                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   December 9, 2016
                      UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                      No. 15-1228
                                              (D.C. No. 1:10-CR-00164-REB-2)
 SILVESTRE MAYORQUI RIVERA,                               (D. Colo.)
 a/k/a Chikali,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and GORSUCH, Circuit Judges.


      Eleven years ago, in the federal government’s most secure prison, two

inmates killed a third. Silvestre Rivera promptly admitted that he was one of the

assailants. But he claimed he acted in self-defense. The government disagreed.

It saw the killing as a gang-ordered “hit.” At a trial seeking to prove as much

prosecutors asked pointed questions of a defense witness during cross-

examination. Mr. Rivera says one of these questions implied prejudicial facts

about him that weren’t supported by the record. He thinks the district court



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
committed plain error when it allowed this question to be asked and, on this basis,

he asks us to overturn the jury verdict against him.

      The key question came in the government’s cross-examination of Arcadio

Perez. Like Mr. Rivera, Mr. Perez was an inmate at the Administrative Maximum

Facility (ADX) prison in Florence, Colorado. On cross-examination, the

government challenged Mr. Perez by asking: “But you knew that Mr. Rivera had

come over to ADX and brought that final piece, that final message over, that the

green light was activated on Mr. Torrez [the victim] and it was time to kill him,

didn’t you?” R.O.A. IV at 1560 (emphases added). On the government’s theory

of the case, Mr. Rivera and Mr. Torrez were members of the same gang, Mr.

Torrez had fallen out of favor with gang leaders, Mr. Rivera was ordered to kill

Mr. Torrez upon his transfer to ADX, and a “green light” is slang for a gang-

ordered hit on a straying member.

      The defense objected to the government’s question. It argued that the

evidence produced during the trial to that point failed to support an implication

that a “green light” existed or that Mr. Rivera had anything to do with it. In

response to the defendant’s objection, the government offered to provide any

necessary further foundational evidence the court might require during rebuttal,

after the defense’s case-in-chief. In light of that proffer, the court conditionally

allowed the question. Mr. Perez proceeded to answer the question favorably to

the defense, professing no knowledge of any “green light.” And the parties chose

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to leave the matter there. After winning some important concessions during the

remainder of the defendant’s case-in-chief, the government announced its wish to

forgo a rebuttal case and rest. At that point, too, the defense declined to press for

any rebuttal evidence, seemingly content to leave the matter lie. And, ultimately,

the jury rendered a verdict in favor of the government.

      Now Mr. Rivera argues that the district court erred. On his account, the

district court should have, on its own motion, required the government to produce

its previously promised rebuttal evidence. Even though he himself admittedly

made no such demand. Mr. Rivera notes that, under our precedents, “a prosecutor

who asks the accused a question that implies the existence of a prejudicial fact

must be prepared to prove that fact.” United States v. Silverstein, 737 F.2d 864,

868 (10th Cir. 1984). And he suggests that the government’s failure to present a

rebuttal case means that it failed to make good on that obligation.

      At the same time, Mr. Rivera acknowledges that our standard of review

here is quite demanding. He admits that his failure to renew his objection at the

close of his case and to press the government for rebuttal evidence means we may

review the district court’s judgment only if its failure to order rebuttal evidence

on its own initiative amounted to plain error. See, e.g., Huddleston v. United

States, 485 U.S. 681, 690 n.7 (1988). And no doubt our standard of review is so

demanding here for good reason. Not infrequently an objector may wish to forgo

insisting on the introduction of previously promised foundational evidence out of

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concern that persisting in the demand may only invite the introduction of more

harmful proof, doing him more harm than good in the end. Especially where, as

here, the question posed falls flat and yields no inculpating testimony. Indeed,

for all we know, that’s exactly the sort of calculation the defense made here.

      However that may be, no plain error exists here for at least two reasons.

One legal, one factual.

      First the legal. Mr. Rivera insists that we should only allow a party to ask

cross-examination questions that are already supported by facts in the record.

Promises to produce foundational facts later, he says, should never suffice. In

support of his argument, Mr. Rivera points us to a Ninth Circuit decision that

suggests a prosecutor’s “good faith” basis for a question must be “established to

the satisfaction of the court, outside the presence of the jury, before the question

is asked.” United States v. Davenport, 753 F.2d 1460, 1463-64 (9th Cir. 1985)

(emphasis added). But about this much we have our doubts. Take the Supreme

Court’s later decision in Huddleston. There the Court seemed to allow a

prosecutor to introduce evidence whose admissibility depended on foundational

proof that the prosecutor in good faith promised to produce later in the

proceedings. 485 U.S. at 690-91 & n.7. The Ninth Circuit’s decision in

Davenport predates Huddleston and does not attempt to account for its seeming

approval of this procedure. Neither, for that matter, has this court ever gone quite

as far as the Ninth Circuit, either before or after Huddleston. In Silverstein we

                                         -4-
said only that the government, acting in good faith, must be prepared to prove —

not that it has to prove — a foundational fact before asking a question. And,

indeed, some other circuits eschew Davenport in favor of this very approach.

See, e.g., United States v. Malik, 928 F.2d 17, 24 (1st Cir. 1991). Given the

current state of the law, then, we simply cannot say the district court plainly

erred, if it erred at all, by permitting the government’s question based on a good

faith promise to provide foundational evidence later instead of demanding an

immediate break in the trial proceedings to consider foundational evidence first.

      Second, the factual. On the record before us, we don’t see how any

putative error here could have affected Mr. Rivera’s “substantial rights” and thus

qualify as plain. Before posing its question the government presented video

evidence of inmate bystanders calmly continuing their workouts during the killing

— evidence tending to suggest the killing wasn’t spontaneous but instead gang-

approved. The government also presented testimony that inmates can spread

“green lights” through even highly secure prisons using drain pipes, sign

language, and other means. And the government presented testimony that, if his

killing of a gang member like Mr. Torrez wasn’t gang-approved, Mr. Rivera

himself would have faced immediate and serious gang retaliation. Yet nothing of

the sort occurred. After posing its question, the government produced yet further

evidence of its theory, even during the defendant’s case-in-chief. For example,

Mr. Rivera’s own expert admitted that when a “green light” is ordered, it is

                                         -5-
carried out as soon as possible. And the facts revealed that Mr. Rivera killed Mr.

Torrez almost immediately after his arrival at ADX. Mr. Rivera himself testified,

too, that ADX prisoners were “starved” for information from the outside when he

arrived. Testimony, which considered together with the inmate bystanders’ calm

reaction to the killing, tends to support the inference that Mr. Rivera arrived at

ADX with word of a “green light” that inmates hadn’t known about previously.

In combination, these facts suffice to establish at least a good faith, if not

unassailable, basis for the government’s question. True, some of the factual

predicate came after rather than before the question. But so long as a good faith

predicate is eventually presented it’s hard to see how a defendant’s substantial

rights might be affected. After all, even under Davenport no more than a good

faith predicate is ever required for a cross-examination question. And so the fact

that the predicate may have come (partly) after — rather than before — the

question can be no more than a harmless error. To hold otherwise would be to

elevate form over substance.

      Affirmed.

                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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