United States v. Hill

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 22, 2015
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 13-5084
(D.C. No. 4:12-CR-00050-JHP-1)
VERNON JAMES HILL, a/k/a V, (N.D. Okla.)
Defendant – Appellant.
ORDER AND JUDGMENT 
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
Vernon Hill 1 was indicted, tried, and convicted of conspiring to rob and
robbing banks, credit unions, and pharmacies in Tulsa, Oklahoma. Vernon
appeals and argues that the district court erred by: (1) not concluding that his
indictment was constitutionally defective; (2) not severing his charges; (3) not

This order and judgment is not binding precedent except under the doctrines
of law of the case, claim preclusion, and issue preclusion. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Throughout this opinion, we will refer to Vernon Hill, Dejuan Hill, Stanley
Hill, Deandre Hopkins, and Kenneth Hopkins by their first names because there
were other coconspirators indicted with the same last names.
severing his trial from his codefendants’ trials; 2 (4) not concluding there was a
fatal variance between the charged conspiracy and the individual conspiracies
underlying separate robberies; (5) admitting evidence of the robberies charged
against his codefendants as well as evidence of the uncharged CVS Pharmacy
robbery; (6) admitting gang-affiliation evidence; (7) admitting gang-certification
records; (8) admitting the underlying hearsay statements contained within the
gang-certification records; (9) admitting cell phone tower records; (10) admitting
lay testimony from police officers about cell phone records; and (11) admitting an
eyewitness identification in violation of due process. Vernon also argues that
cumulative error requires that we vacate his conviction.
Exercising jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291, we
affirm Vernon’s convictions for the reasons set forth below.
I. FACTS AND PROCEDURAL HISTORY
While investigating a series of robberies in Tulsa, the local police began to
suspect that the robberies were connected. The police developed a list of
suspects, which included Vernon. Other suspects included Dontayne Tiger,
2
Of the eight men charged with the conspiracy, just three—Vernon, Dejuan,
and Deandre—were tried together, the remaining five having pleaded guilty
before trial.
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Deandre Hopkins, 3 James Miller, Christopher Lewis, Marquis Devers, Duncan
Herron, and Kenneth Hopkins. Initially, police did not suspect Dejuan Hill, but a
grand jury ultimately indicted him as a coconspirator. 4 Officer Maxwell Ryden
interviewed Herron, who believed that police would eventually charge him and
agreed to cooperate in the investigation.
This appeal involves seven robberies that took place between August 2009 to
November 2011: (1) IBC Bank; (2) Dooley’s Pharmacy; (3) Barnes Pharmacy;
(4) Metro Pharmacy and Medical Supplies (“Metro Pharmacy”); (5) CVS
Pharmacy; (6) Tulsa Municipal Employees Federal Credit Union (“Tulsa Credit
Union”); and (7) Arvest Bank. The indictment charged that Vernon had
participated directly in the robberies of IBC Bank, Metro Pharmacy, and Arvest
Bank.
A federal grand jury returned a ten-count indictment against eight men,
charging that they had conspired to commit six of the seven robberies, in
violation of 18 U.S.C. § 1951(a). 5 The indictment listed 26 overt acts committed
3
Deandre appeals his conviction in a related appeal. United States v. Hopkins,
No. 13-5072 (10th Cir. May 22, 2015) (unpublished).
4
Dejuan appeals his conviction in a related appeal. United States v. Hill, No.
13-5074 (10th Cir. May 22, 2015).
5
The indictment named eight defendants: Vernon, Lewis, Deandre, Devers,
Tiger, Miller, Kenneth, and Dejuan.
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in furtherance of the conspiracy, as well as describing the manner and means of
the conspiracy. Vernon filed multiple pretrial motions. Everyone charged in the
indictment pleaded guilty except for Vernon, Dejuan, and Deandre. At their joint
trial, the government introduced evidence as set forth below.
A. IBC Bank
In August 2009, a man wearing sunglasses but no mask robbed IBC Bank in
Tulsa. 6 At the counter, he spoke with the teller for a few minutes and then
demanded money. He told her that he had a gun. The robber left alone on foot.
Tulsa Police Officer John Brown investigated this robbery. Officer Brown
showed Officer Amilee Floyd a bank photograph of the robber standing at the
teller window. Officer Floyd thought that the person in the photograph was
Vernon (Officer Floyd and Vernon had attended high school together). Officer
Brown obtained a picture of Vernon, and he showed it to a few witnesses present
at the robbery, but no one could identify him as the robber. Officer Brown then
6
Before the trial in this case, a state court jury acquitted Vernon of robbing
IBC Bank. The federal jury in this case, however, returned a guilty verdict on
Count Two, which charged Vernon with robbing IBC Bank. Count One listed
Vernon’s robbery of IBC Bank as an overt act done in furtherance of the
conspiracy. But we conclude that the government introduced insufficient
evidence to tie the IBC Bank robbery to any conspiracy. This conclusion does not
affect Vernon’s conviction on Count Two for the actual robbery of IBC Bank.
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showed the photograph from the robbery to the teller Vernon robbed, Ms.
DeLeon, and she identified the man in the photograph as the bank robber. He then
showed her a photo array of six similar looking men, and she positively identified
Vernon as the bank robber.
At trial, Ms. DeLeon again identified Vernon as the robber. Two other
witnesses from the bank robbery also testified that Vernon was the bank robber.
Neither of these two witnesses had been able to identify Vernon from the
photograph before the trial.
B. Metro Pharmacy
This robbery occurred in August 2011. Herron testified at trial that he
participated in the Metro Pharmacy robbery and described the involvement of
Vernon, Lewis, Devers, Tiger, and Deandre. Herron admitted to meeting with
these men to plan the Metro Pharmacy robbery. Later that day, they executed
their plan. Herron walked into the pharmacy to buy some medicine, texted Devers
as he was leaving, and held the door open for Vernon, Lewis, and Devers
(because customers had to be buzzed into the pharmacy). Once inside, those three
men robbed the pharmacy, and two of the robbers brandished guns, with the third
robber (Vernon) carrying a bag. Herron testified that both Tiger and Deandre
acted as lookouts during the robbery. After the robbery, the men, except Herron,
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got into a van parked outside of the pharmacy and drove away. As Tiger
instructed, Herron called 911 to report the robbery after they had left, attempting
to divert the police’s attention from his involvement.
At trial, the government admitted cell phone records establishing that Devers’s
phone had called the Metro Pharmacy twice before the robbery, that Devers’s
phone and Herron’s phone had communicated by text message during the
robbery, and that Lewis’s phone and Vernon’s phone had contacted each other by
cell phone during the robbery.
C. Arvest Bank
This robbery occurred in November 2011, and before the trial in this case, a
federal jury had already convicted Vernon of committing it. 7 We affirmed his
conviction on appeal. United States v. Hill, 737 F.3d 683, 689 (10th Cir. 2013). In
the present case, the government charged Vernon with having also conspired to
commit this offense. 8
7
This robbery is discussed in depth in United States v. Hill, ___ F.3d ___
(10th Cir. 2015), our decision affirming the conviction of Dejuan, who robbed
Arvest Bank with Vernon.
8
To clarify, the Supreme Court has held that a substantive crime and a
conspiracy to commit that crime are not the same offense for double jeopardy
purposes. United States v. Felix, 503 U.S. 378, 391–92 (1992).
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Two armed, masked men robbed Arvest Bank. Amidst the money the tellers
gave the bank robbers were previously concealed marked $50 bait bills and a
strap of $20 bills containing a GPS tracker. When bank employees pull the bait
money containing the GPS tracker, this alerts the security company, and the
security company calls the bank to check on the situation. Upon the GPS tracker’s
removal from its magnetic plate, it sent a signal to the police, alerting them of the
robbery. After the phones began to ring, Juantonio Baldwin, a bank teller, told the
robbers that the security company was calling and that they should leave. The
robbers then left the bank.
Officers immediately began receiving location updates from the tracker. The
device was moving “pretty fast,” so they assumed that it was traveling in an
automobile. The tracker stopped moving near 1109 East Pine Street, which was
near Vernon’s known residence at 1107 East Pine Street. The officers obtained a
hand-held tracker, which allowed them to pinpoint exactly where the tracking
device was located. They confirmed that it was inside 1107 East Pine. The
officers obtained a search warrant for the house. Before they executed the search
warrant, Vernon and Stanley Hill (Vernon’s brother) emerged from the house, and
the officers arrested them. Upon executing the search warrant, the officers found
money stolen from the bank, the GPS tracker, a Glock pistol, a hooded black
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sweatshirt, a ski mask, gloves, and dark-colored pants, all of which they believed
had been used in the robbery.
D. The Larger Conspiracy
The government’s theory of the case at trial was that all eight individuals
indicted had conspired, generally, to commit bank, credit union, and pharmacy
robberies in Tulsa. To prove this larger conspiracy, the government relied heavily
on each coconspirator’s relationship with the Hoover Crips street gang. The
government also highlighted the perceived similarities between the robberies. At
trial, the government introduced evidence of three robberies for which Vernon
was not charged—Dooley’s Pharmacy, Barnes Pharmacy, and Tulsa Credit Union.
No direct evidence linked Vernon to any of those robberies. The government also
introduced evidence of a robbery at CVS Pharmacy, a robbery not charged in the
indictment. The court admitted evidence tying Vernon to that robbery.
E. Procedural History
At the conclusion of the government’s case, Vernon moved under Fed. R.
Crim. P. 29 for a judgment of acquittal on Count One, the global conspiracy
charge, arguing that the government had failed to prove interdependence. The
district court denied the motion. The jury convicted Vernon on all four charges
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against him: one count of conspiracy to commit robbery, two counts of robbery,
and one count of using a firearm during and in relation to a crime of violence.
Two weeks after the verdict, Vernon filed another motion for a judgment of
acquittal on Count One, this time alleging a fatal variance between his indictment
and what the government ultimately proved at trial. Viewing the evidence in the
light most favorable to the government, the district court denied the motion,
concluding that the government had presented sufficient evidence to establish the
global conspiracy.
On appeal, Vernon raises many issues, all of which we discuss in turn below.
II. THE INDICTMENT
“To pass constitutional muster, an indictment must contain all the essential
elements of the charged offense.” United States v. Kovach, 208 F.3d 1215, 1218
(10th Cir. 2000); see also United States v. Hathaway, 318 F.3d 1001, 1009 (10th
Cir. 2003). Appellate courts review de novo the sufficiency of an indictment.
Kovach, 208 F.3d at 1218. “An indictment is sufficient if it sets forth the
elements of the offense charged, puts the defendant on fair notice of the charges
against which he must defend, and enables the defendant to assert a double
jeopardy defense.” United States v. Bedford, 536 F.3d 1148, 1156 (10th Cir.
2008) (reviewing for plain error) (quoting Hathaway, 318 F.3d at 1009).
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On appeal, Vernon argues that his indictment was constitutionally defective
because, while the indictment alleged that all of the coconspirators were members
or affiliates 9 of the Hoover Crips street gang, “there is no allegation that the
Hoover Crips street gang was involved in the conspiracy, or that any Defendant
planned any robberies in the capacity of a Hoover Crips leader, member, or
associate.” Appellant’s Br. at 30.
The government argues that the indictment was constitutionally sufficient
because it alleged interdependent conduct, even if it did not use the word
“interdependent.” “Specifically, the indictment alleged that the conspirators were
members or affiliates of the Hoover Crips street gang, and described the different
roles the conspirators played in the ongoing conspiracy, including meeting to plan
the robberies, stealing the vehicles that would be used, acting as lookouts, using
cell phones to communicate about the robberies, brandishing and discharging
firearms, and demanding money and controlled substances.” Appellee’s Br. at 36.
Interdependence “exists where coconspirators ‘inten[d] to act together for
their shared mutual benefit within the scope of the conspiracy charged.’” United
States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009) (alteration in original)
9
The actual gang-certification records use the word “associate,” but the
parties use the word “affiliate” to describe someone who has a relationship with
the Hoover Crips but is not a member. We will use the word “affiliate”
throughout this opinion for consistency with the parties’ usage.
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(quoting United States v. Evans, 970 F.2d 663, 671 (10th Cir. 1992)). In Bedford,
we evaluated whether the indictment in that case sufficiently alleged
interdependence. 536 F.3d at 1156–57. We held that “while not using the label
interdependent, the indictment described the interdependent behavior of the
coconspirators in the sections entitled ‘Manner and Means of the Conspiracy’ and
‘Overt Acts.’ Thus, the indictment sufficiently charged [the] Defendant with the
elements of conspiracy.” Id. at 1157 (citation omitted).
Here, the indictment alleged that “[i]t was part of the conspiracy that the
conspirators were and are members or affiliates with the Hoover Crips street
gang.” It went on to list the specific actions each defendant completed in
furtherance of the conspiracy. For example, the indictment alleged that the
members met to plan the robberies, stole vehicles to commit the robberies, and
met to divide the stolen goods from the robberies. While it did not use the word
“interdependent,” the indictment alleged specific interdependent behavior
throughout the “Overt Acts” section.
We think that Vernon’s indictment was constitutionally sufficient. Our
conclusion here is best demonstrated by comparing United States v. Prentiss, 273
F.3d 1277, 1283–84 (10th Cir. 2001), where we vacated the defendant’s
conviction for arson, with Bedford, 536 F.3d at 1156–57 (affirming the
sufficiency of the defendant’s conspiracy indictment). In Prentiss, the uncharged
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element was that either the victim or the defendant was a Native American, which
was not mentioned in the indictment, 273 F.3d at 1278; in Bedford, by contrast,
the indictment listed specific behavior establishing interdependence for the
conspiracy but did not mention the element expressly, 536 F.3d at 1156–57. We
nonetheless concluded that the indictment in Bedford was constitutionally
sufficient. 536 F.3d at 1157. The indictment in Prentiss, conversely, was
constitutionally defective. 273 F.3d at 1283–84.
We think that Vernon’s indictment is akin to Bedford, not Prentiss. The
indictment described the coconspirators’ alleged interdependent actions. 10 It put
Vernon on notice of the charges against which he had to defend and enabled him
to assert a double-jeopardy defense. Vernon’s indictment was constitutionally
sufficient. We affirm the district court.
III. MOTIONS TO SEVER
We next consider Vernon’s argument regarding his unsuccessful motion to
sever. We review the denial of a motion to sever for an abuse of discretion.
Evans, 970 F.2d at 675. We will not reverse absent a strong showing of prejudice.
10
Whether the indictment sufficiently alleged interdependence is a distinct
question from whether there was sufficient evidence to prove it. For instance, the
indictment alleged that the coconspirators had operated together as members of
the Hoover Crips street gang. At the indictment stage, this adequately alleged
interdependence. But as we conclude below, the gang evidence introduced at trial
was insufficient to establish interdependence for the global conspiracy.
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Id. “Neither a mere allegation that [the] defendant would have a better chance of
acquittal in a separate trial, nor a complaint of the ‘spillover effect’ [of damaging
evidence] is sufficient to warrant severance.” United States v. Edwards, 69 F.3d
419, 434 (10th Cir. 1995) (second alteration in original) (quoting United States v.
Levine, 983 F.2d 165, 167 (10th Cir. 1992)). In a conspiracy trial, we presume
that persons charged together should be tried together. United States v. Stiger,
413 F.3d 1185, 1197 (10th Cir. 2005); Edwards, 69 F.3d at 434. Further, joinder
of a conspiracy count in the same indictment and trial as the underlying
substantive offenses is proper under Fed R. Crim. P. 8(a). United States v.
Thompson, 286 F.3d 950, 968 (7th Cir. 2002).
Under Fed. R. Crim. P. 14, Vernon filed a pretrial motion to sever his charged
offenses into two trials and to sever his trial from the other defendants. 11 Vernon
attempted to show the necessary prejudice under Rule 14 by identifying certain
coconspirator statements that, if introduced at trial, would prejudice him. Taking
its cue from Rule 14(b), 12 the district court required the government to deliver to
11
Specifically, Vernon asked the district court to sever and try separately
Count Two, which related to the IBC robbery. Vernon also requested the district
court to sever Counts Five and Six, which involved the robbery committed by
Vernon, Lewis, Deandre, Devers, and Tiger.
12
This rule requires that “[b]efore ruling on a defendant’s motion to sever, the
court may order a government attorney to deliver to the court for in camera
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the court for in camera inspection any coconspirator statements it intended to use
at trial. After reviewing that evidence, the district court excluded one of Vernon’s
coconspirator’s statements, concluding it was inadmissible under Fed. R. Evid.
801(d)(2)(E) because it was not uttered during and in furtherance of the
conspiracy. The district court denied the severance motions. 13
inspection any defendant’s statement that the government intends to use as
evidence.” Fed. R. Crim. P. 14(b).
13
The court explained:
Based upon the evidence presented by the government, this court
finds that the government did not present independent admissible
evidence of a conspiracy. During said hearing numerous statements
were identified as having been made by one or more of the
defendants. According to the government’s summation of the
evidence, however, the only statements which the government will
seek to admit as co-conspirators statements were made by Defendant
Devers to Duncan Herron. Since the government’s evidence failed to
prove a conspiracy, this court finds said statements are not
admissible under Fed. R. Evid. 801(d)(2)(E).
R. vol. 1, at 448. Vernon points to this statement in support of his argument that
the trials and charges should have been severed because the government failed to
properly indict or prove a conspiracy. In equating a preliminary finding of
conspiracy enabling the government to introduce coconspirator statements under
Rule 801(d)(2)(E) with the sufficiency of a conspiracy charge in an indictment,
Vernon errs. See generally United States v. Urena, 27 F.3d 1487, 1490 (10th Cir.
1994) (noting that the defendant’s contention that the district court erred in
denying his motion for judgment of acquittal “amount[ed] to a simple hearsay
objection”) (“The strongly preferred order of proof in determining the
admissibility of an alleged coconspirator statement is first to hold a [hearing] . . .
outside the presence of the jury to determine by a preponderance of the evidence
the existence of a predicate conspiracy.”).
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To this court, Vernon makes a slightly different argument under Fed. R. Crim.
P. 8(b), asserting that the claims against Vernon had to be severed from unrelated
charges against codefendants. He confuses the issues: Rule 8 is a permissive rule
that allows courts to join defendants and charges under certain circumstances;
Rule 14 provides relief from prejudicial joinder. Vernon admits that if the
indictment had properly alleged a global conspiracy, then the district court could
properly join the counts under Rule 8.
Fed. R. Crim. P. 8(a) governs the joinder of offenses: the indictment may
charge a defendant “with [two] or more offenses if the offenses charged . . . are
of the same or similar character, or are based on the same act or transaction, or
are connected with or constitute parts of a common scheme or plan.” Fed. R.
Crim. P. 8(b) governs the joinder of defendants: the indictment “may charge
[two] or more defendants if they are alleged to have participated in the same act
or transaction, or in the same series of acts or transactions, constituting an
offense or offenses.” We construe Rule 8 broadly to “allow liberal joinder to
enhance the efficiency of the judicial system.” United States v. Jones, 530 F.3d
1292, 1298 (10th Cir. 2008) (quoting United States v. Johnson, 130 F.3d 1420,
1427 (10th Cir. 1997)).
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We do not think that the trial court erred in denying either severance motion.
First, joinder of offenses was proper under Fed. R. Crim. P. 8(a) because the
individual robberies were alleged as the overt acts establishing the conspiracy.
Second, the district court properly joined the defendants’ trials under Fed. R.
Crim. P. 8(b) because the defendants were charged together as coconspirators. 14
Finally, Vernon makes no argument regarding any resulting prejudice. At
most, he argues that he “was forced to defend himself in a trial that involved
presentation of gang evidence and evidence regarding three robberies the
government concedes he did not commit.” Appellant’s Br. at 32. Under Edwards,
this is insufficient to establish prejudice. See 69 F.3d at 434. While Vernon
broadly alleges prejudice, he does not point to any specific instances in his trial
where prejudice occurred. This broad contention is insufficient. 15 See United
States v. Pursley, 474 F.3d 757, 766 (10th Cir. 2007) (“To establish prejudice, a
defendant must point to a ‘specific trial right’ that was compromised or show the
jury was ‘prevent[ed] . . . from making a reliable judgment about guilt or
14
We note that our conclusion here does not change because we later conclude
that the government failed to prove the global conspiracy. At the time of the
district court’s order, the district court had properly joined the charges and trials.
15
For example, if two defendants intend to present antagonistic defenses, a
district court can conclude that the joinder of their trials would prejudice the
defendants. See, e.g., United States v. Pursley, 474 F.3d 757, 765–66 (10th Cir.
2007).
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innocence.’”) (alterations in original) (quoting Zafiro v. United States, 506 U.S.
534, 539 (1993)).
We affirm the district court’s denial of the severance motions.
IV. VARIANCE
Next, Vernon argues that the government failed to prove the global conspiracy
charged in Count One. To prove a conspiracy, the government must prove four
elements: (1) that two or more people agreed to violate the law; (2) that the
defendant knew at least the conspiracy’s essential objectives; (3) that the
defendant knowingly became a part of the conspiracy; and (4) that the
coconspirators were interdependent. United States v. Sells, 477 F.3d 1226, 1235
(10th Cir. 2007). Vernon disputes only whether the government introduced
enough evidence to establish the fourth element, interdependence—and if it did
not, whether its failure to introduce sufficient evidence constitutes a fatal
variance.
“We treat a conspiracy variance claim as an attack on the sufficiency of the
evidence supporting the jury’s finding that each defendant was a member of the
same conspiracy.” United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir.
2008) (quoting United States v. Griffin, 493 F.3d 856, 862 (7th Cir. 2007)). We
review de novo challenges to the sufficiency of the evidence. United States v.
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Wells, 739 F.3d 511, 525 (10th Cir. 2014). We must take the evidence and draw
all reasonable inferences in favor of the government. Id. “Distinguishing between
a single, large conspiracy and several smaller conspiracies is often difficult; we
will generally defer to the jury’s determination of the matter.” Caldwell, 589 F.3d
at 1329. The existence of a variance that would support acquittal is a legal
question also reviewed de novo. Id. at 1328, 1333.
Interdependence is the focal point for determining whether a single conspiracy
existed, and it “exists where coconspirators ‘inten[d] to act together for their
shared mutual benefit within the scope of the conspiracy charged.’” Id. at 1329
(alteration in original) (quoting Evans, 970 F.2d at 671). “[I]nterdependence
exists where each [coconspirator’s] activities constituted essential and integral
steps toward the realization of a common, illicit goal.” Edwards, 69 F.3d at 431
(quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir. 1990)) (internal
quotations omitted). It requires that all coconspirators have a single criminal
objective, not just similar or parallel objectives between similarly situated people.
Evans, 970 F.2d at 670. We must evaluate “what kind of agreement or
understanding existed as to each defendant.” United States v. Record, 873 F.2d
1363, 1368 (10th Cir. 1989) (quoting United States v. Borelli, 336 F.2d 376, 384
(2d Cir. 1964)). Circumstantial evidence can often prove this. United States v.
Hutchinson, 573 F.3d 1011, 1035 (10th Cir. 2009).
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A “variance arises when an indictment charges a single conspiracy but the
evidence presented at trial proves only the existence of multiple conspiracies.”
Carnagie, 533 F.3d at 1237 (citing United States v. Ailsworth, 138 F.3d 843, 848
(10th Cir. 1998)). The prohibition against variances is intended to protect the
fairness of the defendant’s trial. See generally Wayne R. LaFave et al., 5 Crim.
Proc. § 19.6(b) (3d ed. 2014) (discussing the origin of the prohibition against
variances from Berger v. United States, 295 U.S. 78 (1935), and the policy
justifications for the rule). A variance constitutes reversible error only if it affects
the substantial rights of the defendant. Edwards, 69 F.3d at 433; see also
Caldwell, 589 F.3d at 1333.
We explained in United States v. Harrison that “[a] defendant’s substantial
rights are not prejudiced merely because the ‘defendant is convicted upon
evidence which tends to show a narrower scheme than that contained in the
indictment, provided that the narrower scheme is fully included within the
indictment.’” 942 F.2d 751, 758 (10th Cir. 1991) (quoting United States v. Mobile
Materials, 881 F.2d 866, 874 (10th Cir. 1989)); see also Carnagie, 533 F.3d at
1241 (“When a narrower scheme than the one alleged is fully included within the
indictment and proved, we have repeatedly held that a defendant’s substantial
rights are not prejudiced.”). A variance can be prejudicial by either failing to put
the defendant on sufficient notice of the charges against him, United States v.
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Windrix, 405 F.3d 1146, 1154 (10th Cir. 2005), or by causing the jury to
determine the defendant’s guilt by relying on evidence presented against other
defendants who were involved in separate conspiracies (the so-called “spillover
effect”), Edwards, 69 F.3d at 433. When deciding whether a prejudicial guilt-
spillover occurred, we consider (1) whether the separate conspiracies affected the
jury’s ability to evaluate each defendant’s individual actions, (2) whether the
variance caused the jury to misuse evidence, and (3) the strength of the evidence
underlying the conviction. Carnagie, 533 F.3d at 1241.
In this case, in Count One, the government charged the defendants, including
Vernon, with conspiring to rob banks, credit unions, and pharmacies throughout
Tulsa as members or affiliates of the Hoover Crips. The government listed the
following manner and means of the conspiracy: (1) “[T]he conspirators were and
are members or affiliates with the Hoover Crips street gang”; (2) “[T]he
conspirators would and did commit robberies of businesses, including
pharmacies, banks and a credit union”; (3) “[T]he conspirators would and did use
firearms during the robberies”; (4) “[T]he conspirators would and did use cellular
phones to communicate before, during and after robberies”; and (5) “[T]he
conspirators would and did threaten persons who were potential witnesses to
robberies.” Count One listed 26 overt acts that various conspirators allegedly
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took in furtherance of the conspiracy. These overt acts included six robberies
charged directly against various combinations of the charged conspirators.
In Vernon’s pretrial motion to dismiss Count One of the indictment, he argued
that there was a fatal variance between the indictment and the evidence proved at
trial. He argued that the indictment alleged a global conspiracy, but that the
evidence would show only multiple, smaller conspiracies. The district court
denied this motion, but it advised Vernon that he could “reurge this motion after
all of the evidence has been presented at trial.” The government’s theory at trial
was that Vernon and his coconspirators were members of the Hoover Crips, and
through this association, they had conspired to commit multiple robberies.
Vernon argues that this evidence was insufficient to prove interdependence for
the global conspiracy.
We agree with Vernon that the record shows insufficient evidence that the
charged coconspirators shared a single, shared unlawful goal or purpose of
robbing banks, credit unions, and pharmacies as the indictment charged. 16 See
United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990) (“[T]he focal point of
the [interdependence] analysis is whether the alleged co-conspirators were united
16
We think that the indictment properly alleged a single, shared unlawful goal
or purpose for the global conspiracy, but the evidence at trial instead only
established multiple, separate conspiracies. Accordingly, we do not need to
address Vernon’s argument that if the indictment alleged multiple conspiracies, it
was duplicitous.
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in a common unlawful goal or purpose.”), overruled on other grounds by United
States v. Gaudin, 515 U.S. 506 (1995). As we explained in Carnagie, “[a]
common goal, however, is not by itself enough to establish interdependence:
[w]hat is required is a shared, single criminal objective, not just similar or
parallel objectives between similarly situated people.” 533 F.3d at 1239
(emphasis in original) (internal quotations omitted) (quoting Evans, 970 F.2d at
671). Conspiring to commit one of the individual robberies, without more, does
not amount to conspiring to commit all of the robberies. Even though the general
objective between the individual robberies was the same—the robbery of banks,
credit unions, or pharmacies for drugs or money—that does not necessarily mean
that the separate groups were interdependent. See id. at 1238–40.
For the global conspiracy, the jury had to infer that because all of the
conspirators were members or affiliates of the Hoover Crips, they must have had
a shared, criminal objective sufficient to establish interdependence. We do not
think that is enough. In United States v. Robinson, 978 F.2d 1554, 1563 (10th Cir.
1992), we explained that, while gang-affiliation evidence is probative
circumstantial evidence tending to show agreement, purpose, and knowledge for a
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conspiracy, gang-affiliation evidence “alone could not support a conviction.” 17
The defendants in Robinson stood trial for conspiring to distribute, possess, and
manufacture cocaine base. Id. at 1558. In that case, unlike here, the government
admitted evidence beyond gang membership to prove the drug conspiracy. Id. at
1563. For instance, there was “uncontroverted testimony that the main purpose of
the [gang] was to sell cocaine” and “ample evidence of drug trafficking in
addition to the gang related items discovered at the apartment
. . . .” Id. at 1561–63. For the conspirators in this case, we see no evidence, other
than gang membership, that shows or provides a sufficient inference of a shared
criminal goal to rob banks and pharmacies.
For instance, there was no evidence showing that the individual robbers
“benefitted from or depended upon the success of the” other robbers or robberies.
See Carnagie, 533 F.3d at 1240 (citing United States v. Yehling, 456 F.3d 1236,
1241 (10th Cir. 2006) (“[E]ach coconspirator’s actions must facilitate the
endeavors of other alleged coconspirators or facilitate the venture as a whole.”)).
There must be at least some evidence of “mutual dependence.” Id.; see also
Kotteakos v. United States, 328 U.S. 750, 754–55 (1946). The conspirators’
affiliations with the Hoover Crips, by itself, are not enough to establish
17
We note that the gang-certification evidence introduced at trial only showed
that Vernon was a known affiliate of the Hoover Crips, not necessarily a full-
fledged member.
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interdependence. Lacking from the government’s proof was any showing that for
any particular robbery, anyone but the robbers committing it benefitted in any
way—that is, we see no evidence that nonparticipating gang members or affiliates
shared in any stolen drugs or money. In one very real sense, each individual bank,
credit union, or pharmacy robbery harmed—not benefitted—the nonparticipating
bank robbers. After each robbery, police became more alert to future related
robberies and began to see that Hoover Crips members or affiliates were
involved.
The government argues that the commonalities between the robberies and the
gang evidence should be enough. We disagree. While commonalities might be
enough if the means and method were unique in some way, that simply was not
the case here. Cf., e.g., United States v. Carroll, 207 F.3d 465, 469–70 (8th Cir.
2000) (finding the means and methods used in two bank robberies too generic to
permit an inference of identity under Fed. R. Evid. 404(b)). The government tried
to rely on the gang-affiliation evidence to link all of these facts together and paint
a picture of a gang-based robbery conspiracy. It also cited the discharge of
firearms and the demand of money and controlled substances during the robberies
in an attempt to prove interdependence. The use of cell phones, facemasks, guns,
bags, threats, and a stolen getaway car does not elevate this string of robberies
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into one where we can infer that the same group committed all of them. We do
not see any uniqueness in method that would support interdependence.
Therefore, we conclude that the government introduced insufficient evidence
of interdependence to prove the global conspiracy as Count One charged. But this
does not end our inquiry. In this situation, if the government showed that Vernon
conspired to commit one or more of the individual robberies, we can still affirm
his conspiracy conviction under our circuit’s variance doctrine. See, e.g.,
Caldwell, 589 F.3d at 1332–33. This requires us to analyze (1) whether the
government proved that Vernon had conspired to commit one or more of the
individual robberies, and (2) whether this discrepancy constitutes a prejudicial
variance.
In fact, Vernon concedes the first inquiry by admitting that multiple, smaller
conspiracies were established: 18
At most, a juror could have inferred Vernon robbed a bank by
himself, agreed to participate in a conspiracy to rob the Metro (with
one group of people), and then engaged in a second conspiracy to rob
the Arvest Bank (with his brother or brothers, who were not involved
in the other robberies). However, no evidence links those robberies
to each other or to some common endeavor.
18
Even had Vernon not conceded this argument, we think sufficient evidence
establishes two individual conspiracies. We agree with Vernon that there was
insufficient evidence introduced at trial to establish that he conspired to rob IBC
Bank. But even excluding the IBC Bank robbery, the evidence at trial still
showed two narrower conspiracies—a conspiracy to rob the Metro Pharmacy and
a conspiracy to rob the Arvest Bank.
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Appellant’s Br. at 36. In his Reply Brief, he goes even further: “Vernon does not
dispute that each robbery (excluding the IBC robbery) had more than one
participant and was planned by its robbers, whoever they were.” Appellant’s
Reply Br. at 7, 9 (“At most, the evidence shows that different people on different
dates and locations got together to plan unrelated robberies.”). Vernon rests his
appeal on the alleged prejudice that resulted from this variance. To determine if
Vernon suffered prejudice, we look at whether he received adequate notice of the
smaller conspiracies and whether there was prejudicial guilt spillover.
A. Did Vernon Receive Adequate Notice of the
Smaller Conspiracies Actually Proven?
We conclude that the indictment adequately notified Vernon of the smaller
conspiracies ultimately presented at trial. See, e.g., Caldwell, 589 F.3d at 1333
(“When an indictment charges a conspiracy among multiple individuals, it
generally provides sufficient notice to a defendant that she must defend against
the smaller conspiracies.”). The indictment fully contemplated the smaller
conspiracies. Based on the indictment, Vernon knew that the government had
charged him with committing two robberies (not including his earlier conviction
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for the Arvest Bank robbery). By reading the indictment, Vernon could fully
anticipate evidence about the Hoover Crips and his conduct in committing the
IBC Bank, Metro Pharmacy, and Arvest Bank robberies. This adequately notified
him of his need to defend against the smaller conspiracies ultimately proved.
B. Was There Prejudicial Guilt Spillover?
Second, “[a] defendant’s substantial rights are affected in the context of a
variance when the jury determines a defendant’s guilt by relying on evidence
adduced against coconspirators who were involved in separate conspiracies.”
Edwards, 69 F.3d at 433. To evaluate whether a prejudicial spillover occurred,
reviewing courts look to three factors: (1) whether the separate conspiracies
affected the jury’s ability to evaluate each defendant’s individual actions;
(2) whether the variance caused the jury to misuse evidence; and (3) the strength
of the evidence underlying the conviction. Carnagie, 533 F.3d at 1241. Applying
these factors, we conclude that there was no spillover-guilt effect in this case.
i. Did the Separate Conspiracies Affect the Jury’s Ability to
Evaluate Each Defendant’s Individual Actions?
Evaluating the first Carnagie factor, we conclude that the evidence of separate
conspiracies did not impair the jury’s ability to segregate each conspirator’s
actions. As the Supreme Court explained in Kotteakos, the greater number of
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defendants tried and conspiracies established, the more likely it is that prejudice
will result. 328 U.S. at 772–73. In that case, more than thirty people were
indicted, with nineteen tried together, and at least eight separate conspiracies
established. See id at 766.
The Court created no fixed rule based on the numbers for determining when
prejudice occurs. Id. at 773–74 (expressing no opinion on what “marks the limit,”
but making clear that it exists somewhere between Berger and Kotteakos).
Reviewing courts must look to the facts of each case to determine whether a
defendant has suffered substantial prejudice. See generally Carnagie, 533 F.3d at
1242 (holding that trying three defendants together for three separate
conspiracies, given other factors, did not constitute prejudice). In this case, there
were only three defendants tried together (Vernon, Dejuan, and Deandre) and five
conspiracies proven (Dooley Pharmacy, Barnes Pharmacy, Metro Pharmacy,
Tulsa Credit Union, and Arvest Bank). As in Carnagie, “the number of
defendants tried and conspiracies proven do not reach the magnitude of
Kotteakos, and thus the risk of prejudice is not as great.” Id. (citing Kotteakos,
328 U.S. at 774).
In support of his argument that he suffered prejudice from evidentiary
spillover, Vernon makes three arguments: (1) “the government admitted and
highlighted a great deal of evidence about crimes Vernon clearly did not
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commit”; (2) “[t]he government also used the Global Conspiracy theory as a
justification to present gang evidence at trial”; and (3) “the jury’s special
interrogatory answers in connection with the verdict against Vernon contained
adverse findings about the Dooley Pharmacy, the T. Roy Barnes [Pharmacy], and
Tulsa Municipal Employees Credit Union robberies, absent any evidence linking
Vernon to those crimes.” Appellant’s Reply Br. at 16.
Vernon’s first argument is unpersuasive. There were very clear distinctions
between the evidence that was relevant to each defendant. As in Carnagie, the
evidence here was not so intricate as to render the jury unable to separate the
evidence associated with each defendant’s individual actions. See 533 F.3d at
1242. Moreover, the evidence from the other robberies was “of the exact same
character” as the evidence from the three robberies involving Vernon. See id.
“We have held that such a similarity between different transactions cuts against a
finding of substantial prejudice.” Id.; cf. United States v. Bertolotti, 529 F.2d 149,
157 (2d Cir. 1975) (finding a prejudicial variance based in part on the fact that
“the crimes of the various appellants . . . scarcely resembled one another”).
Nor does Vernon’s second argument persuade us. As we explain below, we
conclude that the district court properly admitted gang-affiliation evidence
against Vernon under Fed. R. Evid. 403. Its probative value, even in light of the
danger of unfair prejudice, would have existed even if Vernon had stood trial for
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conspiring to commit the three smaller robberies. The evidence still would have
tended to show purpose, knowledge, and intent to commit the three robberies,
especially for the Metro Pharmacy robbery, which involved a wider, more diverse
group of coconspirators (than the Arvest Bank robbery), who shared ties with
each other through the Hoover Crips. Because we conclude that this evidence was
admissible under Fed. R. Evid. 403, we also conclude that its admission does not
constitute substantial prejudice for the purpose of the variance analysis. Vernon
makes no particularized argument regarding why the gang evidence caused him
substantial prejudice; he simply asserts that it did.
Evaluating his final argument, we fail to see what “adverse findings” the
jury’s special interrogatory answers contain. In our view, the special
interrogatories show that the jury understood that it could hold each defendant
accountable only for the evidence introduced against him.
ii. Did the Variance Cause the Jury to Misuse Evidence?
Under Carnagie’s second prong, we must examine whether a variance caused
juror confusion about the legal limitations on the use of certain evidence. 533
F.3d at 1243. Vernon does not allege this type of prejudice. In fact, the district
court excluded all coconspirator statements that the government had sought to
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introduce under Fed. R. Evid. 801(d)(2)(E). After reviewing the record, we
conclude that there was no prejudice from jury confusion.
iii. Was there Sufficiently Strong Evidence
Underlying the Jury’s Decision?
Under Carnagie’s final prong, we must consider the strength of the evidence
underlying the jury’s conviction on Count One, the global conspiracy. To do so,
we examine the evidence supporting the “smaller, separate conspiracies.”
Carnagie, 533 F.3d at 1243. As first noted earlier, we conclude that the
government presented sufficient evidence to prove that Vernon conspired with
others to rob Metro Pharmacy and Arvest Bank.
For the Metro Pharmacy robbery, Herron testified that Vernon had planned
and participated in the robbery. Herron walked into the pharmacy to buy some
medicine, texted Devers as he was leaving, and held open the door for Vernon,
Lewis, and Devers because customers had to be buzzed into the pharmacy. Once
inside, those three men robbed the pharmacy, and two of the robbers displayed
guns, with the third robber (Vernon) carrying a bag. After the robbery, the men,
except Herron, got into a van parked outside of the pharmacy and drove away.
For Arvest Bank, the government presented evidence that two armed, masked
men robbed it. The tellers gave the robbers previously concealed and marked $50
bait bills and a strap of $20 bills containing a GPS tracker. Officers immediately
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began receiving location updates from the tracker. The device stopped moving
near 1109 East Pine Street, which was near Vernon’s known residence at 1107
East Pine Street. The officers obtained a search warrant for Vernon’s house.
Before they executed the search warrant, the officers arrested Vernon and Stanley
after they emerged from the house. Upon executing the search warrant, the
officers found money stolen from the bank, the GPS tracker, a Glock pistol, a
hooded black sweatshirt, a ski mask, gloves, and dark-colored pants, all of which
they believed had been used in the robbery. This is enough evidence to prove that
Vernon was involved in the conspiracy to rob Arvest Bank. That being so, we
conclude that Vernon did not suffer prejudice from any guilt transference.
In sum, we conclude that Vernon did not suffer substantial prejudice from the
variance. We affirm his conviction on Count One.
V. INTRINSIC EVIDENCE
Vernon argues next that some evidence the district court admitted as intrinsic
to the charged crimes was instead extrinsic. At trial, the government introduced
evidence establishing all six charged robberies, including the three involving
Vernon (IBC, Metro Pharmacy, and Arvest Bank), and one robbery not charged to
anyone (CVS Pharmacy). Under Fed. R. Evid. 404(b), Vernon objected to the
court’s admitting evidence of any robbery not charged to Vernon as improper
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because there was no global conspiracy. The trial court admitted all of the
evidence, finding that it was intrinsic evidence, outside the scope of Fed. R. Evid.
404(b), because it was “closely related to the conspiracy charged and [fell] within
the relevant time frame.”
Vernon argues on appeal that the government presented three extra trials
relating to robberies Vernon certainly did not commit. The government responds
that the challenged evidence was intrinsic evidence, not subject to Fed. R. Evid.
404(b), because it all was either charged to one of the coconspirators or it took
place during the same timeframe as the conspiracy.
Fed. R. Evid. 404(b) applies only to evidence of acts extrinsic to the charged
crime. Record, 873 F.2d at 1372 n.5. An uncharged act may not be considered
extrinsic if it was part of the scheme for which a defendant is being prosecuted,
id., or inextricably intertwined with the charged crime such that a witness’s
testimony would have been confusing and incomplete without mention of the
prior act, United States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994). To be
considered intrinsic evidence, rather than extrinsic, “the government’s use of
evidence of wrongful, uncharged acts [must be] necessary to contextualize” the
evidence introduced at trial. United States v. Hood, 774 F.3d 638, 644 (10th Cir.
2014) (concluding that evidence establishing why the police officers were at a
particular location qualified as intrinsic evidence, not subject to Fed. R. Evid.
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404(b)). We review the trial court’s decision to admit evidence for an abuse of
discretion. United States v. Neal, 718 F.2d 1505, 1509–10 (10th Cir. 1983).
A. Evidence of the Traffic Stop
First, Vernon appeals the district court’s decision to admit evidence of a
traffic stop involving Lewis, Eddie Brown, and Patrick Crisp. In an attempt to
prove a substantive charge against Deandre for the Credit Union robbery, the
government introduced evidence of the traffic stop, which occurred almost a
month after that robbery. The evidence showed that during a search of the car, the
officers found marijuana, two bottles of codeine cough syrup, and a large amount
of cash. The government argued, and the district court agreed, that this evidence
helped prove the Credit Union robbery.
We decline to decide whether the district court properly admitted this evidence
as intrinsic evidence for the Credit Union robbery because any error was
harmless. The admission of this evidence constitutes a nonconstitutional error, so
we only decide whether the evidence, in light of the entire record,
(1) substantially influenced the outcome of the trial or (2) leaves us in grave
doubt as to whether it had such an effect. Kotteakos, 328 U.S. at 764–65
(establishing the harmless error rule); United States v. Tome, 61 F.3d 1446, 1455
(10th Cir. 1995). The traffic stop did not even involve Vernon, and he makes no
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particularized argument as to how this evidence substantially influenced the
outcome of his trial. Accordingly, error here, if any, was harmless.
B. Evidence of the CVS Pharmacy Robbery
Vernon complains that the district court allowed evidence of the uncharged
CVS Pharmacy robbery just because it occurred within the timeframe of the
conspiracy and was similar to the charged robberies. Separate from his concern
over whether this evidence was intrinsic, Vernon argues that the district court
erred in admitting this evidence because there was no proof that Vernon was
involved in the CVS robbery.
In response, the government contends that this evidence helped establish
interdependence by demonstrating the individual robbers’ specific roles over the
course of multiple robberies. Accordingly, the government argues, the district
court did not abuse its discretion in admitting evidence of the CVS robbery as
direct evidence of the charged conspiracy.
We disagree with the government. Herron told Officer Ryden that Vernon
participated in the Metro Pharmacy robbery. Based on this information from
Herron, Officer Ryden compared the video from the Metro Pharmacy robbery to
the CVS Pharmacy robbery, attempting to ascertain whether any one person
participated in both robberies. Based on the video footage, Officer Ryden thought
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that Lewis participated in both because of his physical appearance, his left-
handedness, and his use of a firearm in both robberies. He also concluded that
Devers participated in both because of his physical appearance and clothing worn
in both robberies. Finally, Officer Ryden thought that the third person in both
robberies was Vernon because he looked similar in the videos and he carried a
bag, not a gun.
During its closing argument, the government discussed the CVS Pharmacy
robbery, saying, “Following [the Metro Pharmacy robbery], the CVS store was
robbed. And exactly what happens then? They have now learned, thanks to the
Metro robbery, you steal a vehicle, you don’t leave anything in it.” The
government then went on to compare the CVS robbery to the other robberies,
arguing that Vernon was one of the men in the tape from the CVS robbery.
To admit evidence as intrinsic—and to avoid having to comply with Fed. R.
Evid. 404(b)’s requirements—the evidence must provide context for other
admissible evidence or witness testimony. The district court explained that “such
evidence can be considered intrinsic evidence falling outside of Rule 404(b)
usually—and this is where I’m hanging my hat on this—usually when that
evidence is closely related to the conspiracy charged and falls within the relevant
time frame.” The court went on, “I think that describes the evidence that I
anticipate the government intends to introduce. . . . I [find] that it is intrinsically
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connected to the evidence that’s been put on of the other robberies so it comes
into evidence under that theory.” As such, the court concluded that this evidence
fell outside Fed. R. Evid. 404(b)’s scope.
This is not enough. The CVS Pharmacy robbery evidence needed to provide
context to other admissible evidence, or more relevant here, it needed to
contextualize a witness’s testimony. In Hood, for example, the only way the
officer could explain being at the apartment complex where he encountered
Hood was by referring to the burglary investigation. 774 F.3d at 644. If the
officer had not mentioned that investigation and background, his testimony about
being at the apartment complex would have confused the jury. Id. So had Officer
Ryden’s investigation of the CVS Pharmacy robbery led him to suspect Vernon’s
involvement in the Metro Pharmacy robbery, or something similar, the CVS
Pharmacy robbery evidence would provide context for evidence of the charged
crime. But that was not the case here. The CVS Pharmacy robbery was merely
evidence of a robbery occurring around the same time, nothing more. Minimizing
jury confusion is the most important consideration in determining whether
something is intrinsic evidence, not simply when the alleged bad act took place.
We therefore conclude that the district court abused its discretion in admitting
the evidence of the CVS Pharmacy robbery. However, we also conclude that this
error was harmless. Because the admission of the CVS Pharmacy evidence
- 37 -
constitutes a nonconstitutional error, we review only for whether the evidence, in
light of the entire record, (1) substantially influenced the outcome of the trial, or
(2) leaves us in grave doubt as to whether it had such an effect. Kotteakos, 328
U.S. at 764–65; Tome, 61 F.3d at 1455.
In this case, given the breadth and depth of admissible evidence establishing
the charged robberies, we cannot say that the admission of the CVS Pharmacy
robbery evidence substantially influenced the outcome of the trial. Certainly, the
government used the evidence to attempt to establish Vernon’s guilt for the
global conspiracy count by showing the commonalities between the CVS
Pharmacy robbery and the other robberies. But as we have already held above, the
government failed to prove the global conspiracy. As such, the CVS Pharmacy
evidence had little bearing on the trial’s outcome. Further, the admission of the
evidence does not leave us in grave doubt as to whether it had such an effect. We
are therefore confident that the error was harmless, and we affirm the district
court.
VI. GANG-AFFILIATION EVIDENCE
Vernon also appeals the district court’s decision to admit the gang-affiliation
evidence, arguing it was irrelevant and unfairly prejudicial. Evidence is relevant
if it has any tendency to make a fact of consequence more or less probable. Fed.
- 38 -
R. Evid. 401. Under Rule 403, a trial court may exclude otherwise “relevant
evidence if its probative value is substantially outweighed by a danger of . . .
unfair prejudice . . . .” We “afford[] the district court considerable discretion in
performing the Rule 403 balancing test because district court judges have
front-row seats during trial and extensive experience ruling on evidentiary
issues.” United States v. Archuleta, 737 F.3d 1287, 1292 (10th Cir. 2013)
(quoting United States v. MacKay, 715 F.3d 807, 839 (10th Cir. 2013)). We
review a district court’s evidentiary determinations for an abuse of discretion.
United States v. Flanagan, 34 F.3d 949, 952–53 (10th Cir. 1994).
Vernon filed a motion in limine to exclude all evidence of his alleged
gang-affiliation and any mention that the crimes were gang-related. He argued
that the evidence was irrelevant and alternatively that Rule 403 precluded
admission of the evidence. The district court denied the motion, concluding that
the gang evidence was relevant and that the probative value of the evidence
outweighed the danger of unfair prejudice.
At trial, the government introduced evidence that Vernon and some of his
other alleged coconspirators were members or affiliates of the Hoover Crips
street gang. For instance, Anthony Campbell testified regarding his experience as
a member of the Hoover Crips from 1993 to 2003. As discussed already, this was
the government’s theory of interdependence for the global conspiracy. The Tulsa
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Police Department has a system for “certifying” individuals as gang members or
affiliates based on a point system. Officer Steven Sanders testified that Vernon
had some points, but he did not have enough to be a certified gang member; the
Tulsa Police Department considered him only an affiliate of the Hoover Crips.
Even so, Herron testified that Vernon was an actual member of the Hoover Crips,
specifically the 27 sect. The government used the gang evidence as circumstantial
evidence of interdependence between the coconspirators for all of the charged
robberies.
On appeal, Vernon makes only the bare assertion that “the government
presented irrelevant, prejudicial evidence regarding the Hoover Crips street gang
. . . .” Appellant’s Br. at 38. The government responds that the gang affiliation
evidence was probative to establish an agreement among the defendants, the
purpose of the conspiracy, and knowledge by the defendants.
We first conclude that the evidence was relevant. To prove guilt under Count
One—that Vernon had conspired with others to rob banks, credit unions, and
pharmacies—the government had to show that he agreed with at least one other
person to do so. See Caldwell, 589 F.3d at 1329. We have previously held that
“where conspiracy is charged[,] gang-affiliation testimony may be relevant.”
Archuleta, 737 F.3d at 1293–94 (citing multiple cases where this court has
allowed gang-related evidence to prove conspiracy); see also, e.g., United States
- 40 -
v. Brown, 200 F.3d 700, 708 (10th Cir. 1999) (same). Gang evidence is often
relevant to the formation of the conspiracy, the agreement of the coconspirators,
the purpose of the conspiracy, and the knowledge attributable to the conspirators.
Robinson, 978 F.2d at 1562–63. But gang evidence alone cannot support a
conviction. Id. at 1563. Here, we conclude that the gang evidence was properly
admitted because it provided circumstantial evidence that Vernon was involved in
forming and agreeing to participate in the global conspiracy and knew its
purpose. See id. at 1562–63.
Certainly, we concluded above that the evidence at trial established
interdependence only for the smaller conspiracies to rob the individual banks or
pharmacies. But we must remember that at the time of the district court’s ruling,
the district court had properly joined the alleged coconspirators’ trials, and we
review the district court’s decision based on the facts then available to it. The
probative value of the gang evidence was considerable, given that Vernon
disputed interdependence by arguing that the codefendants did not know each
other and did not have a joint motive. Therefore, it was probative circumstantial
evidence to disprove Vernon’s claim. See, e.g., id. at 1562 (“Circumstantial
evidence is often the strongest evidence of conspiracy.”). Even for the individual
conspiracies that the government actually proved at trial, this evidence had
probative value, just on a smaller scale.
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Finally, the danger of unfair prejudice was limited, given that the
gang-affiliation evidence was only a small part of the evidence against Vernon.
Other direct and circumstantial evidence proved that Vernon helped commit the
robberies. For instance, Herron testified that Vernon met with others to plan the
Metro Pharmacy robbery, including going into the pharmacy with two others and
demanding money and drugs. For the Arvest Bank robbery, the police discovered
Vernon emerging from his house shortly after the robbery. The police later found
the marked bait bills and the GPS tracker from Arvest Bank inside his house. The
evidence showed that Vernon robbed Arvest Bank with two of his brothers,
meaning that the jury did not need to rely on the gang-affiliation evidence to find
knowledge, purpose, or agreement among the coconspirators. In sum, Vernon’s
common gang membership with his coconspirators was a small part of the
evidence.
We conclude that the district court did not abuse its discretion in admitting the
evidence.
VII. GANG-CERTIFICATION RECORDS
Vernon further argues that the district court’s decision to admit his
gang-certification record and its underlying hearsay violated the Confrontation
Clause. In Crawford v. Washington, the Supreme Court held that testimonial
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hearsay is barred from admission in a criminal trial unless the witness is
unavailable and the opposing party has had an opportunity for cross-examination.
541 U.S. 36, 68 (2004). This court reviews de novo the legal question of whether
evidence at trial violates the Confrontation Clause. United States v. Summers, 414
F.3d 1287, 1298 (10th Cir. 2005). We review a decision to admit evidence that
does not implicate the Constitution for abuse of discretion. United States v.
Dowlin, 408 F.3d 647, 659 (10th Cir. 2005).
In Crawford, the Court left the definition of testimonial “for another day.” 541
U.S. at 68. The court did explain:
Various formulations of this core class of “testimonial” statements
exist: “ex parte in-court testimony or its functional equivalent—that
is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect to be
used prosecutorially,” . . . “extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions” . . . “statements that were made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at
a later trial,” . . . These formulations all share a common nucleus and
then define the Clause’s coverage at various levels of abstraction
around it. Regardless of the precise articulation, some statements
qualify under any definition—for example, ex parte testimony at a
preliminary hearing.
Id. at 51–52 (citations omitted).
Since Crawford, the Court has still not articulated a clear definition of
testimonial statements. Instead, courts have adopted an ad hoc approach for
- 43 -
determining whether evidence is testimonial, and the Supreme Court has
specifically carved out numerous exceptions and limitations. See, e.g., Michigan
v. Bryant, 131 S. Ct. 1143, 1150 (2011) (holding that statements made to police
concerning an ongoing emergency are not testimonial); Davis v. Washington, 547
U.S. 813, 822 (2006) (“Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that the primary
purpose of interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.”). We have previously explained that testimonial hearsay
“at a minimum, [includes] prior testimony at a preliminary hearing, before a
grand jury, at a former trial, and statements made during police interrogations.”
United States v. Mendez, 514 F.3d 1035, 1043 (10th Cir. 2008) (citing Crawford,
541 U.S. at 68).
Before trial, the district court found that Officer Sanders was not an expert in
gang membership, but it allowed him to testify as a fact witness regarding “the
gang culture within the Tulsa area, including the operation, structure and
terminology of the gang, based upon his working knowledge of the same. His
testimony will, however, be governed by Fed. R. Evid. 701.” By the district
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court’s direction, Officer Sanders could not “give his own personal opinion as to
the gang affiliation of any particular person especially where that opinion differs
from the official business records maintained by the Gang Task Force.” The court
also found that Officer Sanders’s personal opinions would be substantially more
prejudicial than probative under Fed. R. Evid. 403.
At trial, Officer Sanders testified about the Tulsa Police Department’s gang-
certification system and records. He testified that the police department has a
group called the “Tulsa Area Response Gang Enforcement Team,” also known as
“TARGET.” The Tulsa Police Department keeps records to track the membership
of various gangs. The gang-certification records indicate whether someone is an
affiliate or a member, depending on the number of points allocated based on a
predetermined scale. The records also reference other criminal investigations by
the police department. Officer Sanders, as a member of TARGET, testified that
Vernon’s record showed Vernon as an affiliate, not a member, of the Hoover
Crips.
The district court admitted Vernon’s gang-certification record from the Tulsa
Police Department under Fed. R. Evid. 803(6). On appeal, Vernon first argues
that the record did not qualify as a business record under Fed. R. Evid. 803(6)
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and that it is testimonial hearsay in violation of the Confrontation Clause. 19 He
argues second that the admission of the underlying hearsay (i.e., the “points”
allocated to a suspected gang member based on the Tulsa Police Department’s
classification system and the other references in the record) contained within the
records violated the Confrontation Clause. Stated differently, Vernon argues for
two separate Confrontation Clause violations: (1) the gang-certification record
itself; and (2) the references within the record to other police reports discussing
the gang activity of Vernon. We discuss each basis for appeal separately below.
A. Business Records Exception
Vernon waived his argument that the gang-certification record was not
admissible as an ordinary business record. At trial, Vernon conceded that the
record was an ordinary business record that the police kept, and he did not object
to its admission on grounds that it did not qualify for admission under the
business records exception. At trial, Vernon’s attorney conceded that “[t]he
19
Vernon also argues to us that the actual gang-certification records were
“irrelevant pursuant to Fed. R. Evid. 401–404, given that there was no proof the
supposed global conspiracy involved the Hoover Crips gang.” Appellant’s Br. at
42. Earlier in Section VI, we concluded that the gang-affiliation evidence was
relevant and probative under Rules 401 and 403. For the same reasons we
affirmed the district court in Section VI, we affirm the district court here under
Rules 401 and 403. As such, at this juncture, we are considering only whether the
gang-certification records that the Tulsa Police Department maintained were
incorrectly admitted into evidence under Fed. R. Evid. 803(6) and the
Confrontation Clause.
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document itself is an ordinary business record that’s kept by the gang task force.”
R. vol. 3, at 1827. Accordingly, to the extent that Vernon now argues that these
did not qualify under Fed. R. Evid. 803(6), we deem that argument waived.
Vernon responds that his admissions to the district court “did not invite any
error or waive the hearsay objection” because “[s]trictly speaking, the Gang
Certification records are a type of business record.” Appellant’s Reply Br. at 23.
This argument is unpersuasive. This case differs from those in which a defendant
generally objects on hearsay grounds and later appeals. At the district court,
Vernon agreed with the government that the gang-certification record was a
business record. The closest Vernon came to objecting to admission of the gang-
certification record was when he objected that the gang points allocated to
Vernon violated the Confrontation Clause. See R. vol. 3, at 1828 (“The points
that are attributed by those field interviews are also hearsay and violate[] the
confrontation clause.”).
Further, Vernon did not ask for plain error review. We have held that an
appellant waives an argument if he or she fails to raise it in the district court and
later on appeal fails to argue for plain error. See, e.g., United States v. Burke, 633
- 47 -
F.3d 984, 987–91 (10th Cir. 2011). We therefore do not consider the merits of
Vernon’s Fed. R. Evid. 803(6) argument. 20
B. The Confrontation Clause
Because Vernon objected generally on Confrontation Clause grounds, we will
consider whether the admission of the gang-certification record and its underlying
hearsay violated Vernon’s Confrontation Clause rights. 21 Two levels of hearsay
are at play: (1) the gang-certification record itself; and (2) the hearsay statements
within the gang-certification record. Vernon argues only that “[t]he records go to
a key element of the government’s proof. Admitting the records was harmful and
prejudicial as a matter of law.”
20
But even if we did consider the merits, any error would be harmless because
this evidence was cumulative in light of Herron’s testimony that Vernon was a
member of the Hoover Crips. We explain this more in depth below.
21
Vernon did object to the admission of the gang-certification records on the
ground that they contained a second level of inadmissible hearsay in violation of
the Confrontation Clause, specifically the gang-points allocated and the
references to other police reports. R. vol. 3, at 1827–28 (“And under the
confrontation clause, those officers that have produced those documents aren’t
here to be cross-examined, it’s completely subjective as to what they saw, what
they experienced. That goes into a report that is then referenced by this gang
sheet and that’s how the points are attributed. The document itself is a business
record; however, the field interviews and the reports that are referenced within
there are hearsay. The points that are attributed by those filed interviews are also
hearsay and violates the confrontation clause.”). The government admits that the
information underlying the gang-certification records was inadmissible and that
the admission of that evidence violated the Confrontation Clause.
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The admission of evidence in violation of the Confrontation Clause does not
automatically cause prejudice that requires reversal. See, e.g., Summers, 414 F.3d
at 1303 (concluding that substantial evidence of guilt renders a Crawford
violation harmless beyond a reasonable doubt). Instead, we must consider
(1) whether the challenged evidence is hearsay, (2) whether it is testimonial, and
if so, (3) whether its introduction was harmless error beyond a reasonable doubt.
United States v. Chavez, 481 F.3d 1274, 1277 (10th Cir. 2007) (“Violations of the
Confrontation Clause are subject to harmless error analysis . . . under which ‘the
beneficiary of a constitutional error must prove beyond a reasonable doubt [that]
the error complained of did not contribute to the guilty verdict.’”) (quoting
United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991)); Mendez, 514
F.3d at 1043.
In assessing harmless error, we look to “the context in which the
statement was admitted, how it was used at trial, and how it
compares to the properly admitted evidence.” Several factors are
helpful in determining whether a Confrontation Clause violation
amounts to harmless error, among them (1) the importance of the
witness's testimony in the prosecution's case, (2) the cumulative
nature of the testimony, (3) the presence or absence of corroborating
or contradictory testimony, (4) the extent of cross-examination
otherwise permitted, and (5) the overall strength of the prosecution's
case.
Chavez, 481 F.3d at 1277 (internal citations omitted).
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First, we assume, without deciding, that the gang-certification record itself
was testimonial hearsay. Second, we also assume, without deciding, that the
underlying hearsay statements in the gang-certification record were testimonial.
The government conceded as much for the underlying hearsay statements.
Appellee Br. at 66 (“Vernon’s gang certification record contained three
references to field interview reports, all of which appear to have been offered for
their truth, and were likely to fall into this Court’s definition of testimonial
hearsay. . . . [T]he information underlying those records was arguably
inadmissible hearsay and violated the Confrontation Clause. However, any error
in admitting the information underlying Vernon’s gang certification was harmless
beyond a reasonable doubt.”). This leaves us to decide whether introduction of
the gang-certification record and the hearsay within it was harmless beyond a
reasonable doubt. See Chavez, 481 F.3d at 1277; see also United States v. Torrez-
Ortega, 184 F.3d 1128, 1135 (10th Cir. 1999).
First, the gang-certification record itself was cumulative. See Chavez, 481
F.3d at 1277 (reasoning that the cumulative nature and presence of corroborating
testimony both weigh in favor of concluding that the error did not affect the
guilty verdict). Even if the district court erred in admitting the gang-certification
record itself, other admissible evidence in the record established Vernon’s gang
affiliation for the jury. See id. at 1278. As a fellow member of the gang, Herron
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testified that Vernon was a member of a particular sect of the Hoover Crips in
Tulsa. Thus, any error in admitting the gang-certification record was harmless
beyond a reasonable doubt.
Second, the hearsay contained within the gang-certification records was a
small part of the government’s evidence. The certification record contained three
hearsay statements from field interview reports where the police noted that
officers had seen Vernon with other members of the Hoover Crips. This record
also allocated points to Vernon based on the police’s determination of Vernon’s
purported gang activity. Finally, the report recommended that Vernon be
considered a gang affiliate. Given the breadth and depth of the admissible
evidence introduced against Vernon, we do not believe that the underlying
hearsay contained within the gang-certification record affected the jury’s verdict.
Instead, considering the totality of evidence against Vernon, we conclude that it
was harmless beyond a reasonable doubt.
We accordingly affirm the district court in part and conclude that any error
here was harmless beyond a reasonable doubt.
VIII. CELL PHONE RECORDS
Vernon next appeals the district court’s decision to admit cell phone records
and police testimony interpreting those records. We review evidentiary
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determinations for an abuse of discretion. United States v. Blechman, 657 F.3d
1052, 1063 (10th Cir. 2011).
At trial, the government introduced cell phone tower evidence under the
business records exception to the hearsay rule. See Fed. R. Evid. 803(6). Matthew
Kase, who provides legal compliance services to Cricket Communication,
testified at trial and authenticated various phone records. He authenticated
records for cell phones belonging to Whitney Landrum, Stanley’s girlfriend, for
November 4 through November 6, 2011. He also testified about cell phone
records for a number subscribed in Vernon’s name. He testified about Vernon’s
phone’s activity from August 12 through August 14, 2011; September 3 through
September 5, 2011; September 8 through September 17, 2011; and November 4
through November 6, 2011. 22 Kase also testified about records for Duncan
Herron’s cell phone number for those same periods. Kase further testified about a
cell phone number belonging to Lewis, which included activity for July 26
through 27, 2011; August 12 through August 14, 2011; September 3 through
September 5, 2011; September 8 through September 17, 2011; November 4
22
These periods generally corresponded with the Metro Pharmacy robbery and
the Arvest Bank robbery.
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through November 6, 2011; and December 7 through December 11, 2011.23 In
response to a police subpoena, Kase produced all of these records to the police as
part of their investigation. Vernon objected at trial that the records were
testimonial hearsay, but the district court disagreed and admitted the cell phone
records. 24
For each relevant phone number, Special Agent Andy Kerstetter obtained the
“historical call detail records” for that number. 25 According to Agent Kerstetter,
those cell phone records identify the number of the calling phone (i.e., incoming
or outgoing), the date and time of the call, and the cell tower and cell tower
23
These periods generally corresponded with the Metro Pharmacy robbery, the
Tulsa Credit Union robbery, and the Arvest Bank robbery.
24
Vernon argues that the cell phone tower records (which included the phone
numbers called, the time of the call, and the cell tower used to place the call)
were testimonial, but he admits that he only makes the argument to preserve this
issue for further appeal. This court has previously held that cell phone tower data
is admissible under the business records exception and that it is nontestimonial.
United States v. Yeley-Davis, 632 F.3d 673, 678–81 (10th Cir. 2011). Because
Vernon has only raised this argument to preserve the issue and makes no effort to
argue the merits, we do not reconsider the issues that we already addressed in
Yeley-Davis.
25 Vernon claims that Agent Kerstetter could not testify regarding these
matters as a fact witness because he lacked personal knowledge. Vernon does not
cite to any point in the record where he raised this argument to the district court,
and we will not do an exhaustive search of the record to identify whether Vernon
properly preserved this argument. He merely points us to the point in the record
where the district court allowed Agent Kerstetter to testify as a fact witness. Even
if Vernon properly preserved this argument, it would be unavailing because
Agent Kerstetter properly relied on these cell phone records during the course of
his investigation.
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sector used. For each of the phone numbers, including Vernon’s, Agent Kerstetter
examined the relevant data. He turned this data into a map that depicted the
information collected from the cell phone company.
During a Daubert hearing, the district court concluded that Agent Kerstetter
could not testify as an expert regarding the cell phone data, but that he could
testify as a fact witness about certain findings of his investigation. For instance,
the court allowed Agent Kerstetter to present diagrams he had created, depicting
the locations of the cell towers and sectors listed in the cell phone records and the
locations of the charged robberies. In those diagrams, he chose a relevant
timeframe (such as during a robbery), listed a particular phone number, and
showed aerial views of each individual location based on the sectors and towers
in use. The district court disallowed Agent Kerstetter from providing any opinion
about the range of cell towers, the exact location of any particular phone, and
who was using the phones at the dates and times listed.
Vernon argues that the district court impermissibly allowed Agent Kerstetter
to testify about where certain of the Defendants’ phones were located when
certain calls were placed. 26 Based on our reading of the record, the district court
26
Vernon also argues that the court did not allow complete cross-examination
of Agent Kerstetter, in violation of the Sixth Amendment. He points to no place
in the record where he preserved this argument and does not ask for plain error on
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allowed Agent Kerstetter to testify only about what tower was in use for a
particular call, and he was prohibited from opining about the exact location of a
particular phone.
Because Agent Kerstetter testified only about the facts contained within these
records, we conclude that his testimony did not run afoul of Fed. R. Evid. 702.
We also conclude that his use of diagrams and maps was appropriate under Fed.
R. Evid. 1006. Under Rule 1006, witnesses “may use a summary, chart, or
calculation to prove the content of voluminous writings, recordings, or
photographs . . . .” See also, e.g., United States v. Samaniego, 187 F.3d 1222,
1223–24 (10th Cir. 1999) (requiring admissibility under Fed. R. Evid. 803(6) of
telephone records before admitting summary charts of the records under Fed. R.
Evid. 1006). 27
Unlike with Agent Kerstetter, the district court allowed Special Agent Charlie
Jones to testify about the location of phones at given times based on the same cell
appeal. As such, we do not consider the merits of this argument. See Burke, 633
F.3d at 987–91.
27
Vernon argues that only an expert could create these maps and diagrams.
Vernon submits that the “arcs and angles” represented a judgment call and an
expert opinion regarding the coverage of each tower. We disagree. After
reviewing the maps, we conclude that they were proper summary diagrams from
the cell phone records available to Agent Kerstetter. The government cites to
multiple places in the record where Agent Kerstetter explained that the coverage
areas were “angled at whatever angle is depicted by [the cell phone company] as
the cellular provider’s tower location and angle of that sector.”
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phone records. Agent Jones provided his opinion as to where a particular cell
phone was located, sometimes even down to the particular street. Vernon argues
that Agent Jones’s testimony regarding the street location of particular cell
phones was expert testimony under Fed. R. Evid. 702 and that because Agent
Jones was not qualified as an expert, it was improper opinion testimony. The
government responds that Vernon failed to object properly to Agent Jones’s
testimony at trial, and it argues for plain error review. We conclude that Vernon
objected when Agent Jones offered an opinion regarding the cell phone locations,
and as such, he properly preserved this issue.
Because the government makes no effort to argue that Agent Jones’s testimony
was not improper expert testimony, we will assume, without deciding, that the
district court should not have permitted him to testify as he did. The government
argues only that any error was harmless. “A non-constitutional error is harmless
unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave
doubt’ as to whether it had such effect.” United States v. Rivera, 900 F.2d 1462,
1469 (10th Cir. 1990) (en banc) (quoting Kotteakos, 328 U.S. at 765). We do not
think that Agent Jones’s testimony regarding the location of the cell phones had a
substantial influence on the outcome of the jury’s verdicts against Vernon.
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The trial record reveals abundant evidence establishing Vernon’s guilt on each
charge. 28 Vernon even admits that “[t]he government used the phone records to
corroborate Duncan Herron’s account of the Metro Pharmacy robbery,”
Appellant’s Reply Br. at 21, which makes any inadmissible evidence cumulative
because the jury had already heard similar evidence. Further, the district court
properly admitted some of the cell phone data, including Agent Kerstetter’s
testimony regarding the numbers called and the cell phone towers used to place
those calls, making some of Agent Jones’s testimony cumulative.
The jury heard admissible evidence establishing that Devers’s phone had
called the Metro Pharmacy twice before the robbery, that Devers’s phone and
Herron’s phone had communicated by text message during the robbery, and that
Lewis’s phone and Vernon’s phone had contacted each other by cell phone during
the robbery. All of this evidence was relevant and admissible. Herron also
testified extensively about Vernon’s involvement in planning and executing the
Metro Pharmacy robbery. Also, based on the dates and times from the cell phone
records during the Arvest Bank robbery (not the location of the phones), the jury
could infer that Vernon and Stanley were communicating before the Arvest Bank
robbery. The jury also heard the police testify that they followed the GPS tracker,
28
The government did not rely on cell phone evidence to prove the IBC Bank
robbery. The government did use cell phone evidence for the Metro Pharmacy
robbery and the Arvest Bank robbery.
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which led them to Vernon, who had in his home the stolen money from the
robbery, the GPS tracker, and one set of the clothes used in the robbery. In light
of all of this evidence, the cell phone evidence’s importance is minimal for
Vernon’s convictions.
We affirm the district court in part and conclude that any error from Agent
Jones’s testimony was harmless.
IX. EYEWITNESS IDENTIFICATIONS
Vernon appeals the district court’s decision to allow the government to
introduce eyewitness-identification testimony from the IBC Bank robbery. On the
day of the IBC Bank robbery, Ms. DeLeon was working as a teller. A person
entered the bank and engaged her with two minutes of face-to-face small talk. He
then told her that he had a gun and demanded money. She gave him money from
her teller drawer. The robber saw another teller counting money and demanded
that money as well.
Two years later, a police officer showed Ms. DeLeon a bank security
photograph, which showed the robber standing at her teller window. Not
surprisingly, she confirmed that the picture showed the suspect as she
remembered him from the day of the robbery. After putting the photograph from
the robbery away, the officer then showed Ms. DeLeon a six-person photo-lineup.
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Even after he told her that the suspect was not necessarily included in the lineup,
she identified Vernon by circling his picture. At trial, Ms. DeLeon identified
Vernon in-person as the robber she had encountered at IBC Bank. During the
trial, two other witnesses from IBC Bank also identified Vernon in-person as the
robber.
Before trial, Vernon filed a motion in limine to exclude all eyewitness-
identifications of Vernon from the IBC Bank robbery. Over Vernon’s objections,
the court admitted the results of the photo lineup and Ms. DeLeon’s eyewitness
identifications. He argues to us that the identification procedure was
unnecessarily suggestive and that the district court should have excluded the
photo-identification.
Vernon also argues that the photo-lineup identification “violated F.R.E. 401–
03.” He asserts that “[i]t is of very limited relevance that Ms. DeLeon thinks that
out of six photographed persons selected by the government, Vernon Hill looks
the most like the person who is shown in the photo from the robbery itself. Ms.
DeLeon’s testimony also served to invade the province of the jury, [telling] the
jury what factual finding to make.” Appellant’s Br. at 52.
We identify three distinct arguments from Vernon’s appeal on this issue:
(1) the photo-lineup identification was irrelevant because Ms. DeLeon was only
identifying the person from the photo lineup who best matched the photo from the
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day of the robbery; (2) the photo-lineup identification invaded the province of the
jury; and (3) the procedure used to obtain the photo-lineup identification was
unnecessarily suggestive. We find each unpersuasive.
First, the photo-lineup identification was relevant. We review questions under
Fed. R. Evid. 401 for an abuse of discretion. Flanagan, 34 F.3d at 952–53. Under
Rule 401, something is relevant “if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Ms. DeLeon’s identification makes it
more probable that Vernon robbed the IBC Bank than it would be without her
identification. Ms. DeLeon was working the day of the robbery, and she
interacted with Vernon before and during the robbery. Her identification of
Vernon is relevant because that evidence makes it more likely that Vernon was
indeed the bank robber. Whether Ms. DeLeon’s identification from the photo
array is a good identification goes to weight rather than admissibility. Ms.
DeLeon’s eyewitness identification in the photo array satisfies Rule 401.
Also, the probative value of this identification was not substantially
outweighed by the danger of unfair prejudice under Rule 403. We review a
district court’s admission of evidence under Rule 403 for an abuse of discretion.
United States v. Cerno, 529 F.3d 926, 935 (10th Cir. 2008). “In engaging in the
requisite balancing, we ‘give the evidence its maximum reasonable probative
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force and its minimum reasonable prejudicial value.’” Id. (quoting Deters v.
Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000)). To tip
against admitting the evidence, the risk of unfair prejudice must substantially
outweigh the evidence’s probative value. Id. (citing United States v. Tan, 254
F.3d 1204, 1212 (10th Cir. 2001), and SEC v. Peters, 978 F.2d 1162, 1171 (10th
Cir. 1992)).
We start with the probative value. Police showed Ms. DeLeon a photo taken in
the IBC Bank on the day of the robbery and asked whether the person in the
picture at her teller window was the person she remembered robbing the bank. 29
This identification occurred nearly two years after the robbery. After looking at
the picture, she confirmed that the man in the photograph was the robber. Almost
immediately after this, she identified Vernon as the robber from a six-person
photo array. 30 Vernon’s only argument for unfair prejudice is that “[i]t is of very
limited relevance” whether Ms. DeLeon thinks the person from the photograph of
the robbery is in the photo array. Yet this is not unfair prejudice: whether Ms.
DeLeon’s identification from the photo array is a good identification goes to
weight rather than admissibility, and the weight of her identification is not at
29
This photo was given to the jury.
30
The photo-array was provided to the jury.
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issue here. We conclude that the district court properly admitted her identification
of Vernon under Rule 403.
Second, the identification does not invade the province of the jury. Ms.
DeLeon made her identification, and the jury was free to look at the photo array
and discredit her testimony. Again, this goes to weight rather than admissibility.
We conclude that this did not invade the province of the jury.
Third, Vernon argues that the district court violated his due process rights
when it admitted the photo-array identification from Ms. DeLeon. The
government argues that the process was not unnecessarily suggestive, that the
identification was reliable under the totality of the circumstances, and
alternatively, that any error was harmless.
“[D]ue process concerns arise only when law enforcement officers use an
identification procedure that is both suggestive and unnecessary. . . . Even when
the police use such a procedure, . . . suppression of the resulting identification is
not the inevitable consequence.” Perry v. New Hampshire, 132 S. Ct. 716, 718
(2012) (internal citations omitted); see also Grubbs v. Hannigan, 982 F.2d 1483,
1489–90 (10th Cir. 1993). “[W]e then examine whether under the totality of the
circumstances the identification was reliable even though the confrontation
procedure was suggestive.” United States v. Bredy, 209 F.3d 1193, 1195 (10th
Cir. 2000) (internal quotations omitted) (quoting Neil v. Biggers, 409 U.S. 188,
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199 (1972)). If a reviewing court concludes that the identification procedure was
unnecessarily suggestive and that the identification was not reliable under the
totality of the circumstances, it evaluates the erroneous admission under harmless
error. See, e.g., Biggers v. Tennessee, 390 U.S. 404, 408–09 (1968). This is a
mixed question of law and fact that we review de novo. Archuleta v. Kerby, 864
F.2d 709, 710–11 (10th Cir. 1989).
We conclude that the photo array shown to Ms. DeLeon was not unnecessarily
suggestive. First, contrary to Vernon’s argument that the individuals depicted do
not look alike, we conclude that the suspects in the photo array are sufficiently
similar. Second, the officer did not show Ms. DeLeon a picture of the suspect and
tell her to match it to the photo array, although the two identifications occurred
within minutes of each other. Instead, he asked her if the man in the photograph
from the robbery was the one she remembered coming into the bank. She said he
was. She then selected Vernon from the photo array. Even further, the
identification has other indicia of reliability. During the robbery, Ms. DeLeon
interacted with the robber for two minutes, in a friendly manner, before he
attempted to rob the bank.
Finally, any error was harmless beyond a reasonable doubt. Ms. DeLeon
identified Vernon in court, based off her interactions with him during the
robbery. Any problem with the photo-array lineup is not so severe as to taint this
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in-court identification. And importantly, two other eyewitnesses from the IBC
Bank robbery identified Vernon at trial as the robber. Vernon does not challenge
these identifications on appeal. The in-court identifications are enough to ensure
that any error with Ms. DeLeon’s testimony was harmless beyond a reasonable
doubt.
We affirm the district court.
X. CUMULATIVE ERROR
Lastly, Vernon argues that he is entitled to a new trial because of cumulative
error. Cumulative-error analysis aggregates all actual errors and analyzes whether
the cumulative effect on the outcome of the trial was such that the defendant’s
substantial rights were affected. Rivera, 900 F.2d at 1470; see also United States
v. Toles, 297 F.3d 959, 972 (10th Cir. 2002). Only actual errors are considered.
Rivera, 900 F.2d at 1470. Errors are only those violations “of an established legal
standard defining a particular error,” not just incidents a reviewing court
considers troubling. Id. at 1471. There must be at least two errors. Id. at 1469. If
any of the errors aggregated are constitutional in nature, the cumulative error
must be harmless beyond a reasonable doubt in order to affirm. Toles, 297 F.3d at
972.
This is a difficult inquiry, and we have explained:
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[T]he constitutional guarantee of a fundamentally fair trial cannot be
defined with reference to particularized legal elements, which would
limit the discretion of courts to determine whether a trial was
fundamentally unfair. Precisely because a fundamental-fairness
analysis is not subject to clearly definable legal elements, however,
we must approach such analysis with considerable self-restraint.
“Courts should tread gingerly when faced with arguments”
concerning “the ‘fundamental fairness’ component of the Fifth
Amendment’s Due Process Clause,” which should be reserved for
“the most serious cases, which truly shock the conscience as well as
the mind.”
Rivera, 900 F.2d at 1477 (quoting United States v. Penn, 647 F.2d 876, 880 (9th
Cir. 1980) (en banc)).
There are multiple errors in this case. Because the two assumed Confrontation
Clause errors are constitutional in nature, the cumulative error must be harmless
beyond a reasonable doubt. 31 Toles, 297 F.3d at 972. Given the extremely high
bar set for cumulative error, we conclude that the errors in this case do not rise to
the level such that they “truly shock the conscience as well as the mind.” Rivera,
900 F.2d at 1477 (quoting Penn, 647 F.2d at 880) (internal quotation mark
omitted). Even absent the errors, there was overwhelming evidence establishing
Vernon’s guilt in the commission of the three robberies and in the conspiracy to
rob the Metro Pharmacy and the conspiracy to rob Arvest Bank. Vernon does not
sufficiently argue that his is a “most serious case[]” that “truly shock[s] the
31
We assumed, without deciding, that there was error under the Confrontation
Clause as to the gang-certification records and the underlying hearsay.
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conscience as well as the mind.” See id. In a long and complex trial, the district
court erred in making some evidentiary determinations and in determining that
the evidence at trial did support the government’s allegation that there was a
global conspiracy to rob banks, credit unions, and pharmacies throughout Tulsa.
Yet these errors together do not rise to the level of a due process violation. We
conclude that there is not cumulative error.
XI. CONCLUSION
We affirm Vernon’s convictions as to all counts.
ENTERED FOR THE COURT
Gregory A. Phillips
Circuit Judge
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No. 13-5084, United States v Veronon Hill
McHUGH, Circuit Judge, concurring:
I am pleased to join in the majority’s well-reasoned Order and Judgment affirming
Vernon’s convictions. I write separately to explain why I conclude the variance in this
case did not prejudice Vernon’s right to a fair trial. As I described in my concurring and
dissenting opinion in United States v. [Dejuan] Hill, __ F.3d __, No. 13-5074 (10th Cir.
May 22, 2015) (McHugh, J. concurring and dissenting), the government’s decision to
charge and try the defendants for participating in a global conspiracy for which there was
insufficient evidence carried with it the risk of prejudicial spillover. But in Vernon’s case,
the variance did not cause substantial prejudice. The government alleged Vernon
participated in four of the seven robberies (specifically, the IBC Bank, CVS Pharmacy
(uncharged), Metro Pharmacy, and Arvest Bank). As the majority explains, much of the
gang evidence admitted was directly relevant to Vernon’s involvement in the conspiracy
to rob the Metro Pharmacy. And even if the global conspiracy theory allowed the
government to offer some irrelevant and potentially inflammatory evidence related to the
Hoover Crips gang or other robberies in which Vernon played no role, the compelling
evidence of Vernon’s guilt with respect to the Metro Pharmacy and Arvest Bank
robberies makes it unlikely the admission of this evidence improperly influenced the
jury’s verdict. Therefore, I concur in the majority’s conclusion that the variance did not
interfere with Vernon’s right to a fair trial.
I join all other parts of the majority’s Order and Judgment in full.