United States v. Herrera

Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 27, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2126
CARLOS HERRERA, a/k/a Lazy,
Defendant - Appellant.
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2141
DANIEL SANCHEZ, a/k/a Dan,
Defendant - Appellant.
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2195
ANTHONY RAY BACA, a/k/a Pup,
Defendant - Appellant.
_________________________________
Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 2
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. Nos. 2:15-CR-04268-JB-25, 2:15-CR-04268-JB-18,
2:15-CR-04268-JB-21)
_________________________________
Ryan J. Villa, The Law Office of Ryan J. Villa, Albuquerque, New Mexico,
for Defendant-Appellant Carlos Herrera; Josh Lee, Assistant Federal Public
Defender, Office of the Federal Public Defender, Districts of Colorado and
New Mexico (Virginia L. Grady, Federal Public Defender, with him on the
briefs), Denver, Colorado, for Defendant-Appellant Daniel Sanchez; and
Theresa M. Duncan, Duncan Earnest LLC, Santa Fe, New Mexico, for
Defendant-Appellant Anthony Ray Baca.
Richard Williams, Assistant United States Attorney (Fred J. Federici,
Acting United States Attorney, with him on the briefs), Las Cruces, New
Mexico, for Plaintiff-Appellee.
_________________________________
Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
TABLE OF CONTENTS
1. Mr. Herrera, Mr. Sanchez, and Mr. Baca were convicted of
violating VICAR. ..................................................................... 8
A. The district court severed the case into multiple trials. ....... 9
B. The government continued to furnish discovery during
and even after the trial. .................................................... 9
C. The government furnished much of the discovery through
tablets, which the cooperating witnesses allegedly viewed
to coordinate their testimony. ........................................... 9
D. The government attributed the Molina murder to orders
issued by Mr. Baca, Mr. Sanchez, and Mr. Herrera. ............ 10
2
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(1) Mr. Baca allegedly ordered the “hit” on Javier
Molina. .................................................................. 10
(2) Mr. Baca also allegedly planned the murder of two
corrections officials. ............................................... 10
(3) Mr. Herrera allegedly gave the Molina paperwork to
Mr. Rodriguez and Mr. Sanchez. .............................. 11
2. All defendants: The government did not suppress materially
favorable evidence. .................................................................. 12
A. The government must disclose evidence that’s favorable,
that’s in its possession, and that’s material. ....................... 12
B. We use different standards for reviewing the district
court’s legal conclusions and factual findings. ................... 14
C. The government delayed many of its disclosures. ............... 14
D. The recording of Mr. Rodriguez’s phone call with his
mother was not material. .................................................. 15
(1) The Rodriguez recording didn’t bear materially on
Mr. Baca’s guilt ...................................................... 16
(2) Nor was the recorded phone call material as to Mr.
Herrera or Mr. Sanchez. .......................................... 23
E. The government did not commit a due process violation
by delaying disclosure of Mr. Urquizo’s recorded phone
calls about the discovery tablets. ...................................... 23
(1) We review for plain error because the Defendants
failed to preserve their challenges to the Urquizo
recordings. ............................................................. 24
(2) Mr. Baca does not satisfy the plain-error standard
because the government had not obviously
suppressed the Urquizo recordings. .......................... 26
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F. The government did not deny due process to the
Defendants by delaying disclosure of the FBI’s typed
notes. ............................................................................. 30
G. The government did not violate due process by delaying
disclosure of an FBI questionnaire about SNM. ................. 33
H. Considered cumulatively, the late-disclosed evidence was
not material. ................................................................... 36
3. Defendants Sanchez and Baca: The district court didn’t err in
allowing introduction of the evidence of prior bad acts. .............. 37
A. Mr. Sanchez and Mr. Baca forfeited their Rule 403
arguments involving the probative value of enterprise
evidence. ........................................................................ 38
(1) Mr. Sanchez and Mr. Baca preserved a general Rule
403 argument, triggering the abuse-of-discretion
standard. ................................................................ 38
(2) Mr. Sanchez and Mr. Baca forfeited two of their
arguments. ............................................................. 40
(3) Even without a waiver, the Defendants’ new
appellate arguments would fail under the plain-error
standard. ................................................................ 44
B. The district court did not abuse its discretion in allowing
introduction of evidence about Mr. Sanchez’s 2005
assaults. ......................................................................... 48
C. Any possible error would have been harmless when the
district court allowed the introduction of evidence of Mr.
Baca’s commission of murder in 1989. .............................. 51
4. Defendants Sanchez and Herrera: The district court did not err
in declining to sever Counts 6–7. .............................................. 55
A. The district court did not violate Rules 403 and 404(b) in
allowing the introduction of evidence as to the conspiracy
to kill the corrections officials. ........................................ 56
4
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(1) Mr. Sanchez and Mr. Herrera generally preserved
their arguments on probative value. .......................... 57
(2) The district court did not abuse its discretion in
applying Rule 404(b). ............................................. 59
(3) The district court did not abuse its discretion in
applying Rule 403. .................................................. 60
B. Rule 14 did not require severance. .................................... 64
5. Defendants Sanchez and Baca: The district court did not abuse
its discretion in declining to sever the Defendants’ trials. ........... 71
A. The codefendants’ out-of-court statements didn’t require
severance. ....................................................................... 72
(1) Mr. Sanchez and Mr. Baca waived the issue
involving severance of Defendants based on the
out-of-court statements. .......................................... 73
(2) Mr. Sanchez and Mr. Baca failed to timely file
pretrial motions to sever the case as to the
defendants. ............................................................. 74
(3) The district court did not raise the issue. .................. 79
(4) Without good cause, Mr. Sanchez and Mr. Baca
waived their arguments under Rule 14 for severance
of Defendants based on the recorded statements. ....... 81
(5) Even without a waiver, the district court would not
have erred when declining to sever the case as to
the defendants. ....................................................... 82
(a) The district court did not err in declining to
sever the Defendants based on the
government’s recordings. ................................ 83
(i) Mr. Sanchez and Mr. Baca had not
shown actual prejudice. .......................... 83
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(ii) Even if actual prejudice had otherwise
existed, the district court enjoyed
discretion to alleviate the prejudice
through limiting instructions. .................. 88
B. Severance wasn’t required based on live testimony
recounting out-of-court statements that had directly
implicated Mr. Sanchez. .................................................. 91
6. All defendants: The district court did not abuse its discretion in
denying the motions for a continuance. ...................................... 92
A. We apply the abuse-of-discretion standard. ....................... 92
B. The district court did not err in denying Mr. Herrera’s
first request for a continuance. ......................................... 93
C. The district court did not err in denying the Defendants’
second motion for a continuance. ..................................... 98
7. All defendants: The Defendants waived their challenge to the
constitutionality of VICAR’s position clause. ............................ 106
A. Because the constitutional argument is not jurisdictional,
the Defendants needed to make this argument in a pretrial
motion to dismiss. ........................................................... 107
B. The Defendants failed to raise the constitutional challenge
in a timely pretrial motion. .............................................. 113
8. Defendant Herrera: The district court didn’t prevent a full and
fair defense by prohibiting Mr. Herrera from impeaching his own
out-of-court statements. ........................................................... 117
A. Mr. Herrera preserved this challenge, so we apply the
abuse-of-discretion standard. ........................................... 117
(1) Preservation didn’t require Mr. Herrera to make an
offer of proof. ........................................................ 117
(2) The ruling was definitive. ........................................ 118
6
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B. The district court did not abuse its discretion in excluding
Mr. Herrera’s out-of-court statements. .............................. 119
9. All defendants: No cumulative error occurred. ........................... 123
10. Conclusion. ............................................................................. 125
_________________________________
This case arises from the murder of a state inmate and conspiracy to
murder two corrections officials. The government attributed the crimes to a
prison gang, Sindicato de Nuevo Mexico (“SNM”), and charged many of its
members under the Violent Crimes in Aid of Racketeering Act (“VICAR”).
See 18 U.S.C. § 1959.
This appeal involves the charges against three SNM members
(Anthony Ray Baca, Daniel Sanchez, and Carlos Herrera). After a six-week
jury trial, they were convicted of (1) conspiring to murder a fellow SNM
member (Javier Molina) (Count 6) and (2) aiding and abetting that murder
(Count 7). Mr. Baca was also convicted of conspiring to murder two
corrections officials (Counts 9–10).
Mr. Baca, Mr. Herrera, and Mr. Sanchez appeal based on eight
arguments:
1. The government suppressed materially favorable evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
2. The district court erred in admitting evidence of prior bad acts
by Mr. Baca and Mr. Sanchez.
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3. The district court erred in failing to sever the counts against
Mr. Herrera and Mr. Sanchez.
4. The district court erred in failing to sever the trials as to Mr.
Baca and Mr. Sanchez.
5. The district court erred in denying two requests for
continuances.
6. VICAR’s “position clause” exceeds Congress’s power under the
U.S. Constitution.
7. The district court erred in excluding Mr. Herrera’s exculpatory
statements.
8. Cumulative errors require a new trial. 1
We reject these arguments and affirm.
1. Mr. Herrera, Mr. Sanchez, and Mr. Baca were convicted of
violating VICAR.
The SNM has operated in the New Mexico state prison system for
decades. Mr. Baca had headed the SNM, and Mr. Sanchez and Mr. Herrera
had served as mid-level leaders. The government alleged that
1
This chart shows which defendants have joined each of the eight
appellate arguments:
Issue Herrera Sanchez Baca
Brady Violation x x x
Admissibility of Bad Acts Evidence x x
Severance of Counts x x
Severance of Defendants x x
Denial of Continuance x x x
Constitutionality of VICAR x x x
Exculpatory Statements x
Cumulative Error x x x
8
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 Mr. Baca, Mr. Sanchez, and Mr. Herrera had orchestrated the
murder of a fellow SNM member, Mr. Javier Molina, and
 Mr. Baca had plotted the assassination of two corrections
officials to retaliate for their enhancement of security measures
after Mr. Molina’s murder.
A. The district court severed the case into multiple trials.
The indictment covered not only Mr. Herrera, Mr. Sanchez, and Mr.
Baca, but also nineteen other SNM members. The district court ultimately
severed the case into two trials. The court assigned Mr. Herrera, Mr.
Sanchez, and Mr. Baca to the first trial (for Counts 6–12). 2
B. The government continued to furnish discovery during and
even after the trial.
The district court declared the case complex and ordered the
government to disclose materially favorable information. The government
responded by producing information long before the trial and
supplementing the production right before the trial, during the trial, and
even after the trial had ended.
C. The government furnished much of the discovery through
tablets, which the cooperating witnesses allegedly viewed to
coordinate their testimony.
Because the Defendants and many of the government witnesses were
in prison, the parties agreed on distribution of discovery material through
2
A fourth defendant, Mr. Rudy Perez, was also assigned to this trial.
He obtained an acquittal.
9
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tablets. At trial, the Defendants argued that the cooperating witnesses had
coordinated their testimony by sharing information from the tablets.
D. The government attributed the Molina murder to orders
issued by Mr. Baca, Mr. Sanchez, and Mr. Herrera.
At trial, the government alleged that the Defendants had occupied
various roles in the Molina murder.
(1) Mr. Baca allegedly ordered the “hit” on Javier Molina.
Mr. Baca allegedly had “paperwork” showing Mr. Molina’s
cooperation with law enforcement. According to the government, Mr. Baca
arranged for passage of the paperwork to other SNM members at a Las
Cruces prison (where Mr. Molina was housed). When the paperwork
arrived, SNM members in the Las Cruces prison were to kill Mr. Molina.
(2) Mr. Baca also allegedly planned the murder of two
corrections officials.
Mr. Baca also allegedly ordered the murder of two New Mexico
corrections officials:
1. Gregg Marcantel, the former Secretary of the New Mexico
Corrections Department, and
2. Dwayne Santistevan, the former acting director of the Security
Threat Intelligence Unit at the New Mexico Corrections
Department.
Mr. Baca allegedly ordered these murders as retaliation for the state’s
stiffening of security measures following the Molina murder. The two
officials weren’t harmed.
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(3) Mr. Herrera allegedly gave the Molina paperwork to Mr.
Rodriguez and Mr. Sanchez.
Mr. Herrera was an SNM member housed in a pod next to Mr.
Molina’s. According to the government, Mr. Herrera passed the paperwork
from Lupe Urquizo, who forwarded it to Mario Rodriguez and Mr.
Sanchez.
When Mr. Sanchez obtained the paperwork, he allegedly organized
the killing by obtaining a walker from Rudy Perez, ordering Mr. Rodriguez
to make shanks out of the walker, telling Mr. Rodriguez and Timothy
Martinez to restrain Mr. Molina, and ordering Jerry Armenta and Jerry
Montoya to stab Mr. Molina. 3
Responding to these allegations, Mr. Sanchez presented two
alternative theories based on his codefendants’ pretrial statements:
3
Mario Rodriguez, Jerry Armenta, Timothy Martinez, and Jerry
Montoya were also charged with Mr. Molina’s murder. But they admitted
their involvement, cooperated with law enforcement, and testified for the
government.
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1. Mr. Sanchez had not reviewed the paperwork, and Mr. Armenta
stabbed Molina in the heat of the moment.
2. The ringleader for the murder was Mr. Rodriguez, not Mr.
Sanchez.
With these theories, Mr. Sanchez attacked the credibility of government
witnesses and noted a lack of physical evidence.
2. All defendants: The government did not suppress materially
favorable evidence.
The Defendants argue that the district court should have ordered a
new trial because the government waited too long to disclose favorable
evidence.
A. The government must disclose evidence that’s favorable,
that’s in its possession, and that’s material.
Due process requires a new trial if the government suppresses
evidence that is material to guilt or punishment. Brady v. Maryland, 373
U.S. 83, 87 (1963). To establish a deprivation of due process, a defendant
must prove that
 the evidence was favorable,
 the government suppressed the evidence, and
 the suppression resulted in prejudice.
United States v. Durham, 902 F.3d 1180, 1221 (10th Cir. 2018). The third
element (prejudice) is satisfied only if the suppressed evidence was
material. Id.12
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A defendant can establish materiality by showing that timely
disclosure would have created a reasonable probability of a different
result. United States v. Reese, 745 F.3d 1075, 1083 (10th Cir. 2014). A
probability is “reasonable” if it “undermine[s] confidence in the outcome.”
United States v. Bagley, 473 U.S. 667, 682 (1985); see also Wearry v.
Cain, 577 U.S. 385, 392 (2016) (per curiam) (“Evidence qualifies as
material when there is ‘any reasonable likelihood’ it could have ‘affected
the judgment of the jury.’” (quoting Giglio v. United States, 405 U.S. 150,
154 (1972))). But evidence isn’t material just because it might be
exculpatory. United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir.
1994). The pertinent question is whether the suppression of evidence
prevented “a fair trial,” which the Supreme Court has defined as “a trial
resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S.
419, 434 (1995).
Evidence may be material even when it affects only the credibility of
a witness. Giglio v. United States, 405 U.S. 150, 154–55 (1972); see
Browning v. Trammell, 717 F.3d 1092, 1106 (10th Cir. 2013) (concluding
that suppressed mental-health records were material because they could
have been used to attack a key witness’s credibility). When the evidence
involves credibility, however, the witness must be “absolutely critical to
the government’s case.” United States v. Cooper, 654 F.3d 1104, 1123
(10th Cir. 2011). Even then, the evidence might not be material. United
13
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States v. Trujillo, 136 F.3d 1388, 1393 (10th Cir. 1998). For example,
evidence isn’t material when it is “cumulative” of other impeachment
evidence or bears only an insignificant effect on the impeachment
evidence. Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009); see
Trujillo, 136 F.3d at 1394 (“[A]n incremental amount of impeachment
evidence on an already compromised witness does not amount to material
evidence.”).
B. We use different standards for reviewing the district court’s
legal conclusions and factual findings.
When a due process claim is preserved, we conduct de novo review
of legal conclusions and apply the clear-error standard to factual findings.
United States v. Garcia, 793 F.3d 1194, 1205 (10th Cir. 2015). We also
apply this standard when considering whether the defendant is entitled to a
new trial based on a denial of due process. See United States v. Reese, 745
F.3d 1075, 1083 (10th Cir. 2014) (“In a long line of cases, we have held
that in the new-trial context we review de novo a district court’s ruling on
a Brady claim, with any factual findings reviewed for clear error.”). But
when the defendant fails to preserve a claim of due process, we review
only for plain error. United States v. Simpson, 845 F.3d 1039, 1057 (10th
Cir. 2017).
C. The government delayed many of its disclosures.
The government made six late disclosures:
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1. About two months before trial, the government disclosed over
60,000 audio recordings, totaling more than 15,000 hours.
2. About a month before trial, the government disclosed about
10,000 pages of new discovery and 6 more phone recordings.
3. Roughly 2 weeks before trial, the government disclosed more
than 6,000 pages of discovery.
4. During voir dire, the government disclosed about 3,500 more
pages.
5. After presenting its case-in-chief, the government disclosed
almost 1,000 pages of Mr. Rodriguez’s personal documents and
almost 500 pages of FBI field notes from interviews of
government witnesses.
6. About 3 months after the trial, the government disclosed over
50 audio recordings of calls from Mr. Rodriguez.
For four of these items, the Defendants characterize the late disclosures as
a denial of due process:
1. A recording of Mr. Rodriguez’s phone call to his mother
2. Recordings of Mr. Urquizo’s phone calls about what he saw on
the discovery tablets
3. The FBI’s typed notes of an interview with Mr. Urquizo
4. An FBI questionnaire about SNM
D. The recording of Mr. Rodriguez’s phone call with his
mother was not material.
The Defendants allege that the government waited too long to
disclose the recording of a phone call between Mr. Rodriguez and his
mother. In the phone call, Mr. Rodriguez told his mother: “The only one
they want to use me against is Dan [Mr. Sanchez]. And they won’t use me
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against Pup [Mr. Baca] because I don’t have nothing on him.” R. vol. 1, at
1921. The government didn’t disclose evidence of the phone call until over
three months after the trial. 4 The district court concluded that the late
disclosure hadn’t violated the Defendants’ rights to due process. Id. at
2880–81. For this conclusion, we conduct de novo review. See p. 14,
above.
The Defendants argue that the recording of the phone call was
suppressed, favorable, and material. We assume that the recording was
suppressed and favorable. But even if the recording had been suppressed
and favorable, it wouldn’t have been material.
(1) The Rodriguez recording didn’t bear materially on Mr.
Baca’s guilt.
Mr. Baca argues that Mr. Rodriguez’s recorded statements were
material because they
 contradicted Mr. Rodriguez’s trial testimony against Mr. Baca
and
 would have constituted stronger impeachment evidence than the
other evidence that Mr. Baca had used to impeach Mr.
Rodriguez.
Neither argument is persuasive.
4
The phone call took place in November 2017, and the government
produced the recording about seven months later. By then, the trial had
already finished.
16
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We may assume for the sake of argument that Mr. Rodriguez’s trial
testimony contradicted what he had said to his mother. Even with this
assumption, the statement would have lacked materiality because Mr. Baca
had impeached Mr. Rodriguez with similar inconsistent statements to the
FBI. Like the statements to Mr. Rodriguez’s mother, his statements to the
FBI had downplayed Mr. Baca’s role in the Molina murder.
When the district court ruled on the issue, it was considering Mr.
Baca’s motion for a new trial. In that motion, Mr. Baca emphasized the
similarity between what Mr. Rodriguez had told the FBI and his mother.
Within roughly three weeks, Mr. Rodriguez had talked to both the FBI and
his mother. To the FBI, Mr. Rodriguez had said that
 Mr. Baca liked Mr. Molina,
 Mr. Rodriguez didn’t know if Mr. Baca wanted Mr. Molina
murdered, and
 Mr. Rodriguez thought that Mr. Baca would have stopped the
murder if he’d been at the Las Cruces prison.
Three weeks later, Mr. Rodriguez told his mother that he had no
incriminating information against Mr. Baca.
On appeal, Mr. Baca attributes power to Mr. Rodriguez’s statements
to his mother, arguing that they had contradicted his trial testimony that
Mr. Baca had
 said that Mr. Molina was supposed to have been killed much
earlier,
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 shared details about the Molina murder that few people had
known,
 conspired to intimidate another prosecution witness (Jerry
Armenta), and
 discussed his plan to murder the two correction officials.
But the jury heard about the same inconsistencies between Mr.
Rodriguez’s trial testimony and his earlier statements to his mother. In the
recorded phone call, Mr. Rodriguez remarked to his mother that he
wouldn’t need to testify against Mr. Baca because he had nothing
incriminating to say. This remark tracks Mr. Rodriguez’s statement to the
FBI three weeks earlier, acknowledging that he had no incriminating
information against Mr. Baca. Indeed, in his motion for a new trial, Mr.
Baca told the district court that Mr. Rodriguez’s statements to the FBI
were “consistent with [his] statement to his mother that he did not ‘have
anything on’ Mr. Baca.” R. vol. 1, at 1921.
The government had timely disclosed the FBI’s notes from the
interview with Mr. Rodriguez, and the defense used these statements to
cross-examine Mr. Rodriguez. Given this cross-examination, Mr.
Rodriguez’s statement to his mother would have added little to Mr. Baca’s
defense related to the Molina murder. Mr. Rodriguez told his mother that
prosecutors wouldn’t use him against Mr. Baca, but the jury already knew
that Mr. Rodriguez had just told the FBI that Mr. Baca would probably
have stopped the murder if he’d been there.
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Mr. Rodriguez’s statement to his mother also fit what he had told the
FBI about the plot to murder the corrections officials. The FBI’s notes
from the interview with Mr. Rodriguez contained no mention of Mr. Baca’s
involvement with the plot, and the defense used that omission to cross-
examine Mr. Rodriguez. Mr. Rodriguez responded that he had “told [the
FBI that he] knew specific things” about the plot to murder the corrections
officials but didn’t “think [they] got around to” the issue in the interview.
R. vol. 5, at 8295–96.
Mr. Rodriguez’s statement to his mother added little that was new:
when he talked to his mother, he hadn’t given the FBI any incriminating
details about Mr. Baca’s involvement in the plot to kill the corrections
officials. So Mr. Rodriguez’s statement to his mother tracked what he’d
told the FBI.
Mr. Baca characterizes Mr. Rodriguez’s statements to his mother as
“qualitatively different from, and considerably more powerful than” other
impeachment evidence by “directly contradict[ing] Mr. Rodriguez’s
allegations that Mr. Baca [had] told him things that implicated Mr. Baca in
the charged offenses.” Baca’s Opening Br. at 34 (emphasis in original).
But these contradictions are apparent from the FBI’s notes, and Mr. Baca
used those notes at trial. Mr. Baca never says how Mr. Rodriguez’s
statements to his mother differed from what he had told the FBI.
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Nor has Mr. Baca shown a meaningful difference between Mr.
Rodriguez’s statements to his mother and other evidence that the defense
had used for impeachment. For materiality, the evidence cannot just be
“cumulative,” Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009),
or “additional impeachment evidence,” Nuckols v. Gibson, 233 F.3d 1261,
1267 n.8 (10th Cir. 2000) (quoting Tankleff v. Senkowski, 135 F.3d 235,
251 (2d Cir. 1998)). To the contrary, the statements must “significantly
enhanc[e] the quality of the impeachment evidence.” Douglas, 560 F.3d at
1174.
Mr. Baca argues that the extensive impeachment of Mr. Rodriguez
made the other evidence more important, not less. But the incremental
value of more impeachment evidence generally dissipates when the witness
has already faced strong impeachment:
[W]here the credibility of a witness “has already been
substantially called into question in the same respects by other
evidence, additional impeachment will generally be immaterial
and will not provide the basis for a Brady claim.” Furthermore,
we have indicated that “an incremental amount of impeachment
evidence on an already compromised witness does not amount to
material evidence.”
United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011) (citations
omitted).
Mr. Rodriguez’s statements to his mother were merely “additional
impeachment evidence” because he had already been impeached with prior
20
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inconsistent statements. Apart from the lies to law enforcement, the
Defendants impeached Mr. Rodriguez with his
 false denial of official membership in SNM,
 prior convictions for criminal sexual penetration, residential
burglary, and aggravated battery with a deadly weapon,
 effort to flee the country, and
 statement that he had planned to murder Mr. Herrera after
hearing his recorded statements.
R. vol. 5, at 8236–37, 8246–47, 8287–88, 8295–96, 8308, 8310, 8394–99.
And on cross-examination, Mr. Rodriguez admitted lying to the FBI and
withholding Mr. Baca’s comments about killing the corrections officials.
Though Mr. Baca could have impeached Mr. Rodriguez’s testimony with
his statements to his mother, those statements would have added little.
In his reply brief, Mr. Baca states that during cross-examination, Mr.
Rodriguez “was able to quibble” about the accuracy of the FBI’s reports
because they were written summaries rather than “verbatim recordings of
those statements.” Baca’s Reply Br. at 14. For this statement, Mr. Baca
cites this exchange with the prosecutor:
Q. But did you say Baca liked Molina?
A. For certain reasons, yes.
Q. And you also told the FBI that if Baca had been living in
Southern, that he could have stopped or would have stopped the
Molina murder?
. . . .
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Q. These are simple questions, yes or no, Mr. Rodriguez.
A. You have to read the whole paragraph.
Q. I don’t have to read the whole paragraph.
A. I can’t answer the question.
Q. So you don’t remember?
A. Read it.
Q. Do you remember talking to the FBI on October 24, 2017?
A. Yes.
Q. Do you remember telling [the FBI] that Baca would have
stopped the hit if he’d have been at Southern New Mexico
Correctional Facility?
A. Can you read the whole paragraph?
Q. It’s a yes-or-no question, Mr. Rodriguez.
A. That’s part of the paragraph--the statement that I made, yes.
Q. Did you make that statement?
A. I did.
R. vol. 5, at 8287–89.
Mr. Rodriguez didn’t “quibble” based on the lack of a verbatim
record, and he never questioned the accuracy of the FBI’s records of what
he’d said. So Mr. Baca would have obtained little from further cross-
examining Mr. Rodriguez with the statements to his mother. The recording
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of the phone call with Mr. Rodriguez’s mother was thus immaterial as to
Mr. Baca.
(2) Nor was the recorded phone call material as to Mr. Herrera
or Mr. Sanchez.
Mr. Rodriguez’s recorded statements to his mother were also
immaterial as to Mr. Herrera and Mr. Sanchez.
Mr. Rodriguez testified against both Mr. Herrera and Mr. Sanchez.
Given that testimony, Mr. Herrera and Mr. Sanchez argue that the recorded
statements undermined all of Mr. Rodriguez’s testimony. But this
impeachment added little that was new. See Part 2(D)(1), above. So the
suppression of this call did not constitute a denial of due process to Mr.
Sanchez or Mr. Herrera.
E. The government did not commit a due process violation by
delaying disclosure of Mr. Urquizo’s recorded phone calls
about the discovery tablets.
The Defendants also point to Mr. Urquizo’s recorded calls, which
contained three references to what he’d seen on discovery tablets:
1. “[Mr. Baca] was pretty much writing letters he wasn’t suppose
to be doing. All that stuff came out. It’s on the tablet. Like,
there’s so much stuff, . . . that it’s just crazy.” R. vol. 1, at
2273 (Sept. 20, 2017).
2. “I seen my mugshot, like uh, whenever I was younger because
the homie has a tablet with all the case right. . . . And I went
back and I seen my mugshot when I was like–when I first came
to prison at seventeen. And I had no tattoos on my face or
nothing.” Id. at 2272 (Oct. 12, 2017).
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3. “The tablet that my homie has, it has a lot of shit. It has all
those vatos that are dead. Like pictures of them dead. Like
fucking they show the videos of the stabbings and everything,
and, you know, it’s like damn, its crazy . . . . Yeah, it has
everything. Everything. Like all that shit and it has–and I seen
all my mugshots when I was a little kid. . . . But yeah it shows
everything. It shows the vatos getting killed and the pictures
afterwards.” Id. at 2272 (Oct. 29, 2017).
The government’s delay in disclosing these recordings did not result in a
denial of due process.
(1) We review for plain error because the Defendants failed to
preserve their challenges to the Urquizo recordings.
The Defendants failed to preserve their challenges involving these
recordings. Mr. Baca did present the recorded phone calls when moving for
a new trial, but he did so only in his reply brief and not in the context of a
due-process claim for suppression of evidence. In the reply brief, he urged
a new trial based on Mr. Urquizo’s false testimony, pointing to
 his trial testimony that he had not received a discovery tablet
or seen the discovery and
 his recorded statements acknowledging that he’d seen evidence
on the discovery tablets.
Mr. Baca’s claim involving false testimony differed from a claim involving
suppression of exculpatory evidence:
A defendant may have a Brady claim if the witness
unintentionally gave false testimony or the prosecution did not
correct testimony that it should have known was false. But this
court has repeatedly spoken of Napue claims as requiring
perjury, and the prosecutor’s knowledge of the falsity by the
witness. A prosecutor’s knowing use of perjured testimony is
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misconduct that goes beyond the denial of a fair trial, which is
the focus of Brady.
United States v. Garcia, 793 F.3d 1194, 1207–208 (10th Cir. 2015)
(citations omitted; emphasis in original). Given these differences, a claim
involving suppression of favorable evidence is “distinct” from a claim
involving the knowing use of perjured testimony. Douglas v. Workman,
560 F.3d 1156, 1174 n.13 (10th Cir. 2009); accord Morris v. Ylst, 447 F.3d
735, 743 n.8 (9th Cir. 2011) (stating that these claims are “analytically
distinct”).
Despite the analytical distinction of these claims, Mr. Baca insists
that his motion for a new trial referred to Brady v. Maryland, 373 U.S. 83(1963), the seminal case on the suppression of material evidence when
seeking a new trial. But Mr. Baca disregards the context of his argument
for a new trial. He had urged a new trial based on the government’s failure
to correct Mr. Urquizo’s false testimony—not the government’s delay in
disclosing his recordings. R. vol. 1, at 2271–74. Indeed, Mr. Baca
“acknowledges that he did not explicitly argue below that the government
[had] suppressed the Urquizo calls.” Baca’s Reply Br. at 2–3.
When Mr. Baca appealed, he changed his theory, arguing for the first
time that the government had suppressed the Urquizo recordings. Mr. Baca
thus forfeited this theory even though it fell “under the same general
category as an argument presented at trial.” See United States v. Leffler,
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942 F.3d 1192, 1196 (10th Cir. 2019) (stating that the appellant forfeited
an appellate argument even though it had fallen into the same “general
category” as an argument made in district court (quoting United States v.
Nelson, 868 F.3d 885, 891 n.4 (10th Cir. 2017))).
Because Mr. Baca forfeited the claim and didn’t urge plain error in
his opening brief, “we [would] ordinarily deem the issue waived (rather
than merely forfeited) and decline to review the issue at all—for plain
error or otherwise.” Id. at 1196; see p. 83, below. But Mr. Baca used his
reply brief to urge plain error, and we have discretion to consider the issue
for plain error. See, e.g., United States v. Yurek, 925 F.3d 423, 445 (10th
Cir. 2019); United States v. Courtney, 816 F.3d 681, 683–84 (10th Cir.
2016). We exercise that discretion, considering whether the district court
had plainly erred by failing to order a new trial for the delay in disclosure.
(2) Mr. Baca does not satisfy the plain-error standard because
the government had not obviously suppressed the Urquizo
recordings.
Under the plain-error standard, Mr. Baca must show “(1) [an] error,
(2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Maynard, 984 F.3d 948, 966 (10th Cir.
2020) (quoting United States v. Wireman, 849 F.3d 956, 962 (10th Cir.
2017)). We can assume for the sake of argument that an error took place
when the government delayed disclosure of the Urquizo recordings.
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Even with this assumption, Mr. Baca’s argument would fail at the
second step. There Mr. Baca needed to show that the delay had clearly or
obviously constituted a denial of due process. See United States v. Miller,
978 F.3d 746, 763 (10th Cir. 2020) (stating that an error is “plain” only
when it’s “clear or obvious under current, well-settled law” (quoting
United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012))).
We ordinarily consider an error “clear or obvious” “only when the Supreme
Court or our court has addressed the issue.” United States v. Leal, 32 F.4th
888, 897–98 (10th Cir. 2022).
Here the issue involves disclosure before trial, but arguably amidst
so much other evidence that Mr. Baca couldn’t realistically use the
recordings. Neither the Supreme Court nor our court has ever found a due
process violation in similar circumstances.
Granted, we’ve recognized that a delay in the disclosure could create
a denial of due process. United States v. Ahrensfeld, 698 F.3d 1310, 1319
(10th Cir. 2012). For a denial of due process, however, Mr. Baca must
show that an earlier disclosure would have created a reasonable probability
of a different outcome. Id.Mr. Baca points out that the Urquizo recordings came with roughly
60,000 other recordings of calls, which spanned roughly 15,000 hours.
Given the number and duration of the recordings, Mr. Baca maintains that
he couldn’t have reviewed the Urquizo calls in the runup to trial. The
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government disagrees, questioning the burden imposed on the Defendants
because many of these recordings related to potential witnesses in a later
trial. We need not resolve this dispute because our caselaw does not make
it clear or obvious that the delay would have constituted suppression.
The government made two sets of disclosures the month before trial.
The first set of disclosures (Dec. 4, 2017) apparently involved electronic
submission of files to defense counsel, and no index existed for those
audio files. The second set of disclosures (Dec. 18, 2017) included a cover
letter with an index of all the .pdf documents and audio/video files that had
been disclosed. The recordings of the Urquizo phone calls do not appear in
the index of .pdf and audio/video files, so these recordings were
presumably part of the first set of disclosures. Because those disclosures
contained no index, defense counsel might have needed to listen to all of
the new recordings.
But under the plain-error standard, Mr. Baca must show that the
government had clearly or obviously suppressed the Urquizo recordings by
waiting too long to disclose them. See United States v. Redcorn, 528 F.3d
727, 744 (10th Cir. 2008) (concluding that the defendants hadn’t shown
plain error because the evidence wasn’t obviously withheld by the
prosecution). The obviousness of the violation turns on whether the
government had disclosed the Urquizo recordings in time for Mr. Baca to
use them at trial. See United States v. Battles, 745 F.3d 436, 446 (10th Cir.
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2014). Disclosure on the eve of trial wasn’t clearly or obviously too late,
for we’ve held that the disclosure was timely even when it had come near
the end of the trial. United States v. Scarborough, 128 F.3d 1373, 1376
(10th Cir. 1997). Given this holding, we don’t view the timing of the
disclosure as clearly or obviously too late for due process.
Mr. Baca doesn’t argue that the Urquizo recordings would have
tipped the balance toward acquittal. Instead, Mr. Baca complains that he
lost the opportunity to “strategically situate” the recordings “into
organized, original cross-examinations that held together with collective
narrative flow and integrity.” Baca’s Opening Br. at 49. We may assume
for the sake of argument that earlier disclosure would have enhanced Mr.
Baca’s cross-examination of Mr. Urquizo. But Mr. Baca hasn’t shown that
the enhancement would have clearly or obviously created reasonable doubt.
Without that showing, we conclude that Mr. Baca failed to satisfy his
burden of showing plain error. See Burke, 571 F.3d at 1057 (concluding
that despite the plausibility of an effect on the defense’s strategy, the
defendant’s theory of prejudice was not “plainly correct” for purposes of
plain-error review).
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F. The government did not deny due process to the Defendants
by delaying disclosure of the FBI’s typed notes.
The Defendants also point to delayed disclosure of the FBI’s typed
notes from an interview with Mr. Urquizo. In the interview, Mr. Urquizo
told the FBI that
 Mr. Sanchez was supposed to cover the camera and didn’t and
 Mr. Sanchez’s failure to cover the camera led SNM members to
discuss killing him in retaliation.
The government reported on this interview, but the report omitted
some details in the typed interview notes. Mr. Baca argues that the
government suppressed the typed notes “until long after the defense could
make effective use of [them].” Baca’s Opening Br. at 39.
In our view, however, the delay didn’t constitute suppression. The
interview took place in late January 2018; and the government disclosed
the notes roughly a month later, as the trial was in progress. At trial, Mr.
Sanchez’s attorney brought the notes to the district court’s attention. In
response, the court allowed all of the defendants to recall Mr. Urquizo so
that they could cross-examine him with the notes.
The three defendants declined to recall Mr. Urquizo. But Mr.
Sanchez called the FBI agent who had taken the notes and questioned the
agent extensively about what Mr. Urquizo had said. Given that cross-
examination and the opportunity afforded to Mr. Baca and Mr. Herrera, the
government did not suppress the typed notes.
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Even if we were to consider the typed notes suppressed, they would
have been immaterial. Evidence is material if it would “shake[] our
confidence in the guilty verdict.” United States v. Smith, 534 F.3d 1211,
1223 (10th Cir. 2008).
Under this standard, the typed notes weren’t new material evidence.
Mr. Sanchez disagrees, pointing to their descriptions of Mr. Urquizo’s
statements as support for his denial of involvement in the Molina murder.
But these statements by Mr. Urquizo did not constitute new evidence. Mr.
Sanchez already had notes from Mr. Urquizo’s FBI interview in March
2017. In that interview, Mr. Urquizo had discussed an SNM plan to kill Mr.
Sanchez for failing to cover the camera.
The Defendants try to distinguish the FBI’s notes from the interviews
in March 2017 and January 2018, pointing out that Mr. Urquizo had
referred in the later interview to anger by SNM leadership for Mr.
Sanchez’s failure to “participate in the Molina homicide or even cover the
camera like he was supposed to.” R. vol. 1, at 1846. But the notes from
March 2017 had also discussed the possible murder of Mr. Sanchez for
failing to cover the camera. Both sets of notes are consistent as to (1) Mr.
Sanchez’s assignment to cover the camera, (2) his failure to carry out that
assignment, and (3) the talk about murdering Mr. Sanchez in retaliation.
The government’s theory was that Mr. Sanchez had participated in the
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plans to murder Mr. Molina, and the typed notes do not contain new
information undermining that theory.
The Defendants also argue that Mr. Urquizo’s statements to the FBI
in January 2018 would have helped Mr. Sanchez to show Mr. Rodriguez’s
role in orchestrating the Molina murder. But this information was not new.
The government had timely disclosed the FBI’s report from the March
2017 interview, and this report matches what Mr. Urquizo later said in
January 2018. In both interviews, Mr. Urquizo told the FBI that Mr.
Rodriguez
 had asked about the Molina paperwork,
 had obtained it from Mr. Herrera,
 had said in writing that the Molina murder was imminent, and
 had reacted angrily toward Mr. Sanchez for failing to cover the
camera.
So if the January 2018 interview had incriminated Mr. Rodriguez, the
March 2017 report would have done the same thing. The information in the
typed notes thus wasn’t new or inconsistent with other trial evidence about
Mr. Rodriguez’s role.
Nor were the typed notes material as to Mr. Baca and Mr. Herrera.
The notes refer to involvement by Mr. Sanchez, not Mr. Baca or Mr.
Herrera. So Mr. Baca and Mr. Herrera could have used the notes only as
impeachment evidence.
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They argue that the notes “exposed more generally how the
government witnesses [had] routinely changed their stories to benefit the
prosecution and to target the defendants who had chosen to go to trial
rather than plead guilty.” Baca’s Opening Br. at 40; see also Herrera’s
Opening Br. at 89 (adopting Mr. Baca’s Brady argument). But materiality
required “significant[] enhance[ment] [of] the quality of the
impeachment”—not just cumulative evidence of bias. Douglas v. Workman,
560 F.3d 1156, 1174 (10th Cir. 2009). Under this standard, the typed notes
were immaterial. Even without the notes, the Defendants managed to
extensively impeach government witnesses with their changing stories.
Given that extensive impeachment, the typed notes would have been
cumulative as to Mr. Baca and Mr. Herrera.
G. The government did not violate due process by delaying
disclosure of an FBI questionnaire about SNM.
The Defendants also complain about the timing of the government’s
disclosure of a questionnaire. The FBI used the questionnaire, which
contained 213 questions, when asking a potential witness about
 his background,
 when, why, and how the individual had joined the SNM,
 who could join the SNM,
 how the SNM was organized,
 how the SNM trafficked in drugs, and
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 what role SNM members might have played in the crimes being
investigated.
The Defendants argue that
 the questionnaire “opened up a new line of defense”—that the
government had targeted the Defendants during the
investigation and
 “the government’s investigation techniques had tainted its
witnesses.”
Baca’s Opening Br. at 41. For these arguments, we conduct de novo
review, United States v. Cooper, 654 F.3d 1104, 1119 (10th Cir. 2011), and
conclude that the late disclosure of the FBI questionnaire did not constitute
a denial of due process.
The questionnaire was not suppressed. It was disclosed the day
before opening statements. Because the Defendants received the
questionnaire before opening statements, they could have used the
questionnaire at trial.
In fact, Mr. Sanchez did use the questionnaire at trial when cross-
examining an FBI agent. Though Mr. Baca’s attorneys heard the cross-
examination about the questionnaire, they deny recognizing its importance
until later because it had been produced with over 12,000 pages. But Mr.
Sanchez’s use of the questionnaire should have alerted Mr. Baca to the
significance of the questionnaire.
But even if we were to consider the FBI questionnaire suppressed,
the Defendants have not shown materiality. In the context of evidence
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“produced during trial, we focus on ‘whether there is a reasonable
probability that the outcome of [the trial] would have been different had
the [government] disclosed th[e] information earlier.’” United States v.
Ahrensfeld, 698 F.3d 1310, 1318 (10th Cir. 2012) (quoting Knighton v.
Mullin, 293 F.3d 1165, 1172–73 (10th Cir. 2002) (alterations in original)).
Mr. Baca argues that the questionnaire shows that the government
targeted his codefendants and himself. For example, he points to this
excerpt:
106. Javier Molina was killed in 2014 at the Southern New
Mexico Correctional Facility by . . . Anthony Baca, . . .
Daniel Sanchez, Carlos Herrera, and Rudy Perez.
107. Did . . . Anthony Baca, . . . Daniel Sanchez, Carlos Herrera,
or Rudy Perez talk to you about the murder? If so, what did
they say?
R. vol. 1, at 1900.
But this excerpt was crossed out, suggesting that the government
didn’t even use this part of the questionnaire. Moreover, the questions
about the conspiracy to murder the corrections officials didn’t refer to a
particular suspect. To the contrary, the questions were open-ended, asking
who had raised the idea of killing the officials. Because the problematic
excerpt was crossed out and the questions about the corrections officials
did not name any suspects, the questionnaire was immaterial.
Mr. Baca also argues that the delay in disclosure prevented him from
strategically using the document. “The relevant standard of materiality,
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however, does not focus on trial preparation but instead on whether
presentation of the evidence would have created a reasonable doubt of guilt
that did not otherwise exist.” United States v. Behrens, 689 F.2d 154, 1558
(10th Cir. 1982). Under this standard, materiality requires more than vague
complaints about an effect on trial strategy. United States v. Young, 45
F.3d 1405, 1409 (10th Cir. 1995).
Mr. Baca has provided few specifics, stating only in broad terms that
he would have been better prepared if he’d had the questionnaire earlier.
Even if Mr. Baca would have been better prepared, however, he hasn’t
shown how strategic use of the questionnaire would have created
reasonable doubt. So we conclude that the questionnaire was immaterial as
to Mr. Baca.
Because the government didn’t suppress the questionnaire and it was
immaterial as to Mr. Baca, the delayed disclosure didn’t violate his right to
due process.
H. Considered cumulatively, the late-disclosed evidence was
not material.
When multiple items are suppressed, we view their materiality in
combination. Simpson v. Carpenter, 912 F.3d 542, 572 (10th Cir. 2018).
But in considering materiality, we include only those items that were
suppressed. See United States v. Brown, 650 F.3d 581, 591 n.21 (5th Cir.
2011) (“Because we do not consider the materiality of any non-suppressed
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information, we consider only the cumulative materiality of the suppressed
portions of [the pertinent notes and testimony].”).
We have held that only one item was suppressed: the recording of
Mr. Rodriguez’s phone call to his mother. So there’s nothing to cumulate
when we consider the materiality of the suppressed evidence. See Kennell
v. Dormire, 873 F.3d 637, 641 (8th Cir. 2017) (concluding that the district
court didn’t fail to consider the cumulative effect of suppressed items
because “there was only one arguable instance of the suppression of Brady
material”).
3. Defendants Sanchez and Baca: The district court didn’t err in
allowing introduction of the evidence of prior bad acts.
Mr. Sanchez and Mr. Baca argue that the district court should have
granted a new trial based on the introduction of evidence as to their prior
bad acts. This evidence involved
 Mr. Sanchez’s acts of assault in 2005 and
 Mr. Baca’s commission of murder in 1989.
Defendants Sanchez and Baca complain that this evidence created a danger
of unfair prejudice by suggesting violent propensities.
We conclude that the district court did not abuse its discretion in
allowing introduction of evidence that Mr. Sanchez had committed assaults
in 2005. And even if the court had erred in allowing the introduction of
evidence about the 1989 murder, the error would have been harmless.
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A. Mr. Sanchez and Mr. Baca forfeited their Rule 403
arguments involving the probative value of enterprise
evidence.
The government challenges the preservation of the Defendants’
appellate arguments. In considering these challenges, we conclude that the
Defendants preserved a general argument for exclusion under Rule 403.
But Mr. Sanchez and Mr. Baca didn’t preserve their appellate arguments
involving (1) the availability of alternative enterprise evidence and (2) the
lack of a dispute over the enterprise element.
(1) Mr. Sanchez and Mr. Baca preserved a general Rule 403
argument, triggering the abuse-of-discretion standard.
The government argues that when Mr. Sanchez and Mr. Baca
objected, they didn’t state a specific ground for objecting under Rule 403.
See Fed. R. Evid. 103(a)(1) (noting that preservation requires
identification of “the specific ground”) We disagree.
Mr. Sanchez and Mr. Baca moved in limine to exclude the evidence.
In these motions, Mr. Sanchez and Mr. Baca invoked Fed. R. Evid. 404(b)
and asked the district court to “balance the evidence’s probative value and
prejudicial effect under Fed. R. Evid. 403.” R. vol. 1, at 1156, 1432; Supp.
R. vol. 2, at 483. In requesting this balancing, Mr. Sanchez and Mr. Baca
urged sensitivity to the danger of unfair prejudice from evidence of a
defendant’s prior bad acts. R. vol. 1, at 1157 (quoting United States v.
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Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985)), 1432–33 (same); Supp. R.
vol. 2, at 483 (same).
By invoking Rule 403 and requesting balancing, Mr. Sanchez and Mr.
Baca preserved a general argument that the danger of unfair prejudice had
substantially outweighed the probative value. See K-B Trucking Co. v. Riss
Int’l Corp., 763 F.2d 1148, 1155 n.8 (10th Cir. 1985) (concluding that
objections identifying exhibits as “cumulative” were “specific enough to
preserve the Rule 403 issue for appeal”); see also United States v. Grooms,
2 F.3d 85, 88 n.1 (4th Cir. 1993) (concluding that a defendant had
preserved a Rule 403 argument by stating that the evidence was “so much
more inflammatory and prejudicial than [it was] probative”).
The government argues that Mr. Sanchez and Mr. Baca had relied at
trial solely on a failure to link the evidence to SNM. This argument
seemingly stems from the Defendants’ oral objections. But these oral
objections did not displace the Rule 403 argument that Mr. Sanchez and
Mr. Baca had presented in their motions in limine. 5
5
Granted, appellants must generally renew a Rule 403 objection for
preservation. United States v. McVeigh, 153 F.3d 1166, 1200 (10th Cir.
1998). But renewal is unnecessary if “the issue (1) is fairly presented to
the district court, (2) is the type of issue that can be finally decided in a
pre-trial hearing, and (3) is ruled upon without equivocation by the trial
judge.” Id.; see also Fed. R. Evid. 103(b) (stating that “[o]nce the court
rules definitively on the record—either before or at trial—a party need not
renew an objection or offer of proof to preserve a claim of error for
appeal”). Mr. Sanchez and Mr. Baca satisfied these requirements by
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Given preservation of the Defendants’ argument under Rule 403, we
review the rulings for an abuse of discretion. United States v. Archuleta,
737 F.3d 1287, 1292 (10th Cir. 2013). “Our abuse of discretion review
‘affords 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. MacKay, 715 F.3d 807, 839 (10th Cir. 2013) (quoting United
States v. Cerno, 529 F.3d 926, 935–36 (2008)). To determine whether the
district court acted within its considerable realm of discretion, we assign
the evidence “its maximum reasonable degree of relevance and its
minimum reasonable danger of unfair prejudice.” United States v. Tee, 881
F.3d 1258, 1273 (10th Cir. 2018).
(2) Mr. Sanchez and Mr. Baca forfeited two of their arguments.
Though Mr. Sanchez and Mr. Baca preserved a general argument for
exclusion under Rule 403, they make two new arguments:
1. The evidence of prior bad acts lacked probative value because
the district court could have considered other evidence of a
racketeering enterprise.
2. The probative value was minimal because the Defendants
hadn’t disputed SNM’s status as a racketeering enterprise.
presenting a Rule 403 argument in their motions in limine and obtaining an
unequivocal ruling. Supp. R. vol. 2, at 879–80.
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Mr. Sanchez and Mr. Baca forfeited these arguments by failing to present
them in district court. See United States v. Luke-Sanchez, 483 F.3d 703,
706 (10th Cir. 2007) (holding that a party preserves only the specific
grounds stated in the objection in district court).
To avoid forfeiture, Mr. Sanchez insists in his reply brief that the
district court knew of less prejudicial methods of proof. But in the opening
briefs, the Defendants had raised only the availability of alternative
evidence, not the court’s knowledge of the alternative evidence. Making
the argument in the reply brief was too late. See Stump v. Gates, 211 F.3d
527, 533 (10th Cir. 2000) (stating that the “court does not ordinarily
review issues raised for the first time in a reply brief”).
The argument was not only late but also meritless because it assumes
that evidence must be excluded whenever the district court knows of less
prejudicial ways to prove something. Why would the court’s awareness of
other evidence require sua sponte intervention? See United States v. Long,
574 F.2d 761, 766 (3d Cir. 1978) (“Since the ‘specific’ objection
requirement of Fed. R. Evid. 103(a) was not complied with, the trial judge
was not required to deal with Rule 403.”); see also 22A Charles Alan
Wright & Kenneth W. Graham, Jr., Fed. Prac. & Proc.: Evid. § 5224
(2014) (stating that “[m]ost cases” don’t require the judge to apply Rule
403 “without a request from a party”). So regardless of what the district
court might have known, it had no duty to exclude the evidence under Rule
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403 without an objection. See Polys v. Trans-Colo. Airlines, Inc., 941 F.2d
1404, 1409–10 (10th Cir. 1991) (stating that the district court had no
obligation to sua sponte reconsider an evidentiary ruling, despite knowing
the significance of excluded evidence, because the lack of an objection
would have prevented a meaningful appellate record).
Mr. Sanchez and Mr. Baca also argue that when they told the district
court that the evidence had minimal probative value, they were implicitly
asking the district to consider alternative evidence of an enterprise. For
this argument, the Defendants rely on United States v. Watson, 766 F.3d
1219 (10th Cir. 2014), which stated in a footnote that “the assessment of
the probative value of evidence under Rule 403 [was] distinct from the
evidence’s relevance under Rule 401 in that the measurement of probative
value ‘[was] determined by comparing evidentiary alternatives.’” Id. at
1242 n.16 (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence, § 404.21[3][a], at 404–82.1). But Watson did not
require a district court to examine alternative evidence when the objecting
party hasn’t relied on alternative methods of proof.
Mr. Sanchez also points to United States v. McIntosh, 29 F.4th 648,
654 (10th Cir. 2022), arguing that he can include additional detail on
appeal. But in McIntosh, we recognized preservation only when the district
court had a chance to consider the argument. Id. at 655. There the
appellant’s arguments on appeal were “substantially similar—if not
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identical—to his arguments below,” and the district court had expressly
considered those arguments in a thorough written opinion. Id. at 654–55.
That is not the case here: Mr. Sanchez and Mr. Baca didn’t alert the
district court to an argument about (1) the existence of alternative
enterprise evidence or (2) a lack of controversy over the enterprise
element. So Mr. Sanchez and Mr. Baca didn’t properly preserve those
arguments.
Mr. Sanchez and Mr. Baca cite two other opinions bearing on the
relationship between alternative forms of proof and probative value:
 Old Chief v. United States, 519 U.S. 172, 182–83 (1997), and
 Carnell Construction Corp. v. Danville Redevelopment &
Housing Authority, 745 F.3d 703, 719 (4th Cir. 2014).
But these opinions didn’t suggest that courts must sua sponte consider
6
alternative forms of proof.
6
Mr. Sanchez and Mr. Baca also cite an out-of-circuit case, which
stated that an objecting party needs only to “raise[] the crux of its
objection” in district court rather than “all the details of its position.”
United States v. Irey, 612 F.3d 1160, 1224 n.44 (11th Cir. 2010) (en banc)
(quoting United States v. Smith, 39 F.3d 1143, 1146 (11th Cir. 1994)).
There the Eleventh Circuit said that the government’s objection to a
sentence as substantively unreasonable was sufficient to preserve the
specific grounds for the objection it had already raised in district court. Id.This statement supports our conclusions that the Defendants
 preserved a general Rule 403 argument and
 forfeited the two specific grounds not presented in district
court.
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Because Mr. Sanchez and Mr. Baca didn’t preserve their appellate
arguments regarding other forms of proof and the lack of a dispute over an
enterprise, we’d ordinarily apply the plain-error standard. United States v.
Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). But Mr. Sanchez and Mr.
Baca do not urge plain error. So we consider the two appellate arguments
waived. Id.(3) Even without a waiver, the Defendants’ new appellate
arguments would fail under the plain-error standard.
Even if we were to apply the plain-error standard, these appellate
arguments would fail. On plain-error review, the Defendants must show not
only that the district court erred but also that the error was “‘clear or
obvious’ under ‘current, well-settled law.’” United States v. Dazey, 403
F.3d 1147, 1174 (10th Cir. 2005) (quoting United States v. Whitney, 229
F.3d 1296, 1309 (10th Cir. 2000)); see also p. 26, above. We have declined
to find plain error in the admission of evidence under Rule 403 even when
we disagree with the court’s balancing. United States v. Ibarra-Diaz, 805
F.3d 908, 929 (10th Cir. 2015).
Mr. Baca and Mr. Sanchez downplay the probative value of the
evidence as to bad acts, arguing that the government had many other ways
to prove the enterprise element. To this end, Mr. Baca and Mr. Sanchez
rely on
 footnote 16 of United States v. Watson, 766 F.3d 1219 (10th
Cir. 2014), and
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 Old Chief v. United States, 519 U.S. 172 (1997).
As discussed above, footnote 16 of Watson suggested that probative
value turns on a comparison of evidentiary alternatives. See p. 42, above.
This footnote appears to stem from Old Chief, which stated that probative
value under Rule 403 can “be calculated by comparing evidentiary
alternatives.” 519 U.S. at 184. But in Old Chief, the Court did not require a
comparison of evidentiary alternatives. To the contrary, the Court clarified
that when appealing a ruling under Rule 403, a defendant cannot satisfy the
abuse-of-discretion standard through “a mere showing of some alternative
means of proof that the prosecution in its broad discretion chose not to rely
upon.” Id. at 183 n.7. So even if the government had an alternative way to
prove an enterprise, that alternative wouldn’t undermine the district court’s
exercise of its discretion.
Old Chief applies only when (1) a defendant’s status as a convicted
felon is an element of the charged offense and (2) a defendant offers to
stipulate to that element. In Old Chief, the Court emphasized that the
government can typically choose how to present evidence of an element
even in the face of a defendant’s offer to stipulate. Id. at 186–92. The
Court recognized that a defendant’s offer “to concede a point generally
cannot prevail over the Government’s choice to offer evidence showing
guilt and all the circumstances surrounding the offense.” Id. at 183.
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Though the government can ordinarily decide how to prove an
element that the defendant offers to concede, the Old Chief Court
recognized an exception involving status as a convicted felon. Id. at 190.
Under this exception, Rule 403 generally prevents the government from
presenting evidence of a felony conviction when the defendant offers to
stipulate to felon status. Id. at 191–92. But the Court limited its holding to
“proof of felon status.” Id. at 183 n.7.
Given this limitation and the Court’s general reluctance to tell the
government how to prove a particular element, we’ve interpreted Old Chief
to bar introduction of evidence in the face of a stipulation only when the
element involves the defendant’s status as a convicted felon. See United
States v. Tan, 254 F.3d 1204, 1213 (10th Cir. 2001) (“Old Chief does not
require the exclusion of other crimes evidence where there is a stipulation
to an element of the charged crime where the evidence is offered to prove
an element other than felony-convict status.”). Mr. Sanchez and Mr. Baca
present no case law applying Old Chief outside a stipulation on felon
status.
The disputed element here was an enterprise, not felon status, and the
Defendants never offered to stipulate to an enterprise. And other circuit
courts have declined to apply Old Chief’s limited exception to interfere
with the prosecution’s choice of evidence when the defendant doesn’t offer
to stipulate. E.g., United States v. Gloster, 185 F.3d 910, 913 (D.C. Cir.
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1999); United States v. Johnson, 803 F.3d 279, 283 (6th Cir. 2015); United
States v. Jandreau, 611 F.3d 922, 924 n.2 (8th Cir. 2010).
Mr. Sanchez and Mr. Baca also point to the lack of a dispute about
the existence of an enterprise. Absent a dispute, the Defendants contend,
the danger of unfair prejudice substantially exceeded the probative value.
For this contention, Mr. Sanchez and Mr. Baca point to three opinions:
1. United States v. Moncayo, 440 F. App’x 647, 654–55 (10th Cir.
2011) (unpublished), where we held that the district court had
abused its discretion in admitting testimony because it was
“highly prejudicial” and the probative value was “significantly
diminished by the fact that [the] testimony was relevant only to
an undisputed element of the case;”
2. United States v. Soundingsides, 820 F.2d 1232, 1237–38 (10th
Cir. 1987), where we held that the district court had abused its
discretion in admitting testimony that was “highly prejudicial”
and related to an issue that was not “genuinely contested;” and
3. United States v. Edwards, 540 F.3d 1156, 1163–64 (10th Cir.
2008), where we held that the district court had abused its
discretion in allowing the introduction of evidence of the
defendant’s prior convictions in part because they didn’t bear
on the disputed issues.
But none of these opinions applied the plain-error standard. In our
view, the district court didn’t commit plain error under Rule 403 when the
defendant had not stipulated to the existence of an enterprise. See United
States v. Bradford, 905 F.3d 497, 507 (7th Cir. 2018) (concluding that the
district court didn’t commit plain error under Rule 403 in part because the
defendant hadn’t offered to stipulate to the element that the prosecution
was trying to prove).
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B. The district court did not abuse its discretion in allowing
introduction of evidence about Mr. Sanchez’s 2005 assaults.
Mr. Sanchez objected to the introduction of evidence involving
assaults committed in 2005, and the district court overruled the objections.
In overruling one of the objections, the court explained that the assault was
probative as an “overt act.” Supp. R. vol. 1, at 833. That overt act had to
further an “enterprise engaged in racketeering activity.” 18 U.S.C.
§ 1959(a). An “enterprise” includes “any . . . group of individuals
associated in fact although not a legal entity, which is engaged in, or the
activities of which affect, interstate or foreign commerce.” 18 U.S.C.
§ 1959(b)(2). And “racketeering activity” includes acts or threats involving
murder and drug dealing. 18 U.S.C. §§ 1959(b)(1), 1961(1). Given these
definitions, “[i]t is difficult to comprehend how one could prove the
existence of an enterprise . . . without presenting evidence of the crimes
that detail the structure, common purpose, and continuity of the charged
enterprise.” United States v. Salerno, 108 F.3d 730, 739 (7th Cir. 1997).
To prove an “enterprise engaged in racketeering activity,” the
government presented testimony that Mr. Sanchez had committed the
assaults in 2005 based on SNM’s practice of retaliating against rival gang
members. See R. vol. 5, at 7893–94 (Mario Rodriguez), 10,952 (Eric
Duran). The testimony showed the SNM’s use of violence to exert power
over rival gang members.
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Mr. Sanchez challenges the relevance of the 2005 assaults, arguing
that they didn’t relate to racketeering activity. But the witnesses testified
that the assaults had stemmed from Mr. Sanchez’s affiliation with SNM
and its rivalry with another gang. So the district court reasonably
characterized the assaults as “overt act[s] in furtherance of the SNM
enterprise.” Supp. R. vol. 1, at 833. In fact, Mr. Sanchez disavows any
challenge to the relevance of the 2005 assaults.
Though Mr. Sanchez challenges the relevance of the assaults, he
points out that they had preceded the Molina murder by roughly 9 years.
But we have rejected a categorical “rule regarding the number of years that
can separate offenses.” United States v. Franklin, 704 F.2d 1183, 1189
(10th Cir. 1983) (quoting United States v. Engleman, 648 F.2d 473, 479
(8th Cir. 1981)). We instead “appl[y] a reasonableness standard and
examine[] the facts and circumstances of each case.” Id.For the VICAR charges, the government had to prove longevity of
the enterprise. See Supp. R. vol. 1, at 575 (jury instruction). To satisfy this
requirement, the government alleged that SNM had operated since the early
1980s. Count 8 of the indictment, which was later dropped, included
allegations of racketeering as early as 2003. So the government could
reasonably rely on evidence from 2005 to prove the enterprise element. See
United States v. Wacker, 72 F.3d 1453, 1469 (10th Cir. 1995) (finding no
error in the introduction of evidence as to bad acts taking place 6–13 years
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earlier because the evidence showed a long-standing pattern of drug
activity).
Mr. Sanchez argues that evidence of the 2005 assaults suggested that
he was someone who would participate in a gang hit. Despite this
suggestion, we’re not conducting this balancing in the first instance. See
Sprint/United Mgt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008)
(“[Q]uestions of relevance and prejudice are for the District Court to
determine in the first instance.”). Our role is simply to determine whether
the district court acted within its discretion. United States v. MacKay, 715
F.3d 807, 839 (10th Cir. 2013).
In reviewing the district court’s exercise of discretion, we give the
evidence of the 2005 assaults their maximum reasonable degree of
relevance and their minimum reasonable danger of unfair prejudice. See
p. 40, above. Doing so, we conclude that the district court did not abuse its
discretion. 7 See United States v. Machado-Erazo, 47 F.4th 721, 733 (D.C.
Cir. 2018) (deciding in the first instance that evidence of the defendants’
involvement in three other murders wasn’t unfairly prejudicial in a VICAR
trial because murder was central to the association’s efforts to control
members and intimidate others), reissued (D.C. Cir. 2022); United States v.
7
The government also argues that even if the district court had erred,
the error would have been harmless. We need not address this argument
because no error occurred.
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Millán -Machuca, 991 F.3d 7, 25–26 (1st Cir. 2021) (concluding that the
district court hadn’t abused its discretion in a VICAR trial by allowing the
introduction of evidence of three earlier murders committed while the
defendant was in prison); United States v. Diaz, 176 F.3d 52, 79–80 (2d
Cir. 1999) (concluding that the district court hadn’t abused its discretion in
allowing the introduction of evidence of other violent acts to prove the
existence and scope of an enterprise under VICAR); United States v. Chin,
83 F.3d 83, 88 (4th Cir. 1996) (concluding that the district court hadn’t
erred in allowing the introduction of evidence of a prior murder because
the defendant’s “murder business . . . [had been] part-and-parcel of his
criminal enterprise”).
C. Any possible error would have been harmless when the
district court allowed the introduction of evidence of Mr.
Baca’s commission of murder in 1989.
Mr. Baca also challenges the introduction of evidence of a 1989
murder that he had allegedly committed, arguing that
 the government had enough other evidence to prove a
racketeering enterprise,
 the murder had taken place over 20 years before the plots to
kill Mr. Molina and the corrections officials,
 the Defendants hadn’t contested SNM’s status as a racketeering
enterprise, and
 the murder had suggested an improper inference of a propensity
to commit violence.
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We assume for the sake of argument that the district court had erred in
allowing introduction of evidence about the 1989 murder. But even if the
court had erred, the error would have been harmless.
The government bears the burden of proving harmlessness. United
States v. Holly, 488 F.3d 1298, 1307 (10th Cir. 2007). To satisfy this
burden, the government must show that the error didn’t affect a substantial
right. United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999). An
error affects a substantial right if it had a “‘substantial influence’ on the
outcome” or left “one in ‘grave doubt’ as to whether it had such effect.”
Id. (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)
(en banc)).
Mr. Baca argues that the evidence played a significant role because
the government had repeatedly urged admissibility of the evidence. But we
can’t speculate on the government’s reasons for its persistence.
Regardless of the government’s reasons for its persistence, the
evidence occupied only a small part of the six-week trial: The government
mentioned the evidence only once (when a recording was played); and in
closing arguments, the government never mentioned this evidence. See
United States v. Kupfer, 797 F.3d 1233, 1243 (10th Cir. 2015) (concluding
that any error in admitting evidence was harmless because it “had played
only a minor role in the trial” and the prosecutor’s closing argument had
contained no mention of the evidence).
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Mr. Baca also argues that this evidence suggested that he had a
propensity toward violence. But the jury already knew from other evidence
that SNM was extraordinarily violent, that its members had committed
murders, and that Mr. Baca had headed this extraordinarily violent gang.
For example, multiple SNM members testified that the SNM had allowed
members to get tattoos only after murdering or assaulting someone.
Another member testified that SNM had engaged in “[a]nything based
around violence, murder, extortion, kidnapping, assaults . . . .” R. vol. 5, at
7785. And other members testified that Mr. Baca had ordered the murder or
assault of three other inmates in the 1990s and 2000s. 8
So when the government presented evidence of the 1989 murder, the
jury would not have been surprised to learn that Mr. Baca, the leader of
SNM, had been involved in another murder. See id. at 11,588 (testimony
that Mr. Baca was “jefe [head] of the organization”). Mr. Baca’s attorney
acknowledged the drumbeat of testimony about murders in a sidebar with
the judge. The sidebar addressed a witness’s accidental mention of the
1989 murder. Mr. Baca’s counsel did not object, explaining that he thought
that the jury had “heard about so many murders” that evidence of the 1989
murder “kind of went under the radar.” Id. at 9787.
8
Mr. Baca doesn’t question the admissibility of that testimony.
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The government presented extensive evidence not only of SNM’s
violence but also of Mr. Baca’s role in that violence. For the Molina
murder, three individuals testified that Mr. Baca had revealed his plan for
SNM members to murder Molina. Two other individuals testified that they
had heard from other SNM members that Mr. Baca wanted Mr. Molina
murdered. Still others testified that Mr. Baca had made other incriminating
statements after the murder. For example, Timothy Martinez testified that
after the Molina murder, Mr. Baca had said that prison officials had “a
body” on their hands because they hadn’t believed his statements about
SNM’s power. R. vol. 5, at 9432–35. And during the direct examination of
Mr. Duran, the government presented a recording of Mr. Baca threatening
to hurt family members if their relative (Jerry Armenta) were to testify for
the prosecution.
The government’s evidence was equally strong for the conspiracy to
kill two corrections officials. An FBI agent testified that investigations had
shown Mr. Baca’s plan, and five SNM members testified that they had
talked with Mr. Baca about this plan. R. vol. 5, at 9433 (Timothy
Martinez), 10,082–83 (Robert Martinez), 10,237–50 (Roy Paul Martinez),
10,613–14, 10,630 (Jerry Montoya), 10,796–97, 10,883–87, 10,893–95,
10,921, 10,934–36 (Eric Duran). And Mr. Duran provided recordings,
which corroborated his testimony that Mr. Baca had orchestrated the plan
to kill the two corrections officials. “[G]iven the nature of this violence-
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infested case, we see no reason why testimony about an additional murder
would cause the jury an improper emotional reaction.” United States v.
Cruz-Ramos, 987 F.3d 27, 43 (1st Cir. 2021) (quoting United States v.
Ramirez-Rivera, 800 F.3d 1 (1st Cir. 2015)); see United States v. Piette, 45
F.4th 1142, 1158 (10th Cir. 2022) (concluding that any error in allowing
the introduction of testimony as to the defendant’s prior act of molestation
was harmless because the testimony had “occupied only a few moments in
a weeklong trial packed with graphic, disturbing evidence of [the
defendant’s] behavior” and “pale[d] in comparison to the breadth, depth,
and detail of the remaining sexual molestation evidence the jury heard in
th[e] case”).
* * *
We conclude that (1) the district court did not err in allowing
evidence of the 2005 assaults and (2) any error in allowing evidence of the
1989 murder would have been harmless.
4. Defendants Sanchez and Herrera: The district court did not err in
declining to sever Counts 6–7.
Mr. Sanchez and Mr. Herrera argue that the district court erred in
refusing to sever Counts 6–7 (the murder of Molina) from Counts 9–10 (the
conspiracy to murder the two corrections officials). 9 This argument
9
The first trial was supposed to cover Counts 6–12. But the other
counts in the first trial were dismissed. After the evidence closed, the
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implicates Federal Rule of Criminal Procedure 14, which allows the
district court to break the counts into separate trials.
Mr. Sanchez and Mr. Herrera invoke not only Rule 14 but also
Federal Rules of Evidence 403 and 404(b), arguing that
 evidence about Mr. Baca’s involvement in the conspiracy to
kill the corrections officials (Counts 9–10) was inadmissible
against Mr. Sanchez and Mr. Herrera (who had been charged in
Counts 6 and 7 only for their roles in the Molina murder) and
 the inadmissible evidence created unfair prejudice.
We reject these arguments. The district court did not abuse its
discretion in allowing evidence as to Mr. Baca’s involvement in the
conspiracy to kill the corrections officials. Mr. Sanchez and Mr. Herrera
failed to show that this evidence had constituted unfairly prejudicial and
improper character propensity evidence. So the district court did not abuse
its discretion in declining to sever Counts 6–7.
A. The district court did not violate Rules 403 and 404(b) in
allowing the introduction of evidence as to the conspiracy to
kill the corrections officials.
At the trial, the district court allowed the introduction of evidence
implicating Mr. Baca in the conspiracy to kill the corrections officials
district court granted Mr. Baca’s oral motion for a judgment of acquittal on
Count 8. See R. vol. 5, at 11,691, 12,105–106; ECF Doc. 1870, at 7. And
the government dismissed Counts 11 and 12 after defendant Christopher
Garcia had entered into a plea agreement.
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(Counts 9–10). But the government did not allege that Mr. Sanchez or Mr.
Herrera had participated in this conspiracy.
Even though the evidence didn’t involve Mr. Sanchez or Mr. Herrera,
they argue that the district court should have excluded the evidence
because it
 had little probative value in showing a racketeering enterprise
in light of alternative evidence of an enterprise and a lack of
dispute as to the enterprise element and
 could result in unfair prejudice.
The government counters that
 Mr. Herrera and Mr. Sanchez partially forfeited their appellate
arguments and
 the conspiracy evidence was properly admitted.
We conclude that Mr. Herrera and Mr. Sanchez generally preserved their
appellate arguments as to Rules 403 and 404. But the district court acted
within its discretion in allowing the introduction of this evidence.
(1) Mr. Sanchez and Mr. Herrera generally preserved their
arguments on probative value.
The government argues that
 Mr. Sanchez forfeited his challenge to the probative value
based on alternative evidence of an enterprise and
 Mr. Herrera broadly forfeited his Rule 403 argument.
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We disagree. Mr. Sanchez and Mr. Herrera preserved these two arguments,
but waived their argument that they hadn’t disputed the availability of an
enterprise.
The government argues that Mr. Sanchez forfeited his challenge to
the probative value based on the other evidence of a racketeering
enterprise. We disagree: In district court, Mr. Sanchez argued that the
government had other ways to prove a racketeering enterprise, such as
evidence of drug trafficking, that would avoid the unfair prejudice from
evidence of the plot to kill corrections officials. This argument had alerted
the district court to the substance of Mr. Sanchez’s argument that he later
made in the appeal. See United States v. McIntosh, 29 F.4th 648, 654–55
(10th Cir. 2022) (“Though his appellate briefs may be more detailed than
his motion to withdraw the plea, [the defendant’s] arguments below
nonetheless gave the district court ample opportunity to consider these
issues.”). So Mr. Sanchez did not forfeit this argument.
The government also argues that Mr. Herrera forfeited a Rule 403
challenge because he did not join Mr. Sanchez’s motion to sever Counts 6–
7. But Mr. Herrera joined Mr. Sanchez’s renewed motion to sever, and that
motion had incorporated Mr. Sanchez’s motion for severance. Before
joining Mr. Sanchez’s motion, Mr. Herrera had joined another motion to
sever Counts 6–7. That motion relied in part on Rule 403 when contesting
the admissibility of evidence involving the conspiracies to kill the
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corrections officials. So Mr. Herrera did preserve his argument on Rule
403.
Though Mr. Sanchez and Mr. Herrera preserved these arguments,
none of the defendants preserved an argument that they hadn’t disputed a
racketeering enterprise. See Part 3(A)(2), above. Given the failure to
preserve this argument, we would ordinarily apply the plain-error standard.
See id. But the Defendants don’t argue plain error, so we won’t consider
the argument. Id.(2) The district court did not abuse its discretion in applying
Rule 404(b).
Because Mr. Sanchez and Mr. Herrera preserved their other
arguments invoking Rule 404(b), we apply the abuse-of-discretion
standard. United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996).
Applying this standard, we uphold the rulings as to Rule 404(b).
Rule 404(b) requires exclusion of evidence involving prior bad acts
“to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). But such evidence “may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
These examples are “illustrative, not exhaustive,” and the rule favors
admission of “all other-act evidence except that tending to prove only
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propensity.” United States v. Armajo, 38 F. 4th 80, 84 (10th Cir. 2022)
(emphasis added).
Mr. Sanchez and Mr. Herrera argue that the evidence improperly
suggested
 Mr. Baca’s propensity for violence and
 the propensity of Mr. Herrera and Mr. Sanchez to comply with
an order to murder Mr. Molina.
But the district court found the evidence probative for three other
purposes:
1. to show that Mr. Baca and others could plot murders from
prison,
2. to show that SNM members could transmit messages and orders
among themselves even while in prison, and
3. to show that SNM was an enterprise engaged in racketeering
activity.
R. vol. 1, at 1257–58. Mr. Sanchez and Mr. Herrera don’t question the
relevance for these purposes, and all of them would be permissible. See
Fed. R. Crim. P. 404(b)(2).
(3) The district court did not abuse its discretion in applying
Rule 403.
We apply the abuse-of-discretion standard when reviewing the
district court’s application of Rule 403. See United States v. Archuleta,
737 F.3d 1287, 1292 (10th Cir. 2013). Under Rule 403, a district court
could “exclude relevant evidence if its probative value is substantially
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outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. On
appeal, we do not balance the probative value against the risk of unfair
prejudice in the first instance. See p. 40, above. Rather, we give the
evidence its “maximum reasonable probative force and its minimum
reasonable prejudicial value.” See p. 40, above (quoting United States v.
Tee, 881 F.3d 1258, 1273 (10th Cir. 2018)). Giving the evidence its
maximum reasonable probative force and minimum reasonable prejudicial
value, we conclude that the district court acted within its discretion.
The district court decided not to exclude this evidence based largely
on the temporal proximity of (1) the conspiracy to kill the two corrections
officials and (2) the murder of Mr. Molina. The court reasoned that the
evidence of a conspiracy to kill the corrections officials had shown
 racketeering activities around the same time as the Molina
murder and
 the ability of Mr. Baca and others to transmit orders to other
prisoners.
R. vol. 1, at 1257–58.
Mr. Sanchez and Mr. Herrera challenge the second rationale, denying
a dispute over the ability of SNM members to communicate with each other
in prison. These defendants waived this argument. See p. 59, above.
Mr. Sanchez and Mr. Herrera also downplay the probative value of
the conspiracy evidence because the government could have used other
enterprise evidence. But the district court could assign at least some
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probative value to the evidence even if the government had other ways to
prove an enterprise. See pp. 45–47, above.
Mr. Herrera also challenges the district court’s emphasis on the
superior probative value of the evidence relating to Mr. Baca’s role in the
conspiracy to kill the corrections officials, relying on a distinction between
Mr. Baca’s alleged orders to murder Mr. Molina and the two corrections
officials. In the Molina plot, Mr. Baca allegedly instructed other inmates;
in the plot against the corrections officials, Mr. Baca allegedly instructed
individuals outside the prison. This difference, Mr. Herrera argues,
diminished the probative value of the evidence.
But the district court focused on Mr. Baca’s ability to issue
instructions from within the prison, which was the same for both plots.
This focus supplied a reasonable perspective, allowing the district court to
view both plots as highly probative of Mr. Baca’s ability to issue orders
from within a prison.
Regardless of the probative value, Mr. Sanchez and Mr. Herrera
argue that the conspiracy evidence sparked unfair prejudice by
 creating adverse inferences about Mr. Baca’s character and
power over SNM members down the chain of command, which
in turn suggested that Mr. Sanchez and Mr. Herrera would have
complied with Mr. Baca’s order to murder Molina; and
 infusing sensationalism because the evidence concerned a plot
to assassinate state officials.
The district court rejected the first argument, reasoning that
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 the evidence didn’t constitute “character evidence” because it
related to Mr. Baca’s tendency to engage in particular actions
(orchestrating murder and enforcing gang rules through violent
acts) rather than his general traits (character for violence or
ruthlessness) and
 the jury was likely to interpret the evidence to reflect the
SNM’s code of violently punishing disobedience rather than
character traits of SNM members.
R. vol. 1, at 1258–59.
This reasoning fell within the district court’s broad realm of
discretion. The court could reasonably conclude that evidence of Mr.
Baca’s orders in the plot against the corrections officials hadn’t involved
improper inferences about character. In fact, Mr. Sanchez and Mr. Herrera
acknowledge that the facts surrounding the Molina murder had differed
from the facts involving the plot against the corrections officials. And Mr.
Sanchez and Mr. Herrera weren’t implicated in the plot against the
corrections officials. So the district court could reasonably conclude that
the evidence of that plot wouldn’t have suggested a propensity for Mr.
Sanchez or Mr. Herrera to commit murder.
Nor did the district court need to exclude the evidence based on its
sensationalist quality. The district court could reasonably regard the
conspiracy to murder corrections officials as an act of defiance, designed
to enhance SNM’s reputation and power. The sensationalism of that
evidence didn’t necessarily trump its probative value.
* * *
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We find no abuse of discretion when maximizing the reasonable
probative value of the evidence and minimizing the reasonable danger of
unfair prejudice. See pp. 40, 50, above.
B. Rule 14 did not require severance.
Mr. Sanchez and Mr. Herrera also invoke Rule 14, which allows the
district court to order separate trials for the different counts. Fed. R. Crim.
P. 14(a). Under this rule, Mr. Sanchez and Mr. Herrera argue that the
district court should have severed Counts 6–7 to avoid the unfair prejudice
from evidence involving the plot to kill the corrections officials (Counts 9–
10). In our view, however, the district court had the discretion to reject
this argument.
We usually prefer district courts to conduct joint trials of defendants
who are charged together. United States v. Zapata, 546 F.3d 1179, 1191
(10th Cir. 1995). An exception exists when a party shows actual prejudice
outweighing the expense and inconvenience of separate trials. United
States v. Thomas, 849 F.3d 906, 911–12 (10th Cir. 2017). “It is not enough
to show that separate trials may have afforded a better chance of
acquittal.” Id. at 912. To the contrary, the party proposing severance “must
show the right to a fair trial is threatened or actually impaired.” Id.In considering this burden, the district court concluded that Mr.
Sanchez and Mr. Herrera hadn’t justified severance of the counts. In
reviewing this conclusion, we apply the abuse-of-discretion standard,
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recognizing that “the defendant’s task in overturning such a decision is
difficult.” Id.at 911.
Trying to satisfy this burden, Mr. Sanchez and Mr. Herrera urge
actual prejudice from the evidence of a conspiracy to kill the correction
officials. But we have concluded that the district court had the discretion
to regard the conspiracy evidence as
 admissible under Rules 403 and 404(b),
 probative of the existence of an enterprise and the ability to
communicate within the prison system, and
 no more inflammatory than the evidence involving the Molina
murder.
See Part 4(A)(2)–(3), above.
Mr. Sanchez and Mr. Herrera rely heavily on an out-of-circuit
opinion, United States v. McRae, 702 F.3d 806 (5th Cir. 2012). There the
Fifth Circuit concluded that the district court had abused its discretion in
denying severance. Id. at 828.
In McRae, the party seeking severance was a police officer charged
with 2 counts in an 11-count indictment. Id. at 810–11, 816. One of the
counts involved excessive force; the other count involved carrying, using,
and discharging a firearm in furtherance of a felony crime of violence
resulting in a death. Id. at 810–11. Other defendants faced additional
charges involving seizure of a car and burning of a body. Id. at 824. The
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Fifth Circuit concluded that the joint trial had created actual prejudice
because of
 the highly inflammatory nature of the charges and evidence
involving the codefendants’ seizure of a car and burning of a
body,
 the incrimination of the defendant through evidence admissible
only against the codefendants, and
 the marginal relationship and dissimilarities between the
charges and evidence against the defendants.
Id. at 826–28.
The Fifth Circuit’s opinion provides little guidance here in three
respects.
First, the district court could reasonably conclude that the evidence
about the corrections officials wasn’t particularly inflammatory against
Mr. Sanchez or Mr. Herrera. See Part 4(A)(3), above.
Second, Mr. Sanchez and Mr. Herrera were implicated only in the
Molina murder, not the plot to kill the corrections officials. And the
McRae court clarified that “the mere presence of a spillover effect does not
ordinarily warrant severance.” McRae, 702 F.23d at 827 (quoting United
States v. McCord, 33 F.3d 1434, 1452 (5th Cir. 1994)).
Third, the charges against Mr. Sanchez and Mr. Herrera (Counts 6–7)
bore reasonable similarities to the charges against Mr. Baca (Counts 6–7
and 9–10). For example, all of the charges arose from VICAR and entailed
overt acts of violence committed in furtherance of SNM as a racketeering
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enterprise. In contrast, the additional defendants in McRae faced additional
charges under separate statutes.
Given these distinctions with McRae, the Fifth Circuit’s analysis
doesn’t suggest unfair prejudice from joinder of the counts involving the
conspiracy against the corrections officials. And even if the joinder had
created a risk of unfair prejudice, the district court issued many limiting
instructions. 10 And at the end of the case, the court instructed the jury to
“separately consider the evidence against [the individual defendants] and
return a separate verdict for each as to each crime charged.” Supp. R. vol.
1, at 592. We have regarded such instructions as enough to curtail
prejudice. E.g., United States v. Wardell, 591 F.3d 1279, 1301 (10th Cir.
2009); United States v. Hutchinson, 573 F.3d 1011, 1030–31 (10th Cir.
2009).
Despite the district court’s instructions, Mr. Sanchez and Mr. Herrera
urge prejudice based on
 the government’s evidence of an enterprise that “blurred any
distinguishing lines between the counts or defendants,”
 the large number of limiting instructions, and
 the use of the same verdict form for all of the defendants.
10
Mr. Herrera puts the number at roughly 70. Mr. Sanchez counts at
least 124 limiting instructions. See p. 89, below.
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In our view, however, the district court acted within its discretion in
handling the government’s evidence of an enterprise, the large number of
limiting instructions, and the use of the same verdict form for the
defendants.
The Ninth Circuit addressed a similar combination of circumstances
and upheld the denial of severance in United States v. Baker, 10 F.3d 1374(9th Cir. 1993), overr’d in part on other grounds, United States v. Norby,
225 F.3d 1053, 1059 (9th Cir. 2000), overr’d in part on other grounds,
United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc).
Though the trial here lasted roughly 6 weeks, the trial in Baker had lasted
over 16 months. Id. at 1386. Over the course of 16+ months, the parties in
Baker presented evidence of over 2000 drug transactions over 11 years. Id.
In Baker, the defendants argued that the district court should have
severed the trial. Id. at 1387–89. Like the defendants here, the Baker
defendants argued that the court had given too many limiting instructions
(nearly 200 in that case). Id. at 1388. The Ninth Circuit disagreed,
following its regular assumption that jurors follow the instructions. Id.
Based on that assumption, the Ninth Circuit concluded that the “careful
and frequent limiting instructions militate[d] against finding an abuse of
discretion.” Id.
The Ninth Circuit recognized that “the jury had to evaluate a
tremendous amount of evidence.” Id. (quoting United States v. Casamento,
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887 F.2d 1141, 1150 (2d Cir. 1989)). Despite the volume of evidence, the
court observed that the “legal concepts” were relatively straightforward,
drawing a contrast with complex antitrust cases involving “abstruse
economic theories or an employment discrimination case involving
technical statistical evidence and formulae.” Id. (quoting Casamento, 887
F.2d at 1150). The Baker court considered the legal concepts involving
large-scale drug dealing as within the competence of ordinary jurors. Id.Here too, the pertinent legal concepts involve murder, which is “rather
ordinary in nature, except in [its] viciousness.” Id. (quoting United States
v. DiNome, 954 F.2d 839, 842 (2d Cir. 1993)).
Along with the simplicity of the legal concepts and the near-200
limiting instructions, the Baker court pointed to the jury’s
 selective verdicts (acquittal of some defendants on several
counts and inability to reach a verdict as to other defendants)
and
 identification of a flaw in the indictment.
Id. To the Ninth Circuit, the jury’s actions reflected “conscientious
attention to each count as it applied to each defendant.” Id. Here too, the
verdict was selective, with the jury acquitting Mr. Perez on all counts. See
p. 9 n.2, above.
Mr. Sanchez downplays this acquittal, asserting that the government
had presented no evidence against Mr. Perez. But some inmates testified
that Mr. Perez had acknowledged participating in the Molina murder by
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giving a shank from his walker to Mr. Sanchez and Mr. Rodriguez.
Irrespective of the strength of the evidence against Mr. Perez, however, the
district court could reasonably consider his acquittal as proof of the jury’s
ability to separately consider the evidence as to each defendant. See United
States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir. 2009) (upholding the
denial of a motion to sever based partly on the acquittal of one defendant
on one count, reasoning that the partial acquittal provided “extra
confidence” that the district court hadn’t abused its discretion). 11
Mr. Sanchez and Mr. Herrera also urge prejudice from the jury’s use
of a single verdict form for all four defendants. For prejudice, Mr. Sanchez
and Mr. Herrera rely on Kansas v. Carr, 577 U.S. 108 (2016), where the
Supreme Court found no error in a joint trial because the district court had
(1) instructed the jury to separately consider the guilt of each defendant
and use a separate verdict form for each one and (2) given defendant-
specific instructions for aggravating and mitigating circumstances. Id. at
124. But the Supreme Court did not say that use of the same verdict form
would have suggested prejudice. In fact, the district court here also
11
Downplaying Mr. Perez’s acquittal, Mr. Sanchez points out that he
isn’t arguing that the jury assessed culpability on a group-wide basis. But
the district court issued extensive limiting instructions for the jury to
compartmentalize the evidence against each defendant. So Mr. Sanchez’s
argument focuses on the jury’s inability to follow those instructions. Mr.
Perez’s acquittal suggests that the jury could follow the instructions by
compartmentalizing the evidence against each defendant.
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instructed the jury to separately (1) consider the evidence against each
defendant and (2) assess the guilt of each defendant. In our view, the use
of a single verdict form didn’t strip the court of its discretion to conduct a
joint trial.
With little risk of unfair prejudice, the combination of counts
promoted judicial economy. Mr. Baca was charged with conspiracies to
murder Mr. Molina (Counts 6–7) and two corrections officials (Counts 9–
10). Given these charges, the district court expressed concern that
severance of Counts 6–7 would create inefficiencies, requiring the
government to duplicate evidence in separate trials. The district court acted
reasonably in concluding that the interest in efficiency had outweighed the
risk of prejudice to Mr. Sanchez or Mr. Herrera. So we find no abuse of
discretion in the denial of a severance.
* * *
We uphold the district court’s
 decision to allow the introduction of evidence involving Counts
9–10 at a joint trial and the
 refusal to sever Counts 6–7.
5. Defendants Sanchez and Baca: The district court did not abuse its
discretion in declining to sever the Defendants’ trials.
Mr. Sanchez and Mr. Baca also assert error in refusing to sever their
trials, alleging prejudice from the use of out-of-court statements by other
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codefendants, many of which were recorded. 12 We reject this assertion for
procedural and substantive reasons. Procedurally, Mr. Sanchez and Mr.
Baca waived the issue by failing to file a pretrial motion for severance of
defendants. And substantively, the district court had the discretion to deny
severance.
A. The codefendants’ out-of-court statements didn’t require
severance.
Mr. Sanchez and Mr. Baca argue that the district court erred in
disallowing separate trials for each defendant. According to Mr. Sanchez
and Mr. Baca, separate trials were necessary to avoid prejudice from the
government’s use of statements by the codefendants.
Many of those statements consist of recordings of government
witnesses. Before trial, the government redacted names from those
recordings to conceal the identities of defendants other than the declarants.
Despite the redactions, Mr. Sanchez and Mr. Baca argue that the
recordings were probative of their own guilt but admissible only as to
12
In arguing that the district court should have severed defendants, Mr.
Sanchez draws on Mr. Herrera’s argument as to severance of counts. For
severance of counts, Mr. Herrera focuses on the prejudice from evidence
implicating Mr. Baca in Counts 9–10 (conspiracy to murder the corrections
officials). But we have elsewhere rejected Mr. Sanchez’s challenges as to
the admissibility of that evidence. See Parts 3–4(A), above. So we need not
further consider any alleged prejudice from that evidence.
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other parties. We conclude that (1) Mr. Sanchez and Mr. Baca waived the
issue and (2) the district court acted within its discretion.
(1) Mr. Sanchez and Mr. Baca waived the issue involving
severance of defendants based on the out-of-court
statements.
A party must file a pretrial motion when seeking severance of
defendants. Fed. R. Crim. P. 12(b)(3)(D). If the party doesn’t file a pretrial
motion, the district court considers severance waived unless the party
shows good cause. Fed. R. Crim. P. 12(c)(3); see United States v. Vance,
893 F.3d 763, 769 (10th Cir. 2018) (“Failure to comply with the timeliness
requirement set out in Rule 12 constitutes a waiver.” (quoting United
States v. Burke, 633 F.3d 984, 987–88 (10th Cir. 2011))). 13
Mr. Sanchez and Mr. Baca didn’t file a pretrial motion to sever
defendants. Because Mr. Sanchez and Mr. Baca made no showing of good
cause, they waived their appellate argument for severance. 14
13
Mr. Sanchez argues that he satisfied Federal Rule of Criminal
Procedure 51’s requirement for preserving a claim of error. Even if he had
complied with Rule 51, he would also have needed to comply with Rule 12
by filing a pretrial motion to sever the defendants.
14
Mr. Sanchez argues that Rule 12 does not apply because this case
involves forfeiture, not timeliness. But we regard an argument as untimely
under Rule 12 when a defendant makes a new argument on appeal. See
United States v. Vance, 893 F.3d 763, 769 (10th Cir. 2018). And an
untimely argument under Rule 12 is waived rather than forfeited. Id.73
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(2) Mr. Sanchez and Mr. Baca failed to timely file pretrial
motions to sever the case as to the defendants.
The Defendants did file pretrial motions to sever counts. But those
motions did not address severance of defendants. So these motions didn’t
preserve an argument to sever defendants. See United States v. Mann, 161
F.3d 840, 861 n.58 (5th Cir. 1998) (distinguishing motions for severance of
offenses and defendants for purposes of preservation); United States v.
States, 652 F.3d 734, 742–43 (7th Cir. 2011) (finding waiver of an
argument for severance of charges when the defendant moved only to sever
defendants).
Mr. Sanchez (joined by Mr. Baca) also filed a motion in limine and a
supplemental memorandum to exclude the out-of-court statements by other
codefendants. In oral argument, Mr. Sanchez characterizes these filings as
pretrial motions to sever the case as to the defendants. We disagree for two
reasons.
First, the filings did not ask the district court to sever Mr. Sanchez
from a trial with Mr. Herrera. 15 Elsewhere, the motion in limine argued that
due process would require either exclusion of hearsay as to any defendant
15
Mr. Sanchez asked the district court to exclude any inadmissible
statements, “sever Mr. Sanchez’s trial from the trial of defendants Perez,
Baca, and Garcia,” or provide some other remedy. R. vol. 1, at 1288–89
(emphasis added). The motion in limine lacked a request to sever Mr.
Sanchez’s trial from Mr. Herrera’s.
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or “a severance of Counts.” R. vol. 1, at 1288 (emphasis added). The
supplemental memorandum requested exclusion of out-of-court statements
or severance of “the trial of Counts 6–7 in such a way that [the district
court would not be] in the position of instructing the jurors to perform a
‘mental gymnastic, beyond not only their powers, but anyone else’s.’” Id.
at 1429 (quoting Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932))
(emphasis added). Nowhere in the motion in limine or supplemental
memorandum was there a request for the court to separately try
Mr. Sanchez or Mr. Baca.
Second, Mr. Sanchez did not invoke Rule 14 in his motion in limine.
Granted, the motion in limine cited a Supreme Court opinion, which in turn
had discussed the purpose of an amendment to Rule 14. Id. at 1288
(quoting Bruton v. United States, 391 U.S. 123, 130–32 (1968)). But that
discussion focused on the Sixth Amendment’s Confrontation Clause, which
is not raised here. Id.As a result, the district court ruled on the motion in limine without
addressing Rule 14 or severance of defendants. The lack of a ruling shows
that the motion in limine did not alert the district court to an issue
involving Rule 14 or severance of defendants.
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Even if we were to treat the motion in limine as a pretrial motion to
sever the parties, 16 the Defendants’ argument wouldn’t have been timely or
sufficient under Rule 12. The deadline for pretrial motions under Rule 12
was October 6, 2017. Mr. Sanchez moved in limine over three months later,
days before the trial was to begin. So the motion in limine would have
been untimely as a pretrial motion.
Even if we were to overlook the delay, Mr. Sanchez’s appellate
argument differs from his argument in district court. See 1 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence
§ 103.12[3] (Joseph M. McLaughlin ed., 2d ed. 2006) (“The right to claim
error on appeal is not preserved . . . if the objection [below] is based on a
different ground than the argument on appeal.”). There he relied on the
Fifth and Sixth Amendments, not Rule 14. Here, though, Mr. Sanchez and
16
A motion in limine may preserve an objection only when the issue
“(1) is fairly presented to the district court, (2) is the type of issue that can
be finally decided in a pre–trial hearing, and (3) is ruled upon without
equivocation by the trial judge.” United States v. McVeigh, 153 F.3d 1166,
1200 (10th Cir. 1998) (quoting United States v. Mejia-Alarcon, 995 F.2d
982, 986–88 (10th Cir. 1993)); see also United States v. Yu-Leung, 51 F.3d
1116, 1121 (2d Cir. 1995) (using this standard when discussing the
possibility of treating a motion to sever as a motion in limine).
The first and third requirements were not met. For the first
requirement, the motion in limine did not expressly invoke Rule 14 or ask
the court to exercise discretion to sever. See pp. 77–78, below. For the
third requirement, the district court did not decide whether to sever Mr.
Sanchez’s trial from Mr. Herrera’s.
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Mr. Baca focus on the court’s discretion to order a severance under Rule
14 and Zafiro v. United States, 506 U.S. 534 (1993)—not the Fifth or Sixth
Amendment. See Corbett v. Bordenkircher, 615 F.2d 722, 724 (6th Cir.
1980) (distinguishing between arguments for severance of counts based on
procedural rules and arguments for severance based on the right to due
process).
Mr. Sanchez asserts that
 he did not need to invoke Rule 14 because it just codifies the
court’s discretion to avoid unfair prejudice by severing the case
and
 the Fifth Amendment argument was rhetorical, “subsum[ing]
. . . [the contention] that severance or some equivalent remedy
should be granted in the interests of fairness.”
Sanchez’s Reply Br. at 4–5. These assertions assume that the Defendants
had asked the district court to sever the defendants based on Rule 14 or
Zafiro. But the Defendants hadn’t made such an argument in district court.
There they had urged exclusion of their codefendants’ out-of-court
statements, not severance of counts.
Mr. Sanchez points to United States v. Breinig, 70 F.3d 850 (6th Cir.
1995), arguing that it had treated a Fifth Amendment severance argument
as an argument under Rule 14. But in Breinig, the defendant had moved for
severance and requested a separate trial under Rule 14. Id. at 851. Mr.
Sanchez and Mr. Baca never presented a similar motion or argument in
district court. So Breinig is distinguishable.
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The Defendants also argue that they preserved the issue by opposing
the government’s motion to reconsider a plan to empanel two juries. We
disagree.
In opposing the government’s motion, the Defendants stated in
district court that
 they “continue to argue that the proper remedy is for the Court
to sever Counts 6–7 from Counts 8–12” and
 severance was appropriate “given the evidence as to Defendants
Perez and Herrera, and the Government’s ongoing disclosure of
evidence that is not admissible as to all Defendants.”
Supp. R. vol. 2, at 491. We don’t know what the Defendants meant by
“sever[ing] the individual Defendants,” and the sentence included no
authority or explanation. This unexplained, unsupported sentence did not
fairly alert the district court to a distinct argument for severance of
defendants. See Tele-Commc’ns, Inc. v. Comm'r., 104 F.3d 1229, 1233–34
(10th Cir. 1997) (considering an issue forfeited when a brief to the tax
court had “contain[ed] only a single paragraph addressing the issue” and
the appellate contention consisted of “ten pages of argument, replete with
examples and citations”).
Regardless of the content, however, the Defendants’ response would
not have been timely as a pretrial motion under Rule 12. The scheduling
order imposed a deadline of October 6, 2017, and the Defendants filed this
opposition brief over three months later—the day before the trial was to
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start. So the opposition brief wouldn’t have satisfied Rule 12 as a timely
motion for severance of defendants. 17
(3) The district court did not raise the issue.
Mr. Sanchez and Mr. Baca also contend that the district court raised
the issue involving severance of defendants. For this contention, Mr.
Sanchez and Mr. Baca point to the district court’s
 pretrial statement when responding to the motion in limine and
 proposal of a two-jury plan.
We reject this contention.
17
Mr. Sanchez also renewed his motion for severance during the fifth
week of the trial. R. vol. 5, at 11,755–58. Mr. Sanchez clarified that the
“request [was] basically [for] a mistrial . . . and a de facto severance based
on that.” Id. at 11,758. For this motion, Mr. Sanchez
 reasserted his constitutional arguments against the admission of
the recordings in his motion in limine and supplemental
memorandum and
 pointed to Mr. Cordova’s references to Mr. Sanchez during the
trial.
But Mr. Sanchez needed to file a pretrial motion “if the basis for the
motion [was] then reasonably available and the motion [could] be
determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3). Mr.
Sanchez could reasonably expect the government to use Mr. Cordova’s
testimony about Mr. Perez’s out-of-court statements. In fact, the
Defendants moved before trial for exclusion of Mr. Cordova’s testimony
about Mr. Perez’s out-of-court statements. R. vol. 1, at 1277–78. So Mr.
Sanchez had enough information before the trial to seek severance of the
defendants. Despite that information, Mr. Sanchez failed to file a pretrial
motion for severance of the defendants, waiving the issue. See Part
5(A)(1)–(4), above.
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At a pretrial hearing, the district court stated that it did not see a
constitutional issue in Mr. Sanchez’s motion in limine. The court stated
that (1) the only issue involved hearsay and (2) a limiting instruction
would provide an adequate remedy. These statements did not refer to
severance or Rule 14.
The week before trial, the district court expressed concern about the
number of limiting instructions and the out-of-court statements in the
recordings. Given these concerns, the court proposed empaneling two
juries: one for Mr. Baca and Mr. Sanchez, and another for Mr. Herrera and
Mr. Perez. Mr. Sanchez argues that the two-jury plan preserved an
argument under Rule 14 to sever defendants.
But in response to the two-jury plan, the Defendants continued to
urge severance of Counts 6–7. Despite urging severance of counts, the
Defendants
 declined to seek a separate trial for Mr. Baca and
 expressed logistical concern about the empaneling of two
juries.
Given these expressions of concern, the district court had little reason to
think that Mr. Sanchez and Mr. Baca wanted further separation of trials or
juries.
* * *
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We thus conclude that Mr. Sanchez and Mr. Baca did not file a
timely pretrial motion to sever the defendants.
(4) Without good cause, Mr. Sanchez and Mr. Baca waived their
arguments under Rule 14 for severance of defendants based
on the recorded statements.
For the recordings, Mr. Sanchez and Mr. Baca lacked good cause to
forgo a pretrial motion for severance. So the Defendants waived their
argument as to the recordings.
For the recordings, Mr. Sanchez and Mr. Baca had ample
opportunities to file a pretrial motion; and they did not seek severance of
defendants. Despite these missed opportunities, Mr. Sanchez and Mr. Baca
haven’t alleged good cause; so they’ve waived their appellate argument for
severance. See United States v. White, 584 F.3d 935, 949 (10th Cir. 2009).
Our caselaw has evolved on waiver under Rule 12. Granted, we have
sometimes reviewed an unpreserved issue of severance for plain error. See,
e.g., United States v. Jones, 530 F.3d 1292, 1298 (10th Cir. 2008); United
States v. Iiland, 254 F.3d 1264, 1269 (10th Cir. 2001). But after these
opinions, we clarified in United States v. Bowline that we will not conduct
plain-error review for “an untimely Rule 12 argument” in the absence of
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good cause. United States v. Bowline, 917 F.3d 1227, 1237 (10th Cir.
2019). 18
Even if we were to allow plain-error review, Mr. Sanchez and Mr.
Baca have not requested review for plain error. And we typically decline to
consider the possibility of plain error when no one has asks us to consider
the possibility. United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir.
2019); see p. 26, above. We thus conclude that the Defendants waived their
argument for severance based on the recordings.
(5) Even without a waiver, the district court would not have
erred when declining to sever the case as to the defendants.
Even if we put aside the waiver, we’d reject the Defendants’
challenge.
“[I]n a conspiracy trial it is preferred that persons charged together
be tried together.” United States v. Scott, 37 F.3d 1564, 1579 (10th Cir.
1994). Despite this preference, the district court can sever the trial to
avoid prejudice. Fed. R. Crim. P. 14; Zafiro v. United States, 506 U.S. 534,
537–38 (1993). But “Rule 14 leaves the determination of risk of prejudice
18
There we relied on Davis v. United States, 411 U.S. 233 (1973),
which had established that “an untimely argument subject to Rule 12 is not
reviewable either in district court or in any subsequent proceedings absent
a showing of an excuse for being untimely.” United States v. Bowline, 917
F.3d 1227, 1234 (10th Cir. 2019). In Bowline, we also criticized the
willingness of some other circuits to conduct plain-error review when the
appellant hadn’t preserved the argument under Rule 12. Id. at 1237.
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and any remedy for such prejudice to the sound discretion of the district
court.” United States v. Morales, 108 F.3d 1213, 1220 (10th Cir. 1997)
(citing Zafiro, 506 U.S. at 541).
Given this discretion, a defendant “seeking to vacate a conviction
based upon the denial of a motion to sever faces a steep challenge.” United
States v. Clark, 717 F.3d 790, 818 (10th Cir. 2013) (quoting United States
v. Pursley, 577 F.3d 1204, 1215 (10th Cir. 2009)). To obtain reversal of an
order denying severance of defendants, a party must show
 actual prejudice outweighing the expense and inconvenience of
separate trials and
 inadequacy of less drastic means to cure potential prejudice
(like limiting instructions).
United States v. Hutchinson, 573 F.3d 1011, 1025–27 (10th Cir. 2009).
(a) The district court did not err in declining to sever the
defendants based on the government’s recordings.
Mr. Sanchez and Mr. Baca rely mainly on prejudice from the use of
recordings of statements made by codefendants.
(i) Mr. Sanchez and Mr. Baca had not shown actual prejudice.
Actual prejudice exists only if the Defendants have shown “a serious
risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt
or innocence.” Zafiro, 506 U.S. at 539. A district court must “weigh the
prejudice to a particular defendant caused by joinder against the obviously
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important considerations of economy and expedition in judicial
administration.” United States v. Jones, 530 F.3d 1292, 1304 (10th Cir.
2008) (quoting Pursley, 474 F.3d at 765).
Mr. Sanchez and Mr. Baca argue that the recordings caused actual
prejudice because the statements were probative of their guilt but
inadmissible against them. The recordings did not directly implicate Mr.
Sanchez or Mr. Baca, but did undermine their
 attribution of the Molina murder to impulsiveness rather than
planning and
 denial of the alleged “paperwork.”
The recordings also bolstered the credibility of government witnesses who
had been impeached.
“Evidence that is probative of a defendant’s guilt but technically
admissible only against a codefendant also might present a risk of
prejudice.” Zafiro v. United States, 506 U.S. 534, 539 (1993). But
severance is not always required when inadmissible evidence is probative
of guilt. For example, severance may be avoidable through limiting
instructions. See United States v. Linn, 31 F.3d 987, 992 (10th Cir. 1994)
(noting that limiting instructions could cure the prejudice caused by a
phone call that implicated the defendants but was inadmissible against
them). Or a mixed verdict might dispel worries about prejudice. See United
States v. Morales, 108 F.3d 1213, 1220 (10th Cir. 1997) (concluding that
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an inability to reach a verdict on one count could show mitigation of
prejudice from the introduction of inadmissible evidence). Mr. Sanchez and
Mr. Baca point to no precedent compelling severance whenever the court
allows the use of probative evidence that is admissible only as to other
defendants.
Instead, Mr. Sanchez cites four out-of-circuit opinions, where other
courts have found an abuse of discretion in denying severance:
 United States v. Baker, 98 F.3d 330 (8th Cir. 1996)
 United States v. McRae, 702 F.3d 806 (5th Cir. 2012)
 United States v. Davidson, 936 F.2d 856 (6th Cir. 1991)
 United States v. Blunt, 930 F.3d 119 (3d Cir. 2019)
Those opinions do not bind us and are distinguishable.
In United States v. Baker, 98 F.3d 330 (8th Cir. 1996), for example,
the Eighth Circuit reversed the denial of severance because (1) the charges
facing the defendant differed from the charges against his codefendants,
(2) most of the trial evidence was admissible only against a single
codefendant, and (3) that evidence was “highly inflammatory.” Id. at 335.
Similarly in United States v. McRae, 702 F.3d 806 (5th Cir. 2012),
the Fifth Circuit required severance based on the allowance of inadmissible
and probative evidence when the government’s case consisted mainly of
evidence against the codefendants, who were facing charges involving a
more violent conspiracy. Id. at 824; see pp. 65–66, above.
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Baker and McRae differ from our case because the district court
could reasonably view the inadmissible recordings here as relatively
inconsequential to Mr. Sanchez or Mr. Herrera. And all of the defendants
faced charges involving a conspiracy to murder Mr. Molina (Counts 6–7).
Mr. Sanchez asserts in oral argument that the other two cited cases
involve defendants participating in a single conspiracy: United States v.
Davidson, 936 F.2d 856 (6th Cir. 1991), and United States v. Blunt, 930
F.3d 119 (3d Cir. 2019). But those opinions also present different facts.
For example, in Davidson, the Sixth Circuit found a strong showing
of prejudice when
 the defendant has been charged with only one count and
 his codefendant had been charged in ten other counts.
936 F.2d at 861. The evidence against the codefendant included an
amended tax return that was both probative of the defendant’s guilt and
inadmissible against the defendant. Id. But in our case, the redacted
recording occupied only a small part of the trial and did not directly
implicate the Defendants.
The facts also differed in United States v. Blunt, 930 F.3d 119 (3d
Cir. 2019). There the district court had conducted a joint trial, and the
defendant’s wife presented inadmissible and probative testimony against
the defendant. Id. at 126. Although the alleged conspiracy involved both
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the husband and wife, the case involved highly inflammatory testimony and
spousal privilege. Id. at 126–27.
Granted, use of the recordings here prevented cross-examination of
the declarants. But the redactions softened any prejudicial impact. See
United States v. Parker, 241 F.3d 1114, 1117 (9th Cir. 2001) (upholding
the introduction of a recording in part because redactions had softened the
potential prejudice to the defendant). And the recordings just corroborated
what was already considered admissible for all of the defendants. See
United States v. Sarracino, 340 F.3d 1148, 1165 (10th Cir. 2003)
(declining to find actual prejudice when the discrepancy was insignificant
between the admissible and inadmissible evidence). For example, the
corroboration mirrored the testimony of four individuals directly involved
in the stabbing of Mr. Molina (Mario Rodriguez, Timothy Martinez, Jerry
Armenta, and Jerry Montoya). They testified that (1) Mr. Sanchez had
organized the Molina murder and (2) Mr. Baca had spoken often about the
Molina murder and had threatened one of the participants.
We thus conclude that Mr. Sanchez and Mr. Baca haven’t shown
actual prejudice that outweighs the expense and inconvenience of separate
trials.
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(ii) Even if actual prejudice had otherwise existed, the district
court enjoyed discretion to alleviate the prejudice through
limiting instructions.
Even if actual prejudice exists, the court can often cure the prejudice
through “less drastic measures, such as limiting instructions.” Zafiro v.
United States, 506 U.S. 534, 539 (1993). We often consider limiting
instructions because we presume that juries follow them. Richardson v.
Marsh, 481 U.S. 200, 211 (1987).
That presumption applies because the district court gave extensive
instructions on how the jury was to consider evidence. For example, when
the trial started, the court told the jury that
 an instruction “not to consider a particular statement”
prevented any reference to that statement in the deliberations
and
 an instruction to “consider a particular piece of evidence for a
specific purpose” restricted the jury to considering the
evidence “only for that purpose.”
R. vol. 5, at 14,650. And when the court allowed introduction of the
recordings, the court gave clear limiting instructions. See, e.g., id. at
11,189 (instructing the jury to consider a recording of Mr. Perez only in
the deliberations “as to Mr. Perez and not as to the other three
defendants”). And in the final instructions, the court again instructed the
jury
 to consider the recordings only “as evidence against the
defendant who [was] the subject of the recording,” Supp. R.
vol. 1, at 565,
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 to use the evidence admitted for a limited purpose, id. at 551,
and
 to separately consider the guilt of each defendant, id. at 549,
585, 592.
Mr. Sanchez and Mr. Baca argue that the sheer number of limiting
instructions prevented the jury from following the instructions. For this
argument, Mr. Sanchez says that the district court issued more than 120
limiting or curative instructions during the trial. See p. 68 n.10, above.
And Mr. Sanchez points to an incident where even the prosecutor
misinterpreted the limited purpose of particular evidence. R. vol. 1, at
1941; R. vol. 5, at 5680.
Mr. Sanchez overstates the difficulty of following the limiting
instructions and cites no authority suggesting the jury’s inability to
compartmentalize the evidence against each defendant. See United States v.
Blankenship, 382 F.3d 1110, 1123 (11th Cir. 2004) (“In general, the strong
presumption is that jurors are able to compartmentalize evidence by
respecting limiting instructions specifying the defendants against whom the
evidence may be considered.”); see also United States v. Hines, 696 F.2d
722, 732 (10th Cir. 1982) (“[T]here is no prejudice if evidence is such that
the jury could compartmentalize it against each defendant.”). In fact, many
of the cited instructions involve something other than a recorded statement.
See, e.g., R. vol. 5, at 6916, 10,763, 11,417 (instructing the jury to
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disregard a non-responsive answer). And many other instructions just told
the jury to use the statements for a particular purpose other than to prove
the truth of the matter. See, e.g., id. at 6279, 9558, 9913, 10,364, 10,862,
10,888, 11,416, 11,922, 11,943, 11,945, 12,506, 12,948–49.
As the Defendants point out, however, the district court did issue
many limiting instructions about the recordings. For example, in a 2-day
period, the district court issued 23 limiting instructions about the
recordings. Id. at 10,625, 10,651, 10,815, 10,837, 10,849–50, 10,855–56,
10,860, 10,874, 10,876–77, 10,881–83, 10,886, 10,894, 10,903, 10,910,
10,917–20, 10,922, 10,924, 10,928, 10,934. Each time a recording was
admitted, the court told the jury that the recording could be used only
against Mr. Baca, not Mr. Herrera or Mr. Sanchez. Over the next 2 days,
the court issued roughly 14 more limiting instructions as to the use of
recorded statements by Mr. Perez or Mr. Herrera. Id. at 11,189, 11,214,
11,225, 11,228, 11,232, 11,256, 11,259, 11,275, 11,277, 11,291, 11,296,
11,305, 11,332, 11,377. Given the discrete timing of the recordings and the
repeated issuance of the same limiting instructions, the court could
reasonably credit the jury’s ability to follow the limiting instructions. See
United States v. Pinto, 838 F.2d 426, 434 (10th Cir. 1988) (concluding that
“the jury was able to compartmentalize the evidence as to each of the
defendants” based on the district court’s limiting instructions and the
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government’s presentation of evidence against a codefendant at a discrete
point in the trial).
In crediting the jury’s ability to follow the instructions, the district
court could properly consider the jury’s distinctions among the defendants.
For example, the jury found Mr. Perez not guilty and the other defendants
guilty. See United States v. Dazey, 403 F.3d 1147, 1165 (10th Cir. 2005)
(noting that the acquittal of codefendants on some charges showed that the
jury had separately considered each defendant).
Given the discrete timing of the recordings, the repeated use of the
same limiting instructions, and the acquittal of Mr. Perez, we conclude that
the district court acted within its discretion by crediting the jury’s ability
to follow the many limiting instructions.
B. Severance wasn’t required based on live testimony
recounting out-of-court statements that had directly
implicated Mr. Sanchez.
Mr. Sanchez also relies on live testimony about two out-of-court
statements that directly implicated him:
1. Mr. Urquizo testified that Mr. Perez had said that he gave a
shank to Mr. Sanchez and Mr. Rodriguez for the murder.
2. Mr. Armento testified that Mr. Herrera had said that he and Mr.
Sanchez had the “say-so” in the murder of Mr. Molina.
R. vol. 5, at 7378–79, 8705. But Mr. Sanchez did not apprise the district
court of his complaints about these two out-of-court statements. By failing
to apprise the district court, Mr. Sanchez failed to preserve this argument
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in district court. See Fox v. Ward, 200 F.3d 1286, 1294 (10th Cir. 2000).
Even if the argument had been preserved, Mr. Sanchez hasn’t shown that
the district court abused its discretion, as the district court promptly gave a
limiting instruction after each reference. See p. 91, above.
* * *
Because Mr. Sanchez and Mr. Baca did not file a timely pretrial
motion to sever defendants, they waived this appellate argument. Even
without a waiver, the district court would not have abused its discretion in
declining to sever the trials of Mr. Sanchez and Mr. Baca.
6. All defendants: The district court did not abuse its discretion in
denying the motions for a continuance.
The Defendants argue that the district court erred in denying their
two motions to continue the trial. The first motion came after the district
court said that it would disqualify Mr. Herrera’s lead counsel because of a
conflict of interest. At that time, the trial was about two months away. The
second motion came months later, days before the trial was to begin. The
district court denied both motions.
A. We apply the abuse-of-discretion standard.
We review the denial of a continuance for an abuse of discretion.
United States v. Glaub, 910 F.3d 1334, 1344 (10th Cir. 2018). The district
court abused its discretion only if the rulings were “arbitrary or
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unreasonable and materially prejudiced the defendant[s].” Id. (quoting
United States v. McKneely, 69 F.3d 1067, 1076–77 (10th Cir. 1995)).
In applying this standard, we consider four factors:
1. “[T]he diligence of the party requesting the continuance,”
2. “[t]he likelihood that the continuance, if granted, would
accomplish the purpose underlying the party’s expressed need
for the continuance,”
3. “[t]he inconvenience to the opposing party, its witnesses, and
the court resulting from the continuance,” and
4. “[t]he need asserted for the continuance and the harm that
appellant might suffer as a result of the district court’s denial
of the continuance.”
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (en banc)
(quoting United States v. West, 828 F.2d 1468, 1470 (10th Cir. 1987)). The
fourth factor is the most important. United States v. McClaflin, 939 F.3d
1113, 1117 (10th Cir. 2019).
B. The district court did not err in denying Mr. Herrera’s first
request for a continuance.
About two months before trial, the district court stated that it would
disqualify Mr. Herrera’s attorney (Mr. Michael Davis) because he had
represented a codefendant. Mr. Herrera had a second attorney (Ms. Carey
Bhalla), who had helped Mr. Davis with legal research and writing. When
the court announced the disqualification of Mr. Davis, Ms. Bhalla became
the sole attorney for Mr. Herrera. Given her inexperience in trying cases,
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Mr. Herrera asked the district court to appoint a more experienced new
lead counsel and to continue the trial.
The district court appointed a new attorney (Mr. William R.
Maynard), but denied the request for a continuance. Despite the denial, the
court allowed Mr. Herrera to renew the motion for a continuance. R. vol. 5,
at 2093. Mr. Herrera never renewed the motion, but he challenges the
denial of his motion to continue the trial.
When denying the motion to continue, the district court couldn’t have
known whether two more months would be enough time for Mr. Maynard to
step in as lead trial counsel. That question turned largely on four sets of
questions:
1. How did Mr. Davis leave the case for his successor? Did Mr.
Davis provide Mr. Maynard with material that would facilitate
his trial preparation, or would Mr. Maynard need to start over?
For example, did Mr. Davis give Mr. Maynard material that he
could use to draft an opening statement, closing argument, or
examination outlines?
2. How much help could Mr. Maynard get from Ms. Bhalla in
preparing for trial? She lacked trial experience, but she had
represented Mr. Herrera for over a year. Given her presumed
knowledge of Mr. Herrera’s case, could she help Mr. Maynard
in preparing his opening statement, closing argument, and
examination outlines?
3. How much help could Mr. Maynard expect from counsel for Mr.
Baca or Mr. Sanchez? If the Defendants’ attorneys had divided
responsibility for cross-examinations, Mr. Maynard might have
needed to prepare cross-examinations for only a fraction of the
government’s witnesses. Had defense counsel divided
responsibilities for their cross-examinations?
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4. How quickly could Mr. Maynard absorb the information? The
district court viewed Mr. Herrera’s role as limited. Given Mr.
Herrera’s limited role, how much detail would Mr. Maynard
need to learn?
Mr. Herrera’s motion for a continuance shed no light on these four
sets of questions, so the district court had little meaningful information to
assess Mr. Maynard’s need for more preparation time. Given the shortage
of available information, the district court took a “wait and see” approach.
The court acknowledged its inability to know the status of trial
preparation. But the court noted that the prior attorney (Mr. Davis) was
well-regarded and had likely forwarded the case in good shape. So the
court assumed that Mr. Maynard would not need to start over.
But the court recognized that this was just an assumption and told
Mr. Herrera’s new trial team that they could present new material ex parte
if they encountered problems in preparing for trial. Despite this
opportunity, Mr. Herrera’s new trial team didn’t provide the court with any
new material showing problems in their preparation. 19
In a reply brief, Mr. Herrera argues that he did update the court
through the second motion to continue and a supplement to the motion.
19
Based on the failure to provide the court with new material, the
government argues that Mr. Herrera failed to preserve the issue. We need
not decide the preservation issue. Even if Mr. Herrera had preserved the
issue, we’d reject his argument on the merits.
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And at oral argument, Mr. Herrera insists that he treated the two motions
to continue as part of the same argument for a continuance.
But Mr. Herrera has conflated the two motions for a continuance. The
first motion relied on the disqualification of Mr. Davis; the second motion
relied on the government’s delay in disclosing information. Not only did
the grounds differ in the two motions, but the second motion didn’t even
refer to the earlier request for a continuance or the disqualification of Mr.
Davis. So Mr. Herrera’s second motion for a continuance did not furnish
the district court with any new insight into the need for a continuance
because of Mr. Davis’s disqualification.
“The first task of an appellant is to explain to us why the district
court’s decision is wrong.” Nixon v. City & Cty. of Denver, 784 F.3d 1364,
1366 (10th Cir. 2015). But Mr. Herrera does not directly challenge the
district court’s reasoning in denying his first motion for a continuance. See
United States v. Leal, 32 F.4th 888, 901 (10th Cir. 2022) (rejecting a
criminal appellant’s arguments that did not directly challenge the district
court’s reasoning).
Mr. Herrera instead argues that the four-factor test supported a
continuance, but we’re not deciding the need for a continuance in the first
instance. We are deciding only whether the district court abused its
discretion through its “wait and see” approach. And Mr. Herrera does not
explain how the district judge abused his discretion.
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In our view, the district court took a reasonable approach when Mr.
Herrera had to change attorneys. The court reasoned that because the trial
was still two months away, Mr. Herrera’s new legal team might have had
enough time to prepare.
Mr. Herrera argues that this assumption “was unwarranted and
unrealistic.” Herrera’s Opening Br. at 29–30. But if the court’s optimism
had been unrealistic, the new trial team had a chance to show the court its
error. Despite this chance, the trial team stayed silent. Given that silence,
the district court could have inferred that Mr. Maynard had readied himself
for trial with help from his client, Ms. Bhalla, Mr. Davis, and counsel for
Mr. Baca and Mr. Sanchez.
Mr. Herrera points to later developments in the trial, arguing that
they showed inadequate preparation time for the new attorney. But we
evaluate the district court’s exercise of discretion based on the information
presented at the time of the ruling. See United States v. Sanchez, 790 F.2d
245, 251 (2d Cir. 1986) (“Our review of the district judge’s exercise of
discretion [to try the defendant in absentia rather than conduct separate
trials or continue both trials] must be based on the relevant circumstances
confronting the judge at the time of his ruling, without the benefit of
hindsight.”); Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir. 1982) (per
curiam) (“We must evaluate the validity of the court’s ruling in light of the
information available to the trial judge at the time of his ruling.”).
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* * *
If the prior attorney hadn’t left the case in proper shape, the new trial
team could have privately told the district court. But the new trial team
didn’t use that opportunity. And in the later motion to continue, the new
trial team shifted gears, complaining about the timing of the government’s
disclosures and saying nothing more about the disruption from the change
in counsel. So we conclude that the district court acted within its
discretion in declining to continue the trial based on the disqualification of
Mr. Davis. See United States v. Akins, 746 F.3d 590, 608–609 (5th Cir.
2014) (concluding that the district court didn’t abuse its discretion by
denying a continuance when the case was complex and the defendant’s new
attorney had been appointed only 46 days before the trial).
C. The district court did not err in denying the Defendants’
second motion for a continuance.
Days before the trial was to start, Mr. Herrera, Mr. Baca, and Mr.
Sanchez moved for a continuance based on the government’s disclosure of
voluminous evidence in the runup to trial. The district court denied the
motion for a continuance.
On appeal, the Defendants argue that the district court abused its
discretion in declining to grant the continuance based on the government’s
delay in disclosures. We conclude that the district court acted within its
discretion.
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In denying the second motion to continue, the district court gave
seven reasons:
1. The Defendants had enough time to review most of the
discovery, and the inmates’ continued phone calls made
ongoing disclosures inevitable.
2. The Defendants had years to prepare, and the district court had
granted multiple continuances.
3. The public’s interest in proceeding to trial outweighed the
interests of defense counsel in reviewing the inmates’ recorded
phone calls, which had occupied much of the late disclosures.
4. The government had acted in good faith in producing discovery
materials throughout the litigation.
5. The recently disclosed evidence was probably not material.
6. Defense counsel could review newly disclosed material during
the trial’s off-hours.
7. The jury selection process was already underway.
Supp. R. vol. 1, at 652–54.
On appeal, the Defendants again argue that the four factors supported
a continuance. But we’re not applying these factors in the first instance;
we’re just evaluating the reasonableness of the district court’s application
of these factors.
First, the district court reasoned that (1) the Defendants had already
received most of the discovery and (2) the late disclosures had largely
involved inmates’ continuing phone calls. Given the continuing phone
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calls, the court reasoned that the government would need to keep making
disclosures shortly before the trial with or without a continuance.
The Defendants argue that they couldn’t use all of the late-disclosed
evidence, had to restrain their cross-examinations to avoid missteps, and
couldn’t prepare as well as the prosecutors. But the district court
considered the Defendants’ inability to review every discovery item,
concluding that this inability wouldn’t prevent a fair trial. Though another
judge might have reached a different conclusion, the district court’s
conclusion was at least reasonable.
The late disclosures largely consisted of the inmates’ recorded calls.
Before disclosing those calls, the government had to identify the
participants and assess the materiality of the calls. To identify the
participants and assess materiality, the government had to spend time
listening to the recordings to determine the need for disclosure. After
listening to the calls, the government provided logs, identifying the dates
of the calls and the participants. 20 Because the government furnished
20
This is an example of the logs:
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recordings for almost 60,000 calls, the government had to listen to the
calls in order to assess the need for disclosure and to provide meaningful
logs. So some delay was inevitable. And because the calls continued
through the trial, delays in disclosure would presumably recur even with a
continuance. Given that reality, the district court acted reasonably by
concluding that a continuance would not prevent disclosure of at least
some recordings on the eve of trial.
Second, the district court reasoned that it had already granted
multiple continuances, giving the Defendants years to prepare. This
rationale was at least reasonable. The government had indicted the
Defendants in October 2015. Based on that indictment, the court scheduled
the trial to start in October 2016. But the court granted three continuances
before rescheduling the trial roughly 1½ years after the initial trial date.
Supp. R. vol. 2, at 468.
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The Defendants disregard those continuances and insist that the court
could have rescheduled the trial again. But this argument ignores the
district court’s need to schedule the second trial and another trial for a
related case.
The district court had set aside eight weeks for the trial of Mr.
Herrera, Mr. Sanchez, Mr. Baca, and Mr. Perez. And after this trial, the
court had to conduct two more trials in related cases, which would
collectively take sixteen more weeks. So a fourth continuance of this trial
likely would have had a domino effect, requiring the court to reset other
trials occupying sixteen weeks.
In his reply brief, Mr. Herrera argues that the court could have
rescheduled his trial after the other two. Presumably, Mr. Herrera is
implying that the court could have granted an eight-month continuance,
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moving the trial from January to September 2018. But we presume that
these weren’t the district judge’s only cases going to trial. And we lack
any information about the district judge’s trials in unrelated cases. 21
Reshuffling the trials could have disrupted preparation and delayed trials
for not only the defendants in the related cases but also countless other
defendants awaiting trial. See Gandy v. Alabama, 569 F.2d 1318, 1323 n.9
(5th Cir. 1978). 22
21
Mr. Herrera asserts:
The government . . . offers no reason why Mr. Herrera’s trial
could not have been rescheduled after those other trials. After
all, it was apparent that Mr. Herrera and his codefendants were
asking for a significant continuance (not just for an extra week
or two), and they did not voice any concern about being placed
at the back of the line.
Herrera’s Reply Br. at 16. This assertion masks the dilemma facing the
district court: The new trial team never told the judge how much more time
they wanted. Without that information, the judge just knew that a
continuance would likely upend his other trial settings.
22
The Gandy court stated:
To permit a continuance to accommodate one defendant may in
itself prejudice the rights of another defendant whose trial is
delayed because of the continuance. Played to an extreme
conclusion, this indiscriminate game of judicial musical chairs
could collapse any semblance of sound administration, and work
to the ultimate prejudice of many defendants awaiting trial in
criminal courts.
Gandy, 569 F.3d at 1323 n.9.
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Even if the district court had sua sponte considered an eight-month
continuance, it could have jeopardized the Defendants’ prosecutions under
the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). The eight-month delay
would stem from the district court’s need to conduct the other two trials.
But “[n]either a congested court calendar nor the press of a judge’s other
business can excuse delay under the [Speedy Trial Act].” United States v.
Andrews, 790 F.2d 803, 808 (10th Cir. 1986); see also Speedy Trial Act,
18 U.S.C. § 3161(h)(7)(C) (disallowing an ends-of-justice continuance
“because of general congestion of the court’s calendar”). 23 So the district
court acted reasonably in declining to grant a fourth continuance.
Third, the district court reasoned that the public had an interest in
proceeding to trial. This rationale was again at least reasonable, for the
Speedy Trial Act reflects congressional intent “to serve the public interest
in bringing prompt criminal proceedings.” United States v. Apperson, 441
F.3d 1162, 1177–78 (10th Cir. 2006); see p. 104 n.23, above.
Fourth, the district court reasoned that the government had acted in
good faith in producing discovery materials throughout the litigation. The
23
The Speedy Trial Act promotes the interests of not only the
defendants but also the public. See Zedner v. United States, 547 U.S. 489,
500–501 (2006) (“[T]he Speedy Trial Act] was designed with the public
interest firmly in mind.”). So the Defendants’ consent would not have
automatically justified exclusion of the eight-month period under the
Speedy Trial Act. See United States v. Williams, 511 F.3d 1044, 1054–55
(10th Cir. 2007).
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Defendants accuse the government of gamesmanship, but the district court
disagreed. Perhaps other judges might have sided with the Defendants, but
the district court’s characterization was at least reasonable.
Fifth, the district court reasoned that the late disclosures had
probably involved immaterial information. This rationale was again at least
reasonable. The late disclosures largely involved impeachment material
involving recorded calls by prosecution witnesses, and the Defendants
already had thousands of pages of written statements and hundreds of hours
of recorded statements to use in impeaching the government’s witnesses.
Sixth, the district court reasoned that defense counsel would have
time during the trial to continue reviewing discovery materials. This
rationale was again at least reasonable. Indeed, the Defendants did use at
least some of the newly furnished information in questioning witnesses.
Finally, the district court reasoned that the court and parties had
already invested extensive time and effort in planning for the trial to
proceed as planned. The court had already summoned roughly 200 potential
jurors, and the parties had “read numerous special questionnaires.” Supp.
R. vol. 1, at 654. The Defendants do not address this part of the rationale,
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and it was at least reasonable. The court could legitimately consider the
inconvenience to itself, the jurors, and the parties. 24
* * *
The district court had discretion to deny the two requests for
continuances. In exercising this discretion, the court considered the
pertinent factors and reasonably concluded that they weighed against the
requested continuances. This conclusion fell within the district court’s
discretion.
7. All defendants: The Defendants waived their challenge to the
constitutionality of VICAR’s position clause.
The Defendants were convicted of violating VICAR’s “position
clause,” which outlaws racketeering activity to maintain or enhance one’s
position in the enterprise. 18 U.S.C. § 1959(a). The parties disagree on the
constitutionality of the clause. The government defends the clause based
on Congress’s power under the Commerce Clause. The Defendants argue
that the Commerce Clause does not support constitutionality of the clause
with respect to their alleged conduct.
24
Mr. Herrera asserts that we should disregard inconvenience to the
district court because the government failed to act cooperatively,
diligently, or responsibly. But the district court rejected Mr. Herrera’s
characterization of the government’s conduct, and that rejection was
reasonable. See pp. 104–105, above. So the district court could consider
inconvenience.
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Mr. Herrera, Mr. Baca, and Mr. Sanchez waived the issue by failing
to raise a pretrial challenge to the constitutionality of VICAR’s position
clause. After the trial, another defendant in a later trial (Arturo Garcia)
challenged the constitutionality of the position clause. Mr. Herrera, Mr.
Sanchez, and Mr. Baca orally asked for leave to join the motion.
The court denied Mr. Garcia’s motion. United States v. DeLeon, 2020
WL 353856, at *67–72, 87, 42, 99–105 (D. N.M. Jan. 21, 2020)
(unpublished). In denying the motion, the court acknowledged that Mr.
Herrera, Mr. Baca, and Mr. Sanchez had asked to join Mr. Garcia’s motion.
Id., 2020 WL 353856, at *42. But the court did not decide the Commerce
Clause issue for Mr. Herrera, Mr. Baca, or Mr. Sanchez.
A. Because the constitutional argument is not jurisdictional,
the Defendants needed to make this argument in a pretrial
motion to dismiss.
The government argues that the Defendants did not preserve these
challenges. Preservation turns on whether we consider the challenge as a
perceived defect in the indictment or a lack of subject-matter jurisdiction.
A pretrial motion is required when a defendant objects to prosecution
based on “a defect in the indictment or information,” including “failure to
state an offense.” Fed. R. Crim. P. 12(b)(3)(B). If the defendant doesn’t
file a pretrial motion, a later challenge to the prosecution would be
considered untimely. Fed. R. Crim. P. 12(c). But a court can consider an
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untimely challenge when the defendant shows good cause. Fed. R. Crim. P.
12(c)(3).
Jurisdictional challenges are different. For example, defendants can
challenge the prosecution based on subject-matter jurisdiction at any time
while the case is pending. Fed. R. Crim. P. 12(b)(2).
Mr. Herrera argues that his constitutional challenges involved
subject-matter jurisdiction. Under Mr. Herrera’s argument, VICAR’s
position clause exceeds congressional power by encompassing purely state-
law crimes. And by challenging congressional power to address state-law
crimes, Mr. Herrera argues that he’s questioning the district court’s
jurisdiction, which would obviate the need to file a pretrial motion. The
government disagrees, arguing that Mr. Herrera is alleging a defect in the
indictment rather than a lack of jurisdiction. We agree with the
government.
Mr. Herrera’s challenge involves the constitutionality of VICAR both
on its face and as applied. We held in United States v. DeVaughn that
challenges to the constitutionality of a criminal statue do “not implicate a
court’s subject matter jurisdiction.” 694 F.3d 1141, 1153–54 (10th Cir.
2012). 25 There, however, we were addressing an as-applied challenge. Id. at
25
In DeVaughn, we observed that “a court has jurisdiction over a
criminal case even when it or a higher court later determines the statute
under which the defendant was prosecuted is unconstitutional.” 694 F.3d at
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1153. At a minimum, DeVaughn would require a pretrial motion for the
Defendants’ as-applied challenge.
But does DeVaughn’s holding also encompass facial challenges to the
constitutionality of a criminal statute? We often interpret general language
in cases “as referring in context to circumstances then before the Court.”
Illinois v. Lidster, 540 U.S. 419, 424 (2004). And the circumstances of
DeVaughn involved a challenge to a statute as applied, not on its face. 694
F.3d at 1153. Given the factual context of DeVaughn, we’ve later issued
unpublished opinions stating that we’d not yet squarely decided whether
facial challenges to the constitutionality of a criminal statute involve the
court’s subject-matter jurisdiction. See United States v. Rickett, 535 F.
App’x 668, 671 (10th Cir. 2013) (unpublished) (noting that the Tenth
Circuit “ha[s] not yet squarely addressed whether a facial challenge to the
constitutionality of a statute” is jurisdictional); United States v. Rangel-
Hernandez, 597 F. App’x 553, 554 (10th Cir. 2015) (unpublished) (same).
1154. For this observation, we pointed to United States v. Williams, 341
U.S. 58 (1951). There the Supreme Court stated:
Where a federal court has power, as here, to proceed to a
determination on the merits, that is jurisdiction of the
proceedings. The District Court has jurisdiction. Though the trial
court or an appellate court may conclude that the statute is
wholly unconstitutional, . . . , it has proceeded with jurisdiction
. . . .
Id. at 68–69 (footnote omitted).
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But even before deciding DeVaughn, we had implied in United States
v. Fox, 573 F.3d 1050, 1052 n.1 (10th Cir. 2009), that a challenge to the
constitutionality of a criminal statute isn’t jurisdictional. There the
defendant had pleaded guilty to possession of a firearm after a felony
conviction. Id. at 1051–52. In pleading guilty, the defendant reserved his
right to appeal based on a treaty right. Id. at 1052 n.1. On appeal, the
defendant argued for the first time that the criminal statute violated the
Constitution. Id. We held that in pleading guilty, the defendant had waived
all “non-jurisdictional challenges” other than the one involving a treaty
right. Id.For the sake of argument, we can assume that our precedents in
DeVaughn and Fox didn’t decide whether facial challenges are
jurisdictional or nonjurisdictional. So we must decide this issue,
considering the case law from other circuits and the Defendants’ manner of
presenting the constitutional challenge.
Outside our circuit, courts are divided. The First, Second, Sixth, and
D.C. Circuits have held that facial constitutional challenges are non-
jurisdictional. See United States v. Rios-Rivera, 913 F.3d 38, 43 (1st Cir.
2019) (noting that jurisdiction wasn’t implicated by a defendant’s
challenges to Congress’s constitutional authority to enact the statute of
conviction); United States v. Le, 902 F.3d 104, 109 (2d Cir. 2018)
(rejecting a defendant’s characterization of his facial constitutional
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challenge to the statute of conviction as jurisdictional); United States v.
Bacon, 884 F.3d 605, 609 (6th Cir. 2018) (“[I]f Congress acts outside the
scope of its authority under the Commerce Clause when enacting
legislation, the validity of the statute is implicated, not the authority of the
federal courts to adjudicate prosecution of offenses proscribed by the
statute.”); United States v. Baucum, 80 F.3d 539, 540 (D.C. Cir. 1996) (per
curiam) (“[W]e find that the weight of the precedent, as well as prudential
considerations, counsel toward treating facial constitutional challenges to
presumptively valid statutes as nonjurisdictional.”).
In contrast, the Third, Seventh, Eighth, Ninth, and Eleventh Circuits
have held that facial constitutional challenges are jurisdictional. See
United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999) (concluding that a
facial challenge under the Commerce Clause “goes to the jurisdiction of
the District Court”); United States v. Phillips, 645 F.3d 859, 863 (7th Cir.
2011) (stating that “a facial attack on a statute’s constitutionality is
jurisdictional”); United States v. Seay, 620 F.3d 919, 922, 922 n.3 (8th Cir.
2010) (“We have previously held that . . . facial attacks are jurisdictional
in nature.”); United States v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir.
1999) (noting that the Ninth Circuit regards facial constitutional challenges
to statutes as jurisdictional); United States v. Saac, 632 F.3d 1203, 1208
(11th Cir. 2011) (“The constitutionality of . . . the statute under which
defendants were convicted, is a jurisdictional issue.”).
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The logic of the First, Second, Sixth, and D.C. Circuits aligns more
closely with our reasoning in United States v. DeVaughn. See pp. 108–109,
above. In DeVaughn, we reasoned that the constitutional challenge to a
criminal statute was not jurisdictional because
 jurisdiction involves a court’s power to adjudicate a case and
 deciding the constitutionality of a statute “is squarely within
the power of the federal courts.”
694 F.3d at 1153–54. This reasoning applies to facial challenges as well as
to as-applied challenges, for district courts have the power to act
regardless of whether a constitutional challenge is facial or as applied. “If
a challenge to the constitutionality of an underlying criminal statute
always implicated subject-matter jurisdiction, then federal courts, having
an obligation to address jurisdictional questions sua sponte, would have to
assure themselves of a statute’s validity as a threshold matter in any case.
This requirement would run afoul of Supreme Court precedent declining to
address constitutional questions not put at issue by the parties.” United
States v. Baucum, 80 F.3d 539, 541 (D.C. Cir. 1996) (per curiam).
We can consider not only the logic of DeVaughn but also how the
Defendants raised the issue. In his motion to dismiss, Mr. Garcia made
three distinct arguments: (1) VICAR’s position clause is facially
unconstitutional, (2) the position clause is unconstitutional as applied, and
(3) the district court lacked subject-matter jurisdiction. Supp. R. vol. 1, at
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620–40. Mr. Baca, Mr. Herrera, and Mr. Sanchez asked for leave to join
this motion with its three distinct arguments. 26 By seeking to adopt Mr.
Garcia’s formulation of the issues, Mr. Baca, Mr. Herrera, and Mr. Sanchez
implicitly treated the jurisdictional challenge separately from the
constitutional challenges. So in district court, the Defendants challenged
the constitutionality of the position clause without addressing jurisdiction.
Based on the case law and the Defendants’ presentation in district
court, we don’t regard the constitutional challenge as jurisdictional. The
challenge instead rested on a defect in the indictment, which the
Defendants needed to raise in a timely pretrial motion or to show good
cause.
B. The Defendants failed to raise the constitutional challenge
in a timely pretrial motion.
Despite that obligation, the Defendants didn’t file a pretrial motion
on the constitutionality of VICAR’s position clause. The Defendants thus
waived the constitutional issue.
Mr. Herrera argues that even if he and his codefendants had waived
the argument, the government “waived the waiver” by failing to argue in
district court that the Defendants needed to raise the issue in a pretrial
26
In challenging subject-matter jurisdiction, Mr. Garcia referred
broadly to “many of the same reasons” discussed in his constitutional
challenges. Supp. R. vol. 1, at 638.
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motion. We disagree. The Defendants never submitted a document with the
constitutional challenge, so the government had no chance to respond in
writing. Without a chance to address the issue, the government couldn’t
have “waived the waiver.” See Fed. R. Crim. P. 51(b) (“If a party does not
have an opportunity to object to a ruling . . . the absence of an objection
does not later prejudice that party.”).
The Defendants disagree, pointing to oral argument in district court.
The oral argument involved many pending motions involving over twenty
defendants. By the time of this oral argument, Mr. Sanchez and Mr.
Herrera had already finished briefing their post-judgment motions. These
briefs had contained no mention of the Commerce Clause.
But another defendant, Mr. Arturo Garcia, had orally moved to
dismiss his indictment, challenging the constitutionality of VICAR’s
position clause. 27 The district court denied the motion in a 17-page order.
Months later, Mr. Garcia filed a renewed motion and supporting brief,
arguing that (1) VICAR’s position clause was unconstitutional both
facially and as applied and (2) the district court lacked subject-matter
jurisdiction. The district court conducted oral argument.
At oral argument, Mr. Garcia urged reconsideration of his challenge
as applied to his indictment. The court asked the attorneys for the other
27
His VICAR charge involved the murder of another inmate, Freddie
Sanchez.
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defendants if they were joining this motion. Nothing was said by counsel
for Mr. Herrera, Mr. Sanchez, or Mr. Baca.
The government and Mr. Garcia then argued their positions. Upon
completion of the oral argument, Mr. Herrera, Mr. Sanchez, and Mr. Baca
finally asked permission to join the motion:
Ms. Jacks: Your Honor, I never understood this issue
until this morning. And I join the arguments
on it. We had not joined, and I’d ask the
Court’s permission to join [the motion by Mr.
Garcia’s attorney] on behalf of Mr. Sanchez.
Mr. Lowry: Same for Mr. Baca.
Ms. Bhalla: Same for Mr. Herrera as well.
R. vol. 5, at 5943.
The district court then explained its inclination “to deny [Mr.
Garcia’s] motion” without
 addressing the Defendants’ request or
 allowing the government to respond to the Defendants’ request
for permission to join Mr. Garcia’s oral motion to reconsider.
The court issued a written order denying Mr. Garcia’s motion, mentioning
in a footnote that Mr. Sanchez and Mr. Herrera had joined the motion.
United States v. DeLeon, 2020 WL 353856, at *16 n.10 (D. N.M. Jan. 21,
2020) (unpublished). 28
28
In this footnote, the court didn’t mention Mr. Baca’s intent to join
the motion. But the court elsewhere acknowledged Mr. Baca’s request to
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The Defendants argue that the government “waived the waiver” by
failing to orally object to the request for permission to join Mr. Garcia’s
motion. But the court never gave the government a chance to object. See
Lovinger v. Cir. Court, 845 F.2d 739, 744–45 (7th Cir. 1988) (stating that
the defendant did not waive an objection by declining to interrupt the
judge “in the few moments between the surprise mistrial declaration and
the judge's departure from the courtroom”); United States v. Rodriguez,
938 F.2d 319, 321 n.3 (1st Cir. 1991) (concluding that the government did
not waive an appellate challenge by failing to object when the district
court adjourned right after ruling). Without a chance to object, the
government couldn’t have waived an argument as to the need for a pretrial
motion.
* * *
Because the Defendants have not preserved their argument under the
Commerce Clause or urged good cause, we decline to consider the
constitutional challenge. See United States v. Bowline, 917 F.3d 1227,
1237 (10th Cir. 2019) (“[W]e will not review an untimely Rule 12
argument absent good cause.”).
join the motion. United States v. DeLeon, 2020 WL 353856, at *42 (D.
N.M. Jan. 21, 2020) (unpublished).
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8. Defendant Herrera: The district court didn’t prevent a full and
fair defense by prohibiting Mr. Herrera from impeaching his own
out-of-court statements.
Mr. Herrera argues that the district court prevented a full and fair
defense. This argument stems from Billy Cordova’s testimony that Mr.
Herrera had boasted about calling the “hit” on Mr. Molina. To counter this
testimony, Mr. Herrera wanted to use his own recorded statements denying
involvement in the Molina murder. The district court responded that Mr.
Herrera could use his prior recorded statements only if he were to testify.
He declined to testify and argues that he should have been allowed to play
the recordings anyway.
A. Mr. Herrera preserved this challenge, so we apply the
abuse-of-discretion standard.
The government argues that Mr. Herrera did not preserve this
argument. We disagree.
(1) Preservation didn’t require Mr. Herrera to make an offer of
proof.
The government denies preservation based on Mr. Herrera’s failure to
make an offer of proof. An offer of proof is usually required to preserve a
challenge to the exclusion of evidence. Fed. R. Evid. 103. But an offer of
proof is unnecessary when the “substance was apparent from the context.”
Fed. R. Evid. 103(a)(2); see United States v. Roach, 896 F.3d 1185, 1192
(10th Cir. 2018) (stating that no offer of proof is required when “the
context in which evidence is offered makes clear the reason for the
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proffer” (quoting United States v. Martinez, 776 F.2d 1481, 1485 (10th Cir.
1985))).
Mr. Herrera preserved his argument because the contents of his
statements were “apparent from the context.” Fed. R. Evid. 103(a)(2).
When the district court ruled, it obviously recognized that Mr. Herrera had
wanted to counter Mr. Cordova’s testimony with the recorded statements.
For example, Mr. Herrera said in a recording that he’d not participated in
the Molina murder. The district court listened to this recording and
discussed its admissibility. So the district court knew what Mr. Herrera
wanted to present and recognized his argument for admissibility.
(2) The ruling was definitive.
The government also argues that the district court didn’t make a
definitive ruling to exclude the proposed statements. We disagree, for the
ruling left no room for uncertainty:
[Y]ou can’t get -- use contradictory statements of Herrera to
impeach Herrera . . . .
I think I’ve explained that in a prior opinion, that it’s not an 806
issue. But you can impeach, but you've got to have a prior
inconsistent statement . . . .
Just so we’re clear. I’m not saying you can’t impeach Mr.
Archuleta. Where I think I’m shutting you down right at the
moment is impeaching Mr. Herrera through Mr. Archuleta.
R. vol. 5, at 9604–606. This ruling was definitive.
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B. The district court did not abuse its discretion in excluding
Mr. Herrera’s out-of-court statements.
Because Mr. Herrera preserved the issue, we consider whether the
district court abused its discretion. United States v. Gutierrez de Lopez,
761 F.3d 1123, 1132 (10th Cir. 2014). We conclude that the district court
acted within its discretion when excluding the evidence under Federal
Rules of Evidence 801 and 806. These rules address the admissibility of
out-of-court statements. Rule 806 provides that when an out-of-court
statement is admitted under Rule 801(d)(2)(C), (D), or (E), 29 another party
may attack the declarant’s credibility and support the attack with “any
29
Federal Rule of Evidence 801(d)(2) defines an out-of-court statement
by an opposing party as non-hearsay when
[t]he statement is offered against an opposing party and:
(A) was made by the party in an individual or representative
capacity;
(B) is one the party manifested that it adopted or believed to
be true;
(C) was made by a person whom the party authorized to make
a statement on the subject;
(D) was made by the party’s agent or employee on a matter
within the scope of that relationship while it existed; or
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
Fed. R. Evid. 801(d)(2).
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evidence that would be admissible for those purposes if the declarant had
testified as a witness.” Fed. R. Evid. 806.
Mr. Herrera argues that Rule 806 covered the government’s use of his
own alleged statement to Mr. Cordova. That statement would constitute an
admission of a party opponent, which is governed by Federal Rule of
Evidence 801(d)(2)(A). This rule doesn’t fall within the provisions listed
in Rule 806.
Though Rule 806 doesn’t expressly cover statements by party
opponents, Mr. Herrera urges a broad interpretation of Rule 806 because of
a defendant’s constitutional right to present a full and fair defense. But
Rule 806 should be interpreted as written.
The starting point is the text itself. Rule 806 is clear: it applies to
hearsay statements or statements admitted under Rule 801(d)(2)(C), (D),
and (E). Because the rule includes a list of relevant statutory provisions,
the negative-implication canon applies. Under this canon, “the expression
of one item of an associated group or series excludes another left
unmentioned.” Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir.
2018) (cleaned up). So Rule 806’s inclusion of subsections (C), (D), and
(E) appears to imply the exclusion of subsection (A), the provision
governing an admission of a party opponent.
Mr. Herrera argues that this interpretation of Rule 806 would prevent
him from advancing a full and fair defense. For this argument, Mr. Herrera
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points to Rule 806’s advisory committee notes and legislative history. The
Senate’s report on Rule 806 notes that the Committee on the Judiciary
“considered it unnecessary to include statements contained in rule
801(d)(2)(A) and (B)—the statement by the party-opponent himself or the
statement of which he has manifested his adoption—because the credibility
of the party-opponent is always subject to an attack on his credibility.”
Sen. Rep. 93-1277, 1974 U.S.C.C.A.N. 7051, 7075 n.27. But when the
statutory text is unambiguous, we need not rely on legislative history. See
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)
(“Extrinsic materials have a role in statutory interpretation only to the
extent they shed a reliable light on the enacting Legislature's
understanding of otherwise ambiguous terms.” (emphasis added)). In our
view, Rule 806 is unambiguous.
Mr. Herrera points to First and Seventh Circuit opinions, which say
that a non-testifying defendant’s out-of-court statement may be admissible
for impeachment purposes under Rule 806. See United States v. Shay, 57
F.3d 126, 131–32 (1st Cir. 1995) (noting that there is no “categorical
exclusion” of a non-testifying defendant’s out-of-court statements admitted
under Rule 801(d)(2)(A)); United States v. Dent, 984 F.2d 1453, 1460 (7th
Cir. 1993) (noting that the defendant’s “unusual argument in favor of
impeaching defendant’s own admission and credibility is possible under
Rule 806”).
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These opinions are neither precedential nor applicable. They
involved the use of an out-of-court statement for impeachment, not for its
truth. Even the Seventh Circuit has noted that its broad reading of Rule
806 does not apply when a party is seeking to circumvent the hearsay rules.
For example, in United States v. Faruki, 803 F.3d 847 (7th Cir. 2015), the
Seventh Circuit rejected the defendant’s effort to use his own prior
exculpatory statements. Id. at 856. The court explained that introduction of
the other statements wasn’t necessary to contextualize the admitted part of
his conversation, so the district court did not abuse its discretion in
“exclud[ing] any prior out-of-court statements by [the defendant] offered
to prove that [he] had been truthful in speaking with [the government
witness].” Id.Here the district court provided a similar explanation:
THE COURT: But I do think in that situation you would be trying
to get it in for the truth of the matter. You want the jury to hear
that Mr. Herrera is denying participation in that.
MS. BHALLA: I think it depends on how he answers the
questions, if that’s fair. I mean, I think if we ask the witness,
“Isn't it true that he also told you he had nothing do with it,” and
he says, “No,” I think we get to go there.
THE COURT: Yeah, but I don’t think you better be asking that
sort of question if we know the answer is going to be yes. So you
just can’t elicit your own client’s out-of-court statement. The
question would be objectionable. I wouldn’t let the witness
answer it. So you’re not going to get to impeach him with it.
R. vol. 5, at 8603.
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The district court reasoned that Mr. Herrera could not use his own
out-of-court statements to prove the truth of the matter asserted. And even
now, Mr. Herrera doesn’t challenge this part of the district court’s
explanation. That explanation rests on Rule 806’s narrow scope: The rule
addresses only the use of an out-of-court statement to attack the
declarant’s credibility, not to prove the truth of something else that the
declarant had said out-of-court. So the court would have acted within its
discretion even if Mr. Herrera could have used his recorded statements to
impeach Mr. Cordova.
9. All defendants: No cumulative error occurred.
The Defendants argue that even if the district court had not
committed an individual error, the cumulative-error doctrine would warrant
a new trial. “Cumulative error is present when the ‘cumulative effect of
two or more individually harmless errors has the potential to prejudice a
defendant to the same extent as a single reversible error.’” Workman v.
Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003) (quoting Duckett v. Mullin,
306 F.3d 982, 992 (10th Cir. 2002)). In assessing the possibility of
cumulative error, we can “consider [only] actual errors in determining
whether the defendant’s right to a fair trial was violated.” Id.; see United
States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) (en banc) (“[A]
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cumulative-error analysis should evaluate only the effect of matters
determined to be error, not the cumulative effect of non-errors.”).
We have concluded that the district court did not err on most of the
issues. We’ve addressed harmless error only when we assumed that the
district court should have excluded evidence of a murder in 1989. See Part
3(C), above. With that assumed error, we also consider suppressed material
that we’ve considered immaterial. See Cargle v. Mullin, 317 F.3d 1196,
1207 (10th Cir. 2003) (stating that the analysis on cumulative error should
include Brady errors that “have been individually denied for insufficient
prejudice”). The only such material was Mr. Rodriguez’s recorded phone
call to his mother. See Part 2(D), above.
Even when the evidence is combined, our confidence in the outcome
isn’t undermined by (1) the introduction of evidence regarding the 1989
murder and (2) the assumed suppression of Mr. Rodriguez’s recorded
phone call. Both items affected mainly Mr. Baca, with only indirect effects
on Mr. Herrera and Mr. Sanchez.
For Mr. Baca, the Rodriguez recording would have provided little
help. Even without the recording, Mr. Baca proved that Mr. Rodriguez had
told the FBI that he thought that Mr. Baca would have stopped the Molina
murder if he’d been at the Las Cruces prison. See Part 2(D)(1), above. Mr.
Rodriguez’s statement to his mother was consistent with what he’d told the
FBI. See id.124
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At the same time, Mr. Baca didn’t deny that he had committed
murders in the past. For example, the government presented evidence
(without objection) that Mr. Baca had ordered the murder or assault of
three other inmates in the 1990s and 2000s. See p. 54, above.
Even when we combine the introduction of evidence as to the 1989
murder and assumed suppression of the Rodriguez recording, we remain
confident that the outcome would have been the same. See Johnson v.
Carpenter, 918 F.3d 895, 909 (10th Cir. 2019) (rejecting a claim of
cumulative error based on our confidence that the sentence “would have
remained the same” after “combining the prejudice resulting from . . . three
presumed errors”). So we reject the argument involving cumulative error.
10. Conclusion
We affirm. The government’s delay in producing information did not
create a denial of due process. Nor did the district court commit reversible
error in denying severance, in allowing evidence of prior bad acts, in
declining to continue the trials, or in excluding Mr. Herrera’s recordings.
And the Defendants waived their constitutional challenge to VICAR’s
position clause by failing to address the issue in a pretrial motion. Finally,
the district court did not commit cumulative errors.
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