Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 18, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2007
ANTHONY BUNTYN,
Defendant - Appellant. ___________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:20-CR-00708-KWR-1) ___________________________________________
J.K. Theodosia Johnson, Assistant Federal Public Defender (Aric G. Elsenheimer, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, District of New Mexico, Albuquerque, New Mexico, for Defendant-Appellant.
Jonathan L. Backer, Attorney (Kristen Clarke, Assistant Attorney General, and Tovah R. Calderon, Attorney, with him on the briefs), U.S. Department of Justice, Washington, D.C., for Plaintiff-Appellee. ____________________________________________
Before BACHARACH, BALDOCK, and KELLY, Circuit Judges. ___________________________________________
BACHARACH, Circuit Judge. ___________________________________________
This case involves inhumane conditions of confinement inflicted on
pretrial detainees. The conditions developed while Mr. Anthony Buntyn Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 2
transported the detainees in a van to various detention facilities. The
conditions led the government to charge Mr. Buntyn with willfully
violating the detainees’ rights under the Fourteenth Amendment’s due
process clause. See 18 U.S.C. § 242. Mr. Buntyn was found guilty of this
charge 1 and was acquitted of two other charges. 2
Mr. Buntyn argues that
the evidence was insufficient for a finding of guilt,
the district court erred in preventing his attorney from using the term malice in closing argument, and
the court coerced the jury to reach a verdict.
We reject Mr. Buntyn’s arguments and affirm his conviction.
1. Detainees describe conditions on the van.
Mr. Buntyn worked for a private company that transported detainees
for law-enforcement agencies. While working for the company, he served
1 The jury also found that the denial of due process had caused bodily injury to one of the detainees. Mr. Buntyn says in his reply brief that “[h]e did not cause bodily harm to [this detainee].” Appellant’s Reply Br. at 20. But Mr. Buntyn does not develop an argument that would cast doubt on this finding. 2 These charges involved allegations that Mr. Buntyn had
tased a detainee without justification and
used intimidation and threats to discourage detainees from reporting conditions in the van.
2 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 3
as the officer-in-charge of a twelve-day trip across the country. At trial,
two of the detainees (S.K. and W.Y.) described conditions in the van.
A. Limited bathroom breaks and exposure to urine
These conditions included infrequent bathroom breaks, and the
inability to use the bathroom resulted in the spread of urine throughout the
van. For example, S.K. testified that the van had reeked of urine, body
odor, and trash. Similarly, W.Y. testified that Mr. Buntyn had ordinarily
stopped for bathroom breaks only once every eight to ten hours, forcing
detainees to urinate in empty water bottles while the van was moving.
B. Blistering heat
The conditions also included blistering heat. W.Y. testified that as
they had ridden through a desert, detainees complained about the heat and
Mr. Buntyn responded by blasting hot air for about twenty minutes.
C. Cuffing behind the back
The conditions also included cuffing the detainees’ hands behind
their backs.
For example, S.K. testified that
he had complained at one stop about crowding and
Mr. Buntyn responded by cuffing S.K.’s hands behind his back.
W.Y. testified that at a later stop, he and two others had been cuffed
behind their backs. (S.K. had already been cuffed behind his back.) W.Y.
explained that the four detainees had remained cuffed behind their backs 3 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 4
for at least nine hours. For that period, the four detainees had no way to
urinate. According to W.Y., Mr. Buntyn later returned the cuffs to the
front, but only after W.Y. and S.K. had apologized for complaining about
the conditions.
D. The end of the trip
The van later arrived at a detention facility in Topeka, Kansas. Upon
arrival of the van, a booking officer observed the detainees and said that
they smelled of body odor, sweat, and urine and
their clothing was wet.
2. The jury finds Mr. Buntyn guilty based on inhumane conditions.
The government alleged that
Mr. Buntyn had violated the Fourteenth Amendment’s due process clause through deliberate indifference to intolerable conditions of confinement and
this indifference had resulted in bodily injury to three detainees (A.S., W.Y., and S.K.).
The jury found Mr. Buntyn guilty of
depriving the detainees of humane conditions,
acting willfully and with deliberate indifference, and
causing bodily injury to S.K.
See R. vol. 1, at 1431. But the jury found Mr. Buntyn not guilty of
causing bodily injury to W.Y. or A.S. or
tasing, intimidation, or threats.
4 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 5
Id. at 1431–32.
3. We consider the sufficiency of the evidence even though the government challenges preservation.
Mr. Buntyn challenges the sufficiency of the evidence on guilt. The
government argues that Mr. Buntyn failed to preserve this challenge in his
motions for a judgment of acquittal. We need not resolve this argument.
When the government rested, Mr. Buntyn moved for a judgment of
acquittal, arguing that the government hadn’t proven
malice toward A.S., W.Y., or S.K. or
bodily injury to A.S. from the conditions.
But Mr. Buntyn did not challenge the government’s evidence on any other
elements.
When the evidence closed, Mr. Buntyn renewed his motion for a
judgment of acquittal. This time, he incorporated what he had argued
earlier: “I don’t have a lot to add from the last time I made this argument
to the Court. I think that . . . there is insufficient evidence as a matter of
law to show that Mr. Buntyn acted with malice.” Id. at 1331.
The government points out that
Mr. Buntyn focused in district court only on malice and on bodily injury to A.S. and
Mr. Buntyn’s appellate arguments go further.
5 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 6
But the government responded to Mr. Buntyn’s motion by arguing that the
evidence was sufficient not only on malice, but also on all other elements.
With the benefit of the government’s argument, the court found a prima
facie case. Given the government’s thorough discussion, the district court’s
finding arguably addressed all the elements. And when the court later
denied the motion at the close of the evidence, the court could have been
incorporating its earlier finding.
Given the government’s earlier discussion, we assume (without
deciding) that the district court addressed all the elements. With that
assumption, we consider Mr. Buntyn’s challenge on the merits irrespective
of what he had argued in district court. See Tesone v. Empire Mktg.
Strategies, 942 F.3d 979, 991–92 (10th Cir. 2019) (“[W]hen the district
court explicitly considers and resolves an issue of law on the merits[,] . . .
‘the appellant may challenge that ruling on appeal on the ground addressed
by the district court even if he failed to raise the issue in district court.’”
(quoting United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th
Cir. 2003))).
4. We consider the conditions suffered by all the detainees.
As a threshold issue, Mr. Buntyn seeks to limit our review of the
evidence given the acquittals on the counts involving bodily injury to two
detainees (A.S. and W.Y.). But Mr. Buntyn doesn’t say how these
acquittals limit our review of the evidence.
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The verdict against Mr. Buntyn involved two parts:
1. He had acted with deliberate indifference and willfulness toward the conditions experienced by pretrial detainees.
2. This conduct had caused bodily injury to S.K.
Mr. Buntyn challenges the first part of the verdict, not the second. See p. 2
note 1, above. But he doesn’t say how these acquittals limit our review of
the evidence. And he conceded in oral argument that the acquittals don’t
prevent us from considering the conditions experienced by all the
detainees. We accept this concession and consider the evidence involving
conditions affecting all the detainees.
5. The evidence suffices for the findings of inhumane conditions, deliberate indifference, and willfulness.
Mr. Buntyn argues that the conviction is unsupported by the
evidence.
A. The government needed to prove intolerable conditions, deliberate indifference, and willfulness.
Mr. Buntyn’s challenge rests on the Due Process Clause of the
Fourteenth Amendment. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183,
1188 (10th Cir. 2003). This clause required the government to prove that
Mr. Buntyn had
imposed conditions posing a substantial risk of serious harm to inmate health or safety, depriving detainees of the “minimal civilized measure of life’s necessities” and
7 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 8
acted with deliberate indifference to the detainees’ health and safety.
Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (quoting Wilson v.
Seiter, 501 U.S. 294, 298 (1991)); see DeSpain v. Uphoff, 264 F.3d 965,
973 (10th Cir. 2001). 3 And the criminal statute (18 U.S.C. § 242) required
the government to prove that Mr. Buntyn had acted willfully. See United
States v. Lanier, 520 U.S. 259, 264 (1997).
Mr. Buntyn argues that the government failed to prove the denial of
life’s necessities, deliberate indifference, or willfulness. In addressing
these arguments, we view the evidence in the light most favorable to the
government. United States v. Serrata, 425 F.3d 886, 895 (10th Cir. 2005).
We can reverse only if no reasonable factfinder could have found these
elements beyond a reasonable doubt. Id.
B. A rational jury could find a denial of adequate sanitation.
The government pointed to three conditions:
1. Unsanitary conditions from inadequate bathroom breaks
2. Handcuffing detainees with their hands behind their backs
3 Although both Craig and DeSpain describe the standard for an Eighth Amendment violation, this amendment provides “the benchmark” for due process claims. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998); see also Blackmon v. Sutton, 734 F.3d 1237, 1244 (10th Cir. 2013) (stating that Eighth Amendment case law for deliberate indifference applies in the Fourteenth Amendment context because “detention center officials surely owe pretrial detainees . . . at least the same standard of care prison officials owe convicted inmates”).
8 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 9
3. Blasting the heat when the van was already hot
At trial and on appeal, the government urged consideration of these
conditions in combination with one another. In closing argument, for
example, the government said that it did “not have to prove the specific
way the detainees would be harmed.” R. vol. 2, at 1385. The instructions
followed a similar approach, allowing the jury to consider “whether the
presence of multiple conditions of confinement may have combined to
create an environment that, as a whole, posed a substantial risk of serious
harm to health and safety.” R. vol. 1, at 1405. On appeal, the government
takes the same approach.
But our precedent doesn’t allow courts to combine unrelated
conditions. Under our precedent, we must determine whether Mr. Buntyn
deprived the detainees of “a single, identifiable human need.” Craig v.
Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (quoting Wilson v. Seiter, 501
U.S. 294, 304 (1991)). We can combine the conditions only if they
“mutually enforc[ed]” each other to deprive a detainee of a single human
need, such as sanitation. Id.
Though the government points to various deprivations, we focus on
the unsanitary conditions in the van. These conditions involved exposure to
urine from the infrequency of bathroom breaks. For example, W.Y.
testified that
9 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 10
he had needed to urinate in a bottle at least 20–30 times 4 and
the urine had spilled onto the floor and W.Y.’s clothes because he needed to urinate while handcuffed and shackled in a moving van.
Similarly, S.K. testified that it was hard to urinate in bottles because the
detainees were restrained in the dark and the van was moving. 5 W.Y. added
that Mr. Buntyn had rejected requests from a female detainee to stop for a
bathroom break. Without a bathroom break, the female detainee had to
urinate on the floor.
The sparsity of bathroom breaks is also reflected in Mr. Buntyn’s
activity log for the trip. The activity log shows stops for food, fuel, and
4 W.Y. also testified that all of the male detainees had to urinate into bottles because of the infrequent bathroom breaks. 5 S.K. also testified that he
had struggled with leg wounds and
had feared an infection like MRSA.
Mr. Buntyn questions this testimony, arguing that (1) the leg wounds didn’t prevent him from boarding the bus and (2) no other detainee got a MRSA infection. But S.K. didn’t suggest that his leg wounds would have prevented travel. He instead testified that he had feared an infection from the combination of open wounds and unsanitary conditions. The jury could credit these fears whether or not anyone else had contracted MRSA.
10 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 11
bathroom breaks. In one period of 36-½ hours, these records show no
bathroom stops. 6
Mr. Buntyn argues that these periods were short and involved only
urine, not feces. We reject both arguments.
The duration of the condition is often critical. DeSpain v. Uphoff,
264 F.3d 965, 974 (10th Cir. 2001). S.K. sat in the van for over 57 hours;
W.Y. and A.S. sat there even longer. These periods were long enough for
the jury to regard the shortage of bathroom breaks as intolerable. In fact,
we’ve held that the conditions violated the Constitution when prisoners had
been housed for
3 days in a cell covered with feces 7 and
6 Mr. Buntyn testified that the activity log should also have shown bathroom breaks
after 22-½ hours,
after 1 hour and 35 minutes,
after 2 hours and 45 minutes, and
at 6 hours.
But even if the jury had credited this testimony, a rational jury could find a denial of adequate sanitation from the 22-½ hour interval. 7 McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001).
11 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 12
1-½ days in a cell with urine and feces in standing water. 8
Similarly, the Eleventh Circuit has found constitutional violations when a
prisoner couldn’t use a bathroom during a 600-mile trip 9 or a stretch of 6 to
7 hours. 10
C. A jury could find deliberate indifference and willfulness.
The government bore the burden of proving not only inhumane
conditions, but also deliberate indifference and willfulness. See Wilson v.
Seiter, 501 U.S. 294, 297 (1991) (deliberate indifference); 18 U.S.C. § 242
(willfulness). The jury could reasonably find satisfaction of that burden.
Mr. Buntyn’s indifference would be considered deliberate only if he
was aware of facts that could trigger an inference of a substantial risk of serious harm and
drew that inference.
Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006). An action is willful
when it is taken “in open defiance or in reckless disregard of a
constitutional requirement which has been made specific and definite.”
Screws v. United States, 325 U.S. 91, 105 (1945).
In arguing that there was enough evidence of deliberate indifference
and willfulness, the government points to inadequate bathroom breaks, the
8 DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001). 9 Bilal v. GeoCare, 981 F.3d 903, 914 (11th Cir. 2020). 10 Berkshire v. Dahl, 928 F.3d 520, 538 (11th Cir. 2019). 12 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 13
handcuffing of detainees with their hands behind their backs, and the
blasting of heat. But under our precedent, the government must show that
Mr. Buntyn was deliberately indifferent to “a single, identifiable human
need.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (quoting Wilson
v. Seiter, 501 U.S. 294, 304 (1991)); see DeSpain v. Uphoff, 264 F.3d 965,
975 (10th Cir. 2001) (stating that officials must be deliberately indifferent
to “any risk inherent in exposure to the challenged conditions”); see also
p. 9, above. So we must separately consider deliberate indifference and
willfulness for each condition regarded as intolerable. See Shannon v.
Graves, 257 F.3d 1164, 1168–69 (10th Cir. 2001) (separately analyzing the
subjective component for each alleged deficiency).
We earlier focused on the unsanitary conditions resulting from
inadequate bathroom breaks. See pp. 9–12, above. So we again focus on
these conditions when considering the evidence of deliberate indifference
and willfulness. That evidence involved Mr. Buntyn’s
knowing violation of his company’s policies and
punishment of detainees when they complained.
First, a jury could consider violations of company policy in finding
deliberate indifference and willfulness. See Burwell v. City of Lansing, 7
F.4th 456, 475–76 (6th Cir. 2021) (concluding that a defendant’s violation
of a jail policy constituted evidence of deliberate indifference); Harris v.
City of Circleville, 583 F.3d 356, 369 (6th Cir. 2009) (same). For example, 13 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 14
Mr. Buntyn’s employer generally required bathroom breaks at least every
four hours “when possible.” Supp. R. vol. 1, at 487. If Mr. Buntyn couldn’t
provide these breaks every six hours, he needed to inform the company. Id.
Despite this policy, the government presented evidence that Mr. Buntyn
had repeatedly made the detainees wait more than four hours between bathroom breaks and
had not reported any of these incidents to the company.
Mr. Buntyn insists that he could stop only at detention facilities or
when he had backup from law enforcement. But S.K. testified that Mr.
Buntyn had eventually let the detainees get out of the van at gas stations
and smoke cigarettes. S.K. told the jury that the new leniency suggested
that Mr. Buntyn had been “trying to make up for something.” R. vol. 2, at
653. Regardless of Mr. Buntyn’s motive, however, this leniency could cast
doubt on his explanation for the infrequency of bathroom stops. 11
The government also presented another employee’s testimony that
when he drove detainees through areas without detention facilities, he
11 In his reply brief, Mr. Buntyn argues that the jury disbelieved S.K.’s testimony that the greater leniency later in the trip showed an intent to discourage complaints. For this argument, Mr. Buntyn relies on the acquittal involving the charge of intimidating or threatening witnesses. For this charge, however, the district court instructed the jury that an element involved intimidation or threats. The jury could have credited S.K.’s testimony about the additional stops without regarding them as intimidation or threats.
14 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 15
would get local law-enforcement officers to help watch the detainees during bathroom breaks at local gas stations and
had never required detainees to wait more than six hours for a bathroom break.
That testimony supported a finding that Mr. Buntyn had deliberately and
willfully deprived detainees of adequate sanitation, making them urinate in
bottles while the van was moving.
The government also presented evidence of policy violations
involving cuffing detainees behind their backs. These violations reinforced
the lack of sanitation, for S.K. and W.Y. testified that they could not
urinate in water bottles while cuffed behind the back.
The company had a policy that generally prohibited handcuffing a
detainee behind the back for longer than four hours. Regardless of the
duration, however, officers-in-charge needed to inform the company and
check the detainees every fifteen minutes. In addition, officers-in-charge
needed to tell the company about any deviations from its policies.
The government presented evidence that Mr. Buntyn had violated
these policies. For example, S.K. testified that he had once been cuffed
behind his back from 11 a.m. to dusk. W.Y. similarly testified that Mr.
Buntyn had cuffed the hands of 4 detainees behind their backs for at least 9
hours.
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The government also showed the activity log, which contained no
mention of these incidents. 12 And a company trip manager testified that he
couldn’t recall any reports from Mr. Buntyn about policy deviations during
the trip. 13 These violations of company policy support a finding that Mr.
Buntyn had deliberately and willfully caused unsanitary conditions.
Second, a jury could reasonably infer deliberate indifference and
willfulness from Mr. Buntyn’s punitive responses to complaints. For
example, at one stop in Arizona, S.K. complained to guards about
conditions in the van. S.K. testified that before he could reenter the van, he
was cuffed behind his back and put in a segregation cage. The segregation
cage smelled of urine, creating discomfort for S.K. And with his hands
12 In his reply brief, Mr. Buntyn argues that another employee made mistakes when completing the activity log. For support, Mr. Buntyn cites testimony that he had been sleeping when another employee was supposed to record a bathroom break. But Mr. Buntyn was not sleeping when he cuffed the four detainees behind their backs, and he doesn’t explain why he failed to record this incident in the activity log. 13 In his reply brief, Mr. Buntyn points to testimony about a report summarizing the company’s internal investigation. The report stated that Mr. Buntyn had communicated with the trip manager. But the jury could reasonably
reject this testimony and
rely instead on the testimony of the trip manager.
By relying on this testimony, the jury could reasonably find a failure to tell the company about the (1) infrequency of bathroom breaks and (2) incidents where Mr. Buntyn had cuffed detainees behind their backs. 16 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 17
cuffed behind his back, S.K. could not urinate in bottles. Mr. Buntyn’s
punitive response suggests indifference to the unsanitary conditions.
In New Mexico, Mr. Buntyn also responded punitively to complaints.
After the detainees had complained to guards about the conditions, Mr.
Buntyn cuffed S.K.’s hands behind his back. Mr. Buntyn also tried to cuff
W.Y.’s hands behind his back. W.Y. resisted, telling Mr. Buntyn that the
pain would be excruciating because he had shoulder injuries and was still
recovering from a heart attack. Minutes later, the van stopped and Mr.
Buntyn cuffed the hands of W.Y. and two other detainees behind their
backs. W.Y. pleaded with Mr. Buntyn, complaining again about his
shoulder injuries and recent heart attack. But Mr. Buntyn admittedly went
ahead and cuffed W.Y. behind the back.
From Mr. Buntyn’s violations of company policy and his responses to
the detainees’ complaints, a jury could reasonably find that Mr. Buntyn
had recognized a substantial risk of harm to the detainees and openly
defied the need for sanitation. So the evidence sufficed for findings of
deliberate indifference and willfulness.
6. The court didn’t err in prohibiting use of the term malice in closing argument.
The jury instructions used the term willfulness, but not malice.
Nonetheless, Mr. Buntyn’s attorney said that he wanted to use the term
malice. The court regarded malice as a term of art, bearing a meaning that
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differs from willfulness. So the court prohibited counsel from using malice
in closing argument. Mr. Buntyn argues that this prohibition violated his
right to present a defense. The district court rejected this argument, and we
conduct de novo review. United States v. Solomon, 399 F.3d 1231, 1239
(10th Cir. 2005).
The Fifth and Sixth Amendments guarantee criminal defendants the
right to present a defense. United States v. Markey, 393 F.3d 1132, 1135
(10th Cir. 2004). But this right isn’t absolute. United States v. Rivas-
Macias, 537 F.3d 1271, 1277 (10th Cir. 2008). For example, this right
doesn’t prevent reasonable limitations on the terminology in closing
argument. See Herring v. New York, 422 U.S. 853, 862 (1975) (stating that
the right to present a defense doesn’t prevent limitations on closing
argument).
Mr. Buntyn’s attorney could and did present a defense, and his
closing argument advanced that defense. For example, the attorney argued
that the jury should vote not guilty if Mr. Buntyn had acted out of fear,
negligence, bad judgment, or accident.
Mr. Buntyn insists that his attorney wanted to use the term malice
rather than willfulness. But Mr. Buntyn doesn’t show why the attorney
needed to use the particular term malice.
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his proposed jury instruction on willfulness drew a contrast with bad judgment and
a juror had said in voir dire that he equated bad purpose with malice.
But the district court rejected this proposed instruction and never used the
term bad purpose. So Mr. Buntyn hasn’t shown why the attorney needed to
use the particular term malice. Though the attorney couldn’t use this
particular term, she could have used various synonyms of malice, such as
ill will, evil intent, malevolence, animosity, antagonism, or
hardheartedness. Malice, The Random House Thesaurus (1987). Given the
chance to use multiple synonyms of willfulness, the district court didn’t
prevent assertion of a defense by prohibiting use of the particular term
malice. 14
7. Mr. Buntyn waived his challenge to the district court’s instruction for the jury to continue deliberating.
Finally, Mr. Buntyn challenges an instruction given by the district
court as the jury was deliberating. Some jurors were apparently staying in
14 In his reply brief, Mr. Buntyn says that the ruling deprived him of “assistance of counsel.” Appellant’s Reply Br. at 20. But Mr. Buntyn doesn’t develop an argument involving lack of counsel. In his opening brief, he based the claim on an inability to assert a defense rather than a deprivation of legal assistance.
19 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 20
a hotel because they lived out of town. 15 Before the last day of the trial, the
judge
suggested to the jurors that they might want to check out of their hotel before their next trial day and
consult the jury clerk if they had any questions about the hotel arrangements.
The next trial day, the jurors began deliberating at about noon. After
deliberating for about seven hours, the jurors asked the judge what they
should do if they couldn’t reach a unanimous verdict. The judge responded
by instructing the jury to keep deliberating. Mr. Buntyn did not object to
the instruction, and the jury returned a verdict over three hours later.
Mr. Buntyn argues that this instruction coerced the jurors by failing
to tell them that they could pause their deliberations and resume the next
day. But Mr. Buntyn did not preserve an objection to the jury instruction.
We would thus ordinarily deem the issue forfeited, reviewing Mr. Buntyn’s
appellate argument under the standard for plain error. United States v.
Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). But Mr. Buntyn hasn’t urged
15 The record does not say how many jurors stayed at the hotel. Mr. Buntyn infers that one juror stayed at the hotel because he lived roughly 185 miles from Albuquerque, where the trial was held.
20 Appellate Case: 23-2007 Document: 010111066821 Date Filed: 06/18/2024 Page: 21
plain error. The failure to urge plain error results in waiver, so we don’t
address Mr. Buntyn’s new appellate argument. Id. 16
8. Conclusion
We therefore affirm Mr. Buntyn’s conviction.
16 Even if we were to review the issue under the plain-error standard, Mr. Buntyn’s appellate argument would fail. Under the plain-error standard, we could reverse only if Mr. Buntyn had shown
the existence of an obvious error and
an effect on his substantial rights.
United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005).
Mr. Buntyn failed to show an obvious error or an effect on his substantial rights. He suggests that the court should have told the jury that it could pause the deliberations until the next day. But the jury hadn’t suggested a desire to pause the deliberations. So any possible error wouldn’t have been obvious.
Nor would there have been an effect on Mr. Buntyn’s substantial rights. He speculates that the out-of-town jurors might have worried about the availability of a hotel room if they had reached an impasse and wanted to stop deliberating for the night. But there’s no support for this speculation. The court said that
it “certainly [would] not . . . rush” the decision and
the jurors should consult the jury clerk about the possibility of checking out of their hotel rooms.
R. vol. 2, at 1330. Given these statements, Mr. Buntyn hasn’t shown why the jurors would have thought they needed to rush a verdict in order to have a place to stay overnight. So even if an obvious error had existed, it wouldn’t have been prejudicial. 21