United States v. Henderson , 564 F. App'x 352 ( 2014 )


Menu:
  •                                                                                     FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                             Tenth Circuit
    TENTH CIRCUIT                             April 24, 2014
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                           No. 11-5164
    (D.C. No. 4:10-CR-00117-BDB-1)
    JEFF M. HENDERSON,                                           (N.D. Okla.)
    Defendant - Appellant.
    ORDER AND JUDGMENT*
    Before BALDOCK, O’BRIEN, Circuit Judges, and SKAVDAHL, District Judge.
    Jeff Henderson, a former police officer in the Tulsa, Oklahoma, Police
    Department, appeals from his convictions on six counts of perjury and two counts of
    *
    This order and judgment is an unpublished decision, not binding precedent. 10th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 Citation to unpublished decisions is not prohibited.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    Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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    notation B (unpublished).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
    Scott W. Skavdahl, United States District Court Judge, District of
    Wyoming, sitting by designation.
    violating civil rights. He claims: (1) prosecutorial misconduct; (2) erroneous admission
    of expert rebuttal testimony; (3) failure to investigate alleged juror misconduct; and (4)
    failure to acknowledge juror mistake.1 We affirm.
    BACKGROUND
    Henderson and his partner, William Yelton, were charged in a 62-count
    Superseding Indictment, including counts relating to drugs, deprivation of civil rights,
    perjury, and witness tampering. By the time of trial, 54 counts remained. The judge
    dismissed one count and the jury acquitted Henderson of 45 counts; he was convicted of
    the eight counts enumerated above. The convictions were based on two cases in which
    he authored the probable cause affidavit for a search warrant—the (Ronald) Crawford
    case and the (Carah) Bartel/(William “Eli”) Kinnard case.
    A.     Bartel/Kinnard Search Warrant (Count 39)
    Count 39 involved the truthfulness of Henderson’s affidavit in support of a request
    for a warrant to search the apartment of Carah Bartel and her boyfriend, William
    Kinnard.2 The issue at Henderson’s trial was whether, as Henderson maintained, he
    1
    Henderson also raises cumulative error. Because we find no error in the trial
    proceedings or the denial of Henderson’s motion for a new trial, we need not consider his
    claim of cumulative error. See United States v. Rivera, 
    900 F.2d 1462
    , 1470-71 (10th
    Cir. 1990).
    2
    When officers executed the warrant, they recovered 99 Ecstasy pills; 25 Xanax
    pills; and a little over 500 grams of marijuana. Bartel was charged in state court with
    possession with intent to distribute a controlled substance and pled no contest to the
    charges. Kinnard was also charged in state court, but those charges were ultimately
    dismissed.
    -2-
    received incriminating information from Rochelle Martin, his long-time connection for
    confidential information, regarding possible drug dealing. The affidavit stated:
    The [reliable confidential informant] RCI has in the past given information
    to your affiant and other law enforcement agencies in excess of one
    hundred occasions. All subjects arrested subsequent to information
    received from this RCI have been successfully charged with narcotic
    violations. Your affiant further states that the information that the RCI [has
    previously given] has never been untrue or misleading. The information
    the RCI has provided in the past has been up to date and vital on several
    narcotics investigations. Your affiant further states that the RCI has shown
    knowledge of the trafficking of narcotics.
    Your affiant further states that in the past 72 hours the mentioned RCI has
    been to the above described apartment and observed a white female
    identified as Carah Bartel and a black male known to the RCI as William
    Kinnard Jr., who were selling . . . MDMA or “Ecstasy” out of this
    apartment. . . . The RCI told your affiant that the MDMA or Ecstasy was
    packaged for sale and distribution. The RCI told your affiant that the RCI
    has observed both defendants conduct drug transactions from this
    apartment within the last 72 hours. . . .
    (Appellant’s App’x Vol. 9 at 1632-33.) The warrant was executed on February 12, 2008.
    The government contended Henderson lied when he identified the RCI as
    Rochelle Martin. It maintained Amity Bruce, a friend of Bartel’s and a newcomer to the
    ranks of informants, was the real source of the information referred to in the affidavit.
    According to the government, Henderson deliberately misrepresented Bruce’s
    background and the statements she supposedly made to him.
    When called to testify, Bruce spoke about how she came to work with Henderson
    and about her involvement in the Bartel/Kinnard case. She was introduced to Henderson
    in early 2008, after her boyfriend, Thomas Neal, pled guilty to federal drug charges; a
    federal agent, working with Tulsa police officers, made the introduction. Bruce agreed to
    -3-
    provide assistance to law enforcement personnel in an effort to reduce Neal’s sentence.
    She told Henderson she knew an individual, Kinnard, who dated her friend, Bartel.
    Bruce believed Kinnard was selling marijuana and Ecstasy. Henderson asked if she
    “could possibly do a buy” from Kinnard. (Appellant’s App’x Vol. 1 at 129.) Bruce
    agreed.
    Shortly thereafter, she sent Henderson a text message stating Kinnard had pills
    available for her purchase. Henderson advised her to “go and do the purchase.” (Id. at
    130.) According to Bruce, she bought an Ecstasy pill from Kinnard while Bartel was in
    the other room. After the purchase, Bruce informed Henderson she made the buy.
    Henderson instructed her to “get rid of” the Ecstasy pill. (Id. at 133.)
    After Bruce learned the search warrant had been executed, she asked Henderson if
    she would have to testify or if Bartel would ever know she was the source behind the
    search warrant. Henderson replied “it would never be found out.” (Id. at 134.) Contrary
    to Henderson’s statements in the affidavit, Bruce had never given information to law
    enforcement agencies before, had never been part of a successful drug investigation, and
    had no knowledge of narcotics trafficking. She had never shown Henderson Bartel’s
    apartment; she had only told him where it was located, and she had never implicated
    Bartel. Nevertheless, Bruce agreed portions of the affidavit concerning the drug
    transaction itself would be true if they were attributed to her.
    Bruce also claimed to have had an affair with Henderson. Henderson denied this
    allegation and moved to exclude Bruce’s testimony relating to it. After performing a
    balancing test under Federal Rule of Evidence 403, the judge decided the evidence
    -4-
    relating to the affair would not be admitted, but “[i]f something [came] up in the
    testimony that open[ed] the door for it, [the judge would be] inclined to admit it.” (Id. at
    112.)
    On cross-examination, defense counsel challenged Bruce’s testimony regarding
    her frequent contact with Henderson prior to the execution of the search warrant.
    Counsel asked, “If Jeff Henderson’s phone records show that the first call between you
    and him was two hours [after the search warrant was executed], you would agree that you
    could not be the RCI on that particular transaction . . .; isn’t that correct?” (Id. at 148.)
    Bruce responded, “There’s no way that was the only phone call.” (Id.)
    On redirect, the government revisited the contact between Bruce and Henderson:
    Q.    And you said there’s no way that’s the only phone call?
    A.    There’s absolutely no way.
    Q.    Why is that? Did you have other contact?
    A.    We talked nearly every day. We’d be on the phone, text messages.
    Some text messages would begin at 8 o’clock in the morning. Some
    would be 2 a.m. We talked regularly.
    A.    You were also asked specifically – you said – you indicated that you
    saw him, Jeff Henderson, quite frequently?
    A.    Uh-huh.
    Q.    And you were asked the question of every time you saw him, he was
    working, and you said, no, not every time. Do you recall that?
    A.    Yes, I do.
    Q.    In what circumstances would you have seen Jeff Henderson during
    that time?
    A.    We had a sexual relationship.
    -5-
    (Id. at 158.)
    Defense counsel immediately objected and, at the bench, moved for a mistrial.
    The judge denied the motion stating, “I don’t think it rises to that level . . . . and you did
    to some extent [broach] the subject about phone calls.” (Id. at 159). Counsel then moved
    to strike the answer. The judge agreed and so instructed the jury.
    Bartel and Kinnard also testified. According to them, Bruce obtained a pill at their
    apartment from Bartel. However, no one else had been sold Ecstasy at the apartment in
    the 72 hours before the search. Kinnard admitted to selling drugs, which he kept at the
    apartment, but claimed not to have sold drugs at the apartment; he sold them “around
    town.” (Id. at 193.) When these witnesses were shown a picture of Rochelle Martin, the
    person Henderson claimed to be the RCI, both said they did not know her and she had
    never been in their apartment.
    Perhaps the most damaging testimony came from Assistant United States Attorney
    Stephen Sewell. Sewell testified to having worked on Thomas Neal’s case and having
    prepared a motion for a reduction of Neal’s sentence. Sewell became aware of a third
    party acting on Neal’s behalf and whose cooperation led to the search of Bartel’s
    apartment on February 12, 2008. Prior to including that information in his motion to
    reduce Neal’s sentence, Sewell said he would have verified the accuracy of the
    information by speaking with “law enforcement,” by which he meant:
    [I]t would have been somebody within Tulsa Police Department or ATF
    that would have knowledge of Mr. Neal’s cooperation as well as that a third
    party was cooperating on his behalf, and actually in addition the reason I
    would be asking is I’m in the process of filing a downward departure.
    -6-
    (Appellant’s App’x Vol. 2 at 254-55.) Although he knew the third party was Neal’s
    girlfriend, he could not specifically remember contacting Henderson.
    Rochelle Martin also testified for the government. She had been giving
    Henderson information for ten to eleven years. Even so, she claimed not to know Bartel
    or Kinnard and denied supplying information about them to Henderson. On several
    occasions Martin freely admitted she lied in previous court proceedings.
    The defense presented the testimony of Yelton, Henderson, and another officer,
    Frank Khalil. According to Yelton’s testimony, Henderson told him Martin was the RCI
    on the Bartel/Kinnard case. Khalil, who was Henderson’s partner from 2005 to 2008,
    testified he and Henderson met Martin at an agreed-upon location before Henderson
    prepared and signed the search warrant affidavit. Martin got in Khalil’s car and they
    drove to Bartel’s apartment complex where Martin pointed out the entryway to Bartel’s
    apartment. Henderson left the car to find the specific apartment. They then returned
    Martin to her car and went back to the complex. Henderson checked with the
    management and determined the apartment belonged to Bartel. Khalil had also
    conducted surveillance at the apartment and saw a black male (Kinnard) going up the
    stairs. According to Khalil, the prosecution’s witnesses were all lying or mistaken.
    Henderson’s testimony about the events corroborated Khalil’s. During the ride
    back to Martin’s car, Martin told him there was a white woman, whose name she did not
    know [presumably Bartel] in the apartment with Kinnard. Martin said she had been
    physically in the apartment and watched Ecstasy being sold. Henderson referred to his
    cell phone records showing two calls from Martin on February 10 and February 11, 2008.
    -7-
    He testified to having discussed her information and setting the time and place to meet
    during those calls.
    Henderson denied any contact with Bruce before the day of the search. He
    referred to his phone records to show the first phone call from his phone to Bruce
    occurred two hours after the search was executed: “The only thing [Bruce] did on this
    investigation” was “set Carah Bartel up after [he] filed arrest warrants for Carah Bartel
    and William Kinnard, because they were not present during the search warrant itself.”
    (Appellant’s App’x Vol. 7 at 1386-87.) Henderson claimed her story about buying a pill
    was “completely a lie.” (Appellant’s App’x Vol. 8 at 1536.)
    B.     Crawford Search Warrant and Testimony (Counts 45, 47, 50, 51, 52, 54, and 55)
    On January 6, 2009, Henderson signed an affidavit applying for a warrant to
    search the residence of Ronald Crawford in Tulsa, Oklahoma. His affidavit gives the
    same description of the RCI as did the affidavit for the Bartel/Kinnard search. It then
    reads, in relevant part:
    Your affiant further states in the past 72 hours the mentioned RCI has been
    to the above described residence and observed a black male, known to the
    RCI as “Ronald Crawford” who was selling cocaine out of this residence.
    The RCI directed your affiant to the residence and pointed it out as the
    residence from which the RCI observed the cocaine within the past 72
    hours. The RCI told your affiant that the cocaine was packaged for sale.
    The RCI told your affiant that the RCI has observed “Ronald Crawford”
    conduct drug transactions from this residence within the same past 72
    hours. The RCI described the cocaine to your affiant and that the RCI is
    positive that the items seen in the residence were indeed cocaine.
    Within the past 72 hours your affiant further states that he and other
    officers have observed short term vehicular and pedestrian traffic to and
    from the residence to be searched, which is consistent with the sale of
    narcotics and other controlled illegal substances. Within the past 72 hours
    -8-
    your affiant has observed Ronald Crawford coming and going to and from
    the residence.
    (Appellant’s App’x Vol. 9 at 1667.) Henderson again testified the RCI was Rochelle
    Martin.
    Although Henderson attempted to execute the warrant on the date it was signed,
    January 6, 2009, Crawford was not at the residence. But on the morning of January 12,
    2009, officers saw Crawford leaving his driveway; he was stopped and the warrant was
    executed. The officers did not find cocaine, but they did find a small bag of marijuana, a
    revolver, and $7,000 in a plastic baggie under the sink. Crawford was arrested and
    charged in federal court with being a felon in possession of a firearm.
    Crawford moved to suppress evidence in his federal weapon possession trial based
    on the veracity of the search warrant affidavit. He claimed he was not in town on the
    dates Henderson claimed he saw Crawford during the pre-search surveillance. The
    government attorney at Crawford’s suppression hearing, Eric Johnston, testified at
    Henderson’s trial about the events during the suppression hearing, conducted pursuant to
    Franks v. Delaware, 
    438 U.S. 154
    (1978). 3 The Franks hearing continued through two
    separate dates. At both times, Henderson insisted the statements he made in the affidavit
    were true.4 As he explained to the court, he received information from Rochelle Martin
    3
    “An affidavit does not provide probable cause to support a search warrant if the
    affiant intentionally or recklessly asserted material falsehoods.” United States v. Lewis,
    
    594 F.3d 1270
    , 1286 (10th Cir. 2010) (citing 
    Franks, 438 U.S. at 164
    –65).
    4
    Shortly after the first hearing date, the judge requested the parties submit
    additional evidence. Before the second hearing date, Henderson contacted Johnston, to
    (Continued . . . )
    -9-
    about Ronald Crawford dealing cocaine on January 5, 2009. He and Yelton then
    followed up through surveillance at Crawford’s residence on January 5 from 1 p.m. to
    3:30 p.m. and from 9:30 a.m. to 10:30 a.m. on January 6. On both days he and Yelton
    saw short-term traffic about the residence and he personally saw Crawford walk from his
    white Suburban to go into the home. In fact, Henderson said he was “positive” he saw
    Crawford on January 6. (Appellant’s App’x Vol. 9 at 1721.) At the second hearing date,
    Yelton corroborated Henderson’s testimony.
    Crawford’s evidence told a contradictory story. His fiancé, Ranica Crowder,
    testified to the following: She and Crawford had moved to Arlington, Texas, in 2008.
    One of Crawford’s daughters spent Christmas vacation with them and, after the
    Christmas break, Crawford was in Tulsa to return the child to her mother. He then
    returned to Arlington on January 4, 2009. On January 5, Crowder and Crawford went to
    a bank in Arlington to sign and have notarized an affidavit of residency so his other
    daughter, who lived with them, could be enrolled in an Arlington school. Crowder
    believed they left the bank at around 8:45 a.m. and went to the school to submit the
    paperwork. Because the enrollment was not completed until late in the morning, the
    school asked them to return the next day. Crawford returned to the school the next
    provide a document showing Henderson had actually prepared and printed the search
    affidavit before 6:30 p.m. on January 5. According to Henderson, the point of this
    revelation is that any facts dealing with January 6 were not material to probable cause for
    the search and were therefore irrelevant to whether the evidence should be suppressed.
    - 10 -
    morning with his daughter. Crowder did not know exactly when Crawford again returned
    to Tulsa, but it was after January 6.
    In support of Crowder’s testimony, Crawford submitted redacted documents from
    Tracy Garcia, the bank notary who witnessed the couple’s signatures in Arlington on
    January 5, and a redacted copy of a sign-in sheet from the Arlington elementary school
    showing Crawford’s presence on January 6, 2009.
    At one point, the federal trial judge initiated the following colloquy with
    Henderson:
    Q.        And you are absolutely certain, as you sit here right now, that on
    January 5th at one p.m., the white suburban driven by Mr. Crawford
    was in his driveway?
    A.        Yes.
    Q.        And you’re absolutely certain, from prior experience with Mr.
    Crawford, that he was there at that house because you came out and
    you saw him between one and 3:30 that day?
    A.        Correct, yes.
    Q.        And everything that is in your affidavit that you prepared that
    evening is true and correct?
    A.        Yes, ma’am.
    (Id. at 1752.)
    The judge denied Crawford’s motion to suppress. She found Henderson’s and
    Yelton’s testimony credible and concluded the most likely scenario was:
    Crawford traveled to Tulsa on January 5 after having his signature
    notarized at the bank in Arlington. He stayed in Tulsa until [some time]
    after 10:30 a.m. on January 6, and returned to Arlington and signed in at his
    daughter’s school at 3:50 p.m.
    - 11 -
    (Id. at 1801.)5 She also concluded that, even if Henderson was mistaken about his
    January 6 identification of Crawford, the mistake was immaterial because the affidavit
    was prepared on January 5.
    Crawford entered a conditional plea of guilty to the possession of a firearm charge
    and filed a motion for reconsideration supplemented by a more legible copy of the school
    exhibit. It showed Crawford was at the school at 7:50 a.m. on January 6, (not 3:50 p.m.
    as the judge originally thought), and therefore, could not have been in Tulsa by the time
    Henderson was conducting the surveillance. The judge allowed Crawford to withdraw
    his guilty plea, granted his unopposed motion for reconsideration, and dismissed the
    charges.
    At Henderson’s trial, Crawford testified about two significant matters: 1) he had
    been in Arlington from Sunday, January 4, until the next Saturday; and 2) Rochelle
    Martin had never been in his house. The government then called Tracy Garcia, the bank
    notary in Arlington, Texas. She did not record the exact time she notarized Crawford’s
    signature, but the signature immediately before Crawford’s on January 5, 2009, was
    recorded at 11:03 a.m. Accordingly, she would have notarized Crawford’s signature after
    11:03 a.m. on that day. Finally, Randi Smith, the school principal at the elementary
    school in Arlington, also testified. She said she may have seen Crawford on January 5,
    5
    Henderson testified it takes four hours to drive from Arlington, Texas, to Tulsa,
    Oklahoma.
    - 12 -
    but was certain she spoke with him on January 6, 2009, around 7:50 a.m. and then took
    him to meet his daughter’s teacher.
    According to the testimony of the Texas witnesses, Henderson could not have seen
    Crawford in Tulsa on either date listed in his affidavit for the search warrant.
    Nevertheless, at his trial, Henderson maintained the truthfulness of his earlier account.
    Both Henderson and Yelton testified to the surveillance of Crawford’s residence in detail.
    Both insisted everything they said at Crawford’s suppression hearing was true.
    During Henderson’s direct examination at his trial, defense counsel requested and
    received a closed hearing regarding concerns about the activities of a juror. Defense
    counsel said a friend of that juror attended the trial frequently and took “a lot of notes.”
    (Appellant’s App’x Vol. 8 at 1618.) Counsel had seen the friend having lunch with the
    juror once and possibly “one other time.” (Id.) He further noted the juror’s friend often
    sat next to and conversed with a man who was known to have claimed credit for opening
    Henderson’s investigation and who had openly spoken against Henderson “on the media
    and on the Internet and on a blog . . . .” (Id. at 1619.) Although defense counsel had not
    seen the rabble-rouser talk directly to the juror, counsel expressed concern the man was
    using the juror’s friend as “a back channel to the juror.” (Id. at 1620.) Counsel
    continued: “I don’t know that anything improper has happened but it’s a rare occasion
    that a juror has a friend who comes to court every day and takes notes and then has
    contact with somebody who clearly has at least a political interest in this case . . . .” (Id.)
    The judge ruled:
    [B]ased on what I’ve heard, and it is not unusual in my experience to have a
    - 13 -
    spouse or a friend watch all or parts of the trial. I don’t know what their
    relationship is but I’ve not heard anything that would suggest that there’s
    been communication that violates my admonitions. So unless there’s
    something more, I’m not inclined to inquire and single out [the juror.]
    (Id. at 1622.) The defense rested after Henderson completed his testimony.
    The government called a rebuttal witness, Andrew Kerstetter, a special agent with
    the FBI in Oklahoma. Kerstetter was asked whether he had “extensive training in cellular
    telephone analysis and geolocation training.” (Id. at 1593-94.) At that point,
    Henderson’s counsel asked to approach the bench, saying:
    It sounds as though the government is attempting to produce an expert
    witness. They specifically told the court at a pretrial motion hearing that
    there would be no expert witnesses, and we had requested reports of expert
    witnesses and they produced none . . . and now they’re trying to produce
    additional testimony even thought we were given no notice.
    (Id. at 1594.) The judge responded:
    It sounds like it’s going to be about the phone records, which is what the
    basis of [Henderson’s] questioning was. I don’t think its expert testimony,
    but you can have him testify about the phone records.
    (Id.)
    Through Kerstetter’s testimony, the government demonstrated Henderson’s cell
    phone records during the time of his asserted surveillance revealed Henderson not to be
    in the vicinity of Crawford’s house. Kerstetter relied on three exhibits. Two were
    excerpts from Henderson’s proposed exhibits showing his cell phone records on the dates
    he claimed to be conducting the Crawford surveillance (Exhibit 49-b) and the date he
    - 14 -
    executed the Crawford search warrant (Exhibit 49-c). See Attachment 1.6 Henderson did
    not object to the admission of the exhibits.
    Kerstetter first explained the significance of each column of numbers in
    Henderson’s cell phone records—the phone call’s date, time, length, the originating
    number, the dialed digits, the originating cell tower and the cell tower used to terminate
    the call. The prosecutor again asked Kerstetter if he “had training in cellular telephone
    analysis” and “geolocation training.” (Id. at 1597.) Kerstetter answered, “yes” (id.);
    Henderson did not object. Kerstetter then explained: the originating cell tower is the
    tower communicating with (serving) the calling cell phone and the terminating cell tower
    is the one serving the receiving cell phone (one tower might serve both cell phones).
    Looking at the specific calls on January 5, 2009, between 1 p.m. and 3 p.m. (the date and
    time range when Henderson claimed to have seen Crawford at his house), Kerstetter
    noted Henderson’s cell phone made and received calls from cell tower 466, sector 3. On
    January 6, 2009, between 9:30 a.m. and 10:30 a.m. (the date and time range when
    Henderson allegedly conducted his second day of surveillance), Henderson’s phone used
    two cell towers, tower 408, sector 2, and cell tower 400, sector 2. When Henderson was
    known to be at the Crawford’s residence on January 12, 2009 (because he was executing
    6
    Exhibit 49-b consists of two pages showing Henderson’s cell phone records on
    the dates of “01/02/2009” to “01/07/2009.” Exhibit 49-c consists of two pages showing
    his cell phone records on the dates of “01/09/2009” to “01/13/2009.” Attachment 1 is for
    illustrative purposes. It consists of only one page from Exhibit 49-b.
    - 15 -
    the search of Crawford’s house), all his calls used a different cell tower—tower 441,
    sector 2. The import of this information was explained by Kerstetter’s next exhibit.
    The third exhibit, Exhibit 49-a, to which Henderson affirmatively said he had no
    objection, was a map of the Tulsa area showing the locations of the various cell towers in
    the area. The range of each relevant sector of each relevant tower’s antennas is shaded in
    color.7 The map also displayed the location of Crawford’s house. See Attachment 2.
    The house was situated almost directly under tower 441. According to the map,
    Crawford’s house was not within the range of the cell towers listed as having had cell
    phone traffic from Henderson’s phone during the relevant times on January 5 or 6. From
    the three exhibits Kerstetter concluded Henderson’s cell phone calls during the alleged
    surveillance were not made or received near Crawford’s house.
    Following the jury’s verdict, Henderson moved for a new trial on all counts of
    conviction and for an acquittal on the civil rights counts due to insufficient evidence.8
    Attached to the motion Henderson submitted a juror’s affidavit stating the juror had a
    change of heart after voting for a guilty verdict on the perjury counts. When the juror
    told the rest of the jury members of the changed decision, the foreman said the form on
    7
    Cell phone towers typically have multiple antennas, each serving a sector
    (usually 120 degrees) of the 360 degrees comprising the circle around the tower. See, for
    instance, www.unisonsite.com/pdf/resource-center/How%20Towers%20Work.pdf.
    8
    He does not argue sufficiency of the evidence on appeal. His brief merely
    includes a conclusory statement claiming the evidence was insufficient given the jury’s
    disbelief of Martin’s testimony on all but two of the civil rights counts. (Appellant’s
    Opening Br. at 23-24.)
    - 16 -
    those charges had been signed and could not be changed. The next day, after completing
    deliberations, the jury returned to the courtroom with the verdicts. Although each juror
    was polled and each verified his or her agreement with the verdict, the juror claimed she
    misunderstood the question at polling and, but for the misunderstanding, would have
    answered differently. The government moved to strike the affidavit pursuant to Rule
    606(b) which prohibits a juror from testifying about deliberations. Although the judge
    did not strike the affidavit, he refused to consider it and denied the motion for a new trial.
    On appeal, Henderson claims: (1) the judge erred in admitting Kerstetter’s expert
    testimony in rebuttal to his defense, (2) the prosecutor’s improper solicitation of
    testimony regarding the alleged affair with Bruce denied him a fair trial, (3) the judge
    failed to fully investigate his allegations of a possible external influence on a juror during
    trial, and (4) his right to a unanimous verdict was compromised because a juror was
    misled into believing she could not retract her guilty vote.
    DISCUSSION
    A.     Kerstetter’s Testimony
    Henderson challenges Kerstetter’s testimony for several reasons. At trial, he
    objected because he had received no notice of the government’s intention to present an
    expert on rebuttal. But, in his motion for a new trial, he claimed Kerstetter’s opinion
    testimony exceeded the permissible scope of rebuttal and should not have been admitted
    without first considering his expert qualifications and the reliability of his methods.
    - 17 -
    1.     Standard of Review
    Because Henderson’s trial objection to Kerstetter’s testimony rested solely on lack
    of notice, the government contends we must apply plain error review to his additional
    challenges. Henderson sees it differently: (1) The government’s question regarding
    Kerstetter’s qualifications was the basis for his limited objection; (2) Due to the judge’s
    ruling that the testimony was not expert testimony, any further objection was “pre-
    empted”; (3) Therefore, the plain error rule is inapplicable. (Appellant’s Opening Br. at
    44.) We agree with the government.
    To preserve an objection based on the admissibility of expert testimony, the
    precise basis for the objection must be adequately raised. See United States v. Avitia-
    Guillen, 
    680 F.3d 1253
    , 1257 (10th Cir. 2012) (“Where a party objects only to an
    expert’s qualifications, he does not preserve an objection to the expert’s methodology.”),
    cert. denied, 
    133 S. Ct. 466
    (2012); Macsenti v. Becker, 
    237 F.3d 1223
    , 1232 (10th Cir.
    2001) (“[A] decision to admit expert opinion evidence will be reviewed only for plain
    error when objections under Daubert/Kumho9 are not timely made.”). Even though he
    had numerous opportunities to do so as Kerstetter’s testimony unfolded, Henderson did
    not challenge the district court’s previous ruling, Kerstetter’s reliability, or his
    methodology. Nor did he request a continuance to prepare for Kerstetter’s cross-
    examination. It is not enough that he raised his additional objections in his new trial
    9
    See Daubert v. Merrell Dow Pharm., Inc., 
    509 U.S. 579
    (1993); Kumho Tire Co.
    v. Carmichael, 
    526 U.S. 137
    (1999).
    - 18 -
    motion. See United States v. Hill, 
    60 F.3d 672
    , 675 (10th Cir. 1995) (stating objection in
    motion for new trial “does not make up for the failure to object when the evidence was
    proffered at trial”).
    Consequently, we review all claims other than adequate notice under our plain
    error standard. 
    Id. Plain error
    occurs “only when four requirements are met: (1) an error
    occurred; (2) the error is plain or obvious; (3) the error affects substantial rights; and (4)
    the error seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.” United States v. Pablo, 
    696 F.3d 1280
    , 1287 (10th Cir. 2012).
    2.      Whether Kerstetter Testified as an Expert
    “When the subject matter of proffered testimony constitutes ‘scientific, technical,
    or other specialized knowledge,’ the witness must be qualified as an expert under Rule
    702.” LifeWise Master Funding v. Telebank, 
    374 F.3d 917
    , 929 (10th Cir.2004) (quoting
    Fed. R. Evid. 702). Henderson argues the judge “failed to exercise his gate-keeping role
    by finding . . . [Kerstetter’s] testimony was admissible without requiring him to be
    qualified and without determining if the subject of the testimony is reliable.”
    (Appellant’s Opening Br. at 44.) The question becomes whether Kerstetter testified as an
    expert, and if so, at what point in his testimony did he do so.
    “The distinction between lay and expert witness testimony is that lay testimony
    results from a process of reasoning familiar in everyday life, while expert testimony
    results from a process of reasoning which can be mastered only by specialists in the
    field.” United States v. Yeley-Davis, 
    632 F.3d 673
    , 684 (10th Cir. 2011) (citing and
    quoting Fed. R. Evid. 701 advisory committee notes (2000 amend.)). As the judge ruled,
    - 19 -
    testimony limited to “the phone records,” generally would not be expert testimony. And
    for the most part, his ruling on the nature of Kerstetter’s testimony was correct; the
    majority of his statements required nothing more than knowing the meaning of
    abbreviations. The bulk of Kerstetter’s testimony was, just as the judge predicted, a non-
    expert’s recitation of business records. See LifeWise Master 
    Funding, 374 F.3d at 929
    (“[A] person may testify as a lay witness only if his opinions or inferences do not require
    any specialized knowledge and could be reached by any ordinary person.”).
    Henderson thinks Kerstetter’s opinion on the actual location of Henderson’s
    telephone based on the map of the cell tower locations crossed the line. Close
    examination does not support his position. After showing Kerstetter the tower locations
    map, the prosecutor asked what might well be an improper question of a lay witness:
    “[W]hoever was using the phone number 277-3007 [Henderson’s phone number] on
    January 5th and 6th was not near this residence of 3631 South Phoenix [Crawford’s
    residence]; is that correct?” (Appellant’s App’x Vol. 8 at 1610.) While Kerstetter
    responded, “Yes, sir,” he qualified his statement by saying, “they did not make any phone
    calls in that sector of that tower.” (Id.) His qualified answer, to the extent he was merely
    saying what appeared in the admitted exhibits, was not an expert opinion.10
    In Yeley-Davis, we held an agent gave expert testimony when he described how
    cell phone towers 
    operate. 632 F.3d at 684
    . There, his testimony was used to explain an
    10
    Kerstetter’s answer merely reflected the collated call information (including
    tower and sector) contained in other exhibits (also admitted without objection) with the
    spatial information contained in 49-a.
    - 20 -
    apparent discrepancy found in cell phone records between the defendant’s phone number
    and a co-conspirator’s number which included an unexplained phone call to a third
    number. The expert said the third number was nevertheless the co-conspirator’s phone
    number. He explained:
    when you're using your cell phone and you travel outside of your assigned
    area and you travel onto another tower that’s some distance away from your
    assigned area where you signed up for your phone, it actually through that
    tower assigns a new phone number for switching purposes to get to your
    phone.
    
    Id. at 683-84
    (quotation marks omitted). We reversed the trial judge’s decision to allow
    the testimony over the defendant’s objection that the agent was not qualified as an expert.
    
    Id. at 684.
    We concluded “the agent’s testimony concerning how cell phone towers
    operate constituted expert testimony because it involved specialized knowledge not
    readily accessible to any ordinary person.” 
    Id. (emphasis added).
    Nevertheless, we
    found the error harmless.
    Here, however, Kerstetter’s testimony did not require such expertise. His
    testimony was more similar to the testimony in United States v. Feliciano, 300 Fed.
    App’x 795, 801 (11th Cir. 2008).11 In Feliciano, the Eleventh Circuit reasoned:
    [T]he purpose of Detective Christie’s cross-examination testimony
    concerning the location of cellular towers simply was to establish that
    Manny Ortega’s cellular telephone's call to Ortega following Ortega’s
    arrest did not originate at a point near the arrest location. Detective Christie
    11
    An unpublished opinion from another Circuit, Feliciano, is not binding
    precedent. We consider it because of its reasoned analysis.
    - 21 -
    did not express an expert opinion based on scientific, technical, or other
    specialized knowledge, as required under Fed. R. Evid. 702. Instead, he
    simply reviewed the cellular telephone records and a summary of those
    calls, which identified cellular towers for each call, and based on his
    personal knowledge concerning the locations of certain cellular towers,
    testified that, at the time of the call, Manny Ortega's cellular telephone was
    nowhere near the arrest location. Thus, because the testimony was properly
    admitted under Fed. R. Evid. 602 and Fed. R. Evid. 701, and did not
    constitute expert testimony under Fed. R. Evid. 702, the district court did
    not abuse its discretion in allowing Detective Christie to testify about the
    cellular tower locations.
    
    Id. Unlike Yeley-Davis,
    there was no discrepancy in Henderson’s cell phone records
    needing expert explanation. Moreover, Henderson affirmatively stated he had no
    objection to the admission of Kerstetter’s tower location map. Thus, any objection to this
    exhibit has been waived. See United States Cornelius, 
    696 F.3d 1307
    , 1319 (10th Cir.
    2012) (“‘A waived claim or defense is one that a party has knowingly and intelligently
    relinquished; a forfeited plea is one that a party has merely failed to preserve.’” (quoting
    Wood v. Milyard, ––– U.S. ––––, 
    132 S. Ct. 1826
    , 1832 n. 4 (2012)). The judge’s
    admission of this evidence without determining whether it qualified under Rule 702 was
    not error, let alone plain error.
    3.      Whether the Testimony was Proper Rebuttal Evidence
    Henderson argues Kerstetter’s testimony was not proper rebuttal evidence because
    Henderson did not rely on his cell phone records when testifying about the surveillance
    on Crawford’s residence. Instead, he based his testimony on his independent recollection
    of the surveillance. Because “rebuttal evidence is evidence which attempts to disprove or
    contradict the evidence to which it is contrasted,” Henderson maintains Kerstetter’s
    - 22 -
    reliance on cell phone records did not rebut Henderson’s recollection. Tanberg v. Sholtis,
    
    401 F.3d 1151
    , 1166 (10th Cir. 2005) (quotation marks omitted).
    True, “[r]ebuttal evidence is not any evidence an aggrieved litigant may wish to
    admit in response to a topic introduced by his opponent.” 
    Id. The admissibility
    of
    rebuttal evidence “depends on whether the initial proof might affect the case and whether
    the rebuttal evidence fairly meets the initial proof.” 
    Id. (quotation marks
    omitted). The
    testimony revealed Henderson conducted surveillance at Crawford’s house from
    approximately 1 p.m. to 3:30 p.m. on January 5, 2009. He said he saw Crawford leave
    the home and go to his car for a short period at around 2:00 p.m. on that day and saw
    three or four cars stop in front of the house. Black males went into the house for short
    periods of time before exiting and driving away. On January 6, from about 9:00 a.m. to
    10:30 a.m., Henderson again saw Crawford at the residence and “short-term traffic.” He
    repeatedly denied he had fabricated the information provided in his affidavit supporting
    the search warrant or that he had lied to the court.
    The locations of the cell towers which transmitted phone calls to and from
    Henderson’s cell phone directly contradicted the evidence regarding Henderson’s
    surveillance activity. It called into question his location during the time he allegedly saw
    conduct indicating criminal activity. The anomaly in the cell phone records may be
    explicable, but Henderson did not seek leave to explain during the trial12 and did not see
    12
    He could have, for instance, sought to introduce surrebuttal evidence to explain
    why his cell phone was connecting to a distant tower, rather than one closer to his alleged
    (Continued . . . )
    - 23 -
    fit to include in his post-trial motions expert testimony, or an affidavit, challenging the
    seemingly common sense matters about which Kerstetter testified.13 In sum, Kerstetter’s
    testimony fairly met and contradicted Henderson’s testimony that he was at the Crawford
    house at specific dates and times. Again, there was no error, let alone plain error.
    4.     Notice
    Henderson claims the government should have been required to produce the
    rebuttal exhibits (the phone records and the map) and/or a summary of Kerstetter’s
    testimony before trial. While he recognizes there is no general duty to produce
    documents that may be offered solely as rebuttal evidence, he maintains this evidence
    was material to his preparation of a defense.
    location. Perhaps he had temporarily moved to a different location (in which event his
    surveillance was not continuous); perhaps someone else had his phone for part of the
    time; or perhaps atmospheric or other conditions caused the phone to connect to a distant
    tower. But those possibilities beg even more questions. For instance, with respect to the
    latter, any explanation would have to also explain why Henderson’s phone connected to
    Owasso 400, sector 2 (a SE facing sector) rather than sector 3 (a NW facing sector, one
    facing in the direction of the Crawford residence, rather than away from it).
    13
    One of the hallmarks of expert testimony is its usefulness in dispelling
    commonly held misperceptions through the use of scientific or other specialized
    knowledge. For instance, one might look to the debate about experts who opine on the
    reliability of eyewitness testimony. See United States v. Rodriguez-Felix, 
    450 F.3d 1117
    ,
    1124 (10th Cir. 2006) (observing circumstances involving “such problems as cross-racial
    identification, identification after a long delay, identification after observation under
    stress, and such psychological phenomena as the feedback factor and unconscious
    transference” have justified the use of expert testimony) (quotation marks omitted).
    Henderson’s real issue here is not whether Kerstetter’s testimony amounted to expert
    opinion, but whether truly expert opinion was necessary to dispel inaccurate, misplaced
    or overstated portions of his testimony. Henderson produced no such evidence.
    - 24 -
    Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure requires the
    government to disclose:
    (E) Documents and Objects. Upon a defendant’s request, the government
    must permit the defendant to inspect and to copy or photograph books,
    papers, documents, data, photographs, tangible objects, buildings or places,
    or copies or portions of any of these items, if the item is within the
    government’s possession, custody, or control and:
    (i) the item is material to preparing the defense.14
    Rule 16 requires Henderson to show he requested the information, he was denied
    access, and it was material to his defense. Rebuttal evidence is material to the defense “if
    it could be used to counter the government’s case or to bolster a defense,” and is not
    “deemed material merely because it would have dissuaded the defendant from proffering
    easily impeached testimony.” United States v. Stevens, 
    985 F.2d 1175
    , 1180 (2d Cir.
    1993) (quoted with approval in United States v. Card, 46 Fed. App’x 941, 945 (10th Cir.
    2002) (unpublished)).15
    14
    We easily dispose of Henderson’s arguments based on the government’s failure
    to provide a summary of Kerstetter’s expert testimony under Rule 16(a)(1)(G). The rule
    does not apply because there is no duty to provide a summary of expert rebuttal
    testimony. See United States v. Frazier, 
    387 F.3d 1244
    , 1268 (11th Cir. 2004)
    (“[C]onsistent with the plain language of the Rule, the government’s presentation of
    rebuttal testimony without prior notice does not violate Rule 16, since the Rule’s notice
    requirements apply only to the government’s case-in-chief.”). Moreover, Rule 16
    requires the government to provide documents within its possession; it does not require
    the government to prepare documents. See Fed. R. Crim. P. 16(a)(1)(G).
    15
    Our unpublished opinions are not binding precedent. 10th Cir. R. App. P.
    32.1(A). We mention Card because of its reasoned and persuasive analysis.
    - 25 -
    According to Henderson, had the defense been given notice of the government’s
    exhibits on which Kerstetter’s testimony was based, his counsel could have carefully
    examined the records and shown there were instances when several different cell towers
    were utilized while Henderson was in a stationary location. Therefore, the rebuttal
    exhibits could have been used to counter the government’s case or to bolster his defense.
    Henderson fails to acknowledge that, excepting Kerstetter’s map to which there was no
    objection, he had the information he now claims the prosecution should have provided
    long before trial – it was taken from his own exhibit. What Henderson is actually
    complaining about is his lack of notice that he would be impeached with his own records.
    This is not a Rule 16 violation. The district judge did not err in admitting Kerstetter’s
    exhibits.
    B.     Prosecutorial Misconduct/Bruce’s Cross-Examination
    Henderson claims the judge erred in denying his motion for a mistrial and he was
    entitled to a new trial because the jury was unduly prejudiced when the prosecutor
    deliberately elicited testimony from Bruce about the affair she claimed to have had with
    Henderson. “When defense counsel contemporaneously objects to alleged prosecutorial
    misconduct at trial and moves for a mistrial, we review a district court's decision to deny
    his motion for abuse of discretion.” United States v. Apperson, 
    441 F.3d 1162
    , 1207
    (10th Cir. 2006) (quotation marks omitted). We apply a two-part test; first determining
    “whether the conduct was improper,” and if so, “whether the prosecutor's conduct
    affected the fairness of the trial.” 
    Id. (quotation marks
    omitted).
    The district judge determined:
    - 26 -
    [C]ounsel for the Government did not engage in misconduct by asking the
    question that led to Ms. Bruce’s one-sentence statement. . . . [T]he Court
    understands why counsel could have believed in good faith that the door
    had been opened. Defense counsel engaged in cross-examination of Ms.
    Bruce, attempting to undermine her testimony that she and [Henderson]
    communicated often during the period in question. It is a close call whether
    this line of questioning opened the door to rebuttal testimony that might, if
    believed, explain why there was so much communication between Ms.
    Bruce and [Henderson]. Making such a judgment call during the heat of
    trial, even if the judgment call is rejected by the presiding judge, does not
    rise to the level of misconduct.
    (Appellant’s App’x Vol. 11 at 2186 (citation omitted).) The judge also concluded that
    even assuming prosecutorial misconduct occurred, a new trial was not warranted: the
    jury was instructed to disregard the answer; Bruce’s statement was one sentence during a
    three-week trial; and the statement obviously did not influence the jury against
    Henderson because he was acquitted of the vast majority of the charges against him. (Id.)
    We agree with this analysis. See Polson v Davis, 
    895 F.2d 705
    , 711 (10th Cir.
    1990) (noting that because appellate review of egregiousness of misconduct “is
    constrained by our ability to review only the written record . . ., we give great deference
    to the district judge who observed the trial”). Like the district judge, we are not
    persuaded the exchange between the prosecutor and Bruce was the result of deliberate
    misconduct. Moreover, the denial of Henderson’s motion for a mistrial was immediately
    followed by a curative instruction directing the jury to disregard the answer. That the
    jury would be able to do so is “a determination that the district court is in a better position
    to make than we are.” Roberts v. Roadway Express, Inc., 
    149 F.3d 1098
    , 1106 (10th Cir.
    1998). Nothing in the record supports an inference that Bruce’s single statement about an
    - 27 -
    alleged affair infected the verdict. Henderson was not denied a fair trial; his motions for
    a mistrial and/or a new trial were properly denied.
    C.     External Influence on Juror
    Toward the end of the trial, defense counsel requested and received a closed
    hearing regarding his concerns about the activities of a juror. Henderson claims the
    district court erred because it failed to fully investigate his concerns. He relies on the
    Supreme Court decision in Remmer v. United States, 
    347 U.S. 227
    (1954), where the
    Court stated: “In a criminal case, any private communication, contact, or tampering
    directly or indirectly, with a juror during a trial about a matter pending before the jury is,
    for obvious reasons, deemed presumptively prejudicial . . . .” 
    Id. at 229.
    In United States
    v. Brooks, however, we held “the mere fact of a juror conversing with a third-party does
    not raise the Remmer presumption. 
    161 F.3d 1240
    , 1246 (10th Cir. 1998). “Instead, the
    presumption arises only when there has been a communication or contact about the
    matter pending before the jury.” 
    Id. (quotation marks
    omitted).
    Assuming, generously, that defense counsel’s expression of concerns amounted to
    a request for an investigation, there is no evidence here of any communication with the
    juror about the matter pending before the jury. A juror had lunch with a trial spectator.
    The same spectator was seen speaking with a man on several occasions because they
    were seated near each other during the trial. There is no evidence the man was aware of
    any connection between the spectator and the juror; we have only defense counsel’s
    suspicions. A Remmer hearing is not required when it is based on “ordinary incidental
    contacts between non-sequestered jurors and virtually any other person during the course
    - 28 -
    of a trial.” 
    Id. Moreover, Henderson
    brought nothing to the attention of the judge which
    would reasonably cause a concern that the juror’s friend initiated inappropriate contact
    with the juror. The judge had instructed the jurors not to discuss the case and we
    presume the juror followed this instruction. Banks v. Workman, 
    692 F.3d 1133
    , 1150
    (10th Cir. 2012), cert. denied, 
    133 S. Ct. 2397
    (2013). The judge did not err in failing to
    take the matter further.
    D.     Juror Mistake
    Henderson’s final argument for a new trial was based on the juror affidavit
    attached to his motion. He claims he was denied his constitutional right to a unanimous
    jury when the judge denied his motion for a new trial based on juror mistake.
    Rule 606(b) of the Federal Rules of Evidence provides:
    (1) Prohibited Testimony or Other Evidence. During an inquiry into the
    validity of a verdict or indictment, a juror may not testify about any
    statement made or incident that occurred during the jury’s deliberations;
    the effect of anything on that juror’s or another juror’s vote; or any
    juror’s mental processes concerning the verdict or indictment. The
    court may not receive a juror’s affidavit or evidence of a juror’s
    statement on these matters.
    Although Rule 606(b)(2) allows several exceptions to this provision, Henderson
    does not argue any of the exceptions apply. Instead, he contends the jury may have
    improperly considered the charges and the foreman gave the juror erroneous legal advice
    preventing the juror from changing his/her verdict. However, he concedes each juror was
    polled before the verdict was entered and agreed the verdict was correct.
    As explained in detail in United States v. Benally, the purpose of Rule 606(b) goes
    beyond the factual considerations of an individual case. 
    546 F.3d 1230
    , 1233 (10th Cir.
    - 29 -
    2008) (“If what went on in the jury room were judicially reviewable for reasonableness or
    fairness, trials would no longer truly be by jury, as the Constitution commands.”).
    Application of the Rule has been upheld even in the face of potential Constitutional error.
    
    Id. at 1239
    (“This Court . . . has consistently upheld application of the Rule 606(b)
    standards of exclusion of juror testimony even in the face of Sixth Amendment fair jury
    arguments.”) (quotation marks omitted). We must adhere to the Rule as it is written. 
    Id. (“Courts no
    longer have common law authority to fashion and refashion rules of evidence
    as the justice of the case seems to demand, but must enforce the rules as enacted.”).
    There was no error in refusing to consider the juror’s affidavit.
    AFFIRMED.
    Entered by the Court:
    Terrence L. O’Brien
    United States Circuit Judge
    - 30 -