FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 25, 2021
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3030
PATRICK EUGENE STEIN,
Defendant - Appellant. _________________________________
v. No. 19-3034
CURTIS WAYNE ALLEN,
v. No. 19-3035
GAVIN WAYNE WRIGHT,
Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 6:16-CR-10141-EFM) _________________________________
Meredith B. Esser, Assistant Federal Public Defender, (and Virginia L. Grady, Federal Public Defender, on the brief), Denver, Colorado, for Defendant – Appellant Patrick Eugene Stein.
Paige A. Nichols, Assistant Federal Public Defender, (and Melody Brannon, Federal Public Defender, on the briefs), Topeka, Kansas, for Defendant – Appellant Curtis Wayne Allen.
Kari S. Schmidt (and Tyler J. Emerson of Conlee, Schmidt & Emerson, LLP, on the briefs), Wichita, Kansas, for Defendant – Appellant Gavin Wayne Wright.
Erin H. Flynn, (Thomas E. Chandler, Alisa C. Philo of Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C.; Stephen R. McAllister, United States Attorney, Anthony W. Mattivi, Assistant United States Attorney, District of Kansas, Topeka, Kansas; Eric S. Dreiband, Assistant Attorney General and Alexander V. Maugeri, Deputy Assistant Attorney General, Washington, D.C., on the brief), for Appellee United States of America. _________________________________
Before HARTZ, KELLY, and HOLMES, Circuit Judges. _________________________________
KELLY, Circuit Judge. _________________________________
Defendants-Appellants Patrick Stein, Curtis Allen, and Gavin Wright appeal
from their convictions for conspiring to use a weapon of mass destruction against
people and property within the United States in violation of 18 U.S.C. § 2332a(a)(2)
and knowingly and willfully conspiring to violate civil rights in violation of
18 U.S.C. § 241. Mr. Wright also appeals from his false statements conviction under
18 U.S.C. § 1001(a)(2). Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we affirm the convictions and sentences of all three defendants.
2 Background
In October 2016, defendants were arrested in connection with a scheme to
bomb an apartment complex and mosque in Garden City, Kansas. The arrests were
the result of an extended FBI investigation involving an undercover informant, Dan
Day, who joined defendants’ militia, Kansas Security Force (KSF), to monitor what
the FBI considered a threat to public safety.
In June 2016, defendants began planning an attack on local Muslims in
response to the Pulse nightclub shooting in Orlando, Florida, which was carried out
by an American citizen of Afghan descent. At the FBI’s request, Mr. Day recorded
defendants’ meetings and telephone communications discussing the details of the
attack, including possible targets and methods of attack. Over the course of several
meetings, defendants decided to target the West Mary Street apartment and mosque
complex, where defendants believed a large number of Somali immigrants resided.
Defendants pursued various strategies for obtaining explosives to carry out the
attacks, including manufacturing their own explosives and meeting with an FBI
undercover employee (“UCE”) posing as an arms dealer.
Mr. Allen was arrested first, after his girlfriend filed a domestic violence
report against him and told police she had seen Mr. Allen and Mr. Wright
manufacturing explosives at Mr. Wright’s business. Two days later, Mr. Stein was
arrested when he attempted to deliver cash and 300 pounds of fertilizer to the UCE in
exchange for the UCE’s help constructing an explosive. Mr. Wright was arrested
later that day. While executing search warrants on defendants’ property, the FBI
3 discovered, among other things, materials for making explosives and a draft
manifesto addressed to “the U.S. government and [] the American people,” urging
government officials and private citizens to stop “the sellout of this country.”
Defendants were charged with two separate conspiracies: (1) conspiring to use
a weapon of mass destruction against people and property within the United States in
violation of 18 U.S.C. § 2332a(a)(2) and (2) knowingly and willfully conspiring to
violate the civil rights of the residents of the 312 West Mary Street apartment
complex in violation of 18 U.S.C. § 241. The government also charged Mr. Wright
with making materially false statements to the FBI in violation of 18 U.S.C.
§ 1001(a)(2).
Prior to jury selection, defendants challenged the jury selection plan under the
Jury Selection and Service Act (“Jury Act”). Under the challenged plan, 1 grand
jurors were drawn from each of the District of Kansas’s six judicial divisions, while
petit jurors were drawn only from the three divisions with an active federal
courthouse. These three divisions do not include the Dodge City division where most
of defendants’ conduct took place. The district court rejected the challenge on the
merits. At defendants’ request, the district court also held a pre-trial hearing to
determine whether the recordings of defendants’ meetings and phone calls were
1 On March 4, 2020, the Chief Judge for the District of Kansas issued an administrative order amending the district’s petit jury selection procedure to draw from all six judicial divisions. See In re Administration of Jury Plan Pursuant to D. Kan. Rule 38.1, Administrative Order No. 2020-1 (Mar. 4, 2020). The order still permits the creation of petit jury panels from a single division as practical. 4 admissible as coconspirator statements under Fed. R. Evid. 801(d)(2)(E). Over the
course of the three-day hearing, the district court ruled that most of the statements the
government intended to offer were admissible.
The case proceeded to a jury trial. The government called 15 witnesses,
including undercover informant Dan Day, and introduced more than 500 exhibits,
hundreds of which were audio or video recordings. Defendants called 10 witnesses
and introduced nearly 40 exhibits but did not testify themselves. At the close of
evidence, defendants requested that the district court instruct the jury on an
entrapment defense. The district court found that defendants had failed to establish
an evidentiary basis for entrapment and declined to offer the instruction.
The defendants were convicted on all counts. At sentencing, the district court
applied the terrorism enhancement over defendants’ objections and varied downward
from defendants’ guidelines range of life imprisonment, sentencing Mr. Allen to 300
months’ imprisonment, Mr. Wright to 312 months’ imprisonment, and Mr. Stein to
360 months’ imprisonment.
Discussion
All three defendants challenge their convictions and sentences on three
grounds: (1) the method of petit jury selection violated the Jury Act, (2) the district
court improperly refused to instruct the jury on entrapment, and (3) the district court
erred in applying the terrorism enhancement at sentencing. Mr. Wright also raises
several additional challenges in which his co-defendants do not join.
5 A. Jury Selection
Prior to trial, defendants challenged the district court’s jury selection plan, in
which the petit jury pool was drawn only from the Wichita/Hutchinson division,
where the courthouse is located, and not from the Dodge City division. The district
court rejected the challenge on the merits. On appeal, defendants argue that the
exclusion of jurors from the Dodge City division violated the Jury Act’s policy “that
all citizens shall have the opportunity to be considered for service on grand and petit
juries in the district courts of the United States,” and that, as a result, they are entitled
to a new trial. 28 U.S.C. § 1861. We review the district court’s legal conclusions
under the Jury Act de novo and any underlying factual determinations for clear error.
United States v. Kamahele, 748 F.3d 984, 1022 (10th Cir. 2014).
A defendant must raise a Jury Act challenge “before the voir dire examination
begins, or within seven days after the defendant discovered or could have discovered,
by the exercise of diligence, the grounds therefor, whichever is earlier.” 28 U.S.C.
§ 1867(a). In addition, the challenge requires a “sworn statement of facts” showing a
substantial failure to comply with the Act. 28 U.S.C. § 1867(d). “Strict compliance
with these procedural requirements is essential.” United States v. Contreras, 108
F.3d 1255, 1266 (10th Cir. 1997); see also United States v. Morales, 108 F.3d 1213,
1218 (10th Cir. 1997). In Contreras, we cautioned against “ad hoc review” of the
Jury Act’s procedural requirements given that the statute provides a remedy for
substantial violations without a showing of prejudice. 108 F.3d at 1266. A
defendant’s failure to file a challenge within seven days after being put on notice of
6 the allegedly deficient jury selection procedures precludes a Jury Act claim. See
United States v. Windrix, 405 F.3d 1146, 1157 (10th Cir. 2005).
Defendants’ Jury Act motions were untimely. Defendants were on notice of
the jury selection plan as early as the November 16, 2017 status conference where, in
response to defendants’ concerns regarding prejudicial media coverage in Southwest
Kansas, the jury coordinator confirmed that petit jury pools were drawn only from
the Wichita/Hutchinson division. Under the Jury Act, defendants had seven days
from this time (i.e., through November 23, 2017) to file a compliant motion
challenging this practice. 28 U.S.C. 1867(a); see also Windrix, 405 F.3d at 1157.
This they did not do.
Defendants’ first Jury Act motion (urging the court to summon jurors from the
Dodge City division) was not filed until December 8, 2017 and, as the government
pointed out, lacked a sworn statement of facts. The district court denied the motion
on January 17, 2018. Six days later, on January 23, 2018, defendants filed their
second Jury Act motion containing a sworn statement of facts. Defendants plainly
recognized the timeliness problem, arguing that their first Jury Act challenge was
really an attempt to “nullify” the issue and that the seven-day clock began running
when the district court denied their first motion. In arguing for the district court’s
denial of the second motion, the government reiterated the procedural requirements
of the Jury Act.
Although defendants argue that the government waived the issue by merely
reciting the procedural requirements and addressing the merits, we disagree. The
7 government did not intentionally relinquish or abandon in the district court any
procedural challenge to defendants’ Jury Act motion; it simply did not make such an
argument. See United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir.
2007). This failure of course does not prevent us from affirming the district court’s
judgment on this ground, even though the court did not address any procedural
deficiencies of the motion. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130
(10th Cir. 2011). And the matter was clearly before the district court. Defendants’
second Jury Act motion plainly raises the issue, arguing that it was timely because
the jury coordinator’s statement only reflected past practice and the district court
could have altered the plan in response to defendants’ first Jury Act motion. This
argument, however, is not persuasive; defendants had enough to go on after being
informed of the practice at the November 16 hearing. The bottom line is that
defendants filed a non-compliant Jury Act motion well over seven days after being
put on notice of the jury selection plan. Accordingly, their Jury Act challenge must
be rejected as procedurally barred under our precedent.
Moreover, even if the challenge were not procedurally barred, it fails on the
merits. The Jury Act provides remedies when a jury selection procedure “involves a
substantial failure to comply with the statute.” Kamahele, 748 F.3d at 1022; 28
U.S.C. § 1867(a). “A failure is considered ‘substantial’ when it ‘frustrates one of the
three principles underlying the Act’: (1) the random selection of jurors, (2) culling of
the jury from a fair cross-section of the community, and (3) determination of
disqualifications, exemptions, and exclusions based on objective criteria.”
8 Kamahele, 748 F.3d at 1022 (quoting United States v. Carmichael, 560 F.3d 1270,
1277 (11th Cir. 2009)). A technical deviation from the provisions of the Jury Act
will not be considered a substantial failure to comply if it does not “result in
impermissible forms of discrimination and arbitrariness.” United States v. Bailey, 76
F.3d 320, 322 (10th Cir. 1996) (quoting United States v. Gregory, 730 F.2d 692, 699
(11th Cir. 1984)).
Defendants argue that the exclusion of petit jurors from the Dodge City
division is a substantial failure to comply with the Jury Act in that it prevents the
random selection of jurors and involves the de facto creation of a new category of
exclusion.
The jury selection plan did not prevent the random selection of jurors. The
randomness principle underlying the Jury Act “requires a system of selection that
affords no room for impermissible discrimination against individuals or groups.”
Carmichael, 560 F.3d at 1277 (citation omitted). Defendants contend that
randomness is not possible when half of a district’s divisions are not summoned for
jury service, but they fail to identify “an identifiable and cognizable segment of the
community” excluded from the jury pool in a manner that frustrates the Jury Act’s
purpose. See Bailey, 76 F.3d at 323 (citation omitted). Geographical imbalance,
absent evidence of discrimination or discriminatory effects, is insufficient to
establish a substantial failure to comply with the Jury Act. See id.; United States v.
Test, 550 F.2d 577, 581 n.4 (10th Cir. 1976).
9 Similarly, the selection of jurors only from judicial divisions with an active
federal courthouse did not constitute the creation of a new category of exclusion in
violation of the Jury Act. We have rejected the argument that the exclusion of jurors
based on the judicial division in which they reside violates the Jury Act, recognizing
instead that “the partitioning of a district into jury divisions is sanctioned by [the Jury
Act], and is clearly not unconstitutional, absent evidence that some cognizable group
has been systematically excluded by ‘gerrymandering’ the division lines.” Test, 550
F.2d at 594. Again, defendants fail to identify a cognizable group systematically
excluded from the petit jury pool as a result of this practice.
B. Entrapment Instruction
Defendants next argue that the district court erred in declining to instruct the
jury on an entrapment defense. “Whether there is evidence sufficient to constitute a
triable issue of entrapment is a question of law which we review de novo,” viewing
the evidence in the light most favorable to the defendant. United States v. Vincent,
611 F.3d 1246, 1249–50 (10th Cir. 2010) (internal quotations omitted).
“[A] defendant is entitled to have a jury consider any defense which is
supported by the law and has sufficient foundation in the evidence to create a genuine
issue of fact.” United States v. Ortiz, 804 F.2d 1161, 1163 (10th Cir. 1986). To raise
a valid entrapment defense, a defendant must show an evidentiary basis on which the
jury could find (1) “government inducement of the crime,” and (2) “a lack of
predisposition on the part of the defendant to engage in the criminal conduct.”
Mathews v. United States, 485 U.S. 58, 62–63 (1988). A defendant may do this
10 “either by presenting his own evidence or by pointing to evidence presented by the
government,” United States v. Scull, 321 F.3d 1270, 1275 (10th Cir. 2003), but
“conclusory and self-serving statements,” such as suggestions that the jury could
disbelieve evidence presented at trial, alone will not suffice. See Ortiz, 804 F.2d
at 1165–66. The fact that the government employed deceit or persuasive tactics in
investigating criminal activity is insufficient to establish entrapment. United States
v. Russell, 411 U.S. 423, 435–36 (1973); Vincent, 611 F.3d at 1250–51.
Taken in the light most favorable to defendants, the evidence presented at trial
did not create a triable issue as to inducement. Inducement is “government conduct
which creates a substantial risk that an undisposed person or otherwise law-abiding
citizen would commit the offense.” Ortiz, 804 F.2d at 1165. Defendants did not
testify, and primarily point to evidence presented by the government in arguing that
there was an evidentiary basis for an entrapment instruction at trial. Specifically,
defendants contend that there was evidence that Mr. Day proposed the location and
time defendants ultimately chose for the attack, was the first to show the location to
Mr. Stein, urged defendants to meet with the UCE and to develop explosives, and
made sustained efforts to appeal to defendants’ ideologies, including by echoing
defendants’ attitudes towards Muslims. Defendants also argue that the FBI’s use of a
UCE posing as an arms dealer, as well as its efforts to build chargeable offenses,
further supported a finding of inducement.
The government responds that the actual evidence at trial reflects that the
defendants, not Mr. Day or the UCE, originated a plan to kill innocent Muslims with
11 explosives. It does appear from the record that (1) Mr. Stein did not first learn about
the Mary Street apartment complex from Mr. Day, but rather through his involvement
in a different militia; (2) Mr. Stein asked Mr. Day to show him the location of the
complex in daylight; and (3) Mr. Allen and Mr. Wright were engaged in their own
efforts to develop explosives at the time they resisted meeting with the undercover
agents posing as arms dealers.
Defendants counter that these findings improperly “presume[] the truth of”
impeached government witnesses’ testimony. However, the suggestion that the jury
could have disbelieved or disregarded this evidence is insufficient without pointing to
evidence in the record to support a contrary finding. See Ortiz, 804 F.2d at 1165–66
(explaining that “conclusory and self-serving statements, standing alone,” will not
establish a triable issue of inducement). In any event, even if defendants’
characterizations of the evidence found support in the record, evidence that a
government agent encouraged or solicited a defendant to engage in criminal conduct,
without more, is insufficient to constitute inducement. Vincent, 611 F.3d at 1250–
51; Ortiz, 804 F.2d at 1165. After a review of the record, we are satisfied that the
district court’s assessment is correct.
Nor can defendants demonstrate a basis for finding a lack of predisposition,
even viewing the evidence in the light most favorable to the defendants.
Predisposition is “a defendant’s inclination to engage in the illegal activity for which
he has been charged,” and may be demonstrated by a defendant’s “eagerness to
participate in” the illegal activity. United States v. Fadel, 844 F.2d 1425, 1433
12 (10th Cir. 1988). Defendants argue that, among other things, their quiet lives prior to
their arrests demonstrate a lack of predisposition. Mr. Wright argues further that his
past business dealings with Muslims demonstrate a lack of predisposition, and Mr.
Stein argues that his “anti-Muslim sentiments and grandiose schemes” never
materialized into action prior to Mr. Day’s involvement.
These arguments overlook the fact that defendants were charged with
conspiracies. While conspiracy “cannot exist without at least the degree of criminal
intent necessary for the substantive offense itself,” Ingram v. United States, 360 U.S.
672, 678 (1959), predisposition is judged by examining whether defendants were
“ready and willing to commit the crime” for which they were charged — here,
conspiracy to use weapons of mass destruction and to violate the civil rights of local
Muslims. Ortiz, 804 F.2d at 1165. There is extensive evidence over time of
defendants’ eagerness to enter into this conspiracy. Defendants’ rhetoric regarding
Muslims predated Mr. Day’s involvement, and their actions, independent of Mr. Day,
to develop a bomb for use in the attack do not support the notion that they were not
predisposed to be involved in such a conspiracy or that their plans would not have
materialized absent Mr. Day’s involvement. Accordingly, defendants failed to raise a
triable issue as to entrapment and the district court did not err in declining to offer an
entrapment instruction.
C. Terrorism Enhancement
Defendants next challenge the district court’s application of the terrorism
enhancement under § 3A1.4 of the Sentencing Guidelines. “We review the district
13 court’s application of the Sentencing Guidelines for abuse of discretion.” United
States v. Rodriguez, 945 F.3d 1245, 1248 (10th Cir. 2019). “In applying that
standard, we review questions of law de novo and factual findings for clear error.”
Id. at 1249.
Defendants first argue that, because application of the terrorism enhancement
significantly increased their guidelines range, it should have been subject to the clear
and convincing standard of proof, rather than a preponderance of the evidence.
In general, factual findings at sentencing must be supported by a
preponderance of the evidence. United States v. Robertson, 946 F.3d 1168, 1171
(10th Cir. 2020). While “we have left open the possibility that due process may
require proof by clear and convincing evidence” where an enhancement “increases a
sentence by an extraordinary or dramatic amount,” United States v. Ray, 704 F.3d
1307, 1314 (10th Cir. 2013) (internal quotations omitted), we have never held that a
sentencing enhancement was subject to the clear and convincing standard based on its
disproportionate impact on the guidelines range. 2 United States v. Olsen, 519 F.3d
1096, 1105 (10th Cir. 2008). Here, the terrorism enhancement increased defendants’
guideline ranges from approximately 15–20 years to life imprisonment and
defendants ultimately received sentences ranging from 25 to 30 years. To the extent
2 To the contrary, in several cases we have stated explicitly that the argument for a higher standard of proof at sentencing for contested facts has been foreclosed in this circuit. See Robertson, 946 F.3d at 1171; United States v. Constantine, 263 F.3d 1122, 1125 n.2 (10th Cir. 2001); United States v. Valdez, 225 F.3d 1137, 1143 n.2 (10th Cir. 2000); United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993). 14 that an argument for a higher standard of proof for enhancements resulting in an
extraordinary sentence increase is available in this circuit, this case does not involve
such an increase. 3
Second, defendants argue that the district court erred in applying the terrorism
enhancement under any standard of proof because their offense was not primarily
calculated to influence or retaliate against government conduct.
In relevant part, the terrorism enhancement applies to offenses that are
“calculated to influence or affect the conduct of government by intimidation or
coercion, or to retaliate against government conduct.” U.S.S.G. § 3A1.4, cmt. 1;
18 U.S.C. § 2332b(g)(5). Section 3A1.4 also provides for an upward departure where
the defendant’s “motive was to intimidate or coerce a civilian population,” rather
than to influence or retaliate against government conduct. U.S.S.G. § 3A1.4, cmt. 4.
Defendants contend that because the primary target of their offense was a
civilian population, i.e., the Muslim residents of the West Mary Street apartment
complex, the district court should have imposed an upward departure rather than the
full terrorism enhancement. However, “[t]he terrorism enhancement applies so long
as [defendants’] conduct was ‘calculated . . . to retaliate against government
3 Defendants also preserve for further review the argument that, because their sentences can be upheld as reasonable only because of the existence of judge-found facts, the sentences violate their Sixth Amendment right to trial by jury and Fifth Amendment due process rights. See Rita v. United States, 551 U.S. 338, 375 (2007) (Scalia, J., concurring). As defendants acknowledge, this argument is foreclosed by circuit precedent. See United States v. Redcorn, 528 F.3d 727, 745–46 (10th Cir. 2008). 15 conduct,’ even if it was also calculated to accomplish other goals simultaneously.”
United States v. Van Haften, 881 F.3d 543, 545 (7th Cir. 2018) (quoting 18 U.S.C.
§ 2332b(g)(5)(A)); see also United States v. Wright, 747 F.3d 399, 408 (6th Cir.
2014); United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010). While it is true that
defendants were motivated by a strong anti-Muslim sentiment, there is ample
evidence demonstrating that defendants’ offenses were also calculated to influence or
retaliate against government conduct. Defendants’ manifesto was addressed to the
U.S. government and aimed to “wake up the American people” to the “tyrannical
government.” It continued: “It must be understood by all just what our government is
up to. . . Not enforcing our borders, illegally bringing in Muslims by the thousands,
top U.S. officials being above the law, top officials in our government taking
donations of bribes from foreign nations.” The evidence introduced at trial also
included numerous references by defendants to the immigration policy of the Obama
administration as a motivating factor for the attack. This evidence supports a finding
that defendants’ offenses were calculated to influence or retaliate against government
conduct under any standard of proof. Accordingly, the district court correctly applied
the terrorism enhancement.
D. Defendant Wright’s Claims
In addition to the claims discussed above, Mr. Wright brings four additional
challenges to his conviction and sentence in which his co-defendants do not join.
16 1. Prosecutorial Misconduct
Mr. Wright argues that the government engaged in prosecutorial misconduct
that violated his due process rights. We review allegations of prosecutorial
misconduct de novo. United States v. Caballero, 277 F.3d 1235, 1248 (10th Cir.
2002).
In reviewing claims of prosecutorial misconduct, we first determine whether
the conduct was improper, then whether any improper conduct warrants reversal. Id.
at 1247–48. “[P]rosecutorial misconduct must be ‘of sufficient significance to result
in the denial of the defendant’s right to a fair trial’ before it will rise to the level of a
due process violation” warranting reversal. Id. at 1248 (quoting Greer v. Miller, 483
U.S. 756, 765 (1987)).
Mr. Wright identifies two instances of allegedly improper conduct by the
government: (1) the government’s alleged delay in providing the defense with
transcripts identifying the specific recorded statements the government sought to
offer as coconspirator statements at trial; and (2) the government’s representation that
the transcripts at issue were “verified, accurate, and trustworthy,” when in fact a
small number of the transcripts contained misattributions.
Mr. Wright’s allegation regarding the government’s delay in identifying the
statements to be offered as coconspirator statements is contradicted by the record.
Defense counsel received the complete recordings of defendants’ meetings and phone
calls after defendants’ arrest in October 2016. By May 11, 2017, defense counsel had
also received draft transcripts of those recordings. Prior to the James hearing to
17 determine the admissibility of the statements the government planned to offer at trial,
defendants received the excerpted recordings the government intended to offer as
well as printed transcripts marking the excerpts of each audio clip the government
planned to use. Accordingly, Mr. Wright has failed to identify government
misconduct, let alone misconduct undermining his right to a fair trial. See Caballero,
277 F.3d at 1248.
Mr. Wright’s allegation that prosecutors knowingly introduced false evidence
in the form of inaccurate transcripts of the audio clips similarly lacks merit. In order
to establish a due process violation, Mr. Wright must show that (1) the prosecution
introduced false evidence, (2) the prosecution knew the evidence to be false, and
(3) the evidence was material. See id. at 1243. Mr. Wright’s claim fails on the first
element. The transcripts were never admitted into evidence and the district court
repeatedly instructed the jury that only the recordings, and not the transcripts, were to
be considered as evidence. In addition, when the defense asked FBI Agent Kuhn
about the transcript inaccuracies during her testimony at trial, Agent Kuhn admitted
that the transcripts contained some misattributions. The government therefore did
not present false evidence.
2. Admission of Coconspirator Statements
Mr. Wright next challenges the procedure by which the district court
determined the admissibility of the recordings as coconspirator statements under Fed.
R. Evid. 801(d)(2)(E). Specifically, he contends that the district court abused its
discretion by (1) admitting the statements in the absence of independent evidence
18 supporting the existence of the conspiracy; and (2) evaluating entire excerpts of
defendants’ recorded conversations rather than evaluating each excerpt sentence-by-
sentence. We review the district court’s admission of coconspirator statements,
including the method it uses to determine admissibility, for abuse of discretion.
United States v. Alcorta, 853 F.3d 1123, 1137–38 (10th Cir. 2017); United States v.
Roberts, 14 F.3d 502, 514 (10th Cir. 1993).
Statements by a party’s coconspirator made “during and in furtherance of the
conspiracy” are excluded from the definition of hearsay and admissible against all
coconspirators. Fed. R. Evid. 801(d)(2)(E). Before statements may be admitted
under this rule, the district court “must determine that (1) by a preponderance of the
evidence, a conspiracy existed, (2) the declarant and the defendant were both
members of the conspiracy, and (3) the statements were made in the course of and in
furtherance of the conspiracy.” United States v. Owens, 70 F.3d 1118, 1123 (10th
Cir. 1995). The “preferred procedure of this circuit” is to hold a James hearing
outside the jury’s presence to make preliminary findings as to whether these
requirements are satisfied, Alcorta, 853 F.3d at 1138, but the district court also “may
provisionally admit the evidence with the caveat that the evidence must ‘connect up’
during trial.” Owens, 70 F.3d at 1123 (citation omitted).
A district court’s preliminary conclusion that the predicate conspiracy existed
at most must be supported by some “independent evidence” of the conspiracy other
than the proffered coconspirator statements themselves, although such evidence need
not be substantial. United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir.
19 1996). Testimony of a government agent regarding his interactions or conversations
with coconspirators is adequate independent evidence. Owens, 70 F.3d at 1125.
Here, the district court followed the preferred procedure and held a multi-day
James hearing to determine whether the predicate conspiracy existed. In addition to
the proffered statements themselves, the district court considered Mr. Day’s
observations of and contacts with Mr. Wright, as well as grand jury testimony from
another witness supporting the existence of the conspiracy as early as June 14, 2016.
And by the time the statements were admitted at trial, multiple witnesses had testified
to defendants’ activities in connection with the conspiracy. Accordingly, the district
court did not abuse its discretion in finding that the recordings were preliminarily
admissible as coconspirator statements based on the evidence produced at the James
hearing, and that evidence was strengthened by the time the statements were admitted
at trial.
Mr. Wright also challenges the district court’s decision to evaluate the
proffered audio clips in their entirety, instead of sentence-by-sentence. Mr. Wright
does not identify a single statement that he contends was improperly admitted as a
result of the district court’s election to proceed in this manner and accordingly fails
to demonstrate any harm resulting from the district court’s approach. This argument
is meritless.
3. False Statements Charge
Next, Mr. Wright challenges the district court’s denial of his motion for a
judgment of acquittal on the false statements charge on two grounds. First, he argues
20 that the government failed to prove that his statements were material. Second, he
argues that the government improperly charged him under 18 U.S.C. § 1001(a)(2).
The denial of a motion for a judgment of acquittal is reviewed de novo to determine
whether, “viewing the evidence in the light most favorable to the government,” a
rational jury could have found the defendant guilty of the crime beyond a reasonable
doubt. United States v. Gordon, 710 F.3d 1124, 1141 (10th Cir. 2013).
“[A] false statement is material if it has a natural tendency to influence, or [is]
capable of influencing, the decision of the decision-making body to which it was
addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (quotations omitted).
Materiality does not depend on whether the statement actually influenced the
decision at issue and is a “mixed question of law and fact that the jury decides.”
United States v. Williams, 934 F.3d 1122, 1128–29 (10th Cir. 2019).
Mr. Wright’s false statements were clearly material to the federal investigation
into defendants’ plan to bomb the Mary Street apartment complex. When Mr. Wright
was denied entry to his business following Mr. Allen’s arrest, he went to the police
station to find out why. While there, he agreed to an interview with agents from the
FBI and Kansas Bureau of Investigation, in which he denied involvement in
defendants’ plan. At trial, the government introduced a video in which Mr. Wright
made several false statements to state and federal investigators, including (1) he did
not know anything about Mr. Allen developing explosives at his business; (2) he was
not aware of any explosives located on his business’s premises; (3) he did not belong
to a militia; and (4) he had neither attended nor been invited to any KSF meetings.
21 The government was not required to introduce additional evidence that investigators
were actually influenced by these statements. See Williams, 934 F.3d at 1129. The
jury’s verdict is supported by the record.
Mr. Wright also argues that the government improperly indicted him under
18 U.S.C. § 1001(a)(2) because a federal investigation is not a sufficiently discrete
“decision” for purposes of the statute. In other words, Mr. Wright asks this court to
hold that Section 1001(a)(2) is limited to situations in which the government must
approve or deny an application and is inapplicable to criminal interviews. However,
both the Supreme Court and this circuit have confirmed that a defendant’s false
statements to investigators in the course of a federal investigation can support a
conviction under 18 U.S.C. § 1001’s “false, fictitious, or fraudulent statements”
clause. See Brogan v. United States, 522 U.S. 398, 400–02 (1998) (considering a
prior version of 18 U.S.C. § 1001 containing the same relevant language as in
18 U.S.C. § 1001(a)(2)); Gordon, 710 F.3d at 1145.
4. Cumulative Error
Finally, Mr. Wright argues that to the extent any of the purported errors
discussed above, or those discussed below, are deemed harmless, the cumulative
effect of all errors demands reversal.
Cumulative error analysis “aggregates all the errors that individually have
been found to be harmless, and therefore not reversible,” and “analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they can no
longer be determined to be harmless.” Hooper v. Mullin, 314 F.3d 1162, 1178 (10th
22 Cir. 2002) (quotations omitted). “Only actual errors are considered in determining
whether the defendant’s right to a fair trial was violated.” United States v. Toles, 297
F.3d 959, 972 (10th Cir. 2002). Where a defendant fails to establish the existence of
multiple non-reversible errors, he cannot benefit from the cumulative error doctrine.
United States v. Lopez-Medina, 596 F.3d 716, 741 (10th Cir. 2010).
Mr. Wright identifies three additional purported evidentiary errors by the
district court that he contends, together with those discussed above, give rise to
cumulative error.
First, he argues that the district court abused its discretion by denying his
request under Fed. R. Evid. 106 to play the entire recordings of each of defendants’
multi-hour meetings — over a hundred hours of recordings, collectively. Rule 106
does not require that an entire statement or recording be admitted, but rather permits
a court to admit additional portions of a statement when necessary to clarify or
explain the portion already admitted. Lopez-Medina, 596 F.3d at 735. In requesting
to play the entirety of the recordings, Mr. Wright did not identify portions of the
admitted statements needing clarification, instead arguing broadly that the
government’s introduction of the recordings in clips was unfair. As the district court
noted, Mr. Wright waited until the middle of trial to object to the introduction of the
clips, despite knowing well in advance that the government did not plan to introduce
entire recordings, and failed to identify specific statements requiring clarification in
his objection. Accordingly, the district court reasonably found that the objection was
not made in good faith and did not abuse its discretion in denying it.
23 Mr. Wright also argues that the district court erred in only allowing him to
play clips of phone calls between Mr. Wright and Mr. Day during Mr. Day’s cross-
examination and later permitting the government to play the entire recordings on Mr.
Day’s redirect. However, Mr. Wright twice stated below that he had no objection to
the government invoking Rule 106 to play the recordings in their entirety during Mr.
Day’s redirect, and accordingly has waived the argument on appeal. See United
States v. Malone, 937 F.3d 1325, 1327 (10th Cir. 2019).
Finally, Mr. Wright argues that the district court abused its discretion by
refusing to permit him to cross-examine Mr. Day regarding an application for
Supplemental Security Income Mr. Day submitted nine months after defendants’
arrest. Fed. R. Evid. 608 does not permit the admission of extrinsic evidence in order
to attack a witness’s character for truthfulness, but it permits the court to allow
inquiries into relevant instances of conduct on cross-examination. 4 The district court
permitted defense counsel to ask Mr. Day whether he reported payments from the
FBI on his tax returns and the extent to which he reported the payments differently in
different years. It properly refused to admit the application itself under Rule 608(b)
and did not abuse its discretion in refusing to allow defense counsel to ask about the
application on the basis that a separate “trial within a trial” would be necessary to
establish whether Mr. Day’s statements on the application were in fact untruthful.
4 To the extent Mr. Wright now relies on Fed. R. Evid. 613 in support of this argument, that argument is waived because he did not raise it below and did not argue plain error on appeal. United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). 24 Mr. Wright has failed to establish the existence of multiple non-reversible
errors. Accordingly, he cannot benefit from the cumulative error doctrine. Lopez-
Medina, 596 F.3d at 741.
AFFIRMED.