United States v. Brown

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 11, 2018
• Docket: 16-6210
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 11, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 16-6210 (D.C. No. 5:15-CR-00093-M-10) MICHAEL SHANDELON BROWN, a/k/a (W.D. Okla.) Kaos, a/k/a Ozz,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT _________________________________

Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges. _________________________________

This appeal stems from Michael Shandelon Brown’s drug-conspiracy

conviction under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and his money-laundering-

conspiracy conviction under 18 U.S.C. § 1956(a)(1)(B)(i), (h). A multi-agency

investigation implicated Brown in a cocaine base (crack cocaine) trafficking

conspiracy in Oklahoma City, Oklahoma. The government first charged Brown and

his co-conspirator, Daryl Lee Ingram, with possession with intent to distribute crack

cocaine in an earlier case. The jury convicted Ingram but acquitted Brown. After the

acquittal, the government charged Brown, Ingram, and their associates Anthony

 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Anderson, Michael Banks, and Xavier Guerrero with drug conspiracy. The

government also charged Brown, Ingram, Banks, and Guerrero with money-

laundering conspiracy. A jury found Brown guilty on both counts.

Brown now challenges his drug-conspiracy and money-laundering conspiracy

convictions on several bases. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

BACKGROUND

I. Operation Rollin’ Rock

In fall 2014, the FBI, the Oklahoma City Police Department, the IRS, and the

United States Postal Inspection Service participated in a months-long investigation

(called Operation Rollin’ Rock) into the Oklahoma City chapter of the Los Angeles-

based Rollin’ 90’s gang and its associated drug-trafficking activities. The Rollin’

90’s Oklahoma City chapter had structured its gang “not unlike the military,” with a

tiered hierarchy including a leader, trusted lieutenants, and foot soldiers. R. vol. 3 at

102:15–18. Daryl Lee Ingram led the gang and the drug conspiracy; as a result, he

was Operation Rollin’ Rock’s primary target. Anderson and Banks, meanwhile, acted

as Ingram’s “trusted lieutenants or captains.” Id. at 108:7–9.

Investigators learned that members of the Oklahoma City chapter of the

Rollin’ 60’s gang, another Los Angeles-based gang, also participated in the drug

conspiracy. Both Brown and Guerrero belonged to the Rollin’ 60’s and participated

in the conspiracy, but only Brown lived in Oklahoma City—Guerrero lived in Los

Angeles. Investigators weren’t surprised that the Rollin’ 90’s and the Rollin’ 60’s

2 worked together; they’re allied gangs that “work[] together to fight back against other

gangs or to make money.” Id. at 109:24–25.

On November 7, 2014, officers executed seven search warrants, known as a

“take-down,” at residences associated with the Rollin’ 90’s in Oklahoma City. Id. at

124:17. Though some of the searches bore fruit, others didn’t. Believing search

warrants to be imminent, Ingram had the houses cleared out. The day before the take-

down, Ingram and Brown paid cash to fly to California. Ingram fled to avoid police.

When Brown and Ingram arrived in California, Shavon Howell, Guerrero’s

daughter’s mother, rented Ingram a hotel room at the Hyatt House. Howell agreed to

rent Ingram the room on her credit card. Howell made four payments totaling more

than $4,000 for Ingram’s hotel stay from November 9 to November 29 at the Hyatt

House. Ingram paid Howell back in cash. Howell knew that a second person had

stayed with Ingram, but didn’t describe that person further. On December 9, 2014,

Brown flew back to Oklahoma City from Los Angeles.

II. The Money-Order Scheme

With Ingram safely in California, Banks began orchestrating a money-order

scheme to launder drug profits in Oklahoma City and send them to Los Angeles to

fund Ingram’s extended stay. Soon after the two men’s arrival in California, police

learned “that there was a large amount of cash being converted to money orders” in

Oklahoma City by Rollin’ 90’s associates. Id. at 1142:15–18. And once the associates

had converted the cash into money orders, they mailed the money orders “to Los

Angeles where they were subsequently cashed.” Id. at 1142:17–18.

3 Directing the money-order scheme, Banks had his mother, Linda Banks, and

his children’s mothers, Gabrielle Stevenson and Satin Watley, purchase and mail

blank money orders to specified addresses in Los Angeles. Linda Banks and Watley

mailed the money orders under Linda Banks’s name and address. Stevenson mailed

the money orders she purchased under the name and address of a “Finesse Johnson,”

her alias. She later testified that she believed that the money for the money orders

had come from illegal activity. At Banks’s direction, the women mailed the money

orders they purchased to a “Deshean Jennings” or a “Markese Jackson,” at 5025

Crenshaw Boulevard, Los Angeles, California. Agents later learned that Guerrero

used “Deshean Jennings” as an alias and that he lived at 5025 Crenshaw Boulevard

with his aunt.

All told, associates in the money-laundering scheme sent $41,000 in money

orders from Oklahoma to California to benefit Ingram. Of that, Brown cashed eight

$1,000 money orders that had been purchased and mailed by people associated with

Banks. Howell testified that, when the money orders arrived in Los Angeles, Ingram

would have her cash them. She said that Ingram gave her the money orders in

increments of five, typically at a value of $1,000 per money order. After she cashed

the money orders, she handed the money over to Ingram. Even though Brown

received all eight money orders in two mailings, he cashed two per day, spread out

over several days.

On November 29, 2014, police officers arrested Banks at his friend’s home in

Oklahoma City. During a protective sweep of the home, police found 496.4 grams of

4 crack cocaine, a digital scale, two guns, a black Oster hand-mixer bag, and $17,440

in cash. The officers also found a photograph on Banks’s kitchen table that showed

Banks, Ingram, and Brown together.

From Banks’s arrest forward, the money-order scheme changed. Linda Banks,

Stevenson, and Watley no longer purchased and mailed the money orders. Instead,

different names were used to ship the money orders, for instance, the names Robert

Jackson, Michelle Willis, and Cynthia Anderson. Robert Jackson is Brown’s uncle,

Michelle Willis is Sheba Michelle Willis, Brown’s friend, and Cynthia Anderson is

Sheba Willis’s neighbor. At trial, Jackson testified that he had never mailed any

money orders to Los Angeles; that he didn’t know the receiver listed on the package,

Markese Jackson; that he didn’t know anyone who lived at the address the money

orders were mailed to, 5025 Crenshaw Boulevard in Los Angeles; and that the

handwriting on the packages with his name and address wasn’t his. He also testified

that he uses the name Robert Brister when he writes, so he wouldn’t have listed

himself as “Robert Jackson.” He further testified that he had never met Howell, who

frequently cashed the money orders mailed under Jackson’s name and address.

Finally, he testified that Brown had asked him for his address a “couple of times,”

saying “that he want[ed] it for a job.” R. vol. 3 at 1290:14–18.

Meanwhile, Howell continued to cash the money orders, as did others. For

instance, on February 2 and 3, 2015, a woman named Summer Savage cashed two of

the money orders in Dallas, Texas.

5 IRS Agent Robert Summers studied the above-described money-order

transactions and identified two specific patterns. First, he noted that the associates

involved here had never cashed more than $3,000 worth of money orders at a time.

This enabled them to avoid United States Postal Service Form 8105-A’s reporting

requirements, which (1) would have permitted law enforcement to search for the

money orders by name and (2) would have required both the payor and payee to show

identification. Agent Summers described “structuring” as the practice of breaking

down large transactions into smaller ones to avoid filing requirements. Based on his

training and experience, Agent Summers testified that structuring is a hallmark of

money laundering and that structuring enabled Brown, Guerrero, and other associates

to avoid the Form 8105-A reporting requirements. Id. at 1774:14–16. Second, Agent

Summers noted that the associates had mailed the money orders blank, meaning they

wrote no names on the money order’s payee space. Agent Summers testified that this

practice also indicates money laundering—it provides anonymity because no

information other than the money order’s serial number is generated. Because of the

risk, people don’t usually send money orders without named payees; doing so is

equivalent to sending cash through the mail.

Agent Summers also investigated whether Ingram, Banks, or Brown had any

legitimate sources of income to fund the money orders. Neither Ingram nor Banks

did. Except for two checks from a horse-auction company to Brown, one for $374

and the other for $500, Agent Summers found no other possible legitimate sources of

income for him.

6 III. The Traffic Stop

On February 17, 2015, a confidential informant told Oklahoma City police that

Anderson was selling crack cocaine from a white Honda Civic. Detective Jeff Reed

ran the Civic’s license-plate number, which the informant had provided. Detective

Reed knew that Anderson was a Rollin’ 90’s gang member, and after running the

plate, he learned that the Civic was registered to a Laneisha Blackshire, shown as

residing at 3344 Southwest 24th Street. As Detective Reed drove by that address, he

passed a grey Kia traveling in the opposite direction. He suspected that the driver was

Tyree Cade, who he knew had an active arrest warrant. He thought that the Kia’s

driver had “similar features” to Cade including the same “race, sex, build, [and] hair

length.”1 Id. at 757:1–2. While Detective Reed was watching the Kia, the driver

parked in front of 3344 Southwest 24th Street, which officers later learned was

Anderson’s house.

Detective Reed continued down the road and parked his car. Using binoculars,

he watched the two men get out of the car and walk through the front yard and into

the house. He called Lieutenant Robert Coniglione, the Gang Enforcement Unit

supervisor, and asked for assistance in stopping the Kia should its occupants return to

the car and drive away. Lieutenant Coniglione replied that “they would be en route

immediately.” Id. at 735:15.

1 Later, Detective Reed identified Brown as the driver and Ingram as the passenger.

7 While Detective Reed waited for Lieutenant Coniglione to arrive, he continued

surveilling the house. He saw Anderson come outside, lean into the white Honda

Civic parked in the driveway, and then go back into the house. A few minutes later,

Detective Reed saw the two men who had arrived in the Kia leave the house and get

back into their car. He estimated that the two men were in Anderson’s house for

“[j]ust a couple of minutes.” Id. at 738:8. The man who sat in the Kia’s passenger

seat carried a black bag. Detective Reed didn’t remember whether the man had

carried anything into Anderson’s house. The Kia drove away.

Lieutenant Coniglione and his riding partner, Sergeant Andy Ritchie, drove

their patrol car toward Anderson’s house to set up a “loose perimeter.” Id. at 770:25–

771:5. But just as they arrived in the area, the Kia left Anderson’s house. Detective

Reed provided Lieutenant Coniglione and Sergeant Ritchie the Kia’s travel direction,

and they soon found and began following it. Once the officers saw the driver “fail[]

to keep right of center,” they activated the patrol car’s emergency lights to pull over

the Kia. R. vol. 3 at 802:16. The Kia continued at a normal speed for another block

before turning a corner and stopping. After parking behind the Kia, Sergeant Ritchie

and Lieutenant Coniglione got out and began walking to the Kia. As soon as the

officers reached the Kia’s bumper, the car sped away.

Sergeant Ritchie and Lieutenant Coniglione quickly returned to the patrol car

and pursued the Kia at speeds up to 60 miles per hour in a 25-mile-per-hour zone.

Eventually, Brown took a turn too quickly, veered off the road, and got the Kia stuck.

Brown and Ingram then fled on foot. Lieutenant Coniglione started to run after

8 Brown and Ingram but yielded to other responding officers. The newly arrived

officers captured and arrested Brown and Ingram.

Lieutenant Coniglione returned to the Kia. Looking inside it, he noticed a

zipped, black Oster bag on the front, passenger-side floorboard. Inside the bag, he

found $4,980 in cash and 26 baggies of crack cocaine, which together weighed 650.7

grams.

Police seized and impounded the Kia, and Detective Scott Smith obtained a

search warrant for it. Inside, he found several cell phones. Brown had used one of

these phones, as shown by a “selfie” Brown had taken with the phone. Id. at 1156:9.

That phone also contained a photo of Guerrero, Ingram, and Cade in front of

Howell’s home in Los Angeles, as well as a photo of Brown, Guerrero, and Ingram in

Howell’s driveway. On the Kia’s passenger-side floorboard, Detective Smith found a

parking pass for apartment 419 at the Moda Apartments in Dallas, Texas. And in the

center cup holder, he found a key ring with a metal tag that read, “ZRS

Managements,” and a circular key fob marked “419.” Id. at 874:2–874:8. Detective

Smith next searched the Kia’s trunk, where he found men’s clothing and a package of

rubber bands. In addition, he found two receipts, one memorializing a December 14,

2014 purchase from a Macy’s store in Culver City, California, and the other

memorializing a February 10, 2015 purchase from a Target in Dallas, Texas of two

TVs and several cell phones.

Sonya Brown, Brown’s cousin, testified that she had rented the car “[t]o get

back and forth to work” and that she had used the car for about a week before the

9 traffic stop. Id. at 1273:9. She said that on February 17, 2015, even though she had to

work that day, she let Brown “use [the Kia] to go and put in a job application.” Id. at

1273:13–14. Addressing the evidence Detective Smith had found in the car, Brown’s

cousin said she’d never been to Culver City, had never seen the Macy’s receipt, and

had no idea how it got in the car. She also said she’d never been to the Target on the

second receipt, that she didn’t put the second receipt in the car, and hadn’t seen it

before.

Following up on the evidence about apartment 419, Oklahoma City police

called Detective Oscar Carrasco with the Dallas Police Department, and asked him to

verify that an apartment 419 was located at 1855 Payne Street in Dallas, Texas, and

to learn whether Summer Savage (the woman who cashed two money orders in

Dallas, Texas just days before Brown and Ingram were arrested in Oklahoma City)

lived there. Detective Carrasco advised that the address was correct, and that Savage

had rented apartment 419.

Dallas police then obtained and executed a search warrant at apartment 419.

Inside, Dallas police found three new TVs, $3,000 bundled with rubber bands in a

night stand, three cellphones in the master-bedroom dresser, a napkin with phone

numbers written on it, and a ledger reflecting $110,000 in outstanding drug debts.

Police recognized Brown’s phone number on the napkin. Additionally, police

connected Brown to the Dallas apartment by a photograph recovered from his cell

phone during the traffic stop. The photo showed Ingram in apartment 419, with

several cell phones laid out on the kitchen’s countertops.

10 On the same day as the traffic stop, police obtained a search warrant for

Anderson’s home. During the search, police found a wet Pyrex dish, a box of baking

soda, and a plate coated with white residue in a microwave oven.2

IV. The Court Proceedings

Relying on the cocaine located in the Kia, the government charged Brown and

Ingram with possession of cocaine base with intent to distribute it, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A). Brown moved to suppress the evidence found in the

Kia, alleging the traffic stop wasn’t justified at its inception. The district court denied

Brown’s motion because the officers had seen Brown commit a traffic violation,

namely, drifting across the center of the road. The jury convicted Ingram but

acquitted Brown.

About three weeks after the jury’s verdict, a grand jury sitting in the Western

District of Oklahoma indicted Brown, Ingram, Anderson, Banks, and Guerrero for

conspiring to “possess with intent to distribute and to distribute more than 280 grams

of a mixture or substance containing” crack cocaine, in violation of 21 U.S.C.

§§ 846, 841(a)(1), (b)(1)(A). R. vol. 1 at 32–33, 175–176. The grand jury also

indicted Brown, Ingram, Banks, and Guerrero with conspiring to launder money by

“conduct[ing] financial transactions . . . , which . . . involved the proceeds of . . . the

felonious buying, selling, and dealing in cocaine base, . . . knowing that the

2 Johndra Osbourne testified at trial that to make crack cocaine, a person mixes powder cocaine with baking soda and water in a Pyrex dish, and then cooks the mixture in a microwave oven.

11 transactions were designed in whole or in part to conceal and disguise the nature,

location, source, ownership and control of the proceeds,” in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i), (h). Id. at 47–48, 186–87. Before trial, Brown moved to sever his

trial from that of his co-defendants’. He also filed a motion to dismiss his drug-

conspiracy charge, and to prevent the government from introducing evidence about

his gang affiliation. The court denied all three motions.

Brown also sought, once again, to suppress the evidence from the traffic stop,

asking the court to reconsider its order denying his suppression motion in the earlier

case. The court denied this motion, too. For its part, the government filed a motion to

preclude evidence of Brown’s acquittal from the first case, which the court granted.

The jury found Brown guilty of the drug-conspiracy and money-laundering-

conspiracy charges. The district court sentenced him to 120 months of imprisonment

for each count of conviction, to be served concurrently. Brown now appeals his

convictions. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

ANALYSIS

On appeal, Brown argues that the district court erred in seven ways: (1) by

concluding that sufficient evidence supported his convictions; (2) by concluding that

collateral estoppel didn’t bar his prosecution for the drug conspiracy; (3) by

disallowing him from informing the jury of his earlier acquittal; (4) by admitting

evidence seized after the traffic stop; (5) by admitting evidence of his gang

affiliation; (6) by denying a mistrial; and (7) by not severing his trial from that of his

co-defendants’. We will address each issue in turn.

12 I. Sufficiency of the Evidence

Brown contends that the government introduced insufficient evidence to prove

beyond a reasonable doubt that he was guilty of either drug conspiracy or money-

laundering conspiracy. “We review the sufficiency of the evidence to support a jury

verdict de novo and examine only whether taking the evidence, both direct and

circumstantial, ‘in the light most favorable to the government, a reasonable jury

could find the defendant guilty beyond a reasonable doubt.’” United States v.

Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009) (quoting United States v. Hanzlicek,

187 F.3d 1228, 1239 (10th Cir. 1999)). The evidence “must be substantial, but it need

not conclusively exclude every other reasonable hypothesis and it need not negate all

possibilities except guilt.” United States v. Kitchell, 653 F.3d 1206, 1228 (10th Cir.

2011) (quoting Phillips, 583 F.3d at 1264). We will reverse a conviction “only if no

reasonable jury could have reached the challenged verdict.” Id. (quoting United

States v. Hooks, 551 F.3d 1205, 1212 (10th Cir. 2009)). “While undoubtedly

deferential, this review has some bite: if the evidence does no ‘more than raise a mere

suspicion of guilt’ or requires ‘piling inference upon inference’ to conclude the

defendant is guilty, we will reverse the conviction.” United States v. Mullins, 613

F.3d 1273, 1280 (10th Cir. 2010) (quoting United States v. Rakes, 510 F.3d 1280,

1284 (10th Cir. 2007)).

We first address whether the government presented sufficient evidence to

support Brown’s drug-conspiracy conviction, and then we turn to whether the

13 government presented sufficient evidence to support his money-laundering-

conspiracy conviction.

(a) Drug Conspiracy

A jury found Brown guilty of the charged drug-trafficking conspiracy under 21

U.S.C. §§ 846, 841(a)(1), (b)(1)(A). To do so, it had to find the following elements

beyond a reasonable doubt:

First: Two or more persons agreed to violate the federal drug laws; Second: The defendant knew the essential objective of the conspiracy; Third: The defendant knowingly and voluntarily involved himself in the conspiracy; Fourth: There was interdependence among the members of the conspiracy; [and] Fifth: The overall scope of the conspiracy involved at least two hundred eighty (280) grams of a mixture or substance containing cocaine base.

R. vol. 1 at 572; see 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iii). On appeal, Brown

challenges the sufficiency of the evidence supporting the second and third elements.

The second element and the third element’s knowing participation sub-part

overlap, so the government can satisfy both by showing “that the defendant shared a

common purpose or design with his alleged coconspirators.” United States v. Pickel,

863 F.3d 1240, 1252 (10th Cir. 2017) (quoting United States v. Hamilton, 587 F.3d

1199, 1206 (10th Cir. 2009)). To meet the third element’s voluntary participation

requirement, the government must prove that the defendant played at least “a minor

role in the conspiracy.” Id. at 1252. The jury doesn’t need to find the defendant

necessary to the conspiracy; it needs to find only that the defendant was “an

operational link within it.” United States v. Cornelius, 696 F.3d 1307, 1318 (10th Cir.

14 2012). And it need not find that a defendant participated in “drug collection,

handling, or sales,” to sustain a drug-conspiracy conviction. United States v. Garcia-

Torres, 280 F.3d 1, 4 (1st Cir. 2002). Even ancillary functions, such as accounting,

strong-arm enforcement, and communicating on behalf of drug dealers may sustain a

drug-conspiracy conviction. Id. Still, performing a peripheral service, without the

“aim to forward or assist the conspiracy,” isn’t enough to prove that a defendant

knew a drug conspiracy’s objective and voluntarily participated in it. Id.

Here, the evidence more than sufficed. First, Brown’s affiliation with an allied

gang and his close connection to Ingram permitted the jury to infer Brown’s

knowledge of the conspiracy’s objective and his knowing participation in it. Brown’s

Rollin’ 60’s affiliation and the two gangs’ practice of working together to make

money could have led the jury to infer that Ingram’s drug-trafficking conspiracy was

one such joint venture, and therefore that Brown shared the conspiracy’s common

purpose or design. Plus, when Ingram found out that several Rollin’ 90’s-affiliated

houses were going to be searched, he fled to California and took Brown with him.

The jury could have reasonably inferred (1) that Ingram wouldn’t bring an

uninvolved party with him to California while attempting to flee from the police, and

(2) that by accompanying Ingram to California, Brown, too, had fled from the police.

From this latter inference, the jury could have concluded that Brown shared a

common purpose or design with the conspiracy.

Second, Brown’s attempts to flee law enforcement during the February 17,

2015 traffic stop also reasonably supported an inference that Brown shared a

15 common design or purpose with other conspirators. When law enforcement attempted

to pull him over, Brown didn’t comply—he sped off, led police on a high-speed

chase, and then when the Kia became stuck, he fled on foot. A jury could have

reasonably inferred that Brown knew full well about the 650.7 grams of crack

cocaine discovered in the Kia. And the jury could also have inferred that Brown sped

away from the traffic stop and led police on a high-speed chase to prevent Ingram’s

arrest, which would have furthered the drug conspiracy by protecting its leader. The

traffic-stop evidence reasonably suggested that Brown was involved in the

conspiracy, and in his attempt to avoid police, knowingly participated in it.

Turning to the third element’s voluntary participation sub-part, we see several

ways the jury could have concluded that Brown performed ancillary functions that

facilitated the conspiracy’s objective. For instance, the jury could have concluded

that Brown asked his cousin, Sonya Brown, to rent the Kia under her name, and that

in doing so, he had aimed to avoid putting either his or Ingram’s name on a rental

agreement.

Further, Brown’s December 9, 2014 flight back to Oklahoma City and the

evidence Detective Smith recovered from the Kia established a timeline that

rationally supported Brown’s voluntary participation in the drug conspiracy. That

flight, the receipts found in the trunk of the Kia, and the keys and parking pass found

in the car’s cabin, allowed the jury to infer that Brown (1) flew back to Oklahoma

City and rented the Kia, (2) drove the Kia from Oklahoma City back to Los Angeles

to pick up Ingram, (3) drove Ingram from Los Angeles to Dallas to rent apartment

16 419, and (4) drove Ingram from Dallas back to Oklahoma City. The December 14,

2015 Culver City, California Macy’s receipt, and the February 10, 2015 Dallas-area

Target receipt, plus Savage’s cashing of two money orders in Dallas only twelve days

before police arrested Brown and Ingram, belied Brown’s cousin’s story about having

rented the Kia for herself for only a week. The jury could have reasonably believed

that Brown voluntarily participated in the conspiracy by driving Ingram on drug

business.

Also, the jury could reasonably have found that Brown acted as an ancillary

facilitator of the drug conspiracy after he and Ingram returned to Oklahoma City.

Once they arrived, Brown drove Ingram to see Anderson, a suspected crack-cocaine

dealer and known Rollin’ 90’s gang member. Brown went inside Anderson’s house

with Ingram, and Ingram came back out carrying a black Oster bag. Immediately

after leaving Anderson’s house, the traffic stop ensued, and police arrested Brown

and Ingram and recovered 650.7 grams of crack cocaine from the Kia. A search of

Anderson’s house on the day of Ingram’s and Brown’s arrest produced a wet Pyrex

dish, a hand-mixer, and crack cocaine residue on a microwave plate inside a closed

microwave. Johndra Osbourne, a Rollin’ 90’s gang member who Ingram gave crack

cocaine to sell, testified that these items are used to manufacture crack cocaine.

These facts permitted the jury to infer that Ingram had manufactured crack cocaine at

Anderson’s house on February 17, 2015, just before the traffic stop, and that Brown

had assisted Ingram with this task by driving Ingram to and from Anderson’s house.

17 Additionally, the evidence that Brown participated in the money-order scheme

also supported an inference of Brown’s role as an ancillary facilitator of the drug

conspiracy, and thus satisfied the voluntary participation sub-part of the third

element. United States v. Burgos, 94 F.3d 849, 859 (4th Cir. 1996) (“In addition to

selling narcotics, that [drug-conspiracy] participation may assume a myriad of other

forms, such as . . . purchasing money orders for coconspirators.”). Based on Howell’s

testimony that Ingram gave her the money orders, and that she cashed them and then

gave him back the money, the jury could have inferred that when Brown cashed the

money orders he also did so at Ingram’s request and for Ingram’s benefit. The

government presented evidence that Brown had cashed eight $1,000 money orders in

a manner consistent with structuring to avoid filing and reporting requirements. The

jury could have reasonably inferred that Brown had structured the cashing of his

money orders to purposefully conceal the drug conspiracy’s profits. In turn, the jury

could have concluded that in purposefully concealing the conspiracy’s profits, Brown

performed an ancillary function for the conspiracy that demonstrated Brown’s

voluntary participation.

Despite all of the above evidence supporting elements two and three of

Brown’s drug-conspiracy conviction, Brown counters that the evidence was

nevertheless insufficient because no direct evidence established that he knew Ingram

had crack cocaine in the black Oster bag found in the Kia, and because the

government didn’t admit evidence showing that he personally participated in drug

deals or manufactured crack cocaine. But the government didn’t need to prove Brown

18 knew that the black bag had crack cocaine in it—it needed to prove his knowledge of

the conspiracy’s objective. Likewise, because the government presented sufficient

evidence that Brown performed several ancillary functions facilitating the

conspiracy’s purpose, the government didn’t need to further prove that Brown made

or sold drugs to prove his voluntary participation in the conspiracy.

From all of the above evidence and its corresponding inferences, a rational

jury could have determined that Brown knew the objective of Ingram’s drug-

trafficking organization and that he knowingly and voluntarily participated in it. The

evidence therefore sufficed to support Brown’s drug-conspiracy conviction.

(b) Money-laundering Conspiracy

The jury also found Brown guilty of conspiring to launder money, in violation

of 18 U.S.C. § 1956(a)(1)(B)(i), (h). To do so, it had to find the following elements

1. First, the defendant agreed with at least one other person to violate federal money laundering laws as described in Count 14— here, the federal law prohibiting financial transactions knowing that the property involved represented the proceeds of some unlawful activity with the intention to disguise the nature, location, source, ownership, or control of the property; 2. Second, the defendant knew the objective of the conspiracy; 3. Third, the defendant voluntarily and knowingly involved himself in the conspiracy; and 4. Fourth, there was interdependence among the members of the conspiracy.

R. vol. 1 at 587; see 18 U.S.C. § 1956(a)(1)(B)(i), (h). Brown argues that the

government presented insufficient evidence to prove the first three elements.

19 As to the first element, § 1956 is “a concealment statute—not a spending

statute.” United States v. Garcia-Emanuel, 14 F.3d 1469, 1476 (10th Cir. 1994). It

reaches transactions designed to conceal the participants’ identities, as well as

“transactions designed in whole or in part to conceal or disguise in any manner the

nature, location, source, ownership, or control of the proceeds of unlawful activity.”

United States v. Lovett, 964 F.2d 1029, 1034 n.3 (10th Cir. 1992). To carry its

burden, the government must “present substantial evidence of concealment for a

conviction.” United States v. Shepard, 396 F.3d 1116, 1121 (10th Cir. 2005).

Evidence sufficient to prove intent to conceal within the context of money-laundering

includes the following:

unusual secrecy surrounding the transaction; structuring the transaction in a way to avoid attention; . . . highly irregular features of the transaction; using third parties to conceal the real owner; a series of unusual financial moves cumulating in the transaction; or expert testimony on practices of criminals.

Id. at 1120 (quoting Garcia-Emanuel, 14 F.3d at 1475–76).

Here, the government presented sufficient evidence of Brown’s intent to

conceal by showing that Brown had cashed eight $1,000 money orders and structured

those transactions in concert with his and Ingram’s conspiracy associates. From this

evidence, a rational jury could have inferred that Brown structured the transactions

(1) to avoid reporting requirements, (2) to conceal Ingram’s control of the money,

and (3) to conceal that the money orders derived from drug profits. This evidence and

its permissible inferences sufficiently prove Brown’s intent to conceal the nature,

20 source, ownership or control of the cash obtained via the money orders, thus

satisfying the first element.

As to the second and third elements, the evidence described above, plus the

shift in the money-order scheme’s pattern, permitted the jury to infer Brown’s

awareness of the scheme’s purpose and his voluntary participation in it. After

Banks’s arrest, the names of people associated with Brown were used to mail the

money orders. For instance, the names of Brown’s uncle, Robert Jackson, his friend

Sheba Michelle Willis, and Willis’s neighbor were used to ship money orders to Los

Angeles. Jackson’s name and address were used to ship ten money orders to a

“Markese Jackson” at Howell’s home address. At trial, Robert Jackson testified that

he didn’t know a “Markese Jackson” and that he didn’t recognize the address printed

on the shipping label bearing his name. And even more suspicious, Brown called

Jackson more than once to ask him for his address. The jury could have reasonably

concluded that Brown had called his uncle and asked for his address so that he could,

like Banks before him, direct people to purchase and mail blank money orders from

Oklahoma City to Los Angeles, this time under Jackson’s name. Also, in light of

Banks’s recent arrest, Brown’s increased responsibility in the money-order scheme

implied that he was familiar with the scheme’s purpose. Accordingly, the changes in

the scheme’s pattern allowed the jury to infer Brown’s awareness of, and

participation in, the money-laundering conspiracy.

Despite the above evidence, Brown argues that his involvement in the money-

order scheme can be innocently explained, and that the scheme’s changed pattern

21 fails to show his “agreement, knowledge, and voluntary” participation in the money-

laundering conspiracy. Appellant’s Opening Br. at 21. Specifically, he contends that

he grew up with many of his alleged co-conspirators, so “anyone could have written

Jackson’s information on the shipment labels.” Id. at 24. And Brown argues that

when he asked his uncle for his uncle’s address, he could have been filling out

employment applications, not recording an address for an associate to use to ship the

money orders. But both of these counterarguments are unavailing.

It “defies belief that a reasonable juror” could see Brown’s involvement in the

money-order scheme, namely, structuring the cashing of eight $1,000 money orders

and his relationship to the names of the money-order shippers once police arrested

Banks, and conclude he was “somehow unaware of the true nature of the program.”

See United States v. Fishman, 645 F.3d 1175, 1188 (10th Cir. 2011). And even if

Brown’s explanations were plausible, the jury could have reasonably disbelieved

them. Taking the evidence in the light most favorable to the government, we

conclude the government’s evidence sufficiently supported Brown’s money-

laundering-conspiracy conviction.

II. Collateral Estoppel

Brown argues that his acquittal on the original possession-with-intent-to-

distribute charge collaterally estopped his prosecution on the drug-conspiracy charge

in his second trial. We review collateral estoppel claims de novo. United States v.

Rogers, 960 F.2d 1501, 1507 (10th Cir. 1992).

22 The Fifth Amendment’s Double Jeopardy Clause incorporates the doctrine of

collateral estoppel as a constitutional requirement in criminal cases. Ashe v. Swenson,

397 U.S. 436, 445–46 (1970). Collateral estoppel “means simply that when an issue

of ultimate fact has once been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any future lawsuit.” Id. at 443.

Contrary to Brown’s contention, his earlier acquittal doesn’t collaterally estop

the government from prosecuting him on the conspiracy charge. See United States v.

Rodgers, 18 F.3d 1425, 1429 (8th Cir. 1994) (“But contrary to Michael and Alfred's

contention, the collateral estoppel effect of their acquittal on the prior possession

with intent charges does not bar prosecution of the conspiracy charge. The collateral

estoppel effect only prevented the government from relitigating the fact of possession

on the dates alleged in the original indictment.”). Rather, his earlier acquittal

precluded the government in his drug-conspiracy and money-laundering-conspiracy

trial from submitting to the jury that he actually or constructively possessed the crack

cocaine recovered from the Kia during the February 17, 2015 traffic stop. See id. At

his second trial, the government never argued that Brown possessed the crack cocaine

seized from the Kia after the traffic stop. Moreover, possession isn’t an element of

drug conspiracy, so the government could prove Brown guilty of the drug conspiracy

without proving that he possessed any drugs, let alone the crack cocaine seized from

the Kia. See R. vol. 1 at 572 and supra section A.(1). So, collateral estoppel doesn’t

bar the government from prosecuting Brown for drug conspiracy.

23 III. Brown’s Acquittal

Brown argues that the district court abused its discretion by not admitting

evidence of his acquittal. We review the district court’s evidentiary decisions for

abuse of discretion. United States v. Tome, 61 F.3d 1446, 1449 (10th Cir. 1995). We

consider the entire evidentiary record and will be “especially deferential when the

challenged ruling concerns the admissibility of evidence that is allegedly hearsay.”

Id.

A judgment of acquittal is hearsay and doesn’t meet one of the hearsay

exceptions. United States v. Sutton, 732 F.2d 1483, 1493 (10th Cir. 1984). Acquittals

are therefore generally inadmissible. See id. But Brown argues that his acquittal was

nevertheless admissible under Rule 807, the residual exception. Under this exception,

“a hearsay statement is not excluded by the rule against hearsay even if the statement

is not specifically covered by a hearsay exception in Rule 803 or 804 [if]:

(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.

Fed. R. Evid. 807(a). Our court has observed that “an expansive interpretation of the

residual exception would threaten to swallow the entirety of the hearsay rule,” and

should be used only “in extraordinary circumstances.” United States v. Lawrence,

405 F.3d 888, 902 (10th Cir. 2005) (quoting Tome, 61 F.3d at 1452).

24 But because Brown’s acquittal doesn’t demonstrate actual innocence, and only

proves that a jury found reasonable doubt as to the conduct charged, his acquittal

fails the third prong of Rule 807(a). United States v. One Assortment of 89 Firearms,

465 U.S. 354, 361 (1984) (“[A]n acquittal on criminal charges does not prove that the

defendant is innocent; it merely proves the existence of a reasonable doubt as to his

guilt.”). Brown’s acquittal at most establishes that his first jury had a reasonable

doubt whether he had possessed the crack cocaine found in the Kia; it doesn’t

significantly bear on whether he participated in the drug conspiracy. And since

Brown’s argument would justify admitting all acquittals, adopting his position would

allow Rule 807’s residual exception to swallow the general rule that judgments of

acquittal are inadmissible hearsay. See Lawrence, 405 F.3d at 902. So, the district

court didn’t abuse its discretion in declining to invoke Rule 807 to admit Brown’s

acquittal.3

IV. The Traffic Stop Evidence

Brown argues that the trial court erred by admitting evidence seized during the

traffic stop because the stop wasn’t justified at its inception. “We review de novo the

‘ultimate determination of Fourth Amendment reasonableness.’” United States v.

Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) (quoting United States v. Allen,

3 Brown also argues that the doctrine of curative admissibility permits him to introduce evidence of his acquittal. Curative admissibility applies only when other evidence has been improperly admitted. And Brown has not demonstrated that the court improperly admitted any of the government’s evidence. More importantly, no facts suggest that the district court abused its discretion in declining to invoke curative admissibility to admit Brown’s acquittal.

25 986 F.2d 1354, 1356 (10th Cir. 1993)). “[W]e accept the factual findings of the

district court” and its credibility determinations “unless they are clearly erroneous.”

United States v. Gregory, 79 F.3d 973, 977 (10th Cir. 1996).

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. A traffic stop is reasonable under the Fourth Amendment if

(1) it was justified at its inception and (2) the resulting detention was reasonably

related in scope to the circumstances that justified the stop in the first place. United

States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). A traffic stop is justified at

its inception “if the police officer has reasonable articulable suspicion that a traffic or

equipment violation has occurred or is occurring.” United States v. Eckhart, 569 F.3d

1263, 1271 (10th Cir. 2009) (quoting United States v. Botero-Ospina, 71 F.3d 783,

787 (10th Cir. 1995) (en banc)).

The district court determined that Lieutenant Coniglione and Sergeant Ritchie

saw Brown violate § 32-192(a) of the Oklahoma City Municipal Code by crossing the

center of the road. As such, the district court concluded that they had reasonable

suspicion to stop the car. Section 32-192(a) of the Oklahoma City Municipal Code

requires that cars be driven “right of the center of the roadway.” 4 Okla. City Mun.

Code ch. 32, art. V § 32-192(a) (2010). But Brown contends that the officers

4 Section 32-192(a) states, “Upon all roadways of sufficient width a vehicle shall be driven to the right of the center of the roadway.” Okla. City Mun. Code ch. 32, art. V § 32-192(a) (2010).

26 fabricated the traffic violation as a pretext to pull over the Kia. So, Brown argues, the

stop wasn’t justified at its inception, making it unreasonable under the Fourth

Amendment.

First, Brown argues that Lieutenant Coniglione inconsistently described how

much of the Kia crossed the center of the road. In Brown’s first trial, Lieutenant

Coniglione testified that Brown drifted left of center by “probably a quarter of the

width of his car.” Suppl. R. vol. 1 (Brown I Trial Transcript) at 94:9–11. But at the

second trial, Lieutenant Coniglione testified that the car drifted over the center by a

“[c]ar length maybe, it wasn’t long.” R. vol. 3 at 802:17–20. But Brown’s argument

isn’t persuasive. No matter how far over the center of the road Brown drifted, that

action violated § 32-192(a), which requires drivers to remain right of the center of the

road.

Second, Brown argues that Sergeant Ritchie testified inconsistently about

whether the road had a painted center line. Brown claims that Sergeant Ritchie’s first

report about the traffic stop stated that the Kia had crossed a center line but that, at

Brown’s second trial for drug conspiracy and money-laundering conspiracy, he

testified “that Brown’s vehicle didn’t cross a marked center line in the road.”5

Appellant’s Opening Br. at 43. This argument is inconsequential. Section 32-192(a)

says vehicles “shall be driven to the right of the center of the roadway.” Okla. City

5 Sergeant Ritchie’s report isn’t in the record, so we can’t compare the two allegedly inconsistent statements. We do know that in the second trial, Sergeant Ritchie testified that “the vehicle went left of center” but didn’t mention a center line. R. vol. 3 at 814:10–11.

27 Mun. Code ch. 32, art. V § 32-192(a) (2010). The ordinance contains no requirement

that a marked line be crossed. See id. Whether Brown crossed a marked or an

unmarked center line, he committed a traffic violation that justified the stop.

The officers justifiably stopped the car after witnessing a traffic violation.

Thus, Lieutenant Coniglione and Sergeant Ritchie acted reasonably under the Fourth

V. Brown’s Gang Affiliation

Brown argues that the district court should have excluded evidence of his gang

affiliation under Federal Rule of Evidence 404(b). “We review the district court’s

evidentiary ruling for an abuse of discretion.” United States v. Brown, 200 F.3d 700,

708 (10th Cir. 1999).

Under Rule 404(b)(1), “[e]vidence of a crime, wrong, or other act is not

admissible 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).

Despite 404(b)’s general prohibition, 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). We apply

a four-part test to determine whether Rule 404(b) evidence was properly admitted:

(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed. R. Evid. 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted.

28 United States v. Roberts, 185 F.3d 1125, 1141 (10th Cir. 1999) (quoting United

States v. Jefferson, 925 F.2d 1242, 1258 (10th Cir. 1991)). Brown contests only the

third prong—that the probative value of his gang affiliation was substantially

outweighed by its prejudicial impact. Specifically, he contends that “[t]he very nature

of gang affiliation evidence naturally distracts juries from the evidence and causes juries

to focus on the defendant’s character and criminal disposition.” Appellant’s Opening Br.

at 54.

Brown’s Rollin’ 60’s affiliation was highly probative because conspiracy

charges often rely on circumstantial evidence. United States v. Robinson, 978 F.2d

1554, 1562–63 (10th Cir. 1992) (concluding that circumstantial evidence, like gang

membership, is often the strongest evidence of conspiracy). And “associational or

affiliation type evidence is often deemed probative of something other than either

character evidence or evidence of other crimes, wrongs, or acts, subject to Rule 404.”

Id. at 1562. Here, Brown’s gang affiliation helped explain his relationship to Ingram

and the Rollin’ 90’s—that the two gangs had a past practice of working together to

make money.

And the district court mitigated any prejudice with a limiting instruction,

telling the jury that it could consider Brown’s gang affiliation “for the limited

purposes of establishing guilty knowledge, intent, plan, motive, and lack of mistake

or accident, if any, and evaluating the credibility of witnesses.” R. vol. 1 at 570; see,

e.g., United States v. Allen, 610 F. App’x 773, 781 (10th Cir. 2015) (explaining that a

limiting instruction concerning the appropriate use of gang-membership evidence

29 was one reason why such evidence’s probative value wasn’t substantially outweighed

by the risk of unfair prejudice). The court also told the jury that “[m]embership or

affiliation in a gang is not a crime.” R. vol. 1 at 570.

So, because evidence of Brown’s gang affiliation was highly probative on his

participation in the conspiracy, and because the court’s limiting instruction mitigated

any prejudice he may have suffered from the introduction of that evidence, the court

didn’t abuse its discretion in admitting the evidence.

VI. Mistrial Motion

Brown argues that the district court erred when it denied his motion for a

mistrial. He contends that the district court should have granted him a mistrial for

wrongly allowing the evidence about the February 17, 2015 traffic stop and about his

Rollin’ 60’s gang affiliation, and also for wrongly not allowing evidence of his

acquittal. We review a district court’s denial of a mistrial motion for an abuse of

discretion. See United States v. Morgan, 748 F.3d 1024, 1039 (10th Cir. 2014).

Courts may grant mistrials when a defendant’s right to a fair and impartial trial

has been impaired. United States v. Meridyth, 364 F.3d 1181, 1183 (10th Cir. 2004).

Mistrial motions “call for an examination of the prejudicial impact of an error or

errors when viewed in the context of an entire case.” United States v. Gabaldon, 91

F.3d 91, 94 (10th Cir. 1996). The erroneous admission of evidence may be so grave

as to warrant a mistrial. Morgan, 748 F.3d at 1039–40.

But as seen above, we have concluded that the district court properly admitted

evidence from the February 17, 2015 traffic stop and of Brown’s gang affiliation, and

30 that it properly excluded evidence of Brown’s earlier acquittal. And so, Brown’s right

to a fair and impartial trial wasn’t impaired and the district court didn’t abuse its

discretion by denying his mistrial motion.

VII. Severance Motion

Brown argues that the district court erred by denying his severance motion

because he and Ingram relied on mutually antagonistic defenses and had different

degrees of culpability. We review a district court’s denial of a severance motion for

an abuse of discretion. Id. at 1043.

Federal Rule of Criminal Procedure 8(b) permits the government to charge two

or more defendants in the same indictment “if they are alleged to have participated in

the same act or transaction, or in the same series of acts or transactions, constituting

an offense or offenses.” In the federal system, we prefer to try defendants indicted as

co-conspirators jointly, to serve judicial economy and to minimize the risk of

inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537 (1993).

And yet, even when joinder is proper under Rule 8(b), Rule 14(a) permits

severance if a joint trial would prejudice either party. Fed. R. Crim. P. 14(a).

Prejudice exists if the joint trial will compromise a specific trial right of one of the

defendants, “or prevent the jury from making a reliable judgment” as to the guilt of

the various defendants. United States v. Edwards, 69 F.3d 419, 434 (10th Cir. 1995)

(quoting United States v. Williams, 45 F.3d 1481, 1484 (10th Cir. 1995)). A jury may

be incapable of making a reliable judgment about guilt when marked differences in

31 culpability exist among defendants, or when the defendants rely on mutually

antagonistic defenses. Zafiro, 506 U.S. at 538–39.

As an initial matter, because Rule 14 “leaves the tailoring of the relief to be

granted, if any, to the district court's sound discretion,” it doesn’t require severance.

Id. at 539. Here, the district court warned the jury, “You must separately consider the

evidence against each defendant on each count and return a separate verdict for each

defendant. Your verdict as to any one defendant or count, whether it is guilty or not

guilty, should not influence your verdict as to any other defendants or counts.” R.

vol. 1 at 571. So even if Brown and Ingram presented mutually antagonistic defenses,

and even if Brown was less culpable than his co-defendants, the court cured that

prejudice by issuing a limiting instruction, a “less drastic measure[]” than severance.

Zafiro, 506 U.S. at 539.

Turning to Brown’s specific contentions, he argues that he and Ingram had

antagonistic defenses because he didn’t know Ingram had crack cocaine in the black

bag on February 17, 2015. Also, he argues that because Ingram didn’t take the blame

for the contents of the bag, he and Ingram “were placed in the precarious position of

‘pointing the finger’ at each other in an attempt to shift the focus or blame.”

Appellant’s Opening Br. at 50. But “[m]utually antagonistic defenses are not

prejudicial per se,” Zafiro, 506 U.S. at 538, and finger-pointing “defenses simply are

not so contradictory that the jury must have necessarily disbelieved one to believe

another.” United States v. Linn, 31 F.3d 987, 992 (10th Cir. 1994). The jury could

have believed Brown didn’t know that the black bag from the traffic stop contained

32 crack cocaine, and still could have found him guilty on each of his charges. Brown

fails to demonstrate why the mutual antagonism between Ingram and him uniquely

required the district court to intervene, so we won’t reverse the district court on this

ground.

Brown’s next argument, that he and Ingram had different degrees of

culpability, doesn’t warrant him a severed trial, either. “The mere fact that one co-

defendant is less culpable than the remaining co-defendants is not alone sufficient

grounds to establish a trial court abused its discretion in denying a severance.”

United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir. 1993). Brown argues that

unlike Ingram, he wasn’t the drug-trafficking ringleader, and that unlike Banks, he

didn’t orchestrate the money-order scheme. That’s true, but the government presented

evidence that individually implicated Brown—for instance, his structured cashing of

eight $1,000 money orders in Los Angeles and the high-speed chase during the

February 17, 2015 traffic stop. His co-conspirators may have been more culpable, but

that alone isn’t a reason for us to conclude the district court erred by denying

Brown’s severance motion.

For all of these reasons, the district court didn’t abuse its discretion in denying

33 CONCLUSION

For the above reasons, we AFFIRM the district court.

Entered for the Court

Gregory A. Phillips Circuit Judge