Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 22, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-1021
BRUCE HOLDER,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CR-381-CMA-GPG-1) _________________________________
Ann Marie Taliaferro, Brown Bradshaw & Moffat, Salt Lake City, Utah (Benjamin Miller, Salt Lake City, Utah, with her on the briefs) for Defendant-Appellant.
Kyle Brenton, Assistant United States Attorney (Matthew T. Kirsch, Acting United States Attorney, with him on the brief) United States Attorney’s Office, Denver, Colorado, for Plaintiff-Appellee. _________________________________
Before TYMKOVICH, BALDOCK, and EID, Circuit Judges. _________________________________
TYMKOVICH, Circuit Judge. _________________________________
Bruce Holder ran a fentanyl distribution ring that distributed thousands of pills
in western Colorado. He was tried and convicted of four federal drug crimes,
including two predicated on the death and serious injury of buyers of his product. Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 2
Holder alleges that his trial was unconstitutional because the district court’s
COVID-19 protocols violated his public trial right. He also contends Colorado’s jury
pool unreasonably underrepresents members of certain racial groups. Finally, he
argues that several counts were constructively amended at trial, and the evidence
could not support the jury’s finding that his fentanyl distribution resulted in a
victim’s death.
We AFFIRM. The district court’s restrictions were no more restrictive than
necessary to protect public health against the perceived harms from COVID-19. Nor
did an unreasonable racial disparity exist in the members of the jury pool. The
indictment was not constructively amended as no essential elements were altered.
Finally, the jury reasonably found that Holder’s fentanyl distribution resulted in a
I. Background
A. The Underlying Facts
1. The Conspiracy
Holder was accused of managing a network of friends and family to distribute
fentanyl. He would instruct his friends and family to drive from Grand Junction,
Colorado to Sonora, Mexico. While they vacationed in Puerto Peñasco, their cars
would be stocked with fentanyl. Each time, more than 2,000 pills would be stashed
in hidden compartments in the cars. By the summer of 2017, Holder’s wife, Marie
Matos, was making the trip to Mexico every two weeks, bringing back more than
50,000 pills. 2 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 3
The pills they brought back were counterfeits that looked like regular
oxycodone. They were small, circular, blue, and were stamped with a capital M
inside a box on one side and the number thirty on the other. They were made to
appear exactly like oxycodone manufactured by Mallinckrodt Pharmaceuticals—the
“box M” is Mallinckrodt’s trademark. Holder knew that these were counterfeit pills
that contained fentanyl.
Holder’s friends and family would distribute the pills. Holder’s circle
included his wife, son, daughter, stepdaughter, and several close friends. All of
whom testified that Holder was the ringleader of the conspiracy controlling the
supply and prices.
2. The Overdoses
Zack Green both used and sold Holder’s pills. Green bought pills either from
Holder directly or through Holder’s distributor, Christopher Huggett. Holder and
Huggett were Green’s only source of pills, and Green knew of no other source for
blue fentanyl pills in the area.
Green often sold the pills he bought to his coworker, Jon Ellington. On
December 26, 2017, Ellington gave Green cash for ten pills. Green then bought
twelve pills from Huggett who bought them from Holder. He kept two for himself
and delivered the rest to Ellington. Two days later, Green smoked one of those blue
pills in his car at work. He took two hits, put the car in drive, and passed out. The
assistant manager found Green unconscious when his vehicle hit the building. She
3 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 4
pulled Green from the car and called 911. The paramedics administered Narcan and
took Green to the hospital. Green was discharged a few hours later.
On the same day as Green’s episode, Ellington’s housemate found him
overdosed in his room. Ellington had not shown up for work for two days, and, after
receiving a call from Ellington’s employer, his housemate found him slumped over in
a chair in his room. Paramedics administered Narcan but could not revive him.
Ellington had a syringe in his lap and a tourniquet on the floor between his
legs. On his dresser, his housemates found a spoon and cotton ball with blue residue
on them. They also found several pill bottles in that dresser. One bottle contained a
pill that was the same color blue as the residue. The rough markings the housemates
described were later identified as the “box M” consistent with Holder’s fentanyl pills.
Other substances were also found in Ellington’s room. Law enforcement found one
irregular pill identified as MDMA, a stimulant and psychedelic drug also known as
ecstasy, and a tan substance identified as DMT, a powerful psychedelic drug.
The toxicology reports pointed to fentanyl as the cause of death. Ellington’s
blood tests found a fentanyl concentration of 18 nanograms per milliliter—between
six and nine times higher than expected from a typical prescription fentanyl patch.
Two coroners concluded that this concentration was the but-for cause of Ellington’s
death. Although the defense’s expert forensic pathologist recognized fentanyl
intoxication as “a correct cause of death,” she refused to conclude it with certainty
because testing was limited. R., Vol. VIII at 1273. She pointed out that the basic
toxicology test did not examine Ellington’s urine and did not test for DMT even
4 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 5
though the substance was found in his room. The only substance other than fentanyl
the basic test detected was THC.
B. Holder’s Prosecution
1. The Indictment
The second superseding indictment charged six defendants with a total of
sixteen counts. Holder went to trial on four counts: (1) conspiracy to distribute 400
grams or more of counterfeit fentanyl, (2) distribution of fentanyl resulting in the
death of Ellington, (3) distribution of fentanyl resulting in serious bodily injury to
Green, and (4) distribution of a counterfeit controlled substance. See 21 U.S.C.
§ 841(a)–(b).
2. The Jury Venire
The District of Colorado’s Jury Plan provides that the Master Jury Wheel will
come from a source list made up of the Colorado General Election Voter Registration
List supplemented by the list of licensed drivers and state-issued adult identification
cards. From this “master wheel” jurors are randomly selected for a given grand or
petit jury.
When the court imports names from the voter registration list, it only imports
voters that are marked “active.” A voter is marked “inactive” if mail sent to that
voter by the county clerk is returned. When the jury wheel for this trial was last
refilled, inactive voters made up 13.94% of all registered voters. R., Vol. II at 961.
5 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 6
3. The Trial
Holder was indicted by a Grand Jury in Grand Junction, Colorado, and was set
to be tried there. But Holder’s trial began on March 13, 2020, the same day President
Trump declared a national emergency due to COVID-19. Not enough potential jurors
showed up to empanel a jury that day. The court and parties worked for over a year
to set and reset trial dates while navigating changing pandemic protocols.
Eventually, the trial was moved to Denver because the district court
determined the Grand Junction courthouse was too small to accommodate a socially
distanced jury. The trial finally took place in April 2021, the first pandemic trial in
the district. To limit the risk to participants, the Chief Judge of the District of
Colorado promulgated a number of protocols governing the trial. Holder was also
given the choice between pushing back his trial date or proceeding under the
protocols. He chose to go to trial.
The jury sat six feet apart in the gallery, while witnesses testified from the jury
box. All attendees wore masks. Spectators were also limited. The Arraj Courthouse,
where the trial took place, was closed to the public, so spectators had to receive
permission from the court to attend. The only spectators who attended the trial were
two members of Ellington’s family. Both parties were provided a dial-in number that
they could disseminate to those who wanted to listen to the proceedings.
Holder filed written objections to the COVID protocols before trial, focused
only on the protocols around witness testimony. He requested that witnesses be able
to testify from behind a plexiglass screen in the jury box—without a mask.
6 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 7
R., Vol. II at 301–06. The district court denied these requests. Holder did not
challenge the access protocols in that motion.
He did not object to those protocols until day five of his eight-day trial.
Counsel objected to the lack of video access, claiming the public could not view and
thus could not assess the exhibits, and that the call-in number had not been made
publicly available. The courtroom deputy did not know whether the number was on
the court’s website but did confirm that the number was provided to both parties and
they were free to disseminate the number to outsiders. The court simply noted
Holder’s objections.
The jury convicted Holder on all four counts.
II. Analysis
Holder challenges the COVID protocols, the racial composition of the jury
pool, and several legal rulings by the district court. We address each in turn.
A. Public Trial
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. CONST. amend. VI.
We review de novo whether Holder’s constitutional rights were violated. United
States v. Addison, 708 F.3d 1181, 1186 (10th Cir. 2013).
1. Waiver
The district court found that Holder waived his public-trial objection, and the
government argues we should do the same. We agree only in part.
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In his pretrial written objections to the COVID protocols, Holder did not
object to public access to the courthouse or the call-in number. He renewed his
written objections on day one of the trial and again failed to object on public-trial
grounds. He did not object to the closed courtroom until his trial was half over.
By the time he objected, the courtroom was at least partially open. Days one
and two of the trial were closed to the public because the entire gallery was needed
for prospective jurors. Ellington’s family could not have attended until day three
after opening statements and voir dire had already occurred. Holder argues that
because these critical stages of the trial took place behind closed doors, his public
trial rights were violated.
To the extent that Holder challenges the lack of public visual access, that
argument is forfeited. He failed to raise the argument before the district court and
does not argue plain error here—that is the “end of the road” for his argument.
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). Holder knew
before the trial that there would be no in-person or video access. He was given the
choice of going to trial under the district’s COVID protocols or waiting until regular
trials could resume. He chose the COVID trial and did not object to the lack of
visual access before the trial began.
Even if we credit Holder’s day-five objection, he cannot show a constitutional
violation.
8 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 9
2. Total or Partial Closure
The right to a public trial is deeply rooted in the Anglo-American legal
tradition. See Richard W. Garnett, Public Trial, in THE HERITAGE GUIDE TO THE
CONSTITUTION 444, 446 (David F. Forte & Matthew Spalding eds., 2d ed. 2014)
(“There was widespread agreement with Sir Edward Coke’s view, expressed in 1607,
that a trial is almost by definition open and public.”). “[T]he Sixth Amendment ‘does
but follow out the established course of the common law in all trials for crimes. The
trial is always public.’” Akhil Reed Amar, Sixth Amendment First Principles,
84 GEO. L.J. 641, 678 (1996) (emphasis in original) (quoting 3 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1785, at 662
(1833)).
Even so, the right to a public trial is “not absolute.” Addison, 708 F.3d at 1187
(citing Waller v. Georgia, 467 U.S. 39, 46 (1984)). The public access right has been
assessed by courts in situations involving both total and partial closures.
A total closure occurs when the court excludes “all persons other than
witnesses, court personnel, the parties, and the lawyers.” Waller, 467 U.S. at 42. In
Waller, the Supreme Court ruled that a total closure to a suppression hearing violated
the defendant’s Sixth Amendment right. The point of the public trial right, the Court
stated, is “that the public may see [the accused] is fairly dealt with and not unjustly
condemned, and that the presence of interested spectators may keep his triers keenly
alive to a sense of their responsibility and to the importance of their functions.” Id.
at 46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)).
9 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 10
To that end, total closures “must be no broader than necessary to protect that
interest, the trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the closure.” Id. at 48.
Any closure short of total is partial. See Nieto v. Sullivan, 879 F.2d 743, 753
(10th Cir. 1989) (finding a partial closure where only the defendant’s relatives were
excluded). When a closure is only partial, the defendant’s public trial right “gives
way” so long as there is a “substantial reason” for the public restrictions. Addison,
708 F.3d at 1187 (internal quotations omitted).
We recently examined a COVID courtroom closure protocol and ratified a
total closure during the pandemic. In United States v. Veneno, 107 F.4th 1103, 1112
n.1 (10th Cir. 2024), we considered whether an audio and video feed of an otherwise
closed courtroom was a total or partial closure. No matter how the closure was
framed, we ruled that it was justified. Id. at 1112. We noted that the district court,
the parties, and the Supreme Court all accepted the COVID pandemic as an
overriding interest. Id. at 1113 n.2 (citing Roman Cath. Diocese of Brooklyn v.
Cuomo, 592 U.S. 14, 18 (2020) (per curiam)). We explained that given the
overriding interest in protecting public health, the district court’s decision to close
the courtroom to the public and seat the jury in the gallery was “eminently
reasonable.” Id. at 1114. In short, “the district court properly analyzed the closure,
correctly found an overriding interest justifying closure, appropriately determined the
closure was no broader than necessary, and reasonably concluded no reasonable
alternatives existed.” Id. at 1114. The defendant argued that the district court could
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have saved room for the public, the press, or his family, but we ruled that “[a]lthough
the district court could possibly have made room for a few members of the public,
doing so was not necessarily reasonable at the height of the pandemic.” Id. Even the
dissent agreed “[t]here is no question the pandemic qualified as an overriding interest
justifying closure.” Veneno, 107 F.4th at 1120 (Rossman, J., dissenting in part;
arguing that the court should have allowed video access during voir dire).
Those justifications apply here. First, the closure (after jury selection and
opening) in this case is only partial. As we explained, a total closure occurs only
when the court “excludes all persons besides ‘witnesses, court personnel, the parties,
and the lawyers.’” Veneno, 107 F.4th at 1112 (quoting Waller, 467 U.S. at 42). Even
a few attendees other than the parties creates a closure that is only partial. By way of
contrast, in Presley v. Georgia, the trial court excluded the lone observer from voir
dire and the Supreme Court treated that case as a total closure. Presley v. Georgia,
558 U.S. 209, 213–14 (2010). If excluding the lone observer creates a total closure,
then it follows that allowing even a lone observer may render a closure partial. See
United States v. Allen, 34 F.4th 789, 798 (9th Cir. 2022) (requiring “some form of
visual access” including “only a small number of public attendees”).
Here, at least some of the public was present. After jury selection, when more
space in the courtroom was available, the government requested that the victim’s
mother and her coworker be permitted to attend the trial. The court granted that
request and Holder did not object nor did he request his own guests. R., Vol. II
at 886 n.8.
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Our circuit precedent is clear that total closures occur only when the court is
closed to “all persons besides witnesses, court personnel, the parties, and the
lawyers.” Veneno, 107 F.4th at 1112 (emphasis added). Because the victim’s mother
and her coworker were present, the courtroom was not totally closed for the relevant
portion of the trial.1
Second, COVID is a substantial reason that justifies the partial closure. See id.
at 1113 n.2; see also Diocese of Brooklyn, 592 U.S. at 18 (“Stemming the spread of
COVID–19 is unquestionably a compelling interest”). The district court followed the
Chief Judge of the District of Colorado’s protocols for holding a COVID trial and
these protocols were careful enough to protect Holder’s public trial rights, as well as
the health of the public.
Holder’s primary argument is that whether the closure is total or partial, the
lack of visual access to the public is unreasonable. He leans on United States v. Allen
in which the Ninth Circuit held that a district court order allowing no spectators and
no video stream was “truly exceptional.” 34 F.4th at 798. The Ninth Circuit ruled
that because other courts had allowed limited spectators or a video feed, the court had
less restrictive means than a total closure of the courtroom. Holder argues that we
should follow the Ninth Circuit’s lead.
But Allen itself approves of the access protocols in Holder’s trial. When the
Allen court lists other district courts who allowed at least some visual access, it cites
1 We need not and do not decide whether audio-only access results in a total or partial closure. 12 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 13
the district court order in this case. See Allen, 34 F.4th at 798 n.5, 799 (twice citing
the district court’s order denying a new trial). Rather than make Holder’s case, Allen
bolsters our conclusion that this is a partial closure and that an audio line with limited
spectators satisfies the Sixth Amendment.
Holder’s final argument is that even if audio-only access is constitutional, it is
insufficient here because the court did not advertise the dial-in number. But nothing
requires a court to advertise the date, time, and location of a trial. The district court
provided the dial-in number to the parties to disseminate, and counsel confirmed at
oral argument that the number was available if the public called the clerk’s office.2
The relevant question is who was excluded from the trial. See Nieto, 879 F.2d at 753
(finding that excluding the defendant’s family during certain testimony amounted to a
partial closure). Here, the public was not excluded from audio access.
The restrictions here, when paired with a public dial-in number, are justified
by the substantial interest in protecting the health of the trial’s participants. Holder’s
public trial right was not violated.
B. Impartial Jury
The Sixth Amendment also guarantees Holder a trial by an impartial jury.
U.S. CONST. amend. VI. A court violates the defendant’s Sixth Amendment rights if
it does not “draw its jury members from a fair cross section of the community.”
2 The protocols were available to the public: “An audio link will be provided [for all trials] to allow members of the public to call in and listen to the proceedings.” R., Vol. II at 312. 13 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 14
United States v. Shinault, 147 F.3d 1266, 1270 (10th Cir. 1998). Holder challenges
the district court’s exclusion of inactive voters from the jury wheel, claiming that this
systematically excludes black and Hispanic voters.
We review the district court’s findings of fact for clear error and the ultimate
legal determination de novo. Id. at 1271. Holder challenges the jury wheel both
under the Sixth Amendment and the Jury Selection and Service Act of 1968 (JSSA),
which prescribes procedures for jury selection and ensures no juror is excluded for
invidious reasons. See 28 U.S.C. § 1861 et seq.
We review Holder’s claims under the standards set forth by the Supreme Court
in Duren v. Missouri. 439 U.S. 357, 364 (1979). The standard for assessing fair-
cross-section-claims is the same under the Sixth Amendment and the JSSA. See
United States v. Test, 550 F.2d 577, 585 (10th Cir. 1976). To establish a prima facie
case, Holder must show
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren, 439 U.S. at 364. Holder cannot show unreasonable underrepresentation or
systematic exclusion.
The parties agree that black and Hispanic jurors are distinctive groups in the
community, so we begin at Duren prong two. To determine whether a group is
underrepresented, we use two comparative methods: absolute disparity and
14 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 15
comparative disparity. Shinault, 147 F.3d at 1272. Holder argues that both methods
show unreasonable underrepresentation.
Absolute disparity measures the difference between the group’s percentage of
the population and the group’s representation in the qualified wheel. Id.; see also
Opening Br. at 71–72 (“For example, if Black people compose 10% of the entire
population but only 2% of the qualified wheel, the absolute disparity is 8%.”). There
is no set threshold to determine a non-representative jury list, but “[c]ourts generally
are reluctant to find that the second element of a prima facie Sixth Amendment case
has been satisfied when the absolute disparities are less than 10%.” Shinault, 147
F.3d at 1273. Most recently, we held that an absolute disparity of 3.57% fell short of
a prima facia violation. United States v. Orange, 447 F.3d 792, 798 (10th Cir. 2006).
With this in mind, the absolute disparities in this case are reasonable. The
defense expert in this case found the absolute disparities were 1.41% for black voters
and 2.63% for Hispanic voters. Opening Br. App. C at ¶¶ 54–55. The government’s
expert numbers were lower: a 0.22% difference for black voters and 0.81% for
Hispanic voters. R. Vol. III at 883. No matter which numbers this court uses, both
are well below any percentages the Supreme Court or this court have found to violate
the Sixth Amendment. Compare Duren, 439 U.S. at 365–66 (rejecting 39% absolute
disparity) with United States v. Yazzie, 660 F.2d 422, 427 (10th Cir. 1981) (allowing
4%) and United States v. Gault, 141 F.3d 1399, 1402–03 (10th Cir. 1998) (allowing
7%).
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The comparative disparities in this case are no more alarming. Comparative
disparity is determined by taking the absolute disparity of a group and dividing it by
the percentage of the population that group occupies. See Gault, 141 F.3d at 1402.
Comparative disparity measures the percentage of that group “missing” from the jury
venire. It is a helpful measure for groups who make up a low percentage of the
population and thereby cannot have a high absolute disparity. The defense expert
found that comparative disparity for black voters was 34.42% and was 16.82% for
Hispanic voters. These numbers too are well below the comparative disparities this
court has approved. See, e.g., Shinault, 147 F.3d at 1273 (allowing comparative
disparities of 59.84%, 50.09%, and 48.63%), and United States v. Chanthadara,
230 F.3d 1237, 1257 (10th Cir. 2000) (same with 58.39% and 40.89%).
We have long recognized that “only ‘gross’ or ‘marked’ disparities or
‘substantial’ departures from a ‘fair cross section’ of the community require judicial
intervention.” Test, 550 F.2d at 590. It is clear from our precedent that any
underrepresentation in this case is nowhere near “gross,” “marked,” or “substantial.”
Holder has not shown unreasonable underrepresentation.
And so, his claim fails there. But even if we went further, Holder cannot show
systematic exclusion. His only argument is that the numbers are self-evidently not
the result of random factors, chance, or luck. He supports this theory with his
expert’s assertion that the percentage of persons on the qualified jury wheel differs
from the general population by seven standard deviations. But this does not show
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systematic exclusion, especially when the disparity numbers do not show an extreme
departure.
Holder has failed to make a prima facia showing that his jury was not made up
of a representative cross section of his community. He cannot show unreasonable
underrepresentation of black or Hispanic voters and cannot show that any
underrepresentation is due to systematic exclusion.
C. Constructive Amendment of the Indictment
Next, Holder argues that the district court constructively amended the first and
third counts of his indictment in violation of his Fifth Amendment rights. He points
to three instances he believes amended the indictment. First, he claims the jury
instructions allowed the jury to convict him for a different conspiracy, not just the
six-person conspiracy described in the indictment. Second, he claims the jury was
instructed it could find the pills were either fentanyl or counterfeit, but the
indictment alleged both. Finally, he claims the jury found him guilty of distribution
of fentanyl resulting in bodily harm despite making the special finding that no bodily
harm occurred.
At trial, Holder did not object on any of these grounds, so we review for plain
error. He must demonstrate (1) an error, (2) that is plain, (3) that affects his
substantial rights, and (4) seriously affects the fairness, integrity, or public reputation
of judicial proceedings. United States v. Miller, 891 F.3d 1220, 1231 (10th Cir.
2018). Holder cannot show that the district court plainly erred and allowed
constructive amendment of the indictment.
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The Fifth Amendment to the Constitution provides that “[n]o person shall be
held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury.” U.S. CONST. amend. V. To protect this right, courts
must ensure that a defendant “only be tried on charges for which a grand jury has
indicted him.” United States v. Apodaca, 843 F.2d 421, 428 (10th Cir. 1988).
“[C]onstructive amendment occurs when the indictment alleges a violation of the law
based on a specific set of facts, but the evidence and instructions [at trial] then
suggest that the jury may find the defendant guilty based on a different, even if
related, set of facts.” Miller, 891 F.3d at 1234.
Count One. Holder first argues that Count One of the indictment was
constructively amended. Count One reads:
Count One: BRUCE HOLDER, LEXUS HOLDER, CORINA HOLDER, GERI BOCHMANN, JESSICA BRADY, and MARIE MATOS, did knowingly and intentionally conspire with each other and with persons known and unknown to the Grand Jury to distribute and possess with intent to distribute 400 grams and more of a mixture or substance containing a detectable amount of fentanyl, . . . and such substance, without authorization, bore an identifying mark that falsely purported the substance to be the product of Mallinckrodt, Inc..
R., Vol. VIII at 340. Holder’s theory is that the count alleges a single conspiracy of at
least the six people named. But, he claims, the jury instructions and prosecutor’s
arguments invited the jury to convict him for any conspiracy it could find.
We have held that, when considering constructive amendment claims, “the jury
instructions are of particular importance because they provide assurance that the jury
found the conduct charged in the indictment before it could convict.” United States v.
18 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 19
Porter, 928 F.3d 947, 960 (10th Cir. 2019) (internal quotations and alterations removed).
Indeed, Holder starts with the jury instructions. He claims that Instruction 19 broadened
the indictment because it stated that the jury must find beyond a reasonable doubt that
“two or more persons agreed to violate the federal drug laws.” R., Vol. II at 692
(emphasis added).3
3 Instruction 19 reads:
BRUCE HOLDER, LEXUS HOLDER, CORINA HOLDER, GERI BOCHMANN, JESSICA BRADY, and MARIE MATOS, did knowingly and intentionally conspire with each other and with persons known and unknown to the Grand Jury to distribute or possess with intent to distribute 400 grams or more of a mixture or substance containing a detectable amount of fentanyl, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841 (a)(1) and (b)(1)(A)(vi), and such substance, without authorization, bore an identifying mark that falsely purported the substance to be the product of Mallinckrodt, Inc., a manufacturer of controlled substances, which did not, in fact, manufacture such substance[.] *** To find Mr. Holder guilty of this crime you must be convinced that the Government has proved each of the following beyond a reasonable doubt:
First: two or more persons agreed to violate the federal drug laws by: (1) distributing or possessing with intent to distribute fentanyl, or (2) distributing or possessing with intent to distribute a counterfeit substance;
R., Vol. II at 692 (emphasis added).
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We disagree. The jury instructions, as a whole, do not broaden the indictment, and
remain focused on the six-person conspiracy. Instruction 19 begins with a verbatim
restatement of the count. The jury was reminded of the six-person count at the very
outset of the instruction. The language that Holder objects to is simply a description of
the elements of a conspiracy pertaining to controlled substances. In fact, that sentence is
taken directly from the Tenth Circuit’s pattern jury instructions. See Tenth Cir. Pattern
Crim. Jury Instr. § 2.87.
Second, Holder elides Instruction 21, which he requested. Instruction 21’s entire
purpose is to ensure that the jury only convicts for the charged conspiracy. It reminds the
jurors “Count 1 of the indictment charges that the defendant was a member of one single
conspiracy”; “[p]roof of several separate conspiracies is not proof of the single, overall
conspiracy charged in the indictment”; and “[i]f you find that the defendant was not a
member of the conspiracy charged, then you must find the defendant not guilty, even
though the defendant may have been a member of some other conspiracy.” R., Vol. II
at 695.4
4 Instruction 21 provides:
Count 1 of the indictment charges that the defendant was a member of one single conspiracy to commit the crime of distributing and possessing with intent to distribute 400 grams or more of a mixture or substance containing a detectable amount of fentanyl, a Schedule II controlled substance, and such substance, without authorization, bore an identifying mark that falsely purported the substance to be the product of Mallinckrodt, Inc.
20 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 21
As a whole, the jury instructions point the jury to the charged conspiracy. The
district court did not err, let alone plainly err, in allowing the instructions.
Still, Holder argues, Count One was constructively amended to allow the jury to
find he conspired to distribute a counterfeit substance or fentanyl when the indictment
alleges he distributed both. He is correct that the indictment charges him in the
conjunctive, but the jury instructions explain the charge in the disjunctive.
The indictment read:
BRUCE HOLDER, LEXUS HOLDER, CORINA HOLDER, GERI BOCHMANN, JESSICA BRADY, and MARIE
The defendant has argued that there were really two or more separate conspiracies, instead of the single conspiracy charged in the indictment.
You must determine whether the single conspiracy, as charged in the indictment, existed, and if it did, whether the defendant was a member of it.
Proof of several separate conspiracies is not proof of the single, overall conspiracy charged in the indictment, unless one of the several conspiracies which is proved is the single conspiracy charged in the indictment.
If you find that the defendant was not a member of the conspiracy charged, then you must find the defendant not guilty, even though the defendant may have been a member of some other conspiracy. This is because proof that a defendant was a member of some other conspiracy is not enough to convict.
But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the government proved that he was also a member of the conspiracy charged in the indictment.
R., Vol. II at 695. 21 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 22
MATOS, did knowingly and intentionally conspire with each other and with persons known and unknown to the Grand Jury to distribute and possess with intent to distribute 400 grams and more of a mixture or substance containing a detectable amount of fentanyl, . . . and such substance, without authorization, bore an identifying mark that falsely purported the substance to be the product of Mallinckrodt, Inc..
R., Vol. VIII at 340.
Jury Instruction 19 repeated that section of the indictment verbatim. It also
included a general instruction on conspiracies, instructing the jury that the government
must prove beyond a reasonable doubt that
two or more persons agreed to violate the federal drug laws by: (1) distributing or possessing with intent to distribute fentanyl, or (2) distributing or possessing with intent to distribute a counterfeit substance.
R., Vol. II at 692 (emphasis added). Holder claims that this is a misstatement that
improperly amends his indictment. He argues that he was indicted for distributing a
substance that both contained fentanyl and was counterfeit. By instructing the jury that
the government must prove fentanyl or a counterfeit substance, Holder claims the district
court allowed the indictment to be amended.
This misunderstands the law. “[T]his argument ignores the general rule that a
crime may be proved in the disjunctive even if the indictment is phrased in the
conjunctive.” United States v. Silva, 889 F.3d 704, 717 (10th Cir. 2018). Silva is much
like this case. There, we allowed a conviction for possession of guns or ammunition
even though the indictment said guns and ammunition because the statute required only
one, not both. Id. at 716–17. Since 12 U.S.C. § 841 makes it illegal “(1) to manufacture,
22 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 23
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance; or (2) to create, distribute, or dispense, or possess with intent to
distribute or dispense, a counterfeit substance,” 12 U.S.C. § 841(a), the government may
prove their case in the disjunctive.
Even if that were not true, there is no plain error in this case because the jury made
special findings that Holder conspired to distribute both fentanyl and a counterfeit
controlled substance. These findings eliminate any possibility that Holder was convicted
of any crime other than the one with which he was charged. See United States v. Bishop,
469 F.3d 896, 903–04 (10th Cir. 2006) (finding harmless error where a jury’s special
findings showed conviction on the indicted facts), overruled in part on other grounds by
Gall v. United States, 552 U.S. 38 (2007). Count One was not constructively amended
when the government proved it in the disjunctive; even if it were, any error is harmless.
Count Three. The entire text of Count Three is relevant here:
COUNT 3
Distribution of Controlled Substance Resulting in Serious Bodily Injury (21 U.S.C. § 841(a)(1) and (b)(1)(C))
On or about December 26, 2017, within the State and District of Colorado, the defendant, BRUCE HOLDER, did knowingly and intentionally distribute a mixture and substance containing a detectable amount of fentanyl, a Schedule II controlled substance, the use of which resulted in serious bodily injury to Z.G. on or about December 28, 2017. All in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(C).
R., Vol. I at 220. 23 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 24
The jury found Holder guilty of Count Three. But on the jury form, when asked if
Holder’s distribution resulted in serious bodily injury to Green, the jury checked “No.”
R., Vol. II at 714. The jury instructions here were clear that the jury had to find, beyond
a reasonable doubt, first, that Holder distributed fentanyl and, if so, that distribution
resulted in substantial bodily harm. After restating the indictment verbatim, the
instructions specifically stated “[i]f you find Mr. Holder guilty of Count 2 or Count 3,
then you must also decide, unanimously, whether death or serious bodily injury resulted
from use of the fentanyl” and “the Government must prove beyond a reasonable doubt
that but for the use of the fentanyl, the person would not have suffered serious bodily
injury.” R., Vol. II at 696–97.
In Holder’s telling, the jury instructions lessened the government’s burden because
it was not required to prove bodily harm to find him guilty. Holder argues that the
government is bound to prove that the distribution of fentanyl resulted in serious bodily
injury because that language appears in the indictment. Not so.
A constructive amendment “must modify an essential element of the offense or
raise the possibility the defendant was convicted of an offense other than that charged in
the indictment.” United States v. DeChristopher, 695 F.3d 1082, 1095 (10th Cir. 2012)
(quotations and citations omitted). We have refused to find constructive amendment
where jury instructions differed from the language of the indictment but did not modify
the essential elements of the crime. In United States v. Kalu, 791 F.3d 1194 (10th Cir.
2015), for example, we accepted jury instructions that used the phrase “knowingly
24 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 25
participated” instead of “devised or intended to devise” because “[w]hether a person
devises or participates in the scheme is not an element of the offense.” Kalu, 791 F.3d
at 1206 & n.16.
The elements of Holder’s crime, 21 U.S.C. § 841(a), are to “knowingly or
intentionally . . . manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.” § 841(a). Serious bodily
harm matters only because it increases the mandatory minimum sentence.5
§ 841(b)(1)(C). Serious bodily harm must be indicted and proven to apply the enhanced
sentence, but not to convict. As such, serious bodily harm is not a substantive element of
§ 841.
For this reason, the jury instruction does not constructively amend the indictment.
Like Kalu, the indictment here “detail[s] the precise acts at issue,” but only charged
Holder with distribution of fentanyl. Instruction 22 is titled “COUNTS 2 & 3:
Distribution of a Controlled Substance.” R., Vol. II at 696. The government proved the
5 The relevant provision is found under the subheading “Penalties” and reads
In the case of a controlled substance in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both.
21 U.S.C. § 841(b)(1)(C) (emphasis added).
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essential elements of § 841: Holder distributed a controlled substance, and that substance
was fentanyl. The government only had to prove serious bodily harm to apply the
enhanced sentence under § 841(b)(1)(C). We have agreed with other circuits that failure
to prove a § 841(b) factor affects only the sentence and does not undermine the
conviction itself. See United States v. Ellis, 868 F.3d 1155, 1168 (10th Cir. 2017)
(collecting cases). Holder has not shown that an essential element of the offense was
modified. Nor did he demonstrate that the evidence or the jury instructions raise the
possibility that he was convicted on a charge other than that alleged in the indictment.
See Kalu, 791 F.3d at 1207.
In sum, Holder cannot show that the district court erred, let alone plainly erred and
constructively amended Counts One or Three of his indictment.6
D. Sufficiency of the Evidence
The jury found Holder guilty of Count Two, distribution of fentanyl resulting
in the death of Jon Ellington. Holder argues that there was insufficient evidence to
convict him on this count. We review de novo, viewing the evidence in the light
most favorable to the government. United States v. Yurek, 925 F.3d 423, 430
(10th Cir. 2019). “We will reverse only if no rational factfinder could have found
6 Holder asks us to view any invited error in this claim as ineffective assistance of counsel. We decline. “Except in rare circumstances, ‘[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal.’” United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011) (quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc)). The district court did not rule on ineffective assistance of counsel and there is insufficient record for us to rule. 26 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 27
that the government had proven all of the elements of an offense beyond a reasonable
doubt.” Id. (citing United States v. Brown, 400 F.3d 1242, 1247 (10th Cir. 2005)).
The jury reasonably concluded that Holder’s fentanyl resulted in Ellington’s
death.
Holder argues that the evidence is too remote to support a conviction. He
argues that the chain of causation is too attenuated. The links are that Holder
distributed to Huggett, who distributed to Green, who then distributed to Ellington,
who overdosed. He points to United States v. Robinson, 167 F.3d 824 (3d Cir. 1999),
for support. There, the court held “in some cases it is possible that the death or
serious bodily injury which results from the use of a [controlled] substance may be so
remote a consequence from the criminal conduct of the defendant with respect to the
substance that a court might conclude that it would not be consistent with
congressional intent to apply the mandatory 20-year minimum sentence.” Id. at 831–
32. But in that case the court affirmed a conviction where the heroin passed from the
defendant through an intermediary to the user who died. That is precisely the case
we have here except we have two intermediaries. One more person does not make
Ellington’s death “so remote a consequence.” This is especially true here where
Green only bought from Holder, or his co-conspirator, Huggett.
We have held, moreover, that 18 U.S.C. § 841(b)(1) requires only but-for
causation, not proximate causation. United States v. Burkholder, 816 F.3d 607, 618
(10th Cir. 2016). “But-for” causation is simply a “cause without which the event
could not have occurred.” Cause, Black’s Law Dictionary (12th ed. 2024).
27 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 28
Proximate cause, in contrast, is “[a] cause that is legally sufficient to result in
liability.” Id. Holder specifically disclaims that his argument is about foreseeability
or proximate cause but still argues that his conduct is too remote because “Holder
may have known Huggett was selling the pills, but he did not know who Huggett was
selling to, did not know Green, did not know Ellington, and did not know that
Huggett would sell to someone who would then sell to someone else.” Op. Br. at 83–
84. Whether Holder could have anticipated a third-party’s death is textbook
foreseeability and not required here.
Holder’s final argument is that it is mere speculation that his fentanyl killed
Ellington. He argues both that fentanyl may not have killed Ellington and that if it
did, it may not have been fentanyl that he sold. He points to the other substances in
Ellington’s room and the attenuated chain of fentanyl distribution.
The jury reasonably concluded that fentanyl caused Ellington’s death. After
all, two coroners and the defense’s own expert agreed that fentanyl was at least a
cause of death. This testimony is sufficient to conclude that fentanyl was a but-for
cause of Ellington’s death.
So too the jury could find that the fentanyl that killed Ellington came from
Holder. The government produced evidence that the fentanyl found in Ellington’s
room was the same blue pill with a “box M” that Holder was known for selling and
Ellington bought the fentanyl from dealers who only bought from Holder. Perhaps
most significantly, several witnesses testified that they did not know of any other
28 Appellate Case: 23-1021 Document: 117 Date Filed: 04/22/2025 Page: 29
source of blue, box-M fentanyl pills. It is not mere speculation that the fentanyl
came from Holder.
The jury had sufficient evidence to convict Holder of distribution of fentanyl
resulting in death.
III. Conclusion
Holder brings four distinct challenges to his convictions—none of which we
find persuasive. First, the district court’s pandemic protocols did not violate
Holder’s public trial rights. The courtroom’s partial closure was justified by the
court’s substantial interest in protecting the health of the participants. Second,
Holder did not show any unreasonable racial underrepresentation the jury pool.
Third, the district court did not plainly err and allow Holder’s indictment to be
constructively amended. The evidence and jury instructions did not alter the
essential elements of the indictment. Lastly, the jury had sufficient evidence that the
fentanyl Holder distributed resulted in the death of Jon Ellington.
We affirm the conviction.