United States v. Isaac May ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3075
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Isaac May
lllllllllllllllllllllDefendant - Appellant
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No. 21-3344
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Richards, also known as Richie Rich
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: October 19, 2022
Filed: June 14, 2023
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Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
Isaac May and James Richards (collectively, “appellants”) were convicted by
a jury of charges alleged in a ten-count superseding indictment for offenses
committed as part of a large drug conspiracy. The district court1 sentenced them to
360 and 336 months in prison, respectively. On appeal, May challenges both the
denial of his motion for severance and his sentence; Richards challenges the denial
of his motion for recusal, the denial of his motions to suppress wiretap and video
surveillance recordings, and his convictions. We affirm.
I. Background
The indictment charged May with one count of conspiring to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),
and 846; and three counts of using a communications facility in furtherance of a drug
trafficking offense, in violation of 21 U.S.C. §§ 843(b) and (d). Richards was charged
with one count of conspiring to distribute five kilograms or more of cocaine; one
count of distributing less than 500 grams of a mixture and substance containing
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and five counts of using
a communications facility in furtherance of a drug trafficking offense.
A. Pretrial
May moved for severance, arguing that there was a substantial risk that the jury
would confuse which acts were allegedly committed by him and which by Richards.
He averred that the risk of prejudice outweighed the preference for joinder. May
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
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further argued that he would need to call Richards as a witness to show that any
alleged wrongdoing was done without May’s consent or knowledge. May suggested
that Richards could exercise his Fifth Amendment right, depriving May of his
constitutional right to examine him.
In denying the motion, the district court observed that “[g]enerally, persons
charged in a conspiracy or jointly indicted on similar evidence from the same or
related events should be tried together.” R. Doc. 415, at 2 (quoting United States v.
Lewis, 557 F.3d 601, 609 (8th Cir. 2009)). The district court further stated that May
would be required to establish that Richards actually would testify and that Richards’s
testimony would be exculpatory. The district court concluded that May failed to
establish prejudice.
Richards also filed pretrial motions. First, he moved for recusal because the
district court authorized the warrants that led to his arrest. He argued that “[w]ith the
information gained while signing the warrants, Judge James M. Moody became
impartial and bias[ed] to Mr. Richards.” R. Doc. 231, at 2.
The district court denied the recusal motion. It concluded that “[j]udicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” R.
Doc. 247, at 2 (alteration in original) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). It further relied on United States v. Jones, 801 F.2d 304, 312 (8th Cir.
1986), to conclude that preindictment execution of a wiretap order or search warrant
does not necessitate recusal by the issuing judge.
Richards moved to suppress the government’s wiretap and video surveillance
evidence. For both motions, Richards asserted that the wiretaps and video
surveillance violated his right to privacy. He further asserted that the government
failed to show that “the broad expectation of privacy in information gathered . . .
outweighs Mr. Richards’ privacy interest.” R. Doc. 232, at 3; R. Doc. 233, at 3. In a
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subsequent brief, Richards argued that he was not associated with the phone numbers
subject to the wiretaps and that he was not on any of the calls.
The court held hearings on both motions. Richards challenged the wiretap
recordings, arguing that he had no association with the target phone numbers or
identified with any of the recorded calls. The government responded that Richards
lacked standing to challenge the recordings. The district court denied the suppression
motion finding no standing and, in the alternative, ruled that the wiretaps were
supported by probable cause.
As to the video surveillance recordings, Richards made no substantive
argument for suppression. He merely asked the district court to review the videos to
help adjudicate his motion. The district court limited its inquiry to whether the videos
were improperly obtained. It then denied the motion without further explanation.
B. Trial
FBI Special Agent Joshua Hubbard and Cedric Bradley, a co-conspirator,
testified at trial for the government. Agent Hubbard, as the case agent, investigated
the appellants’ drug conspiracy. Agent Hubbard testified about the wiretap recordings
placed on John Garner’s phones. Garner supplied May’s and Richards’s drugs. Agent
Hubbard testified that the wiretap recordings included conversations between
Richards and other members of the conspiracy, including Bradley. He also testified
as to the procedures used to identify the people using the phones that were either
targeted by the wiretap or in contact with the targeted phones. All of the recordings
were admitted into evidence over May’s objection. Richards, however, did not object
to the admission of the wiretap recordings.
Agent Hubbard also testified as to the confidential source who purchased drugs
from Richards. Agent Hubbard testified that Ray Boyd was sent to Richards’s home
to discuss drug trafficking. Agent Hubbard outfitted Boyd with a device that secretly
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recorded audio and video of Boyd’s conversation with Richards. Two days later, after
four recorded calls with Richards, Boyd went back to Richards’s home to purchase
two ounces of cocaine. He purchased the cocaine from Richards and secretly recorded
the transaction. Agent Hubbard’s testimony included an in-court identification of
Richards. Agent Hubbard authenticated the videos and recorded calls, which the
district court admitted into evidence over May’s objection. Richards, again, did not
object.
Bradley testified that he had engaged in drug transactions with Richards.
During his testimony, he corroborated some of the wiretap recordings produced from
Richards’s phone in which they discuss various transactions: (1) on May 9, 2018,
Richards called Bradley offering to sell him ounce quantities of cocaine; (2) on May
10, 2018, Richards called Bradley offering to sell him two ounces of cocaine, to
which Bradley agreed; and (3) on May 11, 2018, Richards called Bradley offering to
sell two ounces of crack cocaine, and Bradley accepted. Bradley testified that
between April and May 2018, he purchased crack and powder cocaine, in at least
two-ounce quantities, from Richards on three or four different occasions.
At the beginning of Bradley’s testimony, the government asked him to identify
Richards in court. Bradley stated, “I still can’t see him too good,” which prompted the
government to ask if he needed glasses. R. Doc. 530, at 159. Bradley stated that he
did need glasses but that he did not have any with him. The government indicated that
it would skip the in-court identification, to which Bradley responded, “All right. I
don’t think I see him.” Id. Richards’s lawyer raised no concerns about Bradley’s
failed identification.
The jury found May and Richards guilty on all counts.
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C. Sentencing
At sentencing, neither May nor Richards objected to their respective
presentence reports. The district court adopted both reports. Richards’s total offense
level was calculated by the court as 37, and his criminal history category was VI
based on a criminal history score of 8 and a career offender enhancement. May also
had a total offense level of 37 and a criminal history category of VI, based on his
criminal history score of 20 and a career offender enhancement. Guidelines ranges for
both May and Richards were 360 months to life in prison.
Richards was sentenced to 336 months and May to 360 months. The district
court explained that it gave Richards a two-year downward variance based on
Richards’s work helping other inmates as a mentor and counselor in the Pulaski
County Sheriff’s Office’s reentry program. The court further distinguished the two
by noting that Richards appeared more remorseful than May.
However, the district court denied May’s motion for a downward variance. The
court placed greater weight on May’s higher criminal history score and the
seriousness of the offense than the mitigating factors he presented. It stated, “His
criminal history consists of violent acts and possession of firearms. He committed the
instant offense while on several state supervisions, which shows a wanton disregard
for the law.” R. Doc. 522, at 17.
II. Discussion
May challenges both the denial of his motion for severance and his sentence;
Richards challenges the denial of his motion for recusal, the denial of his motions to
suppress wiretap and video surveillance recordings, and his convictions.
A. May
May raises two arguments on appeal. First, he argues that the district court
erred in denying his motion for severance. Second, he argues that the district court
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procedurally erred in calculating his 360-month Guidelines range and that the
resulting sentence is substantively unreasonable.
1. Motion for Severance
May argues that severance was required because the complexity of the case
negatively affected the jury’s ability to compartmentalize the evidence. Moreover, the
jury’s request for a transcript of testimony increased the likelihood of confusion. He
further argues that “there was no specific guidance or admonishment to the jury” that
would prevent them from convicting him based on evidence that actually applied to
Richards’s misconduct. May’s Br. at 15.
“We review a district court’s denial of a motion to sever for an abuse of
discretion.” United States v. Weckman, 982 F.3d 1167, 1172 (8th Cir. 2020) (quoting
United States v. Nichols, 416 F.3d 811, 816 (8th Cir. 2005)). “To warrant severance,
a defendant must show real prejudice; that is, something more than the mere fact that
he would have had a better chance for acquittal had he been tried separately.” Id.(cleaned up).
A defendant seeking severance can demonstrate prejudice to his right to a fair
trial by showing that “his defense is irreconcilable with that of his co-defendant,” or
that “the jury will be unable to compartmentalize the evidence as it relates to the
separate defendants.” United States v. Mickelson, 378 F.3d 810, 818 (8th Cir. 2004).
“In our consideration of the jury’s ability to compartmentalize the evidence against
the joint defendants, we consider 1) the complexity of the case; 2) if one or more of
the defendants were acquitted; and 3) the adequacy of admonitions and instructions
by the trial judge.” United States v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003).
Here, the superseding indictment charged the appellants with a total of ten
counts; May was charged with four. The trial lasted three days, and the jury found
both May and Richards guilty of all charges. Contrary to May’s contention, this case
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was not unusually complex. The government’s theory—that May and Richards were
involved in a conspiracy to sell cocaine—connected the appellants on all counts. In
addition, their defense—that the government failed to produce credible evidence
linking them to the conspiracy—was simple and straightforward. We have determined
cases involving comparable numbers of charges and defendants were not complex.
See United States v. Jones, 880 F.2d 55, 63 (8th Cir. 1989) (holding five-defendant,
seven-day drug conspiracy trial “not particularly lengthy or complex”); United States
v. Gutberlet, 939 F.2d 643, 646 (8th Cir. 1991) (holding four-day drug conspiracy
trial involving two defendants, seven counts, and no complex issues not complex).
The level of involvement by each defendant is also not overly disparate.
“[D]isparity among the defendants in extent of involvement and culpability is
commonplace in conspiracy cases and does not alone show the kind of prejudice that
would require a district court to sever, rather than to respond with some less drastic
measure such as a curative instruction.” United States v. Spotted Elk, 548 F.3d 641,
658 (8th Cir. 2008).
The district court gave the following curative instruction:
Keep in mind that you must give separate consideration to the evidence
about each individual defendant. Each defendant is entitled to be treated
separately and you must return a separate verdict for each defendant.
Also keep in mind that you must consider separately each crime
charged against each individual defendant, and you must return a
separate verdict for each of those crimes charged.
R. Doc. 531-1, at 124. May “has given us no reason to conclude that this was not an
adequate safeguard in his case or that the district court abused its discretion in
refusing to sever.” Spotted Elk, 548 F.3d at 658. Thus, denial of May’s severance
motion was not an abuse of discretion.
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2. Sentencing
May’s argument for procedural error and substantive unreasonableness are
based on the district court’s “holding that Mr. May’s ‘criminal history consists of
violent acts and possession of firearms.’” May’s Br. at 16 (quoting R. Doc. 522, at
17). As to procedural error, May asserts that the district court erred by
mischaracterizing his criminal history given that most of his crimes were property
crimes. He notes that although three of his offenses were for assault and battery, only
one was arguably violent. He further argues that these crimes took place in his youth,
between the ages of 17 and 21 years old.
As to substantive reasonableness, he contends that the district court gave
insufficient weight to “his difficult upbringing, serious health issues (which required
him to sit in a wheelchair during trial), and lack of any recent violent criminal
conduct.” May’s Br. at 17.
a. Standard of Review
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard.” United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation marks
omitted). “We review a district court’s sentence in two steps: first, we review for
significant procedural error; and second, if there is no significant procedural error, we
review for substantive reasonableness.” United States v. O’Connor, 567 F.3d 395,
397 (8th Cir. 2009).
b. Procedural Error
Procedural errors include failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen
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sentence—including an explanation for any deviation from the
Guidelines range.
United States v. Godfrey, 863 F.3d 1088, 1094–95 (8th Cir. 2017) (internal quotation
marks omitted). “In reviewing the sentence for procedural errors, we review a district
court’s interpretation and application of the guidelines de novo and its factual
findings for clear error.” Id. at 1095 (internal quotation marks omitted). However,
May failed to object to the characterization of his criminal history at sentencing, so
we review for plain error. United States v. Burnette, 518 F.3d 942, 946 (8th Cir.
2008). In any event, whether we review de novo or for plain error does not change the
result because May cannot show the district court erred.
The district court noted May’s “criminal history consists of violent acts and
possession of firearms,” as one of the reasons for the sentence. R. Doc. 522, at 17.
The court’s finding was not clearly erroneous. As May concedes, his criminal history
includes two convictions for assault and one for battery. He was also convicted of
possession of a defaced firearm. May accumulated numerous violations for violent
behavior while in custody as well. The district court’s statement that May’s “criminal
history consists of violent acts and possession of firearms,” did not mis-characterize
his criminal history. Thus, the district court did not commit procedural error.
c. Substantive Reasonableness
“In the absence of procedural error below, we should then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Godfrey, 863 F.3d at 1099 (quoting Feemster, 572 F.3d at 461). An abuse
of discretion occurs when the district court “(1) fails to consider a relevant factor that
should have received significant weight; (2) gives significant weight to an improper
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or irrelevant factor; or (3) considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.” Id. (quoting Feemster, 572 F.3d at 461).
May was sentenced to 360 months’ imprisonment and does not challenge that
his Guidelines range was 360 months to life. Accordingly, we afford his sentence a
presumption of reasonableness. See United States v. Goodrich, 739 F.3d 1091, 1099
(8th Cir. 2014) (per curiam).
Moreover,
regardless of some mitigating circumstances, a sentencing court has
wide latitude to weigh the § 3553(a) factors in each case and assign
some factors greater weight than others in determining an appropriate
sentence. Simply because the district court weighed relevant factors
. . . more heavily than [May] would prefer does not mean the district
court abused its discretion.
United States v. Farmer, 647 F.3d 1175, 1179 (8th Cir. 2011) (citation omitted). May
has pointed to no reversible error in the district court’s weighing of the § 3553(a)
factors. We conclude that his sentence was not an abuse of discretion.
B. Richards
Richards raises four arguments on appeal. First, he argues that the district court
erred in denying his motion for recusal. Second, he argues that the district court erred
in denying his motion to suppress wiretap recordings. Third, he argues that the district
court erred in denying his motion to suppress video surveillance. Fourth, he argues
that his conviction was not supported by substantial evidence.
1. Motion for Recusal
Richards notes that the judge who presided over the trial was also the judge
who had issued the warrants that authorized the wiretap on his phone. According to
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Richards, this “heavily involved the District Court Judge in preliminary conduct and
activity by which the Court gained specific information and knowledge about
Richards.” Richards’s Br. at 11. He asserts this familiarity with the case required the
judge to recuse.
“We review a judge’s refusal to recuse for an abuse of discretion.” United
States v. Oaks, 606 F.3d 530, 536 (8th Cir. 2010). In determining whether a judge is
required to recuse himself, “the question is whether the judge’s impartiality might
reasonably be questioned by the average person on the street who knows all the
relevant facts of a case.” Id. (internal quotation marks omitted); see also 28 U.S.C.
§ 455(a) (“Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.”).
Richards’s argument is without merit. “A party introducing a motion to recuse
carries a heavy burden of proof; a judge is presumed to be impartial and the party
seeking disqualification bears the substantial burden of proving otherwise.” Oaks,
606 F.3d at 537 (internal quotation marks omitted).
Richards has failed to point to any facts establishing that the district judge’s
impartiality might reasonably be questioned. The district judge’s issuance of some of
the warrants in this case does not, of itself, require recusal. See United States v. Jones,
801 F.2d 304, 312–13 (8th Cir. 1986) (affirming denial of motion for recusal where
defendant, who sought recusal of any judicial officer executing any wiretap orders or
search warrants, failed to show any specific facts indicating personal bias). Richards
provided no other basis to refute the presumption of impartiality. Therefore, we affirm
the district court’s denial of Richard’s recusal motion.
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2. Motion to Suppress Wiretap Recordings
In his opening brief, Richards argues that the wiretaps, which “intercepted calls
by Richards and numerous individuals that he interacted with from day to day” from
April 24, 2018, to May 23, 2018, were illegal and breached his Fourth Amendment
right against unreasonable searches and seizures. Richards’s Br. at 13. He argues that
Katz v. United States, 389 U.S. 347 (1967), and United States v. Jones, 565 U.S. 400(2012), established a reasonable expectation of privacy from this type of surveillance
that the government violated. He does not, however, assert in his opening brief how
the wiretap violated the law or breached his constitutional rights.
In his reply brief, Richards challenges, for the first time, the district court’s
conclusion that he lacked standing to challenge the wiretaps. He argues that he has
standing because he was “named as a ‘targeted’ [person] in the wiretap application.”
Richards’s Reply Br. at 10. He first asserts that he was not on any of the calls
intercepted by the wiretap. This, however, contradicts the statement made in his
opening brief that his calls were intercepted and that the wiretaps allowed the
government to “listen and record certain conversations made particularly by
Defendant Richards.” Richards’s Br. at 13. He then states that “should the Court
consider Richards’ argument, Richard would contend that even if he denies being the
voice on the wiretaps, he still has standing to make such a challenge.” Richards’s
Reply Br. at 9.
In any event, Richards waived his right to challenge standing when he failed
to address this issue in his opening brief. See Jenkins v. Winter, 540 F.3d 742, 751
(8th Cir. 2008) (“Claims not raised in an opening brief are deemed waived.”). Nor
does his reply brief give “some reason for failing to raise and brief the issue in his
opening brief.” Id. (internal quotation marks omitted).
Any other challenges to the wiretap recordings are also waived because
Richards has failed to meaningfully explain why his motion to suppress should have
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been granted. See United States v. Williams, 39 F.4th 1034, 1045 n.3 (8th Cir. 2022)
(citing Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007) (“[P]oints not
meaningfully argued in an opening brief are waived.”)). The district court denied
Richards’s motion on two independent grounds: lack of standing and probable cause.
His standing argument is waived, and he does not challenge the finding of probable
cause. Accordingly, we affirm denial of his motion to suppress the wiretap
recordings.
3. Motion to Suppress Video Surveillance
Richards challenges the video recordings of his drug transaction with Ray
Boyd. However, Richards again makes two distinct arguments in his opening and
reply briefs. In his opening brief, he argues that the video surveillance violated his
expectation of privacy because he did not consent to being recorded. In his reply
brief, Richards challenges the admissibility of the video recordings as impermissible
hearsay and a violation of his Sixth Amendment right to confront a witness because
Boyd was unavailable at trial.2
To the extent he is challenging the admissibility of the videos, that claim is
waived. “The Supreme Court has distinguished between a right that is inadvertently
left unasserted and one that is intentionally relinquished or abandoned, noting that the
latter constitutes a waiver that extinguishes a claim altogether.” United States v.
Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997) (citing United States v. Olano, 507 U.S.
725, 733 (1993)). “[W]aived claims are unreviewable on appeal.” United States v.
Wisecarver, 598 F.3d 982, 988 (8th Cir. 2010) (internal quotation marks omitted).
Richards not only failed to object to the admission of the videos at trial, but
after questioning from the district court, his lawyer expressly stated that Richards had
2
We note that the second argument seems to assert an argument made in his
opening brief as a challenge to his conviction, not his motion to suppress.
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no objection to admitting both the videos and certain screenshots taken from the
videos. R. Doc. 529, at 99, 101, 103, 110. Thus, this claim was not inadvertently left
unasserted; it was intentionally abandoned. See United States v. Robinson, 617 F.3d
984, 989 (8th Cir. 2010) (“A defendant may waive his confrontation rights by failing
to object to the offending evidence.” (cleaned up)).
As to Richards’s argument that the video recordings violated his expectation
of privacy, “[i]t is well-established in Fourth Amendment jurisprudence that a person
engaged in a conversation assumes the risk that another party to the conversation
might choose to divulge or even record the conversation.” United States v.
Corona-Chavez, 328 F.3d 974, 981 (8th Cir. 2003) (citing United States v. White, 401
U.S. 745, 752–53 (1971)). In Corona-Chavez, the defendant lacked an expectation
of privacy when an informant secretly videotaped him during a meeting in the
informant’s hotel room. Id. at 982.
Here, Richards invited Boyd, an informant, into his home and conducted a drug
transaction with him. Boyd secretly recorded the transaction, and Richards sought to
suppress the recordings. The district court denied his suppression motion, and we
discern no abuse of its discretion in its decision to do so.
4. Richards’s Conviction
Richards attacks his conviction with four arguments. First, he challenges
Bradley’s failed testimonial identification at trial. Second, he argues that the court’s
admission of Boyd’s surreptitious recordings violated his confrontation rights. Third,
he challenges the sufficiency of the evidence contained in the wiretap and video
surveillance recordings that he challenged in his motions to suppress. Fourth, he
challenges the credibility of all codefendants who testified against him. None of his
arguments have merit.
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a. Bradley’s Testimony
Richards relies on Sexton v. Beaudreaux, 138 S. Ct. 2555, 2559 (2018), to
argue that “[t]he identi[fication] of Defendant Richards by Cedric Bradley was
unreliable.” Richards’s Reply Br. at 12. To test the reliability of the government’s
identification procedures, we apply the two-part test adopted in Manson v.
Brathwaite, 432 U.S. 98 (1977). United States v. Murdock, 928 F.2d 293, 297 (8th
Cir. 1991). Normally, an identification challenge implicates a defendant’s due process
rights, to which we apply a de novo standard of review. United States v. Davis, 103
F.3d 660, 669 (8th Cir. 1996). However, because Richards failed to raise this issue
below, we review for plain error. United States v. Anderson, 783 F.3d 727, 746 (8th
Cir. 2015). To succeed, Richards must show, among other things, that Bradley’s
testimony prejudiced him, or that it “affect[ed] [his] substantial rights.” United States
v. Shumpert, 889 F.3d 488, 490 (8th Cir. 2018) (internal quotation marks omitted).
Richards can show no prejudice. Richards is correct that Bradley did not
identify Richards in court. But Bradley’s testimony was not the only evidence
connecting Richards to the wiretap recordings involving Bradley. Agent Hubbard, as
the case agent, authorized the wiretaps in this case. Agent Hubbard testified that
Richards’s phone was labeled Target Phone 2. He authenticated Government Exhibit
9 consisting of a disc containing calls recorded from Target Phone 2 between
Richards and Bradley. Similarly, Bradley verified Government’s Exhibit 9 as the disc
containing the calls between him and Richards. Bradley also verified the specific calls
played in court. And Hubbard successfully provided an in-court identification of
Richards during his testimony. Thus, Bradley’s testimony, aside from the attempted
visual identification, was corroborated. Given sufficient other evidence, the
government’s misstep of asking a witness without his corrective lenses to make a
visual identification did not sink its case.
Richards relies on Sexton, but it is unavailing. Unlike Sexton, this case deals
only with in-court identification of Richards at trial, not at other stages of the
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litigation. Agent Hubbard successfully identified Richards in court during his
testimony about the wiretap recordings. Richards does not challenge Agent
Hubbard’s identification. Agent Hubbard identified him as “James Richards.” This
is the same “James Richards” who was the subject of Hubbard’s investigation and
was discussed throughout Hubbard’s testimony, including his testimony on the
wiretaps. Richards thus fails to show any impact on his substantial rights.
b. Remaining Arguments
Richards’s remaining arguments are meritless. He waived his challenge to the
admissibility of the recordings made by Boyd. His motions to suppress the wiretap
and video surveillance recordings are denied for the reasons stated previously. His
challenges to “[t]he jury’s credibility determinations are virtually unreviewable on
appeal,” United States v. Wiest, 596 F.3d 906, 911 (8th Cir. 2010), and he has
provided inadequate justification for us to question such determinations in his case.
III. Conclusion
Accordingly, we affirm.
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