d 750, 762 (5th Cir. 1974) (“It is just as reasonable that a jury be

informed of a witness’s mental incapacity at a time about which he proposes to testify as

it would be for the jury to know that he then suffered an impairment of sight or hearing.

It all goes to the ability to comprehend, know, and correctly relate the truth.”).

         The court did not require Graham to disclose her mental health records or submit

to questioning before the jury regarding her refusal. No other meaningful limitations

were placed on cross-examination.13 Defense counsel could have questioned Graham in


         13
          The court did not allow Hargrove to question Graham regarding the identity of
her treating psychiatrist. We do not see how this meaningfully limited Hargrove’s
opportunity for cross-examination.

                                            - 14 -
greater detail about her spiritual visitations, thus giving the jury a better opportunity to

assess whether those visitations were a sign of mental illness.14 And counsel could have

questioned Graham further about her psychiatric treatment.15 We are not persuaded that,

without access to Graham’s mental health records, Hargrove was unable to test whether

Graham could comprehend, recall and correctly relate the truth.16

       Hargrove has called our attention to United States v. Robinson, a case decided

after oral argument. 583 F.3d 1265 (10th Cir. 2009). In Robinson, we held the

defendant’s rights under the Confrontation Clause were violated when the district court

“prohibited [him] from questioning the prosecution’s star witness on two highly relevant

topics: [his] mental health and his prescription medication use.”17 Id. at 1274. Unlike in

Robinson, the court here did not preclude Hargrove from inquiring into Graham’s


       14
         Graham’s competency and credibility were not beyond the ken of the jury in the
absence of expert testimony. A non-expert witness is competent to testify as to his
observations regarding sanity, see Diestel v. Hines, 506 F.3d 1249, 1271 (10th Cir. 2007),
and the jury can prefer lay testimony about sanity to the contrary opinion of an expert.
United States v. Coleman, 501 F.2d 342, 346 (10th Cir. 1974). Graham’s testimony
about “visitings, not dreams” is so unusual that the jury would be cautious in evaluating
it.
       15
         Hargrove may have preferred an appeal issue to evidence that might not serve
his purposes.
       16
          This is especially true in light of the fact the defense failed to request funds to
hire a psychiatric expert to respond to Graham’s testimony despite the court’s specific
authorization. The defense now must argue based on speculation as opposed to
testimony.
       17
          The witness in Robinson, a confidential informant, was involuntarily committed
and was diagnosed with “poly-substance abuse, mood disorder with an Axis II,
temporary, for anti-social traits.” Robinson, 583 F.3d at 1268 (quotations omitted). The
Court noted it was “not a case in which a party attempts to unfairly malign a witness for
distant and relatively minor mental health issues.” Id. at 1275.

                                             - 15 -
psychiatric history. On the contrary, the court only held Graham was not required to

produce her mental health records or submit to questioning regarding her refusal. This

does not violate the Confrontation Clause.

       “The opinions of [the Supreme Court] show that the right to confrontation is a trial

right, designed to prevent improper restrictions on the types of questions that defense

counsel may ask during cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 52

(1987). “Normally the right to confront one’s accusers is satisfied if defense counsel

receives wide latitude at trial to question witnesses.” Id. at 53. “[T]he Confrontation

Clause only guarantees an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the defense might

wish.” Id. (quotations omitted). Hargrove does not point to any cases which indicate the

Sixth Amendment requires the government to disclose mental health records of a witness

which are not in its possession. If such a right does exist, it would stem from the Due

Process Clause, not the Confrontation Clause. Hargrove did not make a Fifth

Amendment argument in the district court and does not rely on the Fifth Amendment in

his appellate briefs. He has thus waived the issue.18 See Anderson v. Commerce Constr.

Servs., Inc., 531 F.3d 1190, 1198 (10th Cir. 2008) (issue not raised in district court is

       18
          Following oral argument, Hargrove submitted a “Rule 28j” letter to this Court
citing Robinson, 583 F.3d 1265. Robinson involved both Fifth and Sixth Amendment
issues. Apparently taking a cue from that discussion, Hargrove mentioned the Fifth
Amendment in his letter. This is not sufficient to raise a due process challenge,
particularly in light of Hargrove’s statement: “In light of [Graham’s] revelations, the
defense, citing Mr. Hargrove’s Sixth Amendment rights, made several requests, all of
which were denied by the District Court.” (Appellant’s Opening Br. at 25 (emphasis
added).)

                                             - 16 -
waived); Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (issue not raised in

opening brief is waived).

       Where, as here, a court does not place any meaningful limitation on cross-

examination, the Confrontation Clause is not violated. See Delaware v. Fensterer, 474

U.S. 15, 19 (1985) (holding no Sixth Amendment violation where “the trial court did not

limit the scope or nature of defense counsel’s cross-examination in any way”); United

States v. LaVallee, 439 F.3d 670, 692 (10th Cir. 2006) (holding no Sixth Amendment

violation where the district court denied the defendant’s pre-trial motion for production of

the psychiatric records of one of the government’s principal witnesses because there was

“no indication . . . that the [defendants] did not have the opportunity to cross-examine

[the witness] effectively” and the district court “did not appear to limit the scope of

questions that the defendants could ask [the witness] on cross-examination”); United

States v. Hinkle, 37 F.3d 576, 579 (10th Cir. 1994) (holding no Sixth Amendment

violation where “[t]he district court did not . . . rule out all testimony regarding the

witness’ mental health” and counsel “could have cross-examined the witness generally on

this issue but never did so”); see also United States v. Vitale, 459 F.3d 190, 196 (2d Cir.

2006) (holding the district court did not err in denying defendant access to a witness’

substance abuse treatment records where “the trial court did not limit the scope or nature

of defense counsel’s cross-examination in any way”) (quotations omitted).

       All we are left with, then, is the court’s decision not to order Graham to submit to

questioning in front of the jury regarding her refusal to provide her mental health records.

“[L]imiting the scope of cross-examination is a matter well within the trial judge’s

                                             - 17 -
discretion and such an error will not lead to reversal unless an abuse of discretion, clearly

prejudicial to the defendant, is shown.” Rosario Fuentez, 231 F.3d at 704 (quotations

omitted); see also United States v. Franklin, 82 Fed. Appx. 24, 26 (10th Cir. 2003)

(unpublished) (“[T]he decision of whether to permit . . . cross-examination of a witness

regarding his or her mental condition falls within the broad discretion of the district court

in attempting to balance possible prejudice versus probative value.”).19 We see no abuse

of discretion here.

       There is no indication Graham suffered from or was treated for a mental illness

that may have affected her perception or recall. She testified she was diagnosed with an

anxiety disorder and had no other psychiatric diagnoses.20 We have not discovered a

single case in which a witness’ credibility was called into question on account of an

anxiety disorder. In United States v. Butt, the First Circuit noted “federal courts appear to

have found mental instability relevant to credibility only where, during the time-frame of

the events testified to, the witness exhibited a pronounced disposition to lie or

hallucinate, or suffered from a severe illness, such as schizophrenia, that dramatically

impaired her ability to perceive and tell the truth.” 955 F.2d 77, 82-83 (1st Cir. 1992);

see also United States v. Smith, 77 F.3d 511, 516 (D.C. Cir. 1996) (“[E]vidence regarding

mental illness is relevant only when it may reasonably cast doubt on the ability or

       19
        Unpublished decisions are not binding precedent. 10th Cir. R. 32.1(A). We
mention Franklin and other unpublished decisions as we would any other non-
precedential authority.
       20
         Defense counsel could have questioned Graham in detail about the basis for this
diagnosis had he believed Graham was diagnosed with something other than an anxiety
disorder. He did not do so.

                                            - 18 -
willingness of a witness to tell the truth.”). We are not persuaded Graham’s anxiety

disorder dramatically impaired her ability to perceive and tell the truth.

       In State v. Hufford, a case relied upon by Hargrove, the Connecticut Supreme

Court held the defendant’s conviction was invalid because, inter alia, “[t]he court

erroneously denied the defendant’s motion for disclosure of the complainant’s psychiatric

records, thereby violating the defendant’s right to confront and cross-examine the state’s

key witness against him.” 533 A.2d 866, 874 (Conn. 1987). In explaining this result, the

court noted “the defendant made the requisite showing that there were reasonable

grounds to believe that there were psychiatric records or information pertaining to the

complainant’s mental condition bearing on her testimonial capacity and reliability as a

witness.” Id. at 876. Hargrove has made no such showing here—his argument is wholly

speculative. That aside, and for more important reasons, we do not consider Hufford

persuasive: (1) the case involved the testimony of a rape victim, not just a fact witness,

(2) the opinion does not mention Pennsylvania v. Ritchie (decided earlier that year) and

reads Davis v. Alaska, 415 U.S. 308 (1974), more broadly than does Ritchie, (3) the

opinion does not distinguish between due process and Sixth Amendment rights as Ritchie

does, and (4) the opinion relies on both federal and state constitutions.

       The Supreme Court has instructed: “[T]rial judges retain wide latitude insofar as

the Confrontation Clause is concerned to impose reasonable limits on . . . cross-

examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). In light of the

                                            - 19 -
“wide latitude” afforded to trial judges, we have no trouble concluding the district court

did not abuse its discretion by refusing to order Graham to submit to questioning in front

of the jury regarding her refusal to provide her mental health records to the defense.

       2.     Refusal to Order Graham to Submit to a Psychiatric Examination

       A “district court has broad discretion in deciding whether to allow psychiatric

examination of a government witness for purposes of impeachment.” United States v.

Pino, 827 F.2d 1429, 1430 (10th Cir. 1987). Hargrove contends the court abused its

discretion by failing to order Graham to submit to a psychiatric examination.21 We

disagree.

       “Before permitting a psychiatric examination, the court must consider the

infringement on a witness’s privacy, the opportunity for harassment, and the possibility

that an examination will hamper law enforcement by deterring witnesses from coming

forward.” Id. (quotations omitted). These considerations support the district court’s

decision here. Ordering Graham to undergo a psychiatric examination would obviously

infringe upon her privacy and would provide a potential opportunity for harassment.

Moreover, if an examination were warranted solely upon a witness’ admission of

suffering from an anxiety disorder, one could imagine the reluctance of other witnesses

with anxiety disorders or similar psychiatric conditions to testify in the future.


       21
          It is not entirely clear Hargrove preserved this alleged error. Before the district
court, defense counsel stated: “Counsel [for the government] is exactly right, you did
not—you do not have the authority to order [Graham] to undergo a psychiatric
evaluation. She is not a party to this case.” (R. Vol. 31 at 4432.) Despite this apparent
concession, the court nevertheless considered—and rejected—Hargrove’s request that it
order Graham to submit to a psychiatric examination.

                                            - 20 -
       Apart from these considerations, we can find no abuse of discretion where the jury

heard Graham testify about her “visitations” as well as her psychiatric condition and thus

could evaluate her credibility. See United States v. Provenzano, 688 F.2d 194, 203 (3d

Cir. 1982) (finding no abuse of discretion in the trial judge’s refusal to order a psychiatric

examination of a witness where the cross-examination of the witness placed the witness’s

credibility in doubt and thus “provided ample information [to the jury] for its task of

evaluating the truthfulness of the . . . witness[]”).

       3.     Refusal to Strike Graham’s Testimony

       Hargrove contends “to the extent that a witness prevents efforts at impeachment

by thwarting access to his/her mental health records, the appropriate step for a Court to

take is to strike the witness’ testimony.” (Appellant’s Opening Br. at 26.) Again, we

disagree.

       “Striking the testimony of a witness is a drastic remedy not lightly invoked.

However, striking all of the testimony of the witness may be the only appropriate remedy

when refusal to answer the questions of the cross-examiner frustrates the purpose of the

process.” McKneely, 69 F.3d at 1076 (quotations omitted). Here, Graham did not refuse

to answer any questions posed to her on cross-examination. She did refuse to provide her

mental health records but, as discussed above, this did not significantly infringe upon

Hargrove’s Sixth Amendment rights and did not frustrate the purpose of his cross-

examination, which could have been more reaching. The district court did not abuse its




                                             - 21 -
discretion in refusing to strike Graham’s testimony.22

B.     Use of Trotter’s Preliminary Hearing Testimony

       Hargrove contends his rights under the Confrontation Clause of the Sixth

Amendment were violated when the court admitted the transcript of Trotter’s testimony

at Hargrove’s state court preliminary hearing. “Although a district court’s evidentiary

rulings are reviewed for abuse of discretion, whether admission of such evidence violates

the Confrontation Clause is reviewed de novo.” Townley, 472 F.3d at 1271.

       The Sixth Amendment’s Confrontation Clause provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court

held: “Where testimonial evidence is at issue . . . the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination.” 541

U.S. 36, 68 (2004). Hargrove’s arguments do not go to unavailability; he argues Trotter’s

testimony should have been excluded because he did not have an opportunity and similar

motive to cross-examine Trotter at the state court preliminary hearing. He claims his

attorney had not completed his investigation at the time of the hearing and did not want to

“tip[] his hand as to all forms of impeachment at the preliminary hearing stage.”

(Appellant’s Opening Br. at 33.)

       22
          The court rested its decision on Rule 601 of the Federal Rules of Evidence,
finding Graham was competent to testify. See Fed. R. Evid. 601 (“Every person is
competent to be a witness except as otherwise provided in these rules.”) The issue here is
not just whether Graham was competent to testify, but whether her testimony was
credible. Still, “we can affirm on any grounds that find support in the record.” Colo.
Flying Acad., Inc. v. United States, 724 F.2d 871, 880 (10th Cir. 1984).

                                           - 22 -
       Crawford requires only that the defendant have an opportunity to cross-examine

the adverse witness at the prior proceeding—it does not require that the defendant have a

similar motive at the prior proceeding. The prior motive requirement comes from the

Federal Rules of Evidence, not the Confrontation Clause. See Fed. R. Evid. 804(b)(1).

We consider whether the admission of Trotter’s testimony violated either the

Confrontation Clause or the federal rules.

       In Barber v. Page, the Supreme Court recognized “there has traditionally been an

exception to the confrontation requirement where a witness is unavailable and has given

testimony at previous judicial proceedings against the same defendant which was subject

to cross-examination by that defendant.” 390 U.S. 719, 722 (1968). “This exception has

been explained as arising from necessity and has been justified on the ground that the

right of cross-examination initially afforded provides substantial compliance with the

purposes behind the confrontation requirement.” Id. This exception has been applied to

testimony given at a preliminary hearing, see Crawford, 541 U.S. at 68, despite the fact

“[a] preliminary hearing is ordinarily a much less searching exploration into the merits of

a case than a trial . . . because its function is the more limited one of determining whether

probable cause exists to hold the accused for trial.” Barber, 390 U.S. at 725.

       Thus, in Glenn v. Dallman, the Sixth Circuit held the trial court did not err in

admitting the preliminary hearing testimony of an unavailable witness at the defendant’s

subsequent trial even though the cross-examination conducted at the preliminary hearing

“was narrow in scope” and “would have been conducted differently if it had been

anticipated that the testimony would be introduced at the trial.” 635 F.2d 1183, 1187 (6th

                                             - 23 -
Cir. 1980). The court explained: “The fact remains that while petitioner’s counsel did not

exercise her opportunity to fully cross examine the witness, she still had that

opportunity.” Id. Hargrove likewise had an opportunity to cross-examine Trotter at the

preliminary hearing and thus, the admission of Trotter’s testimony did not violate the

Confrontation Clause.

       Hargrove also claims testimony in a Kansas state court preliminary hearing can

never satisfy the requirements of the Confrontation Clause because the purpose of a

preliminary hearing under Kansas law is limited to determining the existence of probable

cause.23 This argument is unavailing because the Supreme Court has held testimony from

a preliminary hearing can be admitted without violating the Confrontation Clause, see

Crawford, 541 U.S. at 68, despite the fact the function of a preliminary hearing “is . . .

determining whether probable cause exists . . . .” Barber, 390 U.S. at 725. What matters

under the Confrontation Clause is whether the defendant had a prior opportunity to cross-

examine the witness. See Crawford, 541 U.S. at 68.24 Under Kansas law, “[t]he

defendant has the right to cross-examine witnesses against him and introduce evidence on

his behalf [at the preliminary examination].” State v. Jones, 660 P.2d 965, 968 (Kan.


       23
          Kansas law provides: “[E]very person charged with a felony shall have a right to
a preliminary examination before a magistrate, unless such charge has been issued as a
result of an indictment by a grand jury.” Kan. Stat. Ann. § 22-2902(1). The statutory
purpose of the preliminary hearing is to establish the existence of probable cause. See
State v. Thompkins, 952 P.2d 1332, 1345-46 (Kan. 1998) (“The principal purpose of a
preliminary examination is the determination of whether it appears that a crime has been
committed and probable cause to believe the defendant committed the crime.”).
       24
          Hargrove also claims cross-examination at the preliminary hearing was
curtailed, but we see no evidence of this in the record.

                                            - 24 -
1983) (citation omitted). Hargrove had the right and he exercised that right.

       Rule 804(b)(1) of the Federal Rules of Evidence is more restrictive. It makes

admissible the prior testimony of a declarant who is unavailable as a witness at trial only

“if the party against whom the testimony is now offered . . . had an opportunity and

similar motive to develop the testimony by direct, cross, or redirect examination.” Fed.

R. Evid. 804(b)(1). Absent a Confrontation Clause problem, “[w]e review the district

court’s decision to admit evidence for abuse of discretion, and we will reverse only if we

find the decision arbitrary, capricious, whimsical, or manifestly unreasonable.” United

States v. Atencio, 435 F.3d 1222, 1235 (10th Cir. 2006) (quotations omitted).

       Here, the district court reviewed the transcript of Trotter’s testimony at Hargrove’s

preliminary hearing and noted Hargrove’s state court counsel “cross-examined Mr.

Trotter at length . . . .” (R. Vol. 10 at 184.) It concluded:

       [Hargrove] had a similar motive to develop [Trotter’s] testimony [at the
       preliminary hearing], given that he was facing the same charge, capital
       murder, involving the same victims, Elmer Berg and Misty Castor. The
       mere fact that [Hargrove] lacked some of the tools which were later
       developed by the government or by [Hargrove] himself which would have
       allowed him to more thoroughly cross-examine Mr. Trotter does not mean
       that [Hargrove] lacked the opportunity to cross-examine Mr. Trotter.

(Id. at 184-85.) We agree.

       The fact Hargrove’s counsel did not want to “tip[] his hand” does not mean he did

not have a similar motive to cross-examine Trotter at the preliminary hearing.

(Appellant’s Opening Br. at 33.) The Supreme Court “has never said that either the

opportunity to cross-examine, or the actual cross-examination conducted at the

preliminary hearing, must be as full and complete as allowed at trial in order for

                                            - 25 -
testimony from such a proceeding to be admissible in the event the witness subsequently

becomes unavailable.” United States ex rel. Haywood v. Wolff, 658 F.2d 455, 462 (7th

Cir. 1981); see also Trigones v. Bissonnette, 296 F.3d 1, 12 (1st Cir. 2002) (holding it

was not unreasonable for the state court to conclude the defendant’s motive to cross-

examine a witness for bias at a suppression hearing was similar to the motive he would

have had at trial; noting “the stakes at trial would have been higher, but the stakes are

almost always higher then (or at least different), and it is clear that in many cases the

motive at a preliminary hearing is sufficiently similar to the motive at trial to bring the

evidence within the Confrontation Clause’s requirements . . . .”). The court properly

admitted the transcript of Trotter’s preliminary hearing testimony.

C.     Admission of the Gun

       The evidence demonstrated the sewer gun was not the Berg/Castor murder

weapon. Moreover, there was no conclusive evidence that the sewer gun was used to kill

Richards. Hargrove contends the court erred in permitting testimony about the sewer gun

and admitting it into evidence because it was not relevant and was unfairly prejudicial.

We review the district court’s admission of evidence for abuse of discretion. United

States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002). We will overturn a district court’s

evidentiary ruling only if “it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error in judgment.” Id.

       The Federal Rules of Evidence define “relevant evidence” as “evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

                                            - 26 -
evidence.” Fed. R. Evid. 401. “Relevancy is not an inherent characteristic of any item of

evidence but exists only as a relation between an item of evidence and a matter properly

provable in the case.” Fed. R. Evid. 401 advisory committee’s note, 1972 Proposed

Rules.

         [A] fact is of consequence when its existence would provide the fact-finder
         with a basis for making some inference, or chain of inferences, about an
         issue that is necessary to a verdict. As for the degree of probative value
         required under Rule 401, the rule sets the bar very low. The rule
         establishes that even a minimal degree of probability—i.e., any tendency—
         that the asserted fact exists is sufficient to find the proffered evidence
         relevant.

United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir. 1998) (quotations and citations

omitted).

         The jury heard evidence that the sewer gun could have been used to kill Richards.

And it heard evidence of some similarity between the sewer gun and the loaned .38.25

Trotter said Hargrove threw the Berg/Castor murder weapon down the same sewer. The

jury could reasonably have concluded Hargrove would dispose of the Richards murder

weapon in the same place he disposed of the Berg/Castor murder weapon. The evidence

was far from certain but Rule 401 requires only “a minimal degree of probability.” Id.

That standard was satisfied.

         The next question is whether the evidence, though relevant, should have been

excluded because “its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .” Fed. R. Evid. 403.



         25
              See discussion supra at Section I(B).

                                               - 27 -
“Unfair prejudice in the Rule 403 context ‘means an undue tendency to suggest decision

on an improper basis, commonly, though not necessarily, an emotional one.’” United

States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001) (quoting Fed. R. Evid. 403 advisory

committee’s note). Evidence is unfairly prejudicial when it has the capacity “to lure the

factfinder into declaring guilt on a ground different from proof specific to the offense

charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). In considering whether

evidence is unfairly prejudicial, we may consider the availability of alternative probative

evidence. See id. at 184-85.

       The sewer gun could neither be eliminated nor confirmed as the Richards murder

weapon. Even if the sewer gun was the Richards murder weapon, there was no positive

evidence tying Hargrove to it—Williams could not specifically identify the sewer gun as

the loaned .38. Moreover, it could not be determined whether the bullet found in

Richards’ body came from the same box of ammunition Williams gave to the police. But

there was more and jurors are not fools.

       Williams testified to significant similarities between the sewer gun and the loaned

.38. He also said Hargrove did not return the loaned .38, providing a machine gun as a

substitute. The jury was well aware of the limited value of the gun evidence and we can

fairly assume it assigned weight accordingly.

       In United States v. Murray, the defendant argued the court erred by admitting into

evidence a sawed-off shotgun because the eyewitness to the armed robbery was not sure

it was the weapon she observed. 65 F.3d 1161, 1169 (4th Cir. 1995). The court held the

district court did not abuse its discretion in admitting the weapon because other evidence

                                           - 28 -
“tends to make it more likely than not that the shotgun recovered was used by [the

defendant] during the robbery.” Id. at 1170. The court explained:

       Admission of a weapon into evidence is highly probative in an armed
       robbery conviction, whereas the prejudicial impact of its admission here is
       lessened by [the eyewitness’s] testimony that the robber used a sawed-off
       weapon and by the other evidence linking [the defendants] together with
       the shotgun and the robbery of the credit union.

Id.

       In Murray, there was some evidence connecting the weapon to the defendant and

to the robbery. At the other end of the spectrum is Walker v. United States, 490 F.2d 683

(8th Cir. 1974). In Walker, the Eighth Circuit held it was prejudicial error for the district

court to admit into evidence “a pistol [which was] found on the defendant at the time of

his arrest but [was] demonstrably unconnected with the crime.” Id. at 683. The court

explained:

       This is not at all the classic case of admitting into evidence a “similar”
       weapon which was found in the possession of a defendant but which could
       not be positively identified as that used in a crime . . . . Here there was
       positive evidence that the pistol admitted was not similar to the one used in
       the crime. Thus the traditional justification for the admission of such a
       weapon is cut away and the evidence must be seen as irrelevant since it was
       not probative of the proposition that the accused committed the crime
       charged.

Id. at 684 (emphasis added) (citations omitted).

       This case is more similar to Murray than Walker as there is evidence connecting

Hargrove to the loaned .38 (Williams’ testimony) and the sewer where a gun was found

(Trotter’s testimony—Hargrove threw the Berg/Castor murder weapon in the same

sewer). While the government did not prove the sewer gun was the loaned .38, the gun


                                            - 29 -
admitted into evidence (and testimony about it) was not “demonstrably unconnected with

the crime” as was the gun in Walker. See id. at 683. As we stated in Tan, “[t]he district

court has considerable discretion in performing the Rule 403 balancing test.” 254 F.3d at

1211. The district court did not abuse its discretion.

D.     Challenge to Counts 1 and 2 of the Indictment

       Count 1 charged Hargrove as follows:

       On or about the 19th day of February, 1998, in the District of Kansas,
       Demetrius R. Hargrove in the course of a violation of Title 18, United
       States Code, Section 924(c), that is, carrying and using and possessing in
       furtherance of and discharging a firearm during and in relation to a drug
       trafficking crime, that is, possession of a controlled substance with the
       intent to distribute, a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2,
       for which he may be prosecuted in a court of the United States, did
       unlawfully, willfully, deliberately, maliciously, and with premeditation,
       murder Elmer Berg with malice aforethought, through the use of a firearm,
       in violation of Title 18, United States Code, Sections 924(j)(1) and 1111.

(R. Vol. 1, Doc. 44.) Count 2 mirrored Count 1 except it named Misty Castor as the

murder victim.

       18 U.S.C. § 924(j)(1) states in pertinent part: “A person who, in the course of a

violation of [18 U.S.C. § 924(c)], causes the death of a person through the use of a

firearm, shall—if the killing is a murder . . . be punished by death or by imprisonment for

any term of years or for life.” 18 U.S.C. § 924(c)(1)(A) provides in relevant part:

       [A]ny person who, during and in relation to any crime of violence or drug
       trafficking crime26 . . . for which the person may be prosecuted in a court of
       the United States, uses or carries a firearm, or who, in furtherance of any

       26
         For purposes of § 924(c), the term “drug trafficking crime” includes “any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C. §
924(c)(2).

                                           - 30 -
       such crime, possesses a firearm, shall, in addition to the punishment
       provided for such crime of violence or drug trafficking crime—

       (i)     be sentenced to a term of imprisonment of not less than 5 years;
       (ii)    if the firearm is brandished, be sentenced to a term of imprisonment
               of not less than 7 years; and
       (iii)   if the firearm is discharged, be sentenced to a term of imprisonment
               of not less than 10 years.

21 U.S.C. § 841(a)(1) makes it a crime to knowingly or intentionally distribute or possess

with intent to distribute a controlled substance.

       The jury was instructed it had to find the following five elements “beyond a

reasonable doubt” to convict on Count 1:

       FIRST: The defendant committed a drug trafficking crime, namely,
       possession of a controlled substance with the intent to distribute . . . or
       aided and abetted in said drug trafficking crime . . . .

       SECOND: The defendant unlawfully used or carried a firearm during
       and in relation to said drug trafficking crime or possessed a firearm in
       furtherance of said offense;

       THIRD: The defendant, in the course of this offense, discharged the
       firearm and caused the death of Elmer Berg;

       FOURTH: The defendant killed Elmer Berg with malice aforethought
       and with premeditation; and

       FIFTH: The offense occurred on or about February 19, 1998, in the
       District of Kansas.

(R. Vol. 1, Doc. 336 at 25.)27 The language of the first element tracks the language of §

841 and the language of the second and third elements tracks the language of § 924(c)

and § 924(j). All of the requisite elements were set forth and supported by sufficient


       27
         The jury was likewise instructed as to Count 2, substituting Misty Castor in
place of Elmer Berg.

                                            - 31 -
evidence. The jury was satisfied each element was proved beyond a reasonable doubt. In

spite of the government’s clear proof that Hargrove violated § 924(j), § 924(c) and § 841,

Hargrove contends Counts 1 and 2 should have been dismissed because the government

did not separately charge the § 924(c) and § 841 offenses. He also contends the jury

instructions amounted to a constructive amendment of the indictment by referencing

crack cocaine, which was not specifically mentioned in the indictment. “[W]e review the

sufficiency of an indictment de novo.” United States v. Barrett, 496 F.3d 1079, 1091

(10th Cir. 2007).

       1.     Failure to Separately Charge § 924(c) and § 841 Offenses

       We have held “it is unnecessary for a criminal defendant charged with a § 924(c)

offense to be separately charged with and convicted of the underlying offense.” Id. at

1094; see also United States v. Zhou, 428 F.3d 361, 378 n.15 (2d Cir. 2005) (noting all of

the circuits to have reached the question have “rejected the argument . . . that an actual

conviction under the predicate offense is necessary”). However, the jury must find

beyond a reasonable doubt that the defendant committed the underlying (drug trafficking)

offense in order to find him guilty of the § 924(c) offense. See Barrett, 496 F.3d at 1094;

see also United States v. McKissick, 204 F.3d 1282, 1292 (10th Cir. 2000) (“[I]n order to

establish a violation of § 924(c), the Government ha[s] the burden to prove . . . [the

defendant] committed a drug trafficking crime . . . .”). Thus, had the government charged

Hargrove with violating § 924(c), it would not have been necessary to separately charge

the drug trafficking offense, though the government would, of course, bear the burden of




                                           - 32 -
proving that offense beyond a reasonable doubt.28

       But the government did not charge Hargrove with violating § 924(c). Instead, it

charged him only with violating § 924(j), which permits capital punishment. Hargrove

relies on United States v. Battle, 289 F.3d 661 (10th Cir. 2002), which, on its face, seems

to support his position. In Battle, we rejected the defendant’s argument that § 924(j)

“establishes a different aggravated offense, with elements in addition to those in §

924(c)” and held § 924(j) “does not set forth a discrete crime.” Id. at 667 (emphasis

omitted). We explained § 924(j) is simply the penalty provision for a defendant who

aggravates his § 924(c) offense by killing someone with a firearm in the course of

committing a § 841(a) offense (or crime of violence).29 See id. at 666 (“Section 924(j)

describes the sentencing factors that must be proved in order to impose a consecutive

sentence of death, life imprisonment or a term of years.”).30 If § 924(j) does not describe

a discrete crime, then, at least arguably, it cannot be charged absent the § 924(c)




       28
         Because the government is not required to charge the predicate offense to obtain
a conviction under § 924(c), we reject Hargrove’s argument that an indictment charging a
violation of § 924(c) relying on § 841 as the predicate offense needs to allege drug type
and quantity.
       29
          Battle did not discuss Apprendi v. New Jersey, in which the Supreme Court
held: “Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Thus, we do not read Battle’s
description of § 924(j) as a sentencing factor as bearing on the question of whether it is
for the judge or jury to decide whether the defendant is eligible for an enhanced sentence
under § 924(j).
       30
          See also United States v. Hatten, No. 06-4240, 2007 WL 1977663, at *2 (4th
Cir. July 5, 2007) (unpublished).

                                           - 33 -
offense.31 See United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998) (reversing

defendant’s conviction for violating 8 U.S.C. § 1326(b)(1) because that provision sets

forth a sentencing enhancement and does not state a separate offense).

       But that is not the end of the matter. Before and during trial Hargrove sought to

have the indictment dismissed because it did not allege a drug type and quantity.

However, he waited until several months after his conviction—until a few days before

sentencing—to raise his § 924(c) and § 841 argument. The government “notes the

lateness of defendant’s claim.” (See Appellee’s Br. at 58). But the Federal Rules of

Criminal Procedure provide that “at any time while the case is pending, the court may

hear a claim that the indictment or information fails to invoke the court’s jurisdiction or

to state an offense.” Fed. R. Crim. P. 12(b)(3)(B); see also United States v. Bullock, 914

F.2d 1413, 1414 (10th Cir. 1990) (“[T]he failure of an indictment to state an offense is a

fatal defect that may be raised at any time.”) (quotations omitted). Notwithstanding Rule

12, we have recognized “the countervailing interest in judicial efficiency requires that

tardily-challenged indictments be construed in favor of validity.” United States v. Gama-

Bastidas, 222 F.3d 779, 786 (10th Cir. 2000) (quotations omitted). We explained:

       If a defendant does not challenge an indictment until after a verdict . . . and
       if he does not assert prejudice, that is, if he had notice of the crime of which
       he stood accused, the indictment is to be read with maximum liberality . . . .
       Under this liberal standard, it is enough that the necessary facts appear in

       31
          It is not uncommon for the government to allege the § 924(c) and (j) violations
in the same count of the indictment without also charging the § 924(c) offense in a
separate count. See, e.g., Barrett, 496 F.3d at 1086; Battle, 289 F.3d at 662; United
States v. Ostrander, 411 F.3d 684, 685-86 (6th Cir. 2005); United States v. Jackson, 327
F.3d 273, 287-88 (4th Cir. 2003).

                                            - 34 -
       any form, or by a fair construction can be found within the terms of the
       indictment. Thus, we will find the indictment sufficient unless it is so
       defective that by any reasonable construction, it fails to charge the offense
       for which the defendant is convicted.

Id. (quotations and citations omitted).

       In Gama-Bastidas, we read the challenged indictment “with maximum liberality”

because the defendant did not challenge the indictment until his case was remanded for

resentencing and did not contend he lacked notice of the charge against him. See id. at

786. We applied the same liberal standard in United States v. Avery, where the defendant

did not challenge his indictment until after the jury had rendered its verdict. 295 F.3d

1158, 1174 (10th Cir. 2002). In both cases, we concluded the indictments were sufficient

to charge the defendants with the crimes for which they were convicted. See Gama-

Bastidas, 222 F.3d at 787; Avery, 295 F.3d at 1176. We apply that same liberal standard

to our review of this indictment.

       “[A]n indictment is considered sufficient if it sets forth the elements of the offense

charged, puts the defendant on fair notice of the charges against which he must defend,

and enables the defendant to assert a double jeopardy defense.” Barrett, 496 F.3d at 1092

(quotations omitted). It is generally sufficient for the indictment to set forth an offense in

the words of the statute violated so long as those words unambiguously set forth all the

elements constituting the offense intended to be punished. United States v. Doe, 572 F.3d

1162, 1173 (10th Cir. 2009).

       This indictment meets the test. Hargrove knew from the outset precisely what he

was charged with (and had to defend against). The jury instructions tracked the


                                            - 35 -
indictment and clearly required proof of all necessary elements. Hargrove is able to

assert a double jeopardy defense if necessary in a subsequent prosecution. The

indictment “is [not] so defective that by any reasonable construction, it fails to charge the

offense for which the defendant is convicted.” Gama-Bastidas, 222 F.3d at 786.

       On these facts, Hargrove’s argument is only technical. Significantly, he makes no

claim of prejudice; he simple wants (understandably, but not justifiably) to take

advantage of an inconsequential prosecutorial error, thereby avoiding two convictions

and two life sentences. Reviewing the indictment “with maximum liberality,” see Gama-

Bastidas, 222 F.3d at 786, we are satisfied it was sufficient to charge the offenses for

which Hargrove was convicted.

       2.     Constructive Amendment of the Indictment

       Hargrove argues the jury instructions (specifically Nos. 22, 23 and 25) amounted

to a constructive amendment of the indictment by referencing crack cocaine because the

indictment did not allege a drug type.

       A constructive amendment occurs when . . . the district court, through
       instructions to the jury, broadens the basis for a defendant’s conviction
       beyond acts charged in the indictment. To constitute a constructive
       amendment, the district court proceedings must modify an essential element
       of the offense or raise the possibility the defendant was convicted of an
       offense other than that charged in the indictment.

United States v. Tieu, 279 F.3d 917, 921 (10th Cir. 2002) (citation omitted). “We review

de novo the legal question of whether the district court proceedings constructively

amended the indictment.” Id. at 920.

       Here, the jury instructions did not constructively amend the indictment because



                                            - 36 -
they did not broaden the basis for Hargrove’s conviction beyond acts charged in the

indictment. Hargrove was charged with violating 18 U.S.C. § 924(j) by murdering Berg

and Castor “in the course of” violating 18 U.S.C. § 924(c) by “carrying and using and

possessing in furtherance of and discharging a firearm during and in relation to a drug

trafficking crime,” specifically, “possession of a controlled substance with intent to

distribute” in violation of 21 U.S.C. § 841(a)(1). (R. Vol. 1, Doc. 44.) Trotter testified

the controlled substance Hargrove possessed with intent to distribute was crack cocaine

and the court instructed the jury that, as a matter of law, crack cocaine is a controlled

substance. We see no evidence the district court modified an essential element of the

offense and are convinced Hargrove was convicted of the offenses charged in the

indictment.

       AFFIRMED.



                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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